In secret, behind locked gates, our Nation's Oldest City dumped a landfill in a lake (Old City Reservoir), while emitting sewage in our rivers and salt marsh. Organized citizens exposed and defeated pollution, racism and cronyism. We elected a new Mayor. We're transforming our City -- advanced citizenship. Ask questions. Make disclosures. Demand answers. Be involved. Expect democracy. Report and expose corruption. Smile! Help enact a St. Augustine National Park and Seashore. We shall overcome!
LAW & ORDER: Beached dolphin rescued in Ponte Vedra Beach
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By The Record
Posted Feb 27, 2018 at 4:28 PMUpdated at 7:10 AM
St. Johns County Sheriff’s deputies responded with others Tuesday after an injured dolphin beached itself in Ponte Vedra Beach.
The deputies assisted the biologists and a veterinarian on the scene as they evaluated its injuries before “moving it to a blow-up pool,” the Sheriff’s Office said in a news release. The injuries, which are not shown in the accompanying photos were thought to have possibly been caused by a boat propeller.
The dolphin was taken to Sea World for treatment a had “a good prognosis,” the Sheriff’s Office said.
I reckon Florida First Amendment hero Fane Lozman will win his second Supreme Court case. Arrayed against Mr. Lozman are the National League of Cities, National Association of Counties, the InJustice Department, National Conference of Mayors, and the formidable forces that want you, fellow citizens, to stay in your place and never criticize government officials at government meetings.
2/27/2018 5:03 PM UPDATE: READ TRANSCRIPT OF U.S. Supreme Court Oral Argument HERE. 2/27/2018 11:00 PM UPDATE -- USA Today and Associated Press stories added down below. Yes, as I predicted, the oral argument went well for Mr. Lozman (but inflammatory USA Today headline writer called him an "agitator).
Why this matters: Freedom of speech is under attack nationwide, globally and right here in corrupt St. Johns County, Florida by the likes of County Administrator MICHAEL DAVID WANCHICK and twin cites of St. Augustine Beach and St. Augustine. The whole world is watching. If you can be kicked out, handcuffed and arrested for speaking out against corruption in public meetings -- if journalists can be arrested for reporting the news -- then our "democracy" is done. The stakes are huge. I predict that heroic South Florida government watchdog Fane Lozman will AGAIN prevail before the U.S. Supreme Court. This time, the Supreme Court ruling may be 9-0 -- unanimous -- as it is so often in key First Amendment cases. Developers, big-shot crooks, bullies, bigots, governments (cities, counties, states and the federal Department that calls itself "Justice") are all afraid, very afraid. But they will NOT be permitted to trample and stamp out the rights of activists and journalists under our First Amendment. Expect a SCOTUS decision on or before June 29, 2018.
Too often, reporters and government watchdogs are being arrested, as at President Trump's inauguration. The Palm Beach Post reports that, "According to the U.S. Press Freedom Tracker, 32 reporters were arrested last year while covering news events, such as protests at President Trump’s inauguration. More than 90 were arrested while covering Occupy Wall Street protests in 2011 and 2012, the media attorneys wrote."
Locally, journalists and activists are in the sights of controversial St. Johns County Sheriff DAVID SHOAR's corrupt, white supremacist, developer-driven political machine, which covered up the homicides of Michelle O'COnnell and Andrea Sheldon. Sheriff SHOAR has attacked FDLE Special Agent Rusty Ray Rodgers for doing his job too well in the Michelle O'Connell case, where his coverup was exposed by three-time Pulitzer Prize winner Walt Bogdanich in The New York Times and PBS Frontline.
I've been standing up to that political machine's works and pomps since April 11, 2005, when I first spoke at a City of St. Augustine Commission meeting, opposing Fifteenth Amendment civil rights violations in City annexations. WILLIAM BARRY HARRIS, then City Manager, now works for SHOAR. Crooked HARRISS said to me at the conclusion of the meeting, "I could have you arrested for disorderly conduct." I calmly replied, "I could write an article about you." Not one residential annexation has taken place since April 2005, ending the intentional dilution of African-American voting strength here.
It was not just one (1) article that I wrote.
There have been more than 2.5 million hits on this blog since 2006, and more than 10,000 posts.
