J.M. Brown

Santa Cruz Sentinel:   11/07/2012

SAN JOSE — A federal jury on Wednesday found in favor of Santa Cruz city officials who more than a decade ago ejected a longtime critic from a public meeting for making a mock Nazi salute and had him arrested when he refused to leave.

Former Councilman Tim Fitzmaurice said the 8-0 verdict shows “we acted with integrity” when he and then-Mayor Christopher Krohn sought the removal of activist Robert Norse from a March 2002 meeting. Norse was ejected and arrested again nearly two years later after another series of events that council members viewed as disruptive.

“I knew we presented the best case we possibly could,” Fitzmaurice said.

Norse’s attorney, David Beauvais, said he would file a motion for a new trial within two weeks, saying the evidence predominantly proved Norse was well within his First Amendment rights to make the salute. If the judge denies the request for a new trial, Beauvais said he would evaluate the judge’s reasoning before determining whether to appeal further.

Beauvais and co-counsel Kate Wells attempted to convince jurors during the four-day trial that city officials singled Norse out for punishment because they were annoyed by his unrelenting criticism of their policies concerning the homeless.

“The implications of this are that anybody on the council that doesn’t like anything going on can declare they are disturbed,” Beauvais said of the verdict. “It effectively removes the First Amendment right to the content of the message.”

Norse made the salute after Krohn stopped a woman from speaking once a public comment period had ended. Although Krohn didn’t see the gesture, Fitzmaurice brought it to his attention and asked that Norse be made to leave. The mayor agreed and stopped the meeting after Norse refused to go, which prompted his arrest and jailing for five hours.

In January 2004, the late Scott Kennedy, who was then mayor, ejected Norse after he argued with Kennedy’s order to leave. Kennedy warned Norse that participating in a protest parade around the Council Chamber was disruptive and warned him again for whispering to an acquaintance.

The two incidents were consolidated for the proceedings before U.S. District Court Ronald Whyte, who had earlier dismissed Norse’s claims and was initially backed up by the 9th District Court of Appeal. However, another appellate panel ordered the judge to hear evidence — a ruling that stood after the U.S. Supreme Court refused to take up the matter.

The city’s attorney, George Kovacevich said Wednesday the verdict affirms constitutional protections on the proper time, place and manner for First Amendment expression.

“This is not a place for protests,” Kovacevich said Wednesday. “It’s a place to dialogue with the council and discuss issues.”

One juror was from Aptos but the others were from communities over the hill. Beauvais said he learned by talking to a juror that one of them thought the city may have discriminated against Norse’s views and held out for several hours before agreeing with the majority.

The city faced the possibility of paying about $300,000 in legal bills from Norse’s attorneys and about $30,000 in damages, Kovacevich said. If the city is ultimately successful, it may seek reimbursement for some of its costs, which equal at least $150,000.

J.M. Brown

Santa Cruz Sentinel:   11/01/2012SAN JOSE — Two former Santa Cruz mayors who testified Thursday in a free-speech lawsuit stood by their push to eject a City Council critic who made a Nazi salute.

Tim Fitzmaurice and Christopher Krohn told a federal jury the gesture disrupted a March 2002 meeting because activist Robert Norse, who was arrested after refusing to leave, meant to communicate with the council, however quick and quiet, after a public comment period had ended.

“It’s silence was irrelevant to me,” Fitzmaurice said. “It was an attempt at disrupting the meeting, which is Mr. Norse’s usual activity.”

The former city officials portrayed the 65-year-old advocate for the homeless as a chronic agitator who pushed the boundaries of decorum. Norse’s attorneys tried to show city leaders singled him out, violating his First and Fourth Amendment rights to expression and arrest with probable cause, because they resented his persistent derision.

Norse has said his irritation with Fitzmaurice stemmed from a promise to reform the city’s ban on sleeping in public between 11 p.m. and 8:30 a.m. But Fitzmaurice rebutted that Thursday, “I never said ‘I’m running on softening the laws for homeless people,’ explicitly or directly.”

Norse made the salute after then-Mayor Krohn stopped a woman from speaking. Norse was arrested again in January 2004 after participating in a protest parade around the Council Chamber and refusing to leave after questioning then-Mayor Scott Kennedy’s admonition of him for whispering to a friend.

The cases were consolidated for the proceedings that got under way this week after an appellate panel ordered the long-delayed matter to trial. U.S. District Court Judge Ronald Whyte said jurors will hear during closing arguments next week how much financial compensation Norse will seek from Krohn, Fitzmaurice and the city. Kennedy died in 2011.

CURTAILED ACCESS

After Norse began regularly attending meetings, several other witnesses said the city tightened rules on public participation, including ending a provision that allowed citizens to pull items from the council’s consent agenda for discussion — a tool Norse often used to give unrelated speeches. Citizens must now get a council member to pull an item.

“There was less and less opportunity for Robert to speak, and less and less opportunity for the general public to speak,” said Scott Graham, a frequent attendee who, like others, said the council punished Norse for actions others committed without penalty.

