The Supreme Court on Monday gave a civic activist in Florida another shot at proving that his arrest at a city council meeting was in retaliation for his criticism of public officials.
The court said it was ruling narrowly for Fane Lozman, whose battles with the Riviera Beach City Council are legendary. It said a lower court had been wrong to stop his retaliation lawsuit.
Justice Anthony M. Kennedy, writing for the court, said a citizen’s ability to criticize government without fear of retribution ranks “high in the hierarchy of First Amendment values.”
But he wrote what even he described as a narrow ruling, sending the case back to a lower court and saying that Lozman will have to prove “the existence and enforcement of an official policy motivated by retaliation” on the part of the city council members.
The vote was 8 to 1, with Justice Clarence Thomas dissenting.
The court was particularly concerned about opening up individual police officers to lawsuits for making “split-second judgments” about whether an arrest is warranted, and it said this ruling did not affect that.
Lozman in an interview called the ruling a “really big day for citizen-activists” and said it makes clear that municipalities are not immune to the law. He said he would be willing to settle the case in exchange for an apology from the city council — now very different from the one he initially sued — and reimbursement for legal fees.
Lozman v. City of Riviera Beach grew from an attempt to cut off Lozman at a city council meeting into a major free-speech showdown.
During the public comments at a meeting in November 2006, Lozman was talking, as he often did, about political corruption. The presiding council member told him to stop, and he refused.
“Carry him out,” Elizabeth Wade told a police officer. Lozman was led away in handcuffs and spent hours in jail. The episode can be seen on YouTube. The court’s opinion included the link.
Lozman was charged with disorderly conduct and resisting arrest without violence. A state prosecutor declined to pursue the charges, however, saying a conviction was unlikely.
Lozman filed a civil rights lawsuit against the city, saying the council violated his First Amendment rights with a retaliatory arrest. A recording of a private meeting council members attended months earlier showed that they had agreed to teach Lozman a lesson.
But the U.S. Court of Appeals for the 11th Circuit, which covers Florida, Georgia and Alabama, said that if the government can demonstrate a reasonable belief that any law was broken — probable cause — the retaliation claim cannot go forward.
With disorderly conduct and resisting arrest out, prosecutors found an obscure Florida law that makes it a misdemeanor to interrupt or disturb “any school or any assembly of people met for the worship of God or for any lawful purpose.”
It is possible that is what Lozman was about to do, the appeals court judge reasoned, and a jury agreed. Lozman’s complaint could not go forward.
The Supreme Court years ago decided that a finding of probable cause barred a claim of retaliatory prosecution. So the question before the court was whether the same standard should be applied to arrests.
This was Lozman’s second trip to the Supreme Court, a rarity when the cases present different questions of law.
The first time he and the city met at the high court, the justices reviewed his claim that Riviera Beach had improperly used federal admiralty law to seize (and later destroy) his two-story plywood houseboat, with French doors, moored at the city marina. The court ruled 7 to 2 against the city, saying that Lozman’s houseboat was more house than boat and that admiralty law did not apply.
Both cases were Lozman v. Riviera Beach.