Hick hack HARRIS retired in June 2010. Then he went to work for his former SAPD Chief, SHERIFF SHOAR, by coincidence, just in time to help SHOAR cover up Michelle O'Connell's homicide in the home of St. Johns County Sheriff's Deputy JEREMY BANKS on September 2, 2010.
We, the People have won more than 70 public interest victories here since 2005, when a federal court ordered Rainbow flags to fly on our historic Bridge of Lions in honor of Gay Pride, vindicating First Amendment values and defeating homophobic HARRISS's cruel rule.
First, a retired federal agent, reform St. Johns County Commissioner Ben Rich, Sr. was elected (2004-2008). Since 2006, we've helped elect some honest reformers, like:
St. Augustine Mayor Nancy Shaver,
St. Augustine Beach Commissioner Maggie Kostka,
St. Johns County Commissioners J. Kenneth Bryan (2008-2012) and Henry Dean (elected in 2016, currently Chair);
Anastasia Mosquito Control District (AMCD) of St. Johns County Commissioners Jeanne Moeller (2006-date), John Sundeman (2006-2010) and Janice Bequette (2008-2016).
The "good people" of St. Johns County hunger for truth and justice.
We are disgusted at "Business As Usual."
"Business As Usual" -- That's what The St. Augustine Record a/k/a MULLET WRAPPER, actually endorsed, in haec verbs in 2014 in its ineptly-written, unctuous, unsuccessful endorsement of Sheriff SHOAR's pal, corrupt St. Augustine Mayor JOSEPH LESTER BOLES, JR..
That was during the dark quarter century when the developer-directed WrecKord was owned by the developer-coddling, white supremacist MORRIS COMMUNICATIONS gang from Georgia (1982-2017)
In the amicus curiae brief filed in support of Mr. Lozman by Florida's First Amendment Foundation and the American Civil Liberties Union, it states that chilling effects on free speech rights and self-censorship as a result arbitrary power and oppression is a problem in small towns where the:
risk of self-censoring is particularly acute in interactions between individuals and their local governments—especially in smaller cities and towns. In these smaller towns, citizens are much likelier to in- teract with government officials on a regular basis. Government critics are more likely to be known to of- ficials—and police are more likely to have relationships with office holders. It is no coincidence that, in a number of the examples discussed above and in the instant case, the retaliatory arrests at issue were effected by local government officials in smaller cities and towns. See, e.g., Public Data, GOOGLE, 27 goo.gl/dh55sP (last visited Dec. 21, 2017) (Riviera Beach, Florida, where petitioner Lozman was arrested, has a population of 34,244; Pittsboro, Indiana, where plaintiff Baldauf got into an altercation with a police officer in a convenience store, has a population of 3,283; Huber Heights, Ohio, where 63-year-old plaintiff Laning was pulled over, arrested, and forced to ride in a police car while the officer did “donuts,” has a population of 38,019). The greater degree of interaction between citizens of smaller towns and their local governments gives rise to both increased opportunities for retaliation and more severe chill when retaliation occurs.
Below are two "curtain-raiser" articles from The Palm Beach Post and The Washington Post, preceded by legal analysis from SCOTUS Blog. For more, go to the Supreme Court docket to read the Supreme Court's orders and briefs here.
Ed Slavin's Note: The Post's headline writer badly ly needs to have his/her consciousness raised -- the Post's unfortunate use of the term "provocateur" is pejorative, resembling the line from St. Johns County Sheriff Shoar's consigliere, maniacal MATTHEW DANIEL CLINE, da "Undersheriff."
CLINE is the undistinguished, unethical, prevaricating graduate of a failing for-profit law school on I-95 in Jacksonville, Florida.
Watch corrupt CLINE, the bumbling bumptious bully, infamously and egregiously use the term "provocateur" as he and SHOAR had journalist Jeffrey Marcus Gray ejected from our county-owned World Golf Village Convention Center last year, lying in two-part harmony with SHOAR that the government facility is "privete property."
Watch video of SHOAR and CLINE's March 23, 2017 civil rights violation, including CLINE's judgmental jerk use of the term "provocateur" here:
Given the ordinary, customary meaning of the term "provocateur" I think that amazing Amazon billionaire Jeffrey Bezos, owner of the The Washington Post, and his English-challenged editors, might wish to apologize to Mr. Lozman for its offensive headline.
