Lozman v. City of Riviera Beach, Florida (Argument February 27, 2018)
Arrested at a city council meeting: Lozman wants a chance to show that it was because he was exercising his First Amendment right.
Fane Lozman lived on a floating boat in the City of Riviera Beach, Florida. The City planned to redevelop the waterfront where Lozman lived. Under the plan, the City would seize homes on the waterfront and transfer the property to a private developer.
Lozman started complaining at city council meetings. He even filed a lawsuit against the City Council's process in trying to approve the redevelopment.
At a later council meeting, Lozman was speaking during the regularly-scheduled public comment period about public corruption in the City. One of the Councilmembers tried to cut him off and then requested an officer to escort Lozman out. Lozman was arrested.
Disturbance vs. retaliation
According to the lower court, the officer had the technical right to arrest Lozman because the officer had "probable cause": Lozman had disturbed the assembly.
But, Lozman argues, that's not why he was arrested. Lozman argues the real reason he was arrested is because he was speaking out. He has the constitutional right to speak out, and the arrest was the City's retaliation against him. "Retaliatory arrest" is unlawful, and Lozman sued.
Does probable cause preclude retaliation?
The lower courts said that the City of Riviera Beach cannot be liable for retaliatory arrest because the officer had probable cause to arrest. The court decided that the existence of probable cause ended the inquiry. The court would not even consider if the real reason Lozman was arrested was something else (i.e. retaliation for speaking out).
Lozman argues that misses the whole point of First Amendment protection. The government cannot abuse its power to arrest, even by hiding behind a lawful reason.
Courts often create methods for proving various types of claims. A First Amendment retaliation claim has a framework for determining who wins.
The plaintiff (Lozman) would show that (1) he was speaking out; (2) that the defendant (the City) had "retaliatory animus" against him (disliked him for speaking out); and (3) the animus was a substantial factor in Lozman's arrest.
If Lozman shows all of these things, then the City has a chance to show the arrest would have happened despite the retaliatory animus.
Lozman argues this framework, particularly the last step (the burden shifting to the City), provides the City a chance to argue probable cause. The probable cause analysis should not overrule the framework completely.
A case on the City's side
Lozman's side must address a 2006 Supreme Court case, Hartman v. Moore. In Hartman, the Supreme Court ruled that a claim of retaliation against law enforcement agents for encouraging prosecution cannot win if the prosecution had probable cause to prosecute. Lozman will have to argue that the First Amendment retaliation claim is different than prosecutorial retaliation claim.
The City of Riviera Beach argues the cases are exactly similar for the probable cause issue.