City hires big city attorney to fight Nazi-Salute Case

NOTE TO READER: Robert Norse and his attorney, Kate Wells, have always been willing to settle this case for reasonable changes in the Rules of Decorum at City Council meetings and, as the years have dragged by, and for legal costs to continue fighting it have added up, attorney's fees and costs. Today is no different than any other day. But the City, under the leadership of John Barisone, appears to know no limits on the minutia on which they'll litigate or to the nth degree they will drag it out. It should need no explaining that the legal fees they will run up benefit themselves. Below is today's SENTINEL article by J.M. Brown dated May 6, 2011. ---ed

NOTE TO READER: There is an online poll running with the article, so be sure to log on and vote.
At this time 305 people have "voted" and Norse is slightly ahead of City Council with 50.49% of the vote.
City Council 48.85% and Other 0.66% (2 votes). --Becky Johnson of HUFF

Santa Cruz to appeal Nazi salute case to Supreme Court: Lawyers still seeking settlement with Robert Norse

By J.M. BROWN

Posted: 05/05/2011 11:00:00 PM PDT

found online at: http://www.santacruzsentinel.com/ci_18006114

SANTA CRUZ -- The city of Santa Cruz plans to appeal its loss in the Robert Norse free-speech case to the U.S. Supreme Court next month unless a settlement can be reached with the longtime government critic, officials confirmed Thursday.

The city has hired a high-powered Supreme Court expert to file the appeal if an agreement isn't reached with Norse, who filed suit in federal court nearly a decade ago alleging the city violated his First Amendment rights by ejecting him from a 2002 City Council meeting. The 63-year-old activist was arrested after refusing an order to leave the meeting, which city officials said he disrupted by raising a mock Nazi salute.

A rare panel of the 9th U.S. Circuit Court of Appeals ruled unanimously in December that a trial judge should reconsider the case, indicating they believe city officials silenced Norse because they disliked his criticism. The case, which has garnered national attention, has never gone to trial.

City officials have met with Norse and his lawyers recently to negotiate a settlement, one that could lead to a loosening of restrictions on public commentary during council meetings and a financial payout for Norse. But an agreement has been elusive, and council members directed the city attorney in closed session last week to pursue the Supreme Court appeal.

George Kovacevich, an attorney with the city's firm, supports the appeal even though there's a slim chance the high court, which typically hears less than 5 percent of petitions, agrees to take the case. To accept the lower court's decision could mean a costly trial for a case the city has spent $148,000 to defend -- a cost that will grow if the city loses and has to pay Norse's legal fees.

"At least now we have a shot, arguably, albeit a small one," Kovacevich said. "Certain rulings are reversed, and then that would not bind the city up in a trial."

Kovacevich said the city has hired Richard Ruda, former chief counsel of the State and Local Legal Center in Washington, to prepare a writ of petition to the high court. The deadline to file is June 6.

Ruda, whose office is in the tony Washington suburb of Chevy Chase, Md., declined to comment on the case when reached by phone Thursday. He also declined to discuss his previous appearances before the Supreme Court, though his website says he is "uniquely qualified to assist state and municipal attorneys and officials with questions about Supreme Court doctrine, practice and procedure."

The Supreme Court Institute at Georgetown University's Law School, for which Ruda has served as an advisory board member, reports that the Yale University and Harvard Law School graduate has filed briefs with the high court on behalf of state and local governments and conducted practice runs for lawyers preparing arguments before the nation's top justices.

Kovacevich said he didn't have details Thursday on Ruda's fees. He said Ruda has consulted with the city for about a month.

As part of a potential agreement to withdraw his suit, Norse said he expects the council to change its rules regarding public participation -- including expanding a two-minute time limit for general commentary and dispensing with a rule against booing speakers. He has vigorously fought against a gradual tightening of such restrictions, which his speeches to the council, as well as a host of tirades by other gadflies, have engendered.

"I want a clear declaration that people are not disruptive who engage in technical violations, such as not turning in a card to speak, or not facing the City Council when they speak, or if they make a silent gesture from the side of the room," Norse said Thursday.

