Lozman v. City of Riviera Beach, Florida (2018)

1st Amendment – Retaliation by Government Entity

Proceed with Lawsuit Against Government!

In the decision of Lozman v. Riviera Beach, Florida, 585 US ___ (2018), the U.S. Supreme Court ruled 8-1 that a plaintiff alleging that a government entity arrested him or her as part of an overall pattern of retaliation against the plaintiff can proceed with a retaliation lawsuit even if there was probable cause for an arrest.  

Lozman arrested at city council meeting when he would not quit speaking

Fane Lozman was a frequent critic of city officials in Riviera Beach, Florida, for their policies on eminent domain. Lozman became a resident of the city after he docked his floating home on city waterfront property. Lozman filed a lawsuit against the city for violating an open meetings law when city officials met with developers behind closed doors.

In November 2006, Lozman went to a city council meeting and spoke during the public comment period. He began to criticize the recent arrest of a former county official when a councilmember ordered him to stop uttering those remarks. After Lozman continued, the councilmember ordered a police officer to arrest Lozman.

The officer arrested Lozman when he refused to quit talking and leave the podium. The officer handcuffed Lozman and escorted him from the building. Lozman contended that the city retaliated against him by arresting him for his open-meetings lawsuit against the city and prior public criticisms of city officials.

Lozman filed suit alleging retaliation

Lozman was arrested for disorderly conduct. A prosecutor later dropped the charges. Even still, Lozman filed a section 1983 civil rights lawsuit, alleging retaliation. The city countered that the retaliation lawsuit should fail because there was probable cause to arrest Lozman.

A federal district court determined that to prevail, Lozman would have to show that the arresting officer was motived by animus against Lozman and that the officer lacked probable cause for the arrest. A jury ruled for the city.

On appeal, the 11^th U.S. Circuit Court of Appeals determined that the city erred when it reasoned that the officer himself must harbor a retaliatory animus but determined any such error harmless because the jury determined the arrest was backed by probable cause.

Case dealt with whether retaliation claims can proceed if there is ‘probable cause’ for arrest

Lozman appealed to the U.S. Supreme Court, arguing that probable cause is not a bar to a retaliatory arrest claim. Lozman urged the Court to adopt the rule from Mt. Healthy v. Doyle (1977), a decision in which the Court allowed a public employee’s First Amendment lawsuit to proceed when the government reason for punishing the employee was a motivating or substantial factor. As applied to a retaliation claim, Lozman argued that a retaliation plaintiff must show that the retaliation was a motivating or substantial factor and a defendant can prevail only by showing that it would have made the same decision to arrest without respect to retaliation.

The city countered that, pursuant to the Court’s decision in Hartman v. Moore (2006), probable cause for arrest is an absolute bar just as the Court determined it was in Hartman for retaliatory prosecution cases.

Court said retaliation case could proceed, Lozman’s First Amendment rights were implicated

Writing for the majority, Justice Anthony Kennedy reasoned that probable cause should not be a bar for those retaliation cases in which the plaintiff alleges that a governmental entity engaged in a pattern of retaliation against a plaintiff for protected speech or petitioning.

“The fact that Lozman must prove the existence and enforcement of an official policy motivated by retaliation separates Lozman’s claim from the typical retaliatory arrest claim,” Kennedy wrote.

Kennedy wrote that “there is a risk that some police officers may exploit the arrest power as a means of suppressing speech.”

Kennedy concluded that “Lozman need not prove the absence of probable cause to maintain a claim of retaliatory arrest against the City.”  Instead, “the Mt. Healthy test provides the correct standard for assessing a retaliatory arrest claim.”

Kennedy also recognized that Lozman’s petition rights were implicated, writing that Lozman claimed he faced retaliation after he filed a lawsuit. “Lozman’s speech is high in the hierarchy of First Amendment values,” he added.

Justice Clarence Thomas filed a solitary dissent. “Instead of dreaming up our own rule, I would have answered the question presented and held that plaintiffs must plead and prove a lack of probable cause as an element of a First Amendment retaliatory arrest claim,” he wrote.

