Norse

Opinion by Judge THOMAS; Concurrence by Chief Judge KOZINSKI.

OPINION

When Robert Norse gave the Santa Cruz City Council a silent Nazi salute, he was ejected and arrested. He sued city *970 officials for violating his rights under the First Amendment. On the eve of trial, the district court sua sponte granted judgment against him, holding that the city officials were entitled to qualified immunity. Because the district court failed to provide Norse adequate notice and opportunity to be heard, among other procedural errors, we reverse the judgment of the district court.

I

On March 12, 2002, Robert Norse was ejected from a Santa Cruz City Council (“City Council”) meeting and arrested after an incident in which he gave the Council a silent Nazi salute. Two weeks later, he filed a complaint in the District Court of Northern California, challenging the constitutionality of the City Council’s decorum policy on its face and as applied to his conduct at the 2002 meeting. He named as defendants the City of Santa Cruz; Christopher Krohn, the Mayor (“Mayor”); Tim Fitzmauriee and Scott Kennedy, members of the Santa Cruz City Council; Loran Baker, the sergeant-at-arms of the meeting (and…

concurring:

I join Judge Thomas’s opinion because it’s clearly right. I write only to observe that, even after the procedural irregularities that deprived Norse an opportunity to present evidence, it’s clear that the council members aren’t entitled to qualified immunity. In the Age of YouTube, there’s no need to take my word for it: There is a video of the incident that I’m “happy to allow ... to speak for itself.” Scott v. Harris, 550 U.S. 372 , 378 n. 5, 127 S.Ct. 1769 , 167 L.Ed.2d 686 (2007); see http:// www.youtube.com/watch?v=ZOssHWB6 WBI (last visited Nov. 16, 2010). This video (also found in the record) clearly shows that Norse’s sieg heil was momentary and casual, causing no disruption whatsoever. It would have remained entirely unnoticed, had a city councilman not interrupted the proceedings to take umbrage and insist that Norse be cast out of the meeting. Councilman Fitzmaurice clearly wants Norse expelled because the “Nazi salute” is “against the dignity of this body and the decorum of this body” and not because of any disruption. But, unlike der Führer, government officials in America occasionally must tolerate offensive or irritating speech. See Cohen v. California,…

Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT, PAMELA ANN RYMER, SIDNEY R. THOMAS, M. MARGARET McKEOWN, WILLIAM A. FLETCHER, RAYMOND C. FISHER, RONALD M. GOULD, RICHARD C. TALLMAN, RICHARD R. CLIFTON and CARLOS T. BEA, Circuit Judges.

Opinion by Judge THOMAS; Concurrence by Chief Judge KOZINSKI.

THOMAS, Circuit Judge:

When Robert Norse gave the Santa Cruz City Council a silent Nazi salute, he was ejected and arrested. He sued city officials for violating his rights under the First Amendment. On the eve of trial, the district court sua sponte granted judgment against him, holding that the city officials were entitled to qualified immunity. Because the district court failed to provide Norse adequate notice and opportunity to be heard, among other procedural errors, we reverse the judgment of the district court.

On March 12, 2002, Robert Norse was ejected from a Santa Cruz City Council ("City Council") meeting and arrested after an incident in which he gave the Council a silent Nazi salute. Two weeks later, he filed a complaint in the District Court of Northern California, challenging the constitutionality of the City Council's decorum policy on its face and as applied to…