Mayor Ryan Coonerty, who began enforcing the two-minute rule last year, said he would consider adopting clearer definitions of what constitutes a disruption of council meetings.

But, he said, "I don't think protected First Amendment speech includes disrupting public meetings. Robert is proposing letting people be booed when they speak to their city government. I fundamentally disagree."

Coonerty said a Supreme Court appeal is worth the taxpayers' investment, and the city will have to pay Norse's legal fees if it loses.

"There are costs no matter what," he said. "Ten years later, this case has never been tried in a courtroom."

Norse said he does not support Nazi views and only made the gesture during the 2002 council meeting to protest then-Mayor Christopher Krohn cutting off another speaker. Krohn determined Norse was being disruptive, demanded he leave and ordered his arrest when Norse refused.

After watching a five-minute video clip of the incident, a federal trial judge dismissed Norse's suit in 2007 and a three-judge panel of the 9th Circuit upheld that decision. But a rare en banc panel of the appeals court agreed to rehear the case and revived the suit in December.

A longtime homeless advocate, Norse has needled the council for years, opposing crackdowns on the city's overnight camping ban and panhandling. He criticized the council for placing what he says are controversial matters on its consent agenda and agreeing to discuss those matters only if council members agree to transfer them to the regular part of the meetings.

ONLINE POLL:

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9th Circuit Court reverses itself in Nazi Salute case

SENTINEL photo by Schmuel Thaler with the following caption "(Sleeping Ban opponent Robert Norse has been targeting Bookshop Santa Cruz in his protests)" possibly a reference to Norse's recent conviction for singing a song on a busy sidewalk near Bookshop Santa Cruz. Norse was convicted of "unreasonably disturbing noise" and was fined $250.

NOTE TO READER: As the videographer of the snippet of the City Council meeting where Robert Norse issued his "Nazi" salute, I know a thing or two about what else happened at that meeting. And unlike the statement issued by Mayor Ryan Coonerty in today's SENTINEL, Norse in no way orchestrated a disruption of the meeting. Nor can Norse be held accountable for the reactions and over-reactions of offended City Councilmembers. The City Attorney's office recently claimed they'd spent $114,000.00 defending Christopher Krohn, Tim Fitzmaurice, and Scott Kennedy from Norse's lawsuit. And that was BEFORE City Attorney George Kovacevich went to Southern California to have his hat handed to him on a platter by the en banc panel of the 9th Circuit Court. After over eight years, the court has ruled that Norse can have his day in court after all. ---Becky Johnson, Editor

http://www.santacruzsentinel.com/localnews/ci_16872299

Appellate panel rules Norse suit can go forward: Lower court will have to reconsider Nazi salute case

By J.M. BROWN

Posted: 12/16/2010 01:30:01 AM PST

SANTA CRUZ -- An 11-judge panel of the 9th U.S. Circuit Court of Appeals on Wednesday unanimously agreed a trial judge should reconsider Robert Norse's free-speech lawsuit against the city of Santa Cruz.

Norse, a longtime City Council agitator and advocate for the rights of homeless people, claims his free speech protections were violated when he was ejected from a City Council meeting in 2002 after raising a Nazi salute. Norse was arrested for disrupting the meeting and refusing to leave, although the charges were later dropped.

Norse said he abhors the Nazis' views and only used the gesture to protest then-Mayor Christopher Krohn cutting off a speaker critical of the council. The city, which has spent more than $100,000 fighting Norse, has since argued the salute was part of an organized attempt to disrupt the meeting.

After watching a five-minute clip of the salute and arrest, a federal trial judge dismissed Norse's suit in 2007, and a three-judge panel of the 9th Circuit upheld that decision. But a rare en banc panel of the appeals court agreed to rehear the case in June and reinstated Norse's suit Wednesday.

The ruling said U.S. District Court Judge Ronald Whyte in San Jose should have heard more evidence after giving Norse's lawyers just two days to prepare for a hearing that would have determined whether the case would go forward. The en banc panel's ruling indicated that city officials kicked Norse out because they disliked his views.

