Case No. 17-21| 11th Cir. Decision
It is not easy for an individual to get his or her case heard by the Supreme Court. It’s almost unheard of that the same person will get two cases heard before the Court. Fane Lozman will achieve that feat in a five-year window. In 2013, Lozman sued the City of Riviera Beach, see Lozman v. City of Riviera Beach, 568 U.S. ___ (2013), over whether his floating plywood home was a vessel under maritime law. Lozman won that case but his issues with the City of Riviera Beach continue.
Lozman was a resident of the City of Riviera Beach when the City proposed a redevelopment plan for the Marina in which his floating home resided. The City proposed using eminent domain for the plan, and Lozman openly criticized the Mayor and Council at City Council meetings. While the redevelopment plan was being finalized, Florida passed a bill prohibiting eminent domain for private development. Subsequently, the City Council held an emergency meeting to try and pass the plan the day before the Governor signed the bill. Lozman sued the City, arguing that the meeting was convened without sufficient notice. In a closed-door session, Councilperson Wade suggested using intimidation to beat the suit.
In November of 2006, the City held a public session at which Lozman was granted permission to speak. Lozman began speaking about corrupt local politicians and Councilperson Wade called for an officer to escort Lozman out. Lozman objected and was told he would be arrested if he didn’t walk out. Lozman was charged with disorderly conduct and resisting arrest.
In February of 2008, Lozman filed a § 1983 action against the City claiming that they retaliated against him for opposing the redevelopment plan. He brought claims for retaliation by false arrest, in violation of the First Amendment, unreasonable seizure, in violation of the Fourth Amendment; and common-law false arrest. At trial, where Lozman proceeded pro se, the jury returned a verdict in favor of the City on all counts. Lozman filed for a new trial, but was denied. Lozman then appealed to the Eleventh Circuit.
The Eleventh Circuit affirmed the ruling stating that the jury’s finding that the arresting officer had probable cause was supported by the evidence. The court then analyzed the jury instructions which stated that in order to find for Lozman on the claim of a First Amendment retaliatory arrest that the officer must possess a retaliatory animus. Lozman claimed the jury should have been instructed that it was Councilperson Wade who needed to have animus, and the court agreed that he had a compelling argument. The court, however, found the error to be harmless in light of the probable cause finding.
In his petition for certiorari, Lozman focused on the Eleventh Circuit’s claim that the probable cause finding made the jury instruction error harmless. The Supreme Court granted cert to decide whether probable cause defeats a First Amendment retaliatory-arrest claim. This question was presented to them once before but left unanswered by resolving that case on other grounds.