Elsewhere: Santa Cruz man gets rehearing in Nazi salute Chron

A long-running dispute over a Nazi salute given by an activist at a Santa Cruz City Council meeting in 2002 will get another look from a federal appeals court in San Francisco.

The 9th U.S. Circuit Court of Appeals announced today that an 11-judge panel will reconsider a ruling in which a smaller panel of the court last year dismissed a free-speech lawsuit filed by Robert Norse.

No date has been set for a hearing before the expanded panel.

Norse, a homeless rights activist, gave a silent Nazi salute at a council meeting exactly eight years ago, on March 12, 2002, after then-Mayor Christopher Krohn told a woman who wanted to speak that the time for public comment was over.

After Councilman Tim Fitzmaurice called attention to the salute and Norse came to the podium to make comments challenging Fitzmaurice, Krohn ordered Norse ejected from the meeting.

Norse was arrested, jailed for five and one-half hours and then released and cited for disrupting a council meeting.

Later that year, he filed a federal lawsuit in federal court in San Jose against the city, the mayor, the council and the arresting officer, claiming that his constitutional First Amendment free-speech rights were violated.

Lawyers for the city contend that the officials acted reasonably to enforce the rules of the meeting in the face of disruption.

Norse appealed for the review by an 11-judge panel after a three-judge panel by a 2-1 vote in November agreed with the city’s position and dismissed the lawsuit.

The court majority on the smaller panel said, “Our well-settled law gives great discretion to presiding officers in enforcing reasonable rules for the orderly conduct of meetings.”

Norse’s lawyer, David Beauvais, said today, “We are really glad the court agreed to reconsider the case.

“This is a good case for First Amendment principles to be applied and upheld. I think that in this case (the officials) did go over the line,” the attorney said.

Beauvais said Norse’s salute was “quiet, symbolic speech and didn’t disrupt anybody.”

The city’s lawyers have argued in court papers, however, that Norse was ejected not only because of the salute but also because of “repeated approaches to the podium and challenges of Councilmember Fitzmaurice” at a time when public comment was closed.

“I think you have to take the two together,” said George Kovacevich, a lawyer for the city.

Kovacevich noted that Norse was not ejected when he gave Nazi salutes during public comment periods at other council meetings before and after the March 12, 2002, incident.

The current set of appeals is the second round before the 9th Circuit.

Earlier, a majority of a three-judge panel in 2004 overturned a ruling in which U.S. District Judge Ronald Whyte dismissed the lawsuit. The panel ordered Whyte to reassess whether the mayor acted reasonably.

After reviewing the evidence, including a videotape of the meeting, Whyte again dismissed the lawsuit in 2007 and Norse filed a new appeal with the 9th Circuit.

Kovacevich said the case is “eight years and counting.”

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