However, the en banc panel dismissed the arresting officer, Sgt. Loran "Butch" Baker, from the suit against city officials. The ruling said Baker followed proper procedures when Krohn complained Norse was disrupting the meeting and refused orders to leave.

The city's current mayor, Ryan Coonerty, said Norse was properly removed from the meeting not because of the Nazi salute, but because of the overall disturbance he caused.

"There is a pattern of disruptive behavior that is at issue here," Coonerty said. "And we hope the court in San Jose will recognize that we can't have a functioning democratic processes when you have somebody who is constantly disrupting the meeting."

Norse was pleased with the ruling, saying, "Any reasonable person looking at the video cannot conclude there was a disruption. There is an arrogance on behalf of the council in their determination to intimidate their critics. It's not about the Nazi salute. It's about the public's ability to engage in ordinary free speech behavior."

Norse, who lives in Felton and Santa Cruz, still frequently attends council meetings, calling for a repeal of the overnight camping ban and measures taken by the council in recent years against aggressive panhandling.

The Associated Press contributed to this report.

9th Circuit Court hears arguments on "Nazi Salute" case

Photo of Robert Norse speaking at a City Council meeting on a different occasion dressed in his bathrobe with his Teddy Bear, which he wears in deference to homeless people who must do things out of doors, housed people would choose to do in a bathrobe.


by Becky Johnson
July 15, 2009

Santa Cruz, Ca. --- What Robert Norse called "a fascist salute" and what Councilmember Tim Fitzmaurice called "a Nazi Salute" has wended its way for a second time to the 9th Circuit Court of Appeals in San Francisco, CA.

Here is the 40-minute audio statements by Attorneys for the plaintiff, David Beauvais of Berkeley, Ca. and his co-counsel, Attorney Kate Wells of Santa Cruz, Ca. City Attorney, George Kovacevich appears on behalf of the City of Santa Cruz.

The two tapes referred to are the normal City Council video that is made at each meeting. There were two of these. One for the meeting in 2002 where Mayor Christopher Krohn ejected Robert Norse for a brief, silent, hand gesture. The second meeting in 2004, Mayor Scott Kennedy ejected and arrested Robert Norse for "whispering." I was at both meetings and filmed with my own camera. The justices also saw my footage which shows that the Sgt. of Arms, Loran "Butchie" Baker saw the "Nazi Salute" directly and took no action to stop Norse's behavior nor to arrest or eject him, although he had the power to do so. The tape also shows Baker telling Norse he doesn't know what charge he is being arrested under, and he goes and talks to the City Attorney who listens and then responds and then Baker returns to Norse to tell him he is being arrested for misdemeanor "disrupting a public meeting".

"We've already spent more time on this case than we did with the Exxon Valdez." --Circuit Court Justice in her conclusions on this "Nazi Salute" case.

Robert Norse who was born Robert Kahn is Jewish.

http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000003646

Arresting a Whistleblower for "Trespass"

Robert Norse & Becky Johnson at the Homeless Marathon, Fresno, Ca. 2007



By Robert Norse
June 8, 2008


Title: Metro Trial Verdict Hearing
START DATE: Tuesday June 09
TIME: 9:00 AM - 9:15 AM
Location Details:
701 Ocean St. in the Courthouse in Dept. 1, Judge Ariadne Symons' court--the first courthouse on your left as you go through the metal detector
Robert Norse Email Address rnorse3@hotmail. com
Phone Number 831-423-4833
Address 309 Cedar PMB #14B Santa Cruz 95060


original article found at:

http://www.indybay.org/newsitems/2009/06/08/18600978.php


BACKGROUND

Santa Cruz, Ca. -- In mid-May, Superior Court Judge Ariadne Symons heard my court trial for the crime of "refusing to leave a business when asked".

The details of my adventures at the Metro Transit Center and the trial are chronicled at http://www.indybay.org/newsitems/2009/05/18/18595792.php ("Friday's Trespass at the Metro Trial--Notes from the Defendant").

