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Court Finds Ordinance That Prohibits Insolent Behavior At City Council Meetings Is Unconstitutional
October 19, 2012 | Bulletin No. 1010477.1
A city ordinance that makes it a misdemeanor for a speaker to engage in “disorderly, insolent, or disruptive behavior” at a city council meeting is facially invalid because of the inclusion of the word “insolent.” However, the ordinance need not be wholly invalidated because the word “insolent” can be removed from the ordinance without affecting the remaining portions of the ordinance. (Acosta v. City of Costa Mesa (--- F.3d ----, C.A.9 (Cal.), September 5, 2012).
The Costa Mesa City Council has meetings twice a month and members of the public may address the City Council on any item that is listed on a meeting’s agenda. Each speaker is afforded three minutes to speak. After the Mayor proposed that Costa Mesa (“City”) enter into an agreement with Immigration and Customs Enforcement (“ICE”) to give City’s police officers the authority to enforce federal immigration laws, the proposal was placed on the agenda for the December 6, 2005, City Council meeting. The City Council passed the proposal by a vote of three to two.
Benito Acosta (“Acosta”) spoke during the public comment period at the December 6, 2005, meeting. Acosta is the founding member of the Colectivo Tonantizin, which is an organization that represents the rights of undocumented and immigrant workers and their families. Acosta was visibly emotional and agitated when it came time for him to speak. During his comment period, Acosta called the Mayor a “racist pig.” The Mayor, who chairs the City Council meetings, told Acosta to stop but Acosta repeated the slur. In response, the Mayor called for a recess, which cut Acosta’s speaking time short. Acosta again called the Mayor a racist pig but also added profanity to his comment.
The City Council placed the ICE agreement on the agenda again at its next meeting on January 3, 2006. The agreement received local and national media attention and groups opposing and supporting the agreement demonstrated outside Costa Mesa’s City Hall. Twenty-five speakers addressed the City Council. Acosta spoke again in opposition to the agreement. During his remarks, Acosta asked members of the audience who agreed with him to stand. The Mayor told Acosta, “No, we’re not going to do that.” Acosta defied the Mayor’s order and said “Do it” three times. Twenty to thirty people stood up and some clapped. The Mayor recessed the meeting and indicated that the City Council would return in a few minutes.
As Acosta attempted to complete his speech while the Council departed, an officer approached him and told him that his time was up. The officers asked Acosta to step down from the podium and leave the chambers but Acosta did not immediately comply and instead asked the officers repeatedly why his time to speak was cut short and why he was being asked to leave. While the officers tried to quietly escort Acosta out of the chambers, Acosta began to tell the officers not to touch him and jerked away from them. Chief Hensley approached the officers and told them to take Acosta out of the room. Acosta tried to prevent his removal by leaning away from the officers and planting his feet. Acosta alleges that the officers took his arms and that one wrapped his arms around Acosta’s neck. He also claims the officers kicked, dragged, and punched him while they removed him from the chambers. When they got outside, they encountered a large crowd and Acosta began to increase his efforts to resist. Acosta wrapped his legs and arms around a pole but the officers were able to separate him from the pole and move him toward City Hall. Acosta caused himself and another officer to fall to the ground. Once the officers got Acosta inside City Hall, they placed him in handcuffs.
Acosta brought a lawsuit in federal court against the City, the Mayor, Chief Hensley, and several officers. The core of Acosta’s claims allege that Costa Mesa Municipal Code Section 2-61, which governs individual conduct at city council meetings, is unconstitutional. The trial court dismissed Acosta’s facial challenge to Section 2-61 and a jury ultimately found in favor of the defendants on Acosta’s First and Fourteenth Amendment claims.
