Benito Acosta v. City of Costa Mesa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BENITO ACOSTA, 

Plaintiff-Appellant, v.

CITY OF COSTA MESA; ALLAN

MANSOOR, Mayor of the City of Costa Mesa, in his official and individual capacities, No. 10-56854 Defendants-Appellees, D.C. No.  8:06-cv-00233-

DOC-MLG

JOHN HENSLEY, Chief of Police, Costa Mesa Police Department; OPINION

DAVID ANDERSEN; DAVID DEHUFF;

JOHN DOEZIE; BRYAN GLASS;

DANIEL GUTH; DAVID MAKIYAMA;

JEFF TOBIN; DEREK TRUSK, in their official and individual capacities, Defendants-Appellees.  Appeal from the United States District Court for the Central District of California David O. Carter, District Judge, Presiding

Argued and Submitted July 9, 2012—Pasadena, California

Filed September 5, 2012

10607 10608 ACOSTA v. CITY OF COSTA MESA Before: Richard C. Tallman and N. Randy Smith, Circuit Judges, and Dee V. Benson, District Judge.*

Opinion by Judge Tallman; Dissent by Judge N.R. Smith

*The Honorable Dee V. Benson, United States District Judge for the District of Utah, sitting by designation. ACOSTA v. CITY OF COSTA MESA …

Opinion by Judge TALLMAN; Dissent by Judge N.R. SMITH.

OPINION

Costa Mesa Municipal Code § 2-61 makes it a misdemeanor for members of the public who speak at City Council meetings to engage in “disorderly, insolent, or disruptive behavior.” Benito Acosta (“Acosta”) was removed from the Costa Mesa City Council meeting for an alleged violation of the ordinance. Acosta appeals the district court’s dismissal of his First Amendment facial challenge to the ordinance. He also appeals the district court’s grant of partial summary judgment in favor of the California city and various individual police officers on his state-law free speech claims and his Fourth Amendment claims. A jury returned a defense verdict on all remaining issues submitted for trial. He also appeals the district court’s discretionary decisions to admit certain evidence, refusal to give his proposed limiting instruction, denial of his renewed motion as a matter of law after the jury returned its verdict, and the denial of declaratory relief. He claims that the ordinance is facially invalid and that it was enforced against him only because he expressed a view contrary to the Mayor’s.

Because § 2-61 fails to limit…

concurring in part and dissenting in part:

The majority correctly sets forth the rule that, under California law, an uncon *986 stitutional portion of a statute can only be severed from statutory text if it is grammatically, functionally, and volitionally severable, regardless of whether the code contains a severance clause. McMahan v. City & Cnty. of San Francisco, 127 Cal.App.4th 1368 , 26 Cal.Rptr.3d 509, 513 (2005); MHC Fin. Ltd. P’ship Two v. City of Santee, 125 Cal.App.4th 1372 , 23 Cal.Rptr.3d 622, 639 (2005). “All three criteria must be satisfied” for text to be severable from the remainder of the statute. McMahan, 26 Cal.Rptr.3d at 513 . However, because California precedent makes clear that none of these criteria are met in this case, I must respectfully dissent from Part II.B of the opinion. Instead, I conclude that Section 2-61 is unconstitutional in its entirety, rather than just in part.

I.

1. Grammatical Severability

Text is grammatically, or “mechanically severable” only when it constitutes “physically separate sections of the proposition.” Santa Barbara Sch. Dist. v. Superior Court, 13 Cal.3d 315 , 118 Cal.Rptr. 637 , 530 P.2d 605, 618 (1975). Therefore, the…