Activist Coral Brune testified she also was warned by Kennedy for taking part in the 2004 parade and sat down in the gallery. She said city staff and others, unlike Norse, were not punished for talking to each other during the meeting.

“I’ve never seen that happen before,” she said.

WHAT IS A DISRUPTION?

Norse’s attorneys tried to show it was the council’s own reactions to Norse that created disruptions.

“Other than you complaining, how did this disrupt the meeting?” attorney David Beauvais asked Fitzmaurice about the salute.

“It did disrupt the meeting because Norse was trying to draw attention to himself,” said Fitzmaurice, who brought the salute to Krohn’s attention.

Krohn acknowledged he did not see the gesture and was not personally disrupted by it. But he said it created a disruption because Fitzmaurice deemed it out of order.

Fitzmaurice, who at the time served on the American Civil Liberties Union’s local board, said he would not have seen Norse’s salute as out of order if he had made it during public comment.

But he also acknowledged he would not call someone out of order for applauding the council or giving them a thumbs-up outside of the public comment period. He said those actions would not disrupt a meeting.

“It was a fairly specific kind of message to me that (Norse) assumed, because it was so explosive, it would require a response to it,” Fitzmaurice said.

J.M. Brown

Santa Cruz Sentinel:   10/31/2012SAN JOSE — Ten years after filing a First Amendment lawsuit against Santa Cruz officials, Robert Norse finally got his day in court Wednesday, testifying that a mock Nazi salute he made during a public meeting did not cause the disruption that led to his arrest.

The longtime Santa Cruz City Council critic and advocate for the homeless told a federal jury he made the gesture during a March 2002 meeting after then-Mayor Christopher Krohn silenced a speaker and closed a public comment period early. Norse refused Krohn’s order to leave and was taken to jail for more than five hours, later released with no charges filed.

The 65-year-old Norse, who has long sought to overturn a city ban on camping in public overnight, said the council had a history of suppressing critics. By leaving the meeting, Norse said he would have made his supporters lose hope.

“If you begin to surrender your rights in those circumstances, where does it stop?” he asked.

George Kovacevich, the city’s lawyer, tried to paint Norse on cross examination as a chronic agitator, noting he had spoken 271 times at council meetings between 1999 and 2005. Norse acknowledged he often walked around during meetings, talking to other people, and once took a pie to the face during a skit designed to criticize council members.

“This is not really a case about a Nazi salute or a case about protesting,” Kovacevich told the jury of four women and four men. “It’s about who controls the meeting. This is a case that will show Mr. Norse can’t stand that he doesn’t have control.”

U.S. District Court Judge Ronald Whyte, who first dismissed the matter a decade ago, was ordered to hold a trial by a rare 11-member panel of the 9th Circuit Court of Appeal, which overturned an earlier ruling backing Whyte’s original decision. The city appealed to the U.S. Supreme Court in 2011, but the high court declined a review.

The case is consolidated with a 2004 arrest after Norse participated in a parade around the Council Chamber. After re-entering the room and whispering to someone, then-Mayor Scott Kennedy ordered him to leave after he challenged a request to take the conversation outside.

The city has spent an estimated $150,000 fighting Norse and, if it loses, faces the likelihood of paying him unspecified financial damages and covering his attorney’s fees. Norse had offered to settle if the city reforms rules governing meeting decorum and the camping ban, which bars sleeping outside, in a vehicle, or under a structure from 11 p.m. to 8:30 a.m.

Norse’s testimony revealed that his long-running battle with the city over homelessness created the tense backdrop for his appearances at meetings. Even though the 2002 council was one of the most progressive, Norse was unhappy with progress on reversing measures he views as criminalizing homelessness and panhandling.

During the 2002 meeting, after Krohn asked frequent grandstander Mike Tomassi to leave, a woman approached the podium to speak but was told to sit down. After she relented, Norse told the jury, he raised his arm to say, “You’re acting in a very authoritarian manner. You’re acting like fascists.”

Norse said he is Jewish and does not subscribe to Nazi ideals. He acknowledged he made the gesture with his left arm, not his right, as is Nazi custom.

Then-Councilman Tim Fitzmaurice, who Norse said had failed on a promise to reform the camping ban, noticed the salute, brought it to Krohn’s attention and asked that Norse be removed. Norse’s lawyers argue it was Fitzmaurice who caused the disruption by stopping the meeting.

After Krohn ordered Norse to leave, Norse sat down in defiance and was later arrested by a police officer. A court eventually dismissed he officer from the suit.

Video of the 2002 and 2004 incidents were played for jurors Wednesday. In an effort to establish damages, Norse said the arrest made him scared to attend meetings and caused him to lose sleep and work time.

Steve Hartman, a former conservative radio host, and former Community TV cameraman Mark Halfmoon testified they were at the 2002 meeting and did not believe the salute made a disruption.

Hartman, who now resides in Montana, flew in to testify for just a few moments, saying he was opposed to Norse’s politics but believed his actions were within his First Amendment rights. The city’s lawyer did not cross examine either witness.

Fitzmaurice and Krohn are slated to be questioned by Norse’s attorneys Thursday.