Today the Supreme Court issued an important decision in Lozman v. City of Riviera Beach, Florida, 585 U.S. ___ (2018).  The case does not involve land use or even free exercise of religion.  But it is still noteworthy because it deals with local government decision-making and citizens’ free speech rights under the First Amendment.  Most local governments have a handful (or more) of harsh critics who attend virtually all legislative meetings, are often the first to arrive at meetings and the first to scribe their names to the public comment sign-up sheet.  The right to speak out against and petition the government is protected speech under the First Amendment.  The facts giving rise to today’s decision involve the City of Riviera Beach’s arrest of Fane Lozman, who has appeared and spoken at more than 200 City meetings since 2006.  Lozman was arrested in November 2006 while speaking critically of government officials during the public comment portion of a City Council meeting for violating its rules of procedure by discussing issues unrelated to the City and refusing to leave the podium.  Video of Lozman’s arrest at the meeting is available here.  The Supreme Court framed the issue before it 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.”

This is not the first time the Supreme Court has reviewed a case pitting Lozman against the City.  In 2006, Lozman bought a 60-foot by 12-foot floating home that he docked at a City marina.  He quickly became an outspoken critic of the City’s plan to use its eminent domain power to take waterfront homes for private development, and also sued the City, alleging that the Council had violated Florida’s open meeting laws.  In June 2006, the Council held a closed-door session to discuss the lawsuit and agreed to use its resources to “intimidate” Lozman.  After unsuccessful efforts to evict Lozman from the marina, the City brought a federal admiralty lawsuit against the floating home seeking a maritime lien for dockage fees and damages for trespass.  The City prevailed before the District Court, which ordered the floating home sold to satisfy the City’s judgment.  The City bought the home at public auction and had it destroyed.  The Eleventh Circuit affirmed the District Court’s decision, but the Supreme Court reversed.  The Supreme Court ruled that the floating home was not a “vessel,” meaning the City lacked admiralty jurisdiction.  The first Supreme Court decision is Lozman v. City of Riviera Beach, Florida, 133 S.Ct. 735 (2013).

After his November 2006 arrest, Lozman sued the City under 42 U.S.C. § 1983, claiming that the City arrested him in retaliation as part of an official government policy.  A jury ruled for the City.  Lozman appealed on the ground that the District Court wrongly instructed the jury that Lozman could  prevail only if the arresting officer himself sought to retaliate.  The Eleventh Circuit affirmed the District Court’s decision, concluding that even if the jury instruction was wrong, any error was harmless because there was probable cause to arrest Lozman.

The Supreme Court agreed to review the case to address the issue of whether probable cause defeats a First Amendment claim for retaliatory arrest under § 1983.  In an opinion authored by Justice Kennedy, a majority of the Supreme Court reversed and vacated the Eleventh Circuit’s decision.  The majority noted that “[t]he parties’ arguments raise difficult questions about the scope of First Amendment protections when speech is made in connection with, or contemporaneously with, criminal activity.”  The majority opinion is a narrow one “far afield from the typical retaliatory arrest claim, and the difficulties that may arise.”  The Court found Lozman’s case unique in that he alleged an official municipal policy of intimidation in retaliation:

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.  An official retaliatory policy is a particularly troubling and potent form of retaliation, for  policy can be long term and pervasive, unlike an ad hoc, on-the-spot decision by an individual officer.  An official policy can also be difficult to dislodge.  A citizen who suffers retaliation by an individual officer can seek to have the officer disciplined or removed from service, but there may be little practical recourse when the government itself orchestrates the retaliation.  For these reasons, when retaliation against protected speech is elevated to the level of official policy, there is a compelling need for adequate avenues of redress.

The Supreme Court did not address whether Lozman was entitled to relief, but instead left that determination to the Eleventh Circuit, and stated that the Eleventh Circuit may wish to consider: (1) whether a reasonable juror could conclude that the City created a retaliatory policy against Lozman; (2) whether a reasonable juror could find that the November 2006 arrest was an official act by the City; and (3) whether the City would have arrested Lozman regardless of any retaliatory animus (for example, did Lozman’s conduct during prior City Council meetings violate the rules of procedure and was Lozman arrested then?).

Justice Thomas dissented.  He stated that the majority’s decision answers a question not presented to the Court:

We granted certiorari to decide ‘whether the existence of probable cause defeats a First Amendment claim for retaliatory arrest under [42 U.S.C.] § 1983.’  Instead of resolving that question, the Court decides that probable cause should not defeat a ‘unique class of retaliatory arrest claims.’  To fall within this unique class, a claim must involve objective evidence, of an official municipal policy of retaliation, formed well before the arrest, in response to highly protected speech, that has little relation to the offense of arrest.  No one briefed, argued, or even hinted at the rule that the Court announces today.

Justice Thomas would have found that lack of probable cause is required for a retaliatory arrest claim, the existence of which defeats such a claim.

The decision in Lozman v. City of Riviera Beach, Florida, 585 U.S. ___ (2018) is available here.

Original photograph by NCinDCsome rights reserved.