CONTROLLING DISRUPTIVE BEHAVIOR AT PUBLIC MEETINGS
Two recent cases have addressed what cities or counties can do when a person becomes “disruptive” at a city council or board of supervisors meeting. Both decisions have an impact on efforts by local legislative bodies to control disruptive behavior at public meetings, and how law enforcement can respond to those situations.
“Insolent” Behavior
The Costa Mesa Municipal Code, § 2-61, makes it a misdemeanor for members of the public, speaking at their City Council meetings, to engage in “disorderly, insolent, or disruptive behavior.” The City Council had a proposal on the agenda to enter into an agreement with immigration and Customs Enforcement (ICE) that would allow Costa Mesa Police to enforce immigration laws. Benito Acosta attended the meeting to oppose the proposed agreement.
When Acosta’s time came to speak, the video recordings show that he was visibly emotional and agitated. Toward the end of his comments he called the Mayor, a “racist pig,” at which point the Mayor told Acosta to stop. Acosta repeated his slur, which promoted the Mayor to cut Acosta’s speaking time short by calling for a recess. Acosta then responded by calling the Mayor a “fucking racist pig.” Notwithstanding that behavior, the agreement passed with a 3-2 vote.
The agreement was agendized for a second reading at a subsequent meeting. The council chambers were filled beyond capacity for that meeting. Acosta again spoke, exceeded his allotment of time, and was asked to leave the podium. He refused to do so and police officers then tried to quietly escort him out of the chambers. Acosta began to tell the officers not to touch him and jerked away from their attempts to guide him out of the room.
At that point, the police chief directed officers to take Acosta out of the Council Chambers. The officers again tried to guide Acosta away from the podium, but Acosta attempted to prevent his removal by leaning away from the officers and planting his feet. Acosta was ultimately arrested outside the chambers as he continued to resist.
Acosta sued the city in federal court on a variety of claims and a jury found for the city. His appeal to the Ninth Circuit focused on the constitutionality of Costa Mesa Municipal Code Section 2-61 which prohibits “disorderly, insolent or disruptive behavior” at city council meetings. Acosta argued that this code section infringed on his right to free speech.
The City unsuccessfully argued that the ordinance can be read narrowly to prohibit only speech that actually disrupts or disturbs the city council meeting. The Ninth Circuit held, inAcosta v. City of Costa Mesa, 694 F3d 960 (9th Cir.Cal.2012), that the inclusion of the term “insolent” made it unconstitutional on its face, because “it unnecessarily sweeps a substantial amount of non-disruptive protected speech or expressive conduct within its prohibiting language.” [The word insolent is defined as rude or disrespectful; contemptuously impertinent; insulting.]
However, the court also held that “the offensive word – “insolent” – can easily be excised such that the remaining text can be severed and §2-61 saved from complete invalidation.” Therefore, the Ninth Circuit upheld the remainder of the section regulating disruptive behavior.
“Nazi” Salute
Robert Norse gave the Santa Cruz city council a silent Nazi salute, at a city council meeting in 2002, when the council stopped a woman from speaking after she exceeded her allotted time. He was ejected from the meeting and arrested for the act.
Norse filed suit in federal court, asserting that the city council’s decorum policy violated his right to free speech. A federal judge dismissed his lawsuit in 2007 and a three judge panel of the Ninth circuit upheld that decision. However, an 11 judge panel in 2010, reinstated that lawsuit, Norse v. City of Santa Cruz, 629 F.3d 966, rejecting the city’s argument that violation of city council rules of decorum are necessarily disruptive. The court ruled that the district court judge needed to hear more evidence on whether the silent Nazi salute was “disruptive.”
In December 2012, after over ten years of litigation, a federal jury found that Norse’s 2002 ejection and arrest did not violate his constitutional rights. The jury found no violation of Norse’s First or Fourth Amendment protections when he was removed from the council meeting.
The city successfully argued that Norse’s salute was part of an organized effort to disrupt the meeting and that he was ejected from the council because he was trying to interrupt the meeting after the public comment period had passed. Had the city lost, it would have had to pay damage and attorney’s fees to Norse, which could have been in excess of several hundred thousand dollars.
HOW THIS AFFECTS YOUR AGENCY
The Acosta decision stands for the well established principal that statutes restricting speech must be carefully worded in order to not encompass more speech than can permissibly be limited.
As the Acosta court noted, there are many types of insolent behavior that can be engaged in without disrupting the meeting, for example, a silent “thumbs down” gesture. Insolent behavior at city council or board meetings, so long as it is not disruptive, is protected by the First Amendment.
The 2010 Norse decision is consistent with Acosta because Norse could only prevail in his suit against the city if his silent Nazi salute did not disrupt the city council meeting, but the jury found that it did.
It is imperative that cities and counties craft codes, and rules of decorum, that only prohibit actual disruptive behavior. They should define what constitutes disruptive behavior at public meetings, publicize the policy, enforce it evenly, and be able to show that their definition is not overly broad nor designed to restrict legitimate free speech.
It is also important to insure that law enforcement personnel understand what behavior justifies removal of persons who are “petitioning” their government, by speaking out at such public meetings.
We urge you to confer with your agency’s legal advisor before drafting any such policies or rules. As always, should you wish to discuss these cases in greater detail, please feel free to contact me at (714) 446-1400 or via email at mjm@jones-mayer.com.
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