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Floridian Wins 2nd Case at Supreme Court Over Arrest During Public Comment

| June 19, 2018

Fane Lozman is asked to leave, then arrested, during the meeting's public comment period.

Fane Lozman is asked to leave, then arrested, during the meeting’s public comment period.

A government critic who has long battled the city of Riviera Beach won his second U.S. Supreme Court case Monday, prevailing in a dispute stemming from a 2006 arrest at a city council meeting.

Justices, in an 8-1 decision, sided with Fane Lozman, who filed a lawsuit against the city contending that the arrest involved retaliation for his outspoken criticism of officials in the Palm Beach County community. The Supreme Court overturned a ruling by the 11th U.S. Circuit Court of Appeals in favor of the city and sent the issue back for further consideration.

The Supreme Court said the issue in the case was “narrow” and also made clear that it did not determine whether “Lozman is ultimately entitled to relief or even a new trial.” But in overturning the appeals court, it ruled on a key issue about whether Lozman’s First Amendment rights could be violated even when there was cause for his arrest.

Lozman said in an interview with The News Service of Florida that the case “has moved the bar forward that no longer can a government entity retaliate against an individual and try to hide behind some bogus petty arrest. Those days are over.”

“We won the case. We got what we wanted. I’m just glad that 10 years hard work was not for naught,” Lozman said.

Watch Fane Lozman Getting Arrested

Lozman has frequently clashed through the years with the Riviera Beach city government, including over plans by the city to use eminent domain as part of redevelopment efforts. Lozman’s criticism included filing a lawsuit alleging Sunshine Law violations about the approval of an agreement with developers.

The arrest happened in November 2006, as Lozman addressed the city council during a public-comment period. During his comments, Lozman spoke about the arrest of a former Palm Beach County commissioner on corruption charges, according to court documents.

A city council member interjected, but Lozman refused to stop speaking, subsequently leading to his arrest on charges of disorderly conduct and resisting arrest without violence. The State Attorney’s Office said probable cause existed for Lozman’s arrest but decided against prosecuting the case.

In 2008, Lozman filed the civil lawsuit alleging retaliation in the arrest.

As the arrest case moved forward, another case involving a dispute between Lozman and the city went to the U.S. Supreme Court. That case was related to a dispute about Lozman’s house boat, which was docked at a city-owned marina. The city sought to have Lozman evicted and brought a lawsuit under federal admiralty law. But the Supreme Court in 2013 overturned an appeals-court ruling in favor of the city.

Monday’s ruling, written by Supreme Court Justice Anthony Kennedy, focused on what it described as the “intersection of principles that define when arrests are lawful and principles that prohibit the government from retaliating against a person for having exercised the right to free speech.”

The ruling said Lozman acknowledged that a police officer had “probable cause” to make the arrest under a state law that bars disturbances at such public meetings. But Lozman also argued that the arrest stemmed from retaliation.

“Lozman’s claim is that, notwithstanding the presence of probable cause, his arrest at the city council meeting violated the First Amendment because the arrest was ordered in retaliation for his earlier, protected speech: his open-meetings lawsuit and his prior public criticisms of city officials,” Kennedy wrote. “The question this (Supreme) Court is asked to consider is whether the existence of probable cause bars that First Amendment retaliation claim.”

The ruling, with Justice Clarence Thomas dissenting, said the fact that probable cause existed for the arrest “does not bar Lozman’s First Amendment retaliation claim under the circumstances of this case.”

In sending the case back, the Supreme Court said the appeals court could consider issues such as whether a “reasonable juror” could find that the city formed a retaliatory policy to intimidate Lozman and whether such a juror could find that the arrest constituted an official act of the city. It said the appeals court also could consider whether the city has proved it would have arrested Lozman regardless of any “retaliatory animus.”

But in his dissent, Thomas focused on the probable cause for arrest. He wrote that “plaintiffs bringing a First Amendment retaliatory-arrest claim under (the civil rights law in the Lozman case) should have to plead and prove a lack of probable cause. I see no justification for deviating from the historical practice simply because an arrest claim is framed in terms of the First Amendment.”

–Jim Saunders and Dara Kam, News Service of Florida

Lozman v. City of Riviera Beach

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9 Responses for “Floridian Wins 2nd Case at Supreme Court Over Arrest During Public Comment”

  1. John Dolan esq. says:

    The power should be with the people not the government. Unfortunately, the government has us afraid of them and this case is an example.

  2. Dave says:

    Clear example of local government corruption. Our systems aren’t working and our people aren’t protected. Save our Citizens!

  3. Jane Gentile-Youd says:

    Bravo to the Plaintiff and an even bigger Bravo to the Supreme Court!!

    Only in Florida do the elected ’employees of the people, by the people . and for the people ‘ conduct themselves more like lord and maser over ‘we the people’.

    The 3 minute bell is the Flagler County Commission’s favorite tool to guarantee their right to not be obligated to listen by their bosses, ‘we the people

    It is about time , way past the time , that someone had the guts to take such abuses of our elected officials
    to the Supreme Court who thank God, still practices democracy

  4. Anonymous says:

    Way to go Fane!!! Flagler County should learn something from this every time Ruffalo and McDonald call the BOCC, Craig Coffey and Al Hadeed out on their inappropriate actions and inactions. Lozman for Governor!!

  5. RP says:

    Now someone needs to file one against palm coast for its violations of the sunshine law.

  6. Anonymous says:

    GOOD for him and this once great Republic

  7. Anonymous says:

    There are similarities between the Weeks case and this case.

  8. Julie P says:
    April 10, 2018 06:06 PM
    Lawmakers passed 12 bills creating new exemptions this year, including measures to block access to building plans for healthcare facilities; U.S. Census Bureau address information; data used by a state-run insurance company; and documents revealing the valuation of surplus lands held by water management districts.
    The exemptions continue a bipartisan trend among lawmakers, who have approved more than 269 of them to the Sunshine Laws since 1995. The laws require government meetings to be publicly announced in advance; require officials on government boards to meet in public; and government records to be made available to the public.

  9. 107 says:

    Weeks was bullied just like you. Weeks stood up to them just like you. They retaliated against Weeks just like they did you. Weeks will win her appeal just like you. I commend people like you two who have thick skin, tenacity, and the money to fight greater than though politicians, corruption and manipulation.

    Fane, you should come to Flagler County and run for County Commissioner in 2020, and stomp out the corruption up here! You have your work already cut out for you buddy.

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