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CFAC Flash Article on Norse appeal of Heil Krohn case

CFAC's coverage of Norse appeal and similar case
Court rulings on council speech controls appealed

SAN FRANCISCO (11/18/02) -- What may a city council do when an audience member rises on a "Point of Order!" or offers the mayor a Nazi salute?
Two appellate courts are being asked to rule on these issues in cases arising from the conduct of citizen activists at council meetings in Roseville and Santa Cruz.
In Saraceni v. City of Roseville (1 Civil No. C041085), council-watcher Alfred Saraceni is asking the California Court of Appeal for the Third District to agree with him, contrary to a trial court summary judgment in Placer County, that his rights under the Brown Act and the First Amendment were violated almost three years ago.
On December 15, 1999 Saraceni was present toward the end of a council meeting when, after the "public comment" period, the city attorney presented a 10-minute report dealing with a situation on Saraceni's property. Saraceni approached the speakers' podium on what he termed a point of order, noting that the matter was not on the meeting agenda, and asking for copies of documents presented during the report and to be given a chance to respond to statements made by the city attorney.
Saraceni was told he had no right to speak, and to sit down. While he was responding to the mayor and city attorney, a police officer approached him, asked him to sit down, and when he did not, put his right arm behind his back, handcuffed his wrist and pulled upward in a "pain compliance hold." The mayor and vice mayor urged the officer not to use force, but meanwhile Saraceni reacted to the shock of the hold by twisting around and colliding with the officer.
Saraceni was later charged with battery on a peace officer, but acquitted after a jury trial, a portion of whose evidence consisted in videotape showing the clash. Almost a year after the incident he sued the city, the mayor and city attorney, and the officer and police chief on a variety of grounds, including deprivation of constitutional rights, battery, false arrest/imprisonment, and failure to supervise employees. After almost another year the trial court granted the defendants' motion for summary judgment on all counts.
On appeal Saraceni's stated issues include:
whether he had the right to address the council on the city attorney's report, or whether his conduct in insisting on that right was unlawfully disruptive;
whether the police officer, who admittedly knew nothing about the Brown Act, behaved reasonably toward him;
whether she had probable cause to arrest him for disturbing a public meeting;
whether she exceeded any authority she might have had in using force despite the urging of the city officials; and
whether her actions deprived him of his free speech rights.
The incident before the U.S. Court of Appeals for the Ninth Circuit in Norse v. City of Santa Cruz (Case No. 02-16446) occurred last March, when the mayor told a resident about to say something at a council meeting that the time to speak under "oral communications" had expired. She objected but was warned that she would be ejected from the meeting if she did not step away from the podium, which she then did.

Robert Norse, a frequent irritant to the mayor and vice-mayor, responded from his seat in the audience with a brief , silent raised arm gesture mimicking a fascist salute. The mayor did not notice the gesture, but when the vice mayor called his attention to it -- "A point of order, Mr. Mayor. Mr. Norse just made a Nazi salute," he ordered Norse to leave the meeting. Norse objected, and the mayor called a recess.

When Norse insisted, during the recess, on remaining in the meeting, a police officer arrested him (on grounds he said he was not sure about but would check with the city attorney) and took him to the county jail, where he was confined until 2 a.m. He was cited on suspicion of disturbing a public meeting.

When Norse sued for violation of his civil rights, the U.S. District Court ruled for the city and individual defendants, concluding that his gesture had disrupted the meeting in a manner justifying his removal and arrest.

On appeal his stated issues include:

--whether the council's rules of decorum are unconstitutional on their face or as applied to his conduct;

--whether he properly stated a claim for false arrest; and

--whether the police officer or the city officials are entitled to immunity from liability.

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