David L. Hudson, Jr. is a law professor at Belmont who publishes widely on First Amendment topics. He is the author of a 12-lecture audio course on the First Amendment entitled Freedom of Speech: Understanding the First Amendment (Now You Know Media, 2018). He also is the author of many First Amendment books, including The First Amendment: Freedom of Speech (Thomson Reuters, 2012) and Freedom of Speech: Documents Decoded (ABC-CLIO, 2017). This article was originally published in 2009.​ By David L. Hudson Jr. cited https://www.mtsu.edu:8443/first-amendment/article/1600/lozman-v-city-of-riviera-beach-florida

Lozman v. City of Riviera Beach Supreme Court considers free speech vs. retaliatory arrests

In Lozman v. City of Riviera Beach, 585 U.S. ___ (2018), the Supreme Court ruled that the existence of probable cause for a city police officer’s arrest of Lozman did not bar him from bringing a retaliation claim under 42 U.S.C.

arresting someone in retaliation for the exercise of free speech rights is sufficient to chill speech as an understatement.

Watch the SHORT VDIEO below on How it all started in 2017

and this is how it ended with him $875,000 dollars richer! Crimes erased and the City put in their place! helping all others around our country as this is a SCOTUS ruling!

MIAMI (AP) — A Florida man who already won an improbable victory before the U.S. Supreme Court is hoping legal lightning strikes twice in a First Amendment case pitting police powers of arrest against the right to speak freely and protest.

Oral arguments are scheduled Tuesday in Fane Lozman’s lawsuit against the City of Riviera Beach, which is just north of West Palm Beach. Lozman contends he was wrongly prevented from speaking at a 2006 city council meeting through an arrest on bogus charges of disorderly conduct and resisting arrest that were later dropped.

The officer apparently concluded that Lozman was about to create a disturbance, so that was enough probable cause, according to court papers.

“There’s nothing to preclude elected officials and police to do this anytime they want when they don’t like the content of someone’s speech. There’s no accountability,” Lozman said in an interview. “It intimidates the public and they say it’s not worth participating in our democracy.”

Lozman, 56, in 2013 won a Supreme Court decision in a related case on whether the floating home he had docked at a Riviera Beach marina qualified as a vessel or a dwelling, like a home on land. The justices decided then that not everything that floats is a boat.

One of his attorneys, Kerri L. Barsh of the Stanford Law School Supreme Court Litigation Clinic, said the court’s decision will have impact on much of society, from people who march in protests to journalists trying to cover controversial events involving law enforcement.

“The ruling in this case will have broad implications in how governments balance probable cause for an arrest with free speech rights,” Barsh said. “The inability to engage in protected speech without retaliation has a chilling effect on citizens’ constitutional rights to criticize their government and engage in other protected expression.”

“The probable cause element permits officers to make arrests in such circumstances without fear of having to later litigate whether their real motivation was preventing a massacre or punishing speech,” the city’s attorneys argue in court papers.

Lozman was arrested at the 2006 city council meeting as he was speaking critically about government corruption, part of his opposition to a then-planned redevelopment at a marina where he had a floating home. Lozman was never brought to trial on the charges; prosecutors dropped them after concluding there was no possibility of a conviction.

After Lozman sued for retaliatory arrest, a jury sided with the city after a trial and an appeals court upheld that verdict. Lozman, however, took the case to the Supreme Court, arguing in part that U.S. appeals courts across the country are split on the issue of probable cause arrests versus free speech. Last November the high court took the case.

The Supreme Court’s 2013 ruling on Lozman’s floating home, which was seized and destroyed by Rivera Beach, was seen by legal experts as an important precedent in maritime law for thousands of people who make their homes on the water as well as floating businesses such as casinos. Different laws apply to vessels and homes, with homeowners receiving more protection from seizure in Florida and other states.

The latest case will be the culmination of Lozman’s 12-year, costly fight against city hall. The former U.S. Marine Corps officer and wealthy financial trader said he simply refused to back down.

“The city initiated the eviction action. I defended it. It’s not like I’m looking to get in these fights,” Lozman said. “The city brought the fight to me. They just ran into a guy who is not going to run and hide in a corner, but is going to fight back.” source

see also

Right to Record Government Officials Engaged in the Exercise of their Official Duties

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