Fane Lozman opposed his city council’s attempts to redevelop the marina area where he lived in a floating home. City officials sought to redevelop the waterfront area through the power of eminent domain.
In November 2006, Lozman attended a city council meeting and got up to speak during the public comment period. He criticized a county commissioner and others. A city council member ordered him to stop speaking. Lozman continued to speak. The councilmember then ordered a police officer to arrest Lozman, who stated: “Why am I being arrested! I have a First Amendment right!”
The police arrested him and charged him with disorderly conduct and resisting arrest without violence. The state’s attorney dropped the charges because there was “no reasonable likelihood of successful prosecution.”
In February 2008, Lozman filed a civil rights lawsuit in federal court, alleging a violation of his First Amendment right to free speech and his Fourth Amendment right to be free from an unreasonable seizure. Lozman contended that his arrest was a form of unlawful retaliation because he criticized government officials.
It took a while, but his false-arrest case finally headed to trial in November 2014, with Lozman representing himself. The judge instructed the jury that in order to rule in favor of Lozman, the jury had to find that “the arresting officer lacked probable cause to believe that Mr. Lozman had or was committing a crime.”
The jury ruled in favor of the city. The district court also denied his motion for a new trial. Lozman appealed to the 11th U.S. Circuit Court of Appeals, contending that he should receive a new trial because the district judge’s jury instructions were flawed.
The 11th Circuit seemed to recognize that Lozman had established at least a cognizable claim of retaliation on the part of the councilperson that ordered the officer to arrest him. The problem for Lozman is that the jury instructions stated that he must show that the arresting officer had a retaliatory animus towards him.
“Lozman’s argument is compelling, as he seems to have established a sufficient causal nexus between [the councilperson] and the alleged constitutional injury of his arrest.” However, the 11th Circuit said that was at best only a harmless error because the officer had probable cause to arrest Lozman.
Now, the case is before the U.S. Supreme Court and the stakes are quite high for those who criticize government officials at public events.
If the Supreme Court rules that a retaliatory arrest claim automatically fails if the officer had probable cause to arrest, then government officials will be incentivized to arrest those most critical of them.
As the Institute for Justice and Cato Institute write in their amicus brief, “many citizen activists will censor themselves rather than speak out – a result that cannot be squared with the values that animate the First Amendment.”
The National Press Photographers Association and 25 other news organizations explain in their amicus brief that the Lozman case is also vitally important to the press: “If the mere existence of probable cause to make an arrest for any offense can preclude constitutional claims alleging First Amendment retaliation, the government gains a powerful tool for suppressing critical news coverage.”
Citizen activists and journalists frequently challenge government officials. That is a healthy sign in a constitutional democracy. Hopefully, the Supreme Court will keep that in mind when it evaluates the Lozman case.
This article was published by the Newseum Institute.
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