Acosta v. City of Costa Mesa

A California city ordinance prohibiting disruptive public behavior at city council meetings is constitutionally overbroad and not severable when it fails to “limit proscribed activity to only actual disturbances” and instead includes a significant amount of “non-disruptive, protected speech.”

The Mayor of Costa Mesa proposed having Immigration and Customs Enforcement designate Costa Mesa City Police as immigration agents with powers to enforce federal immigration laws. During public comment, Benito Acosta spoke against the proposal and asked those who agreed with him to stand. When Acosta would not stop urging the audience, the Mayor had Acosta removed. Acosta was charged with a misdemeanor under a city ordinance preventing members of the public speaking at city council meetings from engaging in “disorderly, insolent, or disruptive behavior.” Acosta brought claims against the Mayor, the city, and the officers (collectively, “Defendants”) challenging the statute and Defendants’ actions. After a jury returned a verdict for Defendants, Acosta appealed. The Ninth Circuit first held that the city ordinance was facially overbroad and susceptible to viewpoint discrimination because it proscribed non-disruptive protected speech, and the unqualified term “insolent” allowed for discrimination against critical speech while allowing complimentary speech. Second, the unconstitutional portions of the ordinance were not severable because the statute did not meet the grammatical, functional, or volitional severability criteria. Third, the officers were entitled to qualified immunity on Acosta’s First Amendment claims because the officers reasonably believed the ordinance was constitutional. Fourth, the officers were entitled to qualified immunity on Acosta’s Fourth Amendment claims because there was probable cause for Acosta’s seizure and arrest. Fifth, the officers did not exercise excessive force because they only used reasonably necessary force against Acosta. Sixth, the district court’s error in admitting Acosta’s remarks from a previous meeting did not prejudice Acosta because there was overwhelming evidence of Acosta’s disruptive behavior, and the jury instructions said pure speech could not be used to find actual disruption. Finally, the Mayor applied the ordinance in a neutral and constitutional manner. REVERSED in part and AFFIRMED in part.