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A South Florida man is back with a vengeance at the Supreme Court this term, and he says it’s due to the vengeance exacted upon him by the city government he railed against.
Self-styled corruption fighter Fane Lozman won his first Supreme Court battle against Riviera Beach, Fla., in 2013, when the justices ruled the city shouldn’t have seized and destroyed his floating home.
Now he’s back for another high court fight that also stems from a squabble with the city, which he says had him arrested for suing it and speaking out against it at public meetings.
Lozman was arrested at a city council meeting in 2006 but the criminal charges were later dropped.
He sued, claiming the arrest was retaliatory and violated his First and Fourth Amendment and state rights.
But he can’t bring the retaliation suit if there was probable cause for his arrest—in this case, for disturbing a lawful assembly—the U.S. Court of Appeals for the Eleventh Circuit ruled, prompting Lozman’s latest trip to Washington.
The Supreme Court will hear arguments on the issue—whether the existence of probable cause defeats a First Amendment retaliatory arrest claim—Feb. 27.
Lozman’s latest case is legally unrelated to his 2013 victory, but they’re related in the sense that they both stem from his fight against the city’s redevelopment plans, one of his attorneys, Kerri L. Barsh of Greenberg Traurig LLP, Miami, told Bloomberg Law.
Barsh is co-counsel with attorneys from the Stanford Supreme Court Litigation Clinic—an outfit with noted success before the justices, which will argue the case on Lozman’s behalf as it did in his first high court case.
Leaving the Eleventh Circuit’s ruling in place here could have a “chilling effect,” Barsh said.
She noted, for example, a photographer could be arrested for jaywalking while the real reason for the arrest was that the photographer was attempting to photograph a protest.
The case might especially impact disputes in smaller municipalities, where there are fewer people and the interaction with local officials is “more intense,” she said.
The city’s attorney did not respond to a request for comment.
Lozman, a financial trader who served in the U.S. Marine Corps, moved to Riviera Beach in March 2006.
The city had proposed a redevelopment plan, which sought to revitalize its waterfront through eminent domain.
Lozman became an “outspoken critic” of the plan, the Eleventh Circuit noted. He “sharply criticized” the mayor and other officials at council meetings in June 2006, the federal appeals court said.
Lozman sued the city, arguing it approved the redevelopment plan without enough public notice.
Not long after the suit was lodged, the city council held a private meeting at which, Lozman says, they planned to retaliate against him.
A transcript of the meeting shows the council had revenge on its mind, he argued in his Dec. 22 Supreme Court brief.
At a public city council meeting several months later, an officer arrested Lozman at a council member’s urging, after he again began to render more government criticism.
The prosecutor dropped the criminal case, reasoning that the venture would likely prove unsuccessful.
Lozman sued the city again—the suit that’s the subject of his latest high court review—arguing his arrest violated the First and Fourth Amendments, as well as Florida state law. A federal jury ruled for the city at a 2014 trial where Lozman represented himself.
The Eleventh Circuit upheld Lozman’s trial loss.
“Probable cause ‘constitutes an absolute bar’ to a claim for false arrest,” the appeals court said, citing an earlier case.
First Amendment rights “would mean little if governments and government officials were free to retaliate against individuals who exercise those rights,” Lozman said in his brief.
The Eleventh Circuit’s decision “provides a license to use the arrest power to carry out such retaliation,” he said in the brief.
Given the wide range of criminal laws at the government’s disposal, it shouldn’t be able to use those laws to suppress or dissuade constitutionally protected activity, his brief said.
The Eleventh Circuit’s “absolute bar rule” gives the government “carte blance” to undermine the First Amendment, it said.
Lozman’s case has implications for political and racial groups, his brief argued.
If all the government needs is probable cause that any crime, no matter how minor, was committed, it can use minor crimes to harass these groups, it said.
The brief argues the Eleventh Circuit’s rule would allow a town to have its police only enforce jaywalking against those engaged in certain First Amendment-protected expression, like wearing Black Lives Matter shirts or Make America Great Again hats, the red baseball caps worn by Trump supporters.
His brief also pointed to Dr. Martin Luther King, Jr.'s Alabama arrest and jailing for driving five miles over the speed limit.
Lozman’s retaliation claim is overblown, the city said in its Jan. 26 brief.
It relies on a “mischaracterization of the transcript” of the closed-door council meeting, the brief said.
And Lozman’s remarks were out-of-line the day he was arrested, it said: “Rather than addressing alleged misconduct by city officials—the topic of his previous speeches—Lozman addressed corruption by former Palm Beach County officials.”
County corruption had no relation to city business, the city brief claimed.
It went on to ask the justices to apply the existing rule for retaliatory prosecution claims to the retaliatory arrest claim here.
Plaintiffs alleging retaliatory prosecution need to show there wasn’t probable cause, so plaintiffs like Lozman alleging retaliatory arrest should need to do the same, the city brief argued.
Lozman and his supporters—including the National Press Photographers Association and other media and free speech groups—argue “the nation faces an epidemic of retaliatory arrests,” the city said in its brief.
But the epidemic argument lacks empirical support, the city brief countered.
“Lozman’s brief rests entirely on hypotheticals; it does not discuss a single, proven, real-world instance of a suspect’s being arrested in retaliation for his speech,” the brief said.
It tried to flip Lozman’s political hypothetical on its head, attempting to show the negative implications for another high court ruling in Lozman’s favor here.
“Any time the arrestee happens to be sporting a ‘Make America Great Again’ hat, displaying a ‘Black Lives Matter’ bumper sticker, or even holding a camera, he could allege that the officer singled him out because of his expression,” the city brief surmised.
That’s especially true, it said, “for those who exercise their First Amendment right to sling abuse, invective, and profanity at police officers.”
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