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.