Check out the above web address for a transcript of the audio tape of the incident.


CITY COUNCIL DELAYS CLAIM CONSIDERATION

On May 28th, Santa Cruz City Council took the unusual step of continuing its hearing on my claim against the City for false arrest. Usually such claims are routinely denied. It does not appear to be on the City Council agenda for tomorrow. Hence, there may be unusual pressure on Symons to find me guilty, since the threat of a lawsuit is real and present.


ARIADNE SYMONS--PROSECUTOR OR JUDGE?

Symons, as I've written before, seems to have taken on a dual role--that of judge and of prosecuting attorney. Since there was no prosecuting attorney, she should simply have heard the police and security guard's testimony, my testimony, and my attorney's arguments. Instead, she engaged in fairly extended legal debate with him, as though she were the prosecuting attorney.

Normally she would have heard the tape we made of the affair in court. Instead she asked to be able to hear it later privately. We agreed (and, as it turned out, probably shouldn't have).

Some days later she demanded a complete transcript of the tape which cost over $300. On receiving that, she sent it back to us, insisting that the names of the speakers be filled in, requiring another $120+ worth of work.

Requiring transcripts of audio recordings sets a bad precedent for poor defendants who can't afford to have such documents written up. It discourages folks from introducing audio (and video) as evidence, when that may be the best evidence of official wrongdoing.

Finally she demanded from my attorney by e-mail final briefing on an issue fundamentally irrelevant to the arrest--whether it is legal to tape record a security guard who is questioning you in a public place. I include his response below.

The audio recording issue was not raised by the guard as his reason for demanding I leave the property and arresting me for not doing so. His only stated reason to the police was the (preposterous) claim that I was blocking a 6' long "Metro Center" sign.

Normally if an issue were raised and briefed (as Symons is demanding Beauvais do), one side would have access to the response from the other side--the prosecutor's response.

But since Symons is acting as both prosecutor and judge, she has no need to outline what argument she--the prosecutor--is making to herself--the judge, in response to Beauvais's brief below.


ISSUES AT STAKE

Several issues are at stake:
1. The right of the homeless and the community generally to be able to be at the Metro without abusive challenge from security guards.
2. The right to be free from government-funded religious sermons at a publicly-funded facility.
3. The right to record one's transactions in public places with security guards and police officers armed with similar equipment.
4. The right of the media to investigate charges of abuse without threats--and the actuality--of arrest.
5. The right of the community to be informed about these issues.


Come and watch the outcome in Courtroom 1.



ATTORNEY'S FINAL BRIEFING TO THE JUDGE BY E-MAIL:


Attorney David Beauvais provided the following briefing:

Dear Judge Symons,

You requested briefing on the issue whether the defendant had the right to record over the objection of the security guard at the time of the incident charged in this case.

The answer depends on whether the the recording was a confidential communication under Penal Code section 632. It was not.

“Application of the statutory definition of ‘confidential communication’ turns on the reasonable expectations of the parties judged by an objective standard and not by the subjective assumptions of the parties.” ( O'Laskey v. Sortino (1990) 224 Cal.App.3d 241, 248, 273 Cal.Rptr. 674.)

“The test of confidentiality is objective.” ( Coulter v. Bank of America (1994) 28 Cal.App.4th 923, 929, 33 Cal.Rptr.2d 766.)

Here, the security guard had no reasonable expectation of privacy where the communication between him and Mr. Norse consisted of nothing more than a dialogue concerning the security guard's effort to force him to leave the premises.

It is hard to imagine how this communication would be considered confidential under the objective test.

Also the communication occurred in a public place and the security guard made no attempt to shift the location of the interaction to afford himself privacy from being overheard by others who were present at the time of the communication.

In addition, the security guard called the police to report the substance of the recorded communication to the police. This further evidences his intent not to keep the communication private between himself and Mr. Norse.

Finally, this was not a surreptitious recording. In fact, the security guard objected to being recorded. Merely objecting to being recorded did not turn an otherwise non confidential communication into one that was.

