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A city ordinance is an unconstitutional restriction on expressive nonverbal conduct on grounds of overbreadth, where it prohibits “personal, impertinent, profane, insolent, or slanderous remarks” in a limited public forum, without requiring actual disruption.

Benito Acosta (“Acosta”) was removed from a Costa Mesa Council (“City”) meeting for violating rules of decorum under Municipal Code, § 2-61. The district court dismissed Acosta's facial challenge to the ordinance and granted partial summary judgment to the City on his other § 1983 claims. Acosta appealed. The Ninth Circuit found that § 2-61 was an unconstitutional restriction on expressive nonverbal conduct on grounds of overbreadth, where “personal, impertinent, profane, insolent, or slanderous remarks” were prohibited without requiring actual disruption, citing other local ordinances as examples of more narrowly tailored alternatives. Use of the disjunctive “or,” worked to deny “insolent” the narrowing benefit of adjacent clauses, but allowed severability, and the subsequent survival of the statute. Regarding Acosta’s as-applied challenges, the Ninth Circuit affirmed summary judgment in favor of the City where (1) absent grounds for a constitutional tort, the City was entitled to public entity immunity because the Mayor and the Chief of Police were immune; (2) Council officer’s had qualified immunity because there was probable cause to arrest Acosta for violating properly promulgated decorum ordinances, even if retaliatory; and (3) amidst a hostile crowd, it was not excessive force to remove Acosta using an “upper body hold.” The Court further found that (1) denial of Acosta’s motion to exclude previous remarks was not prejudicial where three videos depicted his actual behavior; (2) his motion for a new trial was properly denied because the court did not abuse its discretion by rejecting a proposed jury instruction where evidence was “absolutely an act in conformity, and...highly relevant”; and (3) any error was harmless where “ample evidence…support[ed] the jury’s [implicit] finding that Acosta [was actually disruptive].” Despite being unconstitutionally overbroad on its face, the Ninth Circuit held that § 2-61 was not unconstitutionally enforced against Acosta. REVERSED in part and AFFIRMED in part.