Supreme Court allows First Amendment suit by man who claimed city intimidation was reason for arrest
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The U.S. Supreme Court on Monday allowed a Florida man arrested at a city council meeting to bring a First Amendment claim for retaliatory arrest—even though he conceded that police had probable cause to arrest him.
The court ruled 8-1 for Fane Lozman, who claimed his 2006 arrest at a Riviera Beach, Florida, city council meeting had been ordered because he had criticized a plan to use eminent domain to seize waterfront homes for private development. Also motivating the ordered arrest, he said, was a suit he had filed claiming the city had violated open-meetings laws when it approved the agreement with developers.
Lozman had claimed that, even though there was probable cause, his arrest was part of a municipal policy of intimidation.
Lozman had been arrested after he refused a lawful order to leave the podium, and that is apparently the reason he concedes probable cause, according to the majority opinion by Justice Anthony M. Kennedy. Lozman was talking about the recent arrest of a former county official when he was handcuffed and removed from the meeting.
Lozman was charged with disorderly conduct and resisting arrest, but prosecutors later dropped the charges.
At a trial of Lozman’s retaliatory arrest claim against the city, the trial court had instructed jurors that, for Lozman to prevail, the officer must have lacked probable cause to make the arrest. Jurors ruled for the city.
Kennedy ruled that probable cause for the arrest did not bar Lozman’s claim based on the unusual claim of a retaliatory plot. On remand, Kennedy said, the trial court may still consider other arguments supporting the judgment against Lozman, including whether any reasonable juror could find that the city actually formed a retaliatory policy.
Justice Clarence Thomas dissented. He argued the court had agreed to decide whether probable cause for arrest defeats a claim for retaliatory arrest, but instead fashioned a special rule for a unique class of retaliatory arrest claims.
Under the majority’s rule, Thomas said, “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.”
Thomas said that, “instead of dreaming up our own rule,” he would have found that Lozman had to show lack of probable cause.
The case is Lozman v City of Riviera Beach.
It’s the second time a case involving Lozman reached the U.S. Supreme Court. In the earlier case, Lozman had argued Riviera Beach had no authority to seize his floating home under federal maritime law. The court agreed, ruling the home was not a “vessel” subject to the law.
