City's opposition to new trial motion

7/28/2019 City's opposition to new trial motion

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- 1 -DEFENDANTS OPPOSITION TO MOTION FOR NEW TRIAL

Case No. C 02-01479-RMW

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George J. Kovacevich (SBN 48125)S. Adair Paterno (SBN 246257)ATCHISON, BARISONE, CONDOTTI & KOVACEVICHA Professional CorporationP.O. Box 481Santa Cruz, California 95061-0481Telephone: (831) 423-8383Facsimile: (831) 576-2269

Attorneys for DefendantsCITY OF SANTA CRUZ, et al.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

ROBERT NORSE,

Plaintiff,vs.

CITY OF SANTA CRUZ, et al.,

Defendants.


DEFENDANTSCITY OF SANTA CRUZS(CITY), CHRISTOPHER KROHNS(KROHN) AND TIM FITZMAURICES(FITZMAURICE) OPPOSITION TOPLAINTIFFS MOTION FOR NEW TRIAL

I. INTRODUCTIONReading Plaintiffs motion is akin to listening to a broken record. The arguments are

substantially the same as made time and again before. The arguments are flawed because they rest on a

myopic view of the disruptive events. Plaintiff has been and continues to be obsessed only with his

making of a silent Nazi salute. While disruptive in itself, it doesnt stand alonebut includes Plaintiffs

unrecognized charges to the podium to verbally challenge and interrupt Fitzmaurice. Similarly, with the

2004 incident, Plaintiff singularly focuses on the whisper. He ignores the parade around the Council

Chambers and his verbal protestation of Mayor Kennedy. These factual patterns speak heavily of

disruptive conduct in their own right and in comparison with case law.

Case5:02-cv-01479-RMW Document213 Filed05/10/13 Page1 of 6


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Plaintiffs issues with probable cause, qualified immunity and public entity liability constitute

more argument of the same but still lacking substantive merit. The same goes for hos newfound citizens

arrest argument.

II. ARGUMENTA. PLAINTIFF WAS PROPERLY EJECTED AT EACH OF THE COUNCIL

MEETINGS.

The Defendants counsels closing argument in this case describes the conduct of Plaintiff at

each of the meetings and explains the disruptive nature of what Plaintiff did. The argument is located in

Exhibit 5 to Mr. Beauvais declaration at page 42 (281) et seq. and Defendants incorporate it herein by

this reference. As pointed out there by counsel, the Nazi salute, while silent, was a harsh one (according

to Plaintiff himself) intended to protest the preceding actions taken by Krohn. It came at a time outside

of the time allotted for public comment (oral communications) and without Plaintiff being recognized by

the presiding officer. Its nature and timing clearly diverted the focus of the meeting from the business at

hand to Plaintiffs individual tiff. And that diversion included a diversion of Fitzmaurice who properly

proceeded to make a point of order, which Plaintiff acknowledged in his testimony Fitzmaurice had

every right to do. At this point, Plaintiff could not contain himself to silently protesting. Instead, he

proceeded to rush the podium and verbally challenged Fitzmaurice, interrupting him to the point where

Fitzmaurice couldnt even get out his point of order until he was able to speak over Plaintiff. Also

interrupted was Krohn as well as the meeting at large which became halted at that time.

Plaintiff at this point hoisted himself by his own petard when he testified that his alternative to

communicating his displeasure was to make a verbal comment that could have potentially been

disruptive. Well, thats exactly what he resorted to after the salute. He not only was aggressive verbally

but also physically in approaching the podium to close in on the councilmembers. Far from being

contrary to the clear weight of the evidence; this sequence of events has the clear weight of the evidence

that there was a disruption.

