Santa Cruz wins Nazi salute case against Robert Norse

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.