UPDATE: Ruling Giving City Officials Qualified Immunity From a Lawsuit Alleging Violation of Free Speech Rights is Reversed and Remanded Because Trial Court Failed to Provide Plaintiff Adequate Notice to Prepare His Case

January 10, 2011 | Bulletin No. 959789.1

In Norse v. City of Santa Cruz, (--- F.3d ----, C.A.9 (Cal.), December 15, 2010), the Ninth Circuit of the United States Court of Appeals, en banc, considered an appeal of a ruling from an earlier three-judge panel. The Court of Appeals considered whether City officials are entitled to qualified immunity from a lawsuit alleging violation of free speech from a person who was ejected from city council meetings for disruptive conduct. The Court reversed the ruling allowing the lawsuit to proceed, finding that the plaintiff was not given an adequate opportunity to be heard, nor adequate time to prepare for a hearing on the city’s summary judgment motion.


In 2002 and again in 2004, Robert Norse was ejected from meetings of the Santa Cruz city council ("City"). In both cases, Norse was unhappy that the council enforced time limits on public speakers at the meetings. In 2002, he directed a Nazi salute at the council when it tried to silence a speaker who had exceeded the council's permissible time limits. He did the same in 2004, and additionally paraded about the council chambers. In both cases, the chairperson of the meeting (the Mayor), ordered Norse ejected, and the Sergeant at Arms enforced the order, removing Norse from the meetings.

Norse filed suit, claiming the City's actions violated his First Amendment right of free speech. The district court ruled that the Mayor acted reasonably in ordering Norse's ejections because Norse was not expressing a point of view, but rather, engaging in disruptive conduct. Norse appealed. A three-judge panel of the United States Court of Appeals ruled that the ejection did not violate Norse's constitutional rights because his conduct was clearly disruptive and it was not the result of his expressing any particular point of view. Norse appealed to the full Ninth Circuit court to hear his case "en banc."


Citing Federal Rule of Civil Procedure 56(c), the court stated that “grants of summary judgment are only appropriate if the losing party has reasonable notice that the sufficiency of his or her claim will be in issue,” and a district court that “does not comply with the advance notice and response provisions of Rule 56 (c) has no power to enter summary judgment.”

In this case, only on the Thursday before the Monday trial did the district court notify the parties of its intent to hear summary judgment arguments, leaving Norse only two days notice to prepare for the hearing. Rule 56(c) required at least 10 days notice.

Additionally, the court found, Norse did not have a full and fair opportunity to ventilate the issues prior to the summary judgment. Norse said he wanted to call attendees of council meetings to testify as to the true disruptiveness of his conduct, and wanted to present evidence that others who acted similarly were not ejected. The appellate court determined the district court wrongly rejected Norse’s request without permitting him time to compile evidence.

The court cited Hansen v. Bennett, 948 F.2d 397 (7th Cir. 1991), which stated that a Mayor’s entitlement to qualified immunity for ejecting a person from a city council meeting “depends on whether a reasonable person in his position, acting on his information and motivated by his purpose, would have known that ejecting the attendee violated his clearly established rights.” Here, recordings of the meetings in question show triable issues of fact as to whether Norse was impermissibly ejected because of his viewpoint rather than his alleged disruptiveness, the court said. Different viewers of that tape may draw different conclusions, the court concluded, “and that is precisely why summary judgment was inappropriate here,”

Because Norse was not given reasonable notice of the summary judgment, was denied a full and fair opportunity to present evidence, and triable issues of fact existed as to the reason for his ejection, the district court’s granting of summary judgment to the City was “deficient and unfair to Norse,” the court ruled. The dismissal was reversed, and the matter remanded for further proceedings with instructions for the district court to rule on Norse’s evidentiary claims.


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Mona G. Ebrahimi | 916.321.4500