Acosta asserted that Costa Mesa Municipal Code Section 2-61 is unconstitutional on its face. Section 2-61 (a) provides that a presiding officer at a City Council “meeting may in his or her discretion bar from further audience before the council, or have removed from the council chambers, any person who commits disorderly, insolent, or disruptive behavior, including but not limited to, the actions set forth in (b) below.” Subsection (b) of Section 2-61, provides, “It shall be unlawful for any person while addressing the council at a council meeting to violate any of the following rules after being called to order and warned to desist from such conduct . . . .” Conduct prohibited by subsection (b) includes “personal, impertinent, profane, insolent, or slanderous remarks,” yelling in a loud, disturbing voice, continuing to speak after being told time has expired, and delaying, interrupting, or disturbing the proceedings.
The court of appeals found that Section 2-61 is unconstitutional because it fails to limit proscribed activity to actual disturbances. A law can be unconstitutional if it is overbroad, or in other words, if the law, while trying to proscribe conduct that is not protected, restricts speech or expression that is protected by the First Amendment. When asserting that a statute violates the First Amendment because it is overbroad, a person “need not demonstrate that his ‘own conduct could not be regulated by a statute drawn with the requisite narrow specificity.’” A litigant can challenge a statute, not because his or her “own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.”
A city council meeting is a limited public forum. A city’s rules of decorum for a city council meeting “will not be facially overbroad ‘where they only permit a presiding officer to eject an attendee for actually disturbing or impeding a meeting.’” However, a city cannot define a disturbance in a manner that unnecessarily restricts speech. The court found that Costa Mesa’s rules of decorum as set out in Section 2-61 fail to prohibit only speech that actually disrupts or disturbs a City Council meeting. The court held that by including the term “insolent” in Section 2-61(a), the City made the law overbroad.
The text of Section 2-61 that prohibits “insolent” behavior cannot be narrowed to include within its reach only an actual disruption. “Insolent” is defined as “proud, disdainful, haughty, arrogant, overbearing; offensively contemptuous of the rights or feelings of others” or “contemptuous of rightful authority; presumptuously or offensively contemptuous; impertinently insulting.” By its definition, insolent behavior could and mostly likely would be expressive behavior that falls “well below the level of behavior that actually disturbs, disrupts, or impedes a city council meeting.” The court held “Section 2-61 is unconstitutionally overbroad on its face because it unnecessarily sweeps a substantial amount of non-disruptive protected speech or expressive conduct within its prohibiting language.”
The court, however, held that the ordinance does not need to be wholly invalidated because the word “insolent” can be severed from the text of Section 2-61. The Costa Mesa Municipal Code has a severance clause that allows a portion of the Code to be severed if that portion is found to be unconstitutional, invalid, or enforceable. The court found that removal of the word “insolent” does not defeat the central purpose of Section 2-61 because the central purpose of the ordinance “is to prevent actual disruptions during and impediments to conducting an orderly council meeting.” Also, it is possible for City to enforce the ordinance without being able to restrict insolent behavior. Although Section 2-61 as written is facially overbroad and unconstitutional, the offensive word, insolent, can be excised and Section 2-61 is thereby saved from complete invalidation.
The court rejected Acosta’s claim that Section 2-61 is unconstitutional as applied to his behavior at the City Council meeting. The Mayor and Chief of Police are immune from liability and therefore the California principal that a public entity is immune where its employees are immune applies to City. The individual officers are also immune because they reasonably relied on the ordinance when they removed Acosta from the City Council chamber. The court found that qualified immunity still protects the officers even though the court found Section 2-61 to be facially invalid. Acosta’s seizure and arrest were supported by probable cause because he actually disrupted the meeting. Violation of Section 2-61 is a misdemeanor. Even if the officers arrested Acosta in retaliation for his remarks at the City Council meeting, probable cause existed for arrest due to Acosta’s violation of Section 2-61.
The court concluded that no excessive force was used by the officers because they only used the force necessary to remove Acosta from the meeting. The court found no reversible error in the jury’s verdict against Acosta. The evidence supports the verdict that Acosta caused an actual disruption of the City Council meeting.
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Jeffrey L. Massey | 916.321.4500