This passage from Taus v. Loftus (2007) 40 Cal.4th 683, 747 makes clear that the communication between the security guard and Norse did not occur under circumstances which make an expectation of privacy reasonable:

In Shulman, for example, the court could not have concluded that bringing the hidden recorder into an ambulance breached a reasonable expectation***827 of privacy without first concluding that the interior of an ambulance and conversations between a paramedic and an injured person in need of the paramedic's services was reasonably entitled to some degree of privacy or seclusion.

In Sanders, we concluded that hidden cameras brought into the workplace may constitute a breach of privacy ( Sanders, supra, 20 Cal.4th at p. 923, 85 Cal.Rptr.2d 909, 978 P.2d 67), but that the first prong of the intrusion tort is not met “when the plaintiff has merely been observed, or even photographed or recorded, in a public place.” ( Id. at p. 914, 85 Cal.Rptr.2d 909, 978 P.2d 67.)

Finally, Mr. Norse made clear on the tape that he was a broadcaster who was investigating arbitrary ejectments from public property. Mr. Norse had a right under the First Amendment and California law to record for the purpose of broadcasting on an issue of public concern where the recording took place on public property.

A copy of this email has been forwarded to the Santa Cruz City Attorney.

David Beauvais, Esq.




--------------------------------------------------------------------------------
Robert Norse is a member of HUFF
Homeless United for Friendship and Freedom - Santa Cruz

http://www.huffsantacruz.org/

831-423-HUFF

City Takes Broadcaster to Court for Chatting at the Metro

Trial Friday May 15 1:30 PM

by Robert Norse

Thursday May 14th, 2009

originally published at: http://www.indybay.org/newsitems/2009/05/14/18594788.php
Photo by Becky Johnson taken at the Free Radio Santa Cruz studio in November 2008

Over 6 months ago on Sunday 11-2-08, I was approached by a Metro Security guard at the Metro Transit Center in downtown Santa Cruz. I was interviewing two homeless men for Free Radio Santa Cruz. The guard insisted I leave. I declined to do so. He called the police. He insisted I be given a citation for "Refusal to Leave a Business When Asked"--a charge with an apparent fine of $200+ Police did so and demanded under threat of custodial arrest that I leave the property. I was forced to do so. A week or two later I returned with a group of protesters and we reasserted the right to be in that public space.

HOW IT BEGAN

Two homeless men, Les and Jack, approached me after my Sunday radio show as I walked along Pacific Avenue and complained that religious sermons were coming out of the speakers at the Pacific Ave. entrance to the Metro Transit Center. They said they'd complained and were told to leave with the sermonizing continuing.

I then went to the Metro, found they were correct, and began recording what the Metro speakers were broadcasting. I then approached a security guard who refused to identify himself or his superior and declined to help me. In subsequent public records act requests, the guard involved still remained anonymous.

I then approached a Metro Supervisor who arrived on the property--Mr. Ed Nelson--who had the religious sermonizing turned off, explaining that classical music was customarily used to "discourage" assemblies of young people on the adjacent public sidewalk and in front of the Metro Center. All this is documented on audio tape available on line on this website (see below).

An hour later I returned and began interviewing Jack and Les near the sidewalk at the broad entrance way to the Metro Center next to Pacific Avenue. When a security guard directed two Latino men to "move on", I advised them that they had the right to be there. A second security guard, whom I later learned was named D. Delgadillo, then approached me and demanded I move. When I insisted he identify himself, he demanded I leave the property.


BUSTED FOR CHATTING AT THE METRO

The SCPD instead of defending my right to be there and advising the Metro Security guards to stop bothering me, forced me to leave the property on threat of arrest.

A Metro supervisor subsequently humiliated me further and banned for the day because I was visibly tape recording the complaint I made to her and her response.

More of the story can be found at:
"Ticketing for Standing and Talking at the Metro Bus Stop Sunday"
http://www.indybay.org/newsitems/2008/11/04/18548934.php


TRIAL ON MAY 15, 2009 -- FRIDAY AFTERNOON

The charge is refusing to leave a "business" when asked to do so.