Case law supports such a conclusion. Comparing the conduct for which the individuals in the

Kindt v. Santa Monica Rent Control Bd., 67 F.3d 266, 270 (9th

Cir. 1995) were removed with approval



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by the appellate court further confirms that on this occasion the Nazi salute and the ensuing events were

disruptive and justified Plaintiffs ejectment. Kindt was complaining about his ejection from a number

of public board meetings. On one of those occasions, his disruptive conduct consisted of making

comments with others that were disturbing another member of the public who was addressing the board

for which they were asked to move. On another occasion, Kindt was ejected along with a cohort after a

board member thought the cohort had made an obscene gesture toward him. It is very interesting that on

that second occasion, the court notes that Kindt was sitting docilely at the particular moment of the

obscene gesture. Yet, the ejection was upheld. According to theKindtcourt, (t)he record indicates

Kindt was disrupting the orderly process of the meeting when he was ejected.Kindtat 270. Those

were permissible removals within the Boards regulation 1017 governing rules of decorum at Board

meetings.Kindtat 271.

The very recent Ninth Circuit case ofAcosta v. City of Costa Mesa, 13 C.D.O.S. 4481 (May 3,

2013) is equally illustrative. Acosta involved a city council meeting which saw the ejection of the

speaking member of the public. During the speakers address to the council, he turned toward the

audience to ask members who agreed with him to stand. The mayor admonished that that exercise would

not be allowed. The appellate court recited the ensuing facts as follows:

In defiance of that order, still facing the audience, Acosta

nonetheless said Do it three times. Approximately 20 to 30people stood up in response to his urging and some beganclapping. The Mayor then abruptly recessed the meeting andindicated the Council would return in a few minutes.

Thereafter Acosta was escorted out of the meeting. The appellate court commented on this event as

follows:

Here, the Mayor first indicated that he did not want Acosta to askpeople to stand up in a show of support, but Acosta defiantlycontinued to encourage the audience to stand. Then the Mayorcalled for a recess to end his disruptive behavior. Acosta remained

at the podium and continued to speak after the Mayor called therecess.

Later in its opinion the court commented that the evidence of Acostas actual disruptive behavior at the

meeting was overwhelming.

In Plaintiffs case, we have a similar defiance and overwhelming actual disruptive behavior.



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While Plaintiff recites in his Statement of Facts some evidence/testimony regarding the 2004

incident, he does not include that incident in his legal argument in section B of his brief. Nevertheless,

the evidence of Plaintiffs conduct at that meeting being defiant and disruptive is also overwhelming. In

the middle of the Councils deliberations on an agendized item, Plaintiff encouraged people to stage a

protest in lieu of oral communications and, himself, participated in that parade of protest. He then

becomes directly defiant in challenging Mayor Kennedys admonishment to take his conversation

outside and the Mayors warning. Here, too, we have the same combination ofdefiance and disruptive

behavior of the orderly conduction of the Councils business.

B. THERE IS MORE THAN ENOUGH PROBABLE CAUSE TO ARREST PLAINTIFF.In regards to this issue, Plaintiff also keeps repeating his mistakes. The issue is probable cause to believethere was a substantial disruption, not that there was an actual substantial disruption. Plaintiff

continues to fail to distinguish the difference between the two. In his brief he makes the statement that

(t)here was no substantial disruption... (Plaintiffs) conduct did not rise to the level necessary to

establish probable cause under Section 403. Plaintiff erroneously puts the cart before the horse, so to

speak. In effect, his position is there has to be a substantial disruption before there can be a finding of

probable cause that a substantial disruption occurred. That approach vitiates the meaning and purpose of

probable cause. Probable cause is a legal standard of reasonable belief, not ultimate fact. In the light of

the sequence of facts in both of the Council meetings at issue and the circumstances in the Kindtand

Acosta cases along with the general principles of law on probable cause, there is considerable evidence

of probable cause to believe a substantial disruption occurred. Indeed, in both instances, the respective

Mayors were interrupted in their orderly conduct of the meeting and the meeting halted during the time

of Plaintiffs antics. These are substantial disruptions, or, at a minimum, there is certainly a substantial

weight of evidence as the presence of a reasonable believe a substantial disruption was caused by

Plaintiff.

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C. FOR SIMILAR REASONS, THE DEFENDANTS ARE ENTITLED TO QUALIFIEDIMMUNITY.

