Every community seems to have someone (“that guy,” “that lady,” etc.) who stirs the pot and causes others to grumble/roll eyes when they approach. Especially when the grumbling/eye-rolling-others are on a local council or board. And especially when “that guy” approaches the podium to address non-agenda-items during public-comment-time at a council meeting. (You know, the same guy that moved to town in March and sued the town in June.) Better to just let him talk. If you don’t, you run the risk of the Supreme Court of the United States scrutinizing your actions 11 years later. Especially if you throw him in jail.
Not him again…
The Eleventh Circuit described Fane Lozman as an “outspoken critic” of local government. In 2006, he attended a city council meeting and, during the non-agenda-public-comment time, began discussing the arrest of a county commissioner. Knowing exactly who Lozman was, a city councilwoman interrupted him; Lozman refused to yield; councilwoman summoned police officer; there’s an exchange; and eventually Lozman got arrested for disorderly conduct and resisting arrest without violence. The State declined to prosecute. Even though the State believed probable cause for arrest existed, they felt “there was no reasonable likelihood of successful prosecution.”
Lozman sued the city in federal court for First and Fourth Amendment violations arising out of the arrest, including that his arrest was retaliation for exercising his free-speech right, and for common-law false arrest. Case went to jury trial. Lozman, representing himself, lost; appealed (with counsel); lost again.
Now Lozman’s in the U.S. Supreme Court. Against the city. Again.
In 2013, he successfully argued that his houseboat wasn’t a vessel under maritime law. That case, like this case, involved Lozman representing himself at times during the case. He never got deterred by adverse rulings at the district and circuit court levels, ultimately triumphing at SCOTUS. One can imagine his victory lap around the city after the first case.
Yes, in Riviera Beach, Lozman is “that guy.”
Can they do that?
In this case, the jury (and the district judge on Lozman’s new trial motion) agreed with the city that there was probable cause for Lozman’s arrest. The Eleventh Circuit affirmed: “we cannot say the jury’s finding that [the arresting officer] had probable cause for a violation of § 871.01(1) went against the great weight of the evidence.” [*see note below.]
Among the city’s arguments was that the city councilwoman had a right to stop Lozman from discussing non-city-related items (i.e., the arrest of a county commissioner) during his public comment time. Lozman claimed that there was no rule in place that restricted public comments to city-related matters. So even though he was speaking about “county” issues, he should’ve been allowed to carry on without interruption (and without arrest).
This was important to the city’s theory of the case because the fact that Lozman refused to stop discussing the county commissioner’s misconduct, after the councilwoman stopped him from going into that topic, was enough to justify the arrest. The Eleventh Circuit’s opinion is not clear about whether the city council had rules in place that limited the subject matter of public comments.
It doesn’t (really) matter now. SCOTUS will consider this question: Does the existence of probable cause defeat a First Amendment retaliatory-arrest claim as a matter of law?
We’ll find out if Lozman beats the city at the highest level, again.
Sticks and stones
Local governments should watch this one closely. Public-comment-time at meetings can get contentious and frustrating. Especially when “that guy” is up there, again, making allegations that you perceive to be off-topic, unfair, and inflammatory. And you know where he’s going with his comments because you’ve heard it before. It’s been a long meeting. You’re over it.
But the First Amendment applies to “that guy,” too.
Aside from the important First Amendment issue that the Court will address, this case is a cautionary tale for councils and boards that have citizen-comment-time during public meetings. Regardless of SCOTUS’s ruling on the First Amendment, we’ll spare your town years of litigation: just give “that guy” his allotted time, give the other citizens their allotted time, adjourn the meeting, and go home.
[*Correction and clarification: a previous version misstated that section 871.01(1) was the disorderly conduct statute that the officer arrested Lozman for violating. Actually, section 877.03 was the statute Lozman was arrested under. But the jury didn’t consider whether there was probable cause for violating § 877.03. Instead, they looked at whether there was probable cause for a violation of § 871.01(1), even though that wasn’t why the officer thought he was arresting Lozman. Why? The district judge viewed the issue as whether there was “any justification” for the arrest and instructed the jury on § 871.01(1). The court removed reference to § 877.03 from the jury instructions. The judge expressed doubts about probable cause under § 877.03 and asked the city’s lawyers, “what else do you have?” They suggested § 871.01(1), and the judge agreed to present that statute to the jury instead. (See Petition for Certiorari at 8.) The Eleventh Circuit’s opinion didn’t include these details.]