Attorney David Beauvais of Berkeley will be defending me in the case. Attorney Kate Wells will be filing the subsequent federal law suit for damages. The trial will be before Judge Ariadne Symons without a jury. City attorney Barisone or one of his attorneys will presumably be appearing for the city.


SUBSEQUENT PROTEST

I returned to the Metro Transit Center a week or two after the police incident with a group of people, distributed fliers, and tried unsuccessfully to get Metro management to clarify what the rules were for the public and what the powers of their security guards were (i.e. could they simply ban people whose attitude they didn't like). I got no answer. However on this occasion, with video cameras rolling and lots of witnesses, the same guard did not harass or attempt to arrest us.

The story of the protest is told at in a subsequent posting on indybay.org/santacruz in the story--" Rotkin Claims: No Flyering Allowed at the Metro Center--Protest 11-26 11:30 AM"
http://www.indybay.org/newsitems/2008/11/25/18552885.php


ROTKIN'S ROLE PROTECTING THE POLICE

Vice-Mayor Mike Rotkin (who has been on the Transit Board for some years) initially advised me there was no "flyering" allowed. I wasn't flyering when I was cited on November 2nd (simply standing and talking to two homeless guys). When I heard Rotkin's outrageous rule, I and others organized a peaceful protest that specific included distributing a flyer that described what happened on November 2nd.

We spoke to members of the public and distributed literature for about an hour. Rotkin subsequently called me and advised me that he was mistaken--that it was okay to flyer the public at the Metro Transit Center.

As long as it didn't "disrupt business."

Somewhat later in a subsequent interview, when I brought it up again, Rotkin apologized for the misunderstanding, but took no action to look into the bogus ticket.

He was also not helpful in securing documents for my trial, clarifying the rights of passengers, or advising the Metro and City Attorney to drop the case. He could have spared the city, county, and Metro Transit District money in these lean times by acting promptly and fairly to quash this groundless prosecution.

Instead we're going to trial Friday.


POLICE MISUSING THE LAW TO DRIVE AWAY THE POOR

The trial will also highlight the collusion between security guards and the Santa Cruz Police Department in accepting an unlawful arrest.

Members of the public at the Metro are supposedly protected by a law that requires they be given written notice, a specified period of time, and an opportunity to have a hearing--as well as the right to use the facilities unless actual disruption is occurring (MC 9.60.0101 - TRESPASS ON PUBLIC TRANSIT FACILITIES)

Police and Metro Security Guards have colluded instead in using an inapplicable broader law that allows private businesses to order people off their property. Obviously, the Metro is not a private business, but a public facility. Even if it were, MC 9.60.010 REMAINING ON BUSINESS PROPERTY AFTER A REQUEST TO LEAVE. provides exceptions for "prohibited discrimination", "duties relating to common carriers", and "inhibition of...freedom of speech or assembly."--all of which were involved.

It took six months worth of Public Records Act requests and discovery demands to get the SCPD to cough up some statistics: Not just me but five other people have been apparently wrongly charged under this broader law instead of the more appropriate MC.9.60.0101). It's a nice way of sweeping people away from an area without any due process.

Of course, that's what happens to homeless people all around Santa Cruz.


AUDIO OF THE ENTIRE INCIDENT AVAILABLE

Those who want to hear what happened on November 2nd can go directly to the audio file included in the first story. I recorded virtually everything that I and the various guards, supervisors, and police said--as well as the original complaint I received that the Metro was broadcasting religious sermons over its loudspeakers.

It may have been management resentment at my raising this issue with the security guards that motivated the subsequent harassment.

I was also critical of the guards for harassing poor and possibly homeless people hanging out there who were doing nothing wrong. And refusing to identify themselves or their superiors when asked to do so.

The public is welcome to attend the trial. I shall move to have it audio recorded for public broadcast, but judges have become increasingly secretive in the past few years, so I may be banned from making a recording.

If you can't make it on Friday, I'll be discussing the case on my Sunday show at 11 AM on Free Radio Santa Cruz at 101.1 FM (http://www.freakradio.org).