In view of the events at both meetings, the reference cases ofKindtandAcosta of conduct

determined to be disruptive, the presence of probable cause, and Jury Instruction No. 9 , a reasonable

public official in the position of Fitzmaurice and Krohn or Mayor Kennedy would have had a reasonable

belief that Plaintiffs conduct was disruptive. See White v. City of Norwalk, 900 F.2d 1421, 1424-26 (9th

Cir. 1990) (upholding ejection of a disruptive citizen from a city council meeting while pointing out that

a great deal of discretion must be left to the entity);Kindtat 271-272. Somewhat similar1

to the probable

cause equation, the focus is on a belief as opposed to an actual fact. For the reasons previously stated,

there is certainly a sufficient basis for a finding of qualified immunity.

D. THERE IS NO CITY LIABILITY.The issue of municipal liability is moot because there is no constitutional violation of Plaintiffs

rights for the reasons discussed above.

E. THE WEIGHT OF THE EVIDENCE IS THAT KROHN MADE A LAWFULARREST.

The evidence is undisputed that Krohn was present at the time Plaintiff made the salute. Plaintiff

argues that his presence alone was not enough because he did not see Plaintiff make the salute. Plaintiff

cites to cases he attempts to use to restrict the requirement of presence whereas those cases actually

enlarge the meaning of presence. Those cases stand for the proposition that the presence

requirement is broader and it can be met even without physical proximity where the crime is apparent to

any of the physical senses.People v. Bloom, 185 Cal.App.4th 1496 (2010);see People v. Sjosten, 262

Cal.App.2d 539, 543-544 (1968). The presence language in section 837 only requires that the offense

be committed in the presence of a citizen arrestor; nothing in the statute requires that the arrest take

place in the citizens presence.People v. Bloom, 185 Cal.App.4th 1496 (2010).

1 In order to allow for room for error, the qualified immunity standard is even lower than that of probable cause and the right

defined more narrowly than the constitutional provision guaranteeing it. Kelly v. Borg, 50 F. 3rd 664, 667 (9th Cir. 1995).



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In the 2002 incident, Krohn was in physical proximity to Plaintiff, he visually observed the

events immediately preceding Plaintiffs salute and immediately after, including Fitzmaurices point of

order and Plaintiffs interruption of that point of order by approaching the podium and defiantly

challenging Fitzmaurice verbally. He obviously observed the progression of the meeting come to a halt.

All of this occurred in his presence from a physical proximity perspective and directly through his

physical senses. Thus, plaintiffs newfound argument is completely without merit.

Moreover, A private person may arrest another: 1. For a public offense committed or attempted

in his presence. The term public offense includes misdemeanors (Pen. Code, 15, 17;Burks v.

United States, 287 F.2d 117;People v. Redmond, 246 Cal.App.2d 852 [55 Cal.Rptr. 195]).Thus, at a

minimum, Khron, through his physical senses witnessed Paintiff attempting to commit a disturbance.

Lastly, as is evident from the video tape of the 2002 events, Sergeant Baker personally observed

all of Plaintiffs conduct and, thus, had reasonable cause to arrest Plaintiffeven in the absence of a

citizens arrest.

III.CONCLUSIONPlaintiff is simply rearguing his case but it is of no avail because merely trying to convince the

court it should arrive at a different verdict is seeking something that is beyond the purview of the court.

Wallace v. City of San Diego, 479 F.3d 616, 630 (9th

Cir. 2007) (a district court may not grant a trial

simply because it would have arrived at a different verdict). As demonstrated above, the verdict, rather

than being contrary to the clear weight of the evidence, is supported by the clear weight of the evidence.

Thus, there is no miscarriage of justice here and the motion should be denied.

Dated: May 10, 2013 By:

ATCHISON, BARISONE, CONDOTTI &

KOVACEVICH

/s/

George J. Kovacevich

S. Adair PaternoAttorneys for Defendants

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City's opposition to new trial motion

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