Activist Ejected Under Unfair Law Loses Suit

     (CN) – A California city’s law against “disorderly, insolent, or disruptive behavior” at city council meetings is unconstitutional, but that won’t help a tossed activist’s free-speech claims, the 9th Circuit ruled Friday.
     Police in Costa Mesa removed a struggling Benito Acosta from a 2006 city council meeting after he allegedly caused a disturbance during a debate on immigration policy. Acosta, a founding member of the immigrant rights group Colectivo Tonantizin, had been ejected from a similar debate a month earlier after calling Costa Mesa’s mayor a “fucking racist pig.”
     Acosta sued the city and several officials and police officers for violating his First and Fourth Amendment rights, and challenged Costa Mesa Municipal Code Section 2-61 as unconstitutional.
     A federal jury in Santa Ana found that Acosta had created a disturbance and that authorities had legally removed him, and a divided three-judge panel of the 9th Circuit mostly affirmed that decision in September 2012.
     Though the 2012 majority had found that the city’s ordinance was unconstitutional, primarily because it prohibited “insolent” behavior, the judges said that word could be taken out and the rest of the law saved. The panel found that the law was not unconstitutional as applied to Acosta, however, as the jury had agreed that he had clearly caused a disturbance that warranted removal.
     The 9th Circuit agreed to a panel rehearing of the case in February, but still rejected Acosta’s arguments in a new ruling published Friday. The panel did, however, side this time with Judge N. R. Smith, who had dissented from the 2012 ruling on the grounds that the ordinance was “unconstitutional in its entirety.”
     “Because § 2-61 fails to limit proscribed activity to only actual disturbances, we reverse the district court’s constitutionality ruling and find the statute facially invalid,” the unsigned opinion states.
     “Moreover, since the unconstitutional portions of the ordinance cannot be severed from the remainder of the section, we invalidate the entire section,” the judges added.
     “Even though invalidation of the entire provision for over breadth is a harsh remedy, it is necessary when we cannot reconcile full protection for First Amendment liberties with the discernable intent of the enacting body.”
     Just because a statute is found to be unconstitutional on appeal, however, “the District Court’s determination that the statute was applied in a constitutional manner may remain undisturbed,” according to the ruling states.
     This is bad news for Acosta.
     Based largely on a video recording of the 2006 meeting, the panel agreed with the jury that there was no excessive force or unreasonable, illegal behavior on the part of police.
     “We find that there was no excessive force here as a matter of law,” the judges wrote. “The undisputed evidence shows that the officers used only the force reasonably necessary to remove Acosta from the meeting and no reasonable jury could find excessive force as a matter of law based on that evidence. The video submitted by Acosta shows that he did not leave the podium when first asked to step down and the crowd began yelling both in support and opposition to Acosta. He also concedes that he did not leave the podium immediately. Considering the volatility of the situation and the presence of a large crowd of hostile demonstrators, the amount of force the officers used – grabbing Acosta’s arms and placing him in an upper body control hold – was reasonable. Furthermore, when later placing Acosta under arrest, Acosta was kicking and flailing his body to actively resist the police. Holding him by his limbs to control him and prevent him from injuring an officer was also not unreasonable or excessive.”

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