Today the U.S. Supreme Court will hear oral argument in Lozman v. City of Riviera Beach. SCOTUSblog has a preview here, and their resource page for the case is here. After SCOTUS granted review, we had a post on the case here.
Fane Lozman was a frequent attendee and thorn in the side of his local government. He even took them all the way to SCOTUS and won in another case.
In this case, Lozman began addressing his city council when the presiding member cut him off after a few seconds, told him he couldn’t speak about the topic (public corruption), then had police escort him out when he refused to change the subject. He was handcuffed and arrested. The State charged him but soon dismissed the charges. Lozman went to federal court with a civil rights complaint against the city. One of his issues was retaliation for exercising First Amendment rights.
Under Eleventh Circuit precedent, if there was probable cause for the arrest, there was no retaliation. But during the 19-day trial, the judge became concerned that the crimes the State actually charged him with were not supported by probable cause. So during trial, while Lozman represented himself, the court allowed the City to peruse the Florida Statutes and come up with another crime that would have been supported by probable cause for the jury instructions (see pages 9-13 of Lozman’s merits brief).
Long story short–they found one, and Lozman lost. Then he lost on appeal because probable cause is an absolute bar to a First Amendment retaliation claim in the Eleventh Circuit. Now he’s at SCOTUS. The issue before the justices is the probable cause rule, but don’t be surprised if some of the justices are concerned about the district court’s picking of a new criminal offense on which to find probable cause after the fact. Will SCOTUS take the probable cause rule head on in this case? We’ll find out together.
Transcript should be up by the end of the day. We’ll tweet the link, @fla_ct_rev.