When can someone be arrested at a public government meeting during a public comment forum? That’s a tricky question the Supreme Court is considering after a familiar face was back at the nation’s highest court last week.
Fane Lozman’s decade-long fight with Riviera Beach, Florida will likely go down in Supreme Court lore as a matter of persistence. In January 2013, the Justices ruled for Lozman in a 7-2 decision in his appeal about his former floating home, which had been seized by Riviera Beach, Florida officials, and destroyed under the terms of admiralty law.
Riviera Beach claimed Lozman’s structure was a vessel and subject to impoundment due to overdue fees it never received. Justice Stephen Breyer, in a colorful opinion, said the Supreme Court’s majority agreed with Lozman’s definition and overturned a lower court’s verdict.
It was a pyrrhic victory of sorts for Lozman. His attempts to get just compensation for the destroyed floating house failed in the lower court system, and the Supreme Court denied his appeal in April 2017. However, that didn’t stop Lozman from pursuing a third case, Lozman v. City of Riviera Beach.
As a vocal critic of local government, on November 15, 2006, Lozman appeared at a Riviera Beach city council meeting at a public comment session to speak about government corruption at a county level.
The Riviera Beach city council President asked Lozman to stop speaking about the county-level issue, but Lozman continued speaking. The council President then summoned a police officer to the floor, who arrested Lozman after he declined to leave the public-comment session and walk outside of the room. (The scene was caught on video and later posted to YouTube.)
Lozman was taken to a police holding cell and then later released. Two charges were filed against Lozman after his release, but the state attorney didn’t pursue the case. Lozman then sued Riviera Beach over the arrest, claiming his First Amendment rights were violated and the arrest was retaliation for his role in the floating house dispute and other conflicts with the city council.
Riviera Beach claimed the officer in the council meeting had probable cause to arrest Lozman based on Lozman’s conduct. The 11th Circuit Appeals Court found that there was a connection between the arrest and council’s “retaliatory animus” toward Lozman, but the police officer had probable cause on his own to arrest Lozman during his public comments.
During the Supreme Court arguments last Tuesday, it became clear that some of the Justices were looking for a way to protect speakers in a public forum such as a city council meeting without affecting the ability of police to make on-the-spot decisions to arrest people based on probable cause.
“In this case, there's a very serious contention that people in elected office deliberately wanted to intimidate this person, and it seems to me that maybe in this case we should cordon off or box off what happened here from the ordinary conduct of police officers,” said Justice Anthony Kennedy.
Chief Justice John Roberts also questioned Lozman’s arrest during the public comment forum. “I found the video pretty chilling. I mean, the fellow is up there for about 15 seconds, and the next thing he knows, he's being led off in handcuffs, speaking in a very calm voice the whole time,” Roberts commented. “Now the Council may not have liked what he was talking about, but that doesn't mean they get to cuff him and lead him out.”
Shay Dvoretzky, the attorney for Riviera Beach, argued that Lozman had gone “off topic” by talking about county-level corruption, giving cause to city council’s action to call a police officer to the public-comment area. That conclusion was disputed by Justices Ruth Bader Ginsburg and Sonia Sotomayor.
Justice Kennedy then indicated the Court could look for a narrow ruling for Lozman’s case. “It seems to me that the court in order to protect speech in the political forum can make that distinction, at least in this case, maybe wait for other cases to see if it should be expanded,” he told Dvoretzky.
Deputy Solicitor General Jeffrey Wall said that while “the facts here are troubling” the Court faced a situation where it was fashioning a rule for “almost a category of one” that could affect millions of arrest situations. “It just does not look like the typical cases for which you design the constitutional tort rule,” Wall said.
Wall also cited a 2006 decision, Hartman v. Moore, that prevented the Court from tailoring a ruling for a “one-in-a-thousand case,” he argued, citing that such a ruling would affect law enforcement by making it “so much easier to allege retaliatory arrests and there are so many more arrests every year.”
Justice Elena Kagan didn’t concur with Wall’s argument. “If we decide it your way, you know, maybe it's a green light to everybody to make it not the one-in-a-thousand case,” Kagan said. “And you know there are lots of small towns in America and there are lots of cranks in those small towns. … What about, you know, finding that guy every time he doesn't quite stop when he makes a right on red and putting them in jail for a while?
Pamela Karlan, Lozman’s attorney, warned about a ruling empowering local governments to retaliate against political opponents and objectors. “But if they arrest [a person], and they can come up with anything, even eight years after the fact, that might be something for which there's probable cause, not even a showing that [a person] actually committed the offense of disrupting a religious assembly or assembly for other purposes, but just that an officer could believe probable cause, you are giving a green light to every vengeful city council in America.”
The Court will issue a decision on the case by the end of June 2018.
Scott Bomboy is the editor in chief of the National Constitution Center.