"Provocateur?!"
Please.
The correct term for people standing up to corruption in Florida is "patriots."
Here's the video of Mr. Lozman's arrest:
Here are the SCOTUS Blog, Palm Beach Post and Washington Post articles before the hearing, followed by USA Today and Associated Press articles after the hearing, and a detailed SCOTUS Blog Argument Analysis based on thorough reading of the transcript:
Argument preview: Justices to consider whether probable cause defeats claims of retaliatory arrest for First-Amendment-protected expression
On November 15, 2006, Fane Lozman rose to speak during the public-comments portion of a regular public meeting of the City Council of Riviera Beach, Florida. What followed was anything but a run-of-the-mill discussion about the intricacies of local government. To the contrary, when Lozman began to talk about “corrupt local politician[s],” he was cut off by a councilperson and asked to cease that line of commentary. When Lozman refused to comply, he was arrested, handcuffed and removed from the meeting.
In February 2008, Lozman filed a Section 1983 suit against Riviera Beach in the U.S. District Court for the Southern District of Florida. He alleged, among other things, that his arrest constituted retaliation for First-Amendment–protected activity. Specifically, Lozman charged that his arrest amounted to payback for two categories of protected expression: his then-pending lawsuit against the city under Florida’s Sunshine Act, and his extensive public criticisms of city officials and policies, including and preceding his remarks on November 15.
After a jury returned a verdict for the city, Lozman sought a new trial, which the district court denied, and he filed an unsuccessful appeal to the U.S. Court of Appeals for the 11th Circuit. The 11th Circuit acknowledged Lozman’s “compelling” argument that the district court had given erroneous jury instructions on retaliatory animus. The court of appeals held, however, that any such error was harmless, because the jury had found that the arresting officer had probable cause to arrest Lozman. The court relied on an earlier 11th Circuit case, Dahl v. Holley, which held that a plaintiff cannot prevail on a First Amendment retaliatory arrest claim if there was probable cause to justify the arrest.
On Tuesday, February 27, the Supreme Court will consider whether the 11th Circuit was correct in holding that the presence of probable cause necessarily defeats a claim of retaliatory arrest for First-Amendment-protected expression. In 2006, in Hartman v. Moore, the Supreme Court held that probable cause bars First Amendment claims alleging retaliatory prosecution. The court has yet to determine, however, whether to extend the Hartman rule (the “probable-cause bar”) to the retaliatory-arrest setting. Although the 2012 case Reichle v. Howards presented that very question, the court resolved Reichle on the narrower grounds of qualified immunity. Currently, the federal courts of appeals are split on the issue.
In urging the Supreme Court not to extend the probable-cause bar to retaliatory-arrest claims, Lozman argues that there are key distinctions between the prosecution and arrest settings. In this vein, he characterizes Hartman as having “rest[ed] entirely on the fact that prosecutors … are absolutely immune from suit.” Given this immunity, a retaliatory-prosecution claim necessarily entails a representation that a non-prosecuting official induced a prosecutor to conduct a prosecution for retaliatory reasons. To prevail in such a case, when there is probable cause to support the grounds officially given for prosecution, a plaintiff must demonstrate that the official grounds are distinct from the prosecutor’s subjective, retaliatory motives. Such a showing necessarily entails a complicated causal chain. More importantly, the process of identifying and litigating over that chain undermines the prosecutorial independence and corollary “‘presumption of [prosecutorial] regularity’” that immunity is meant to protect. In contrast, Lozman maintains, the causal chain is relatively “straightforward” in the retaliatory-arrest setting. Additionally, he posits that “no potentially responsible actor” in that setting is beyond scrutiny.
Lozman also argues that a probable-cause bar poses far greater risks to First Amendment interests in the retaliatory-arrest context than in the retaliatory-prosecution context. In the prosecution setting, “the putative plaintiff will have an indictment or charging instrument that cabins the probable cause inquiry by identifying a specific crime.” Yet “in retaliation cases involving arrests, the ‘subjective reason for making the arrest need not,’” under Devenpeck v. Alford, “‘be the criminal offense as to which the known facts provide probable cause.’” A probable-cause bar in the arrest setting thus immunizes state actors who cause arrests to be made in retaliation for protected speech, so long as they can show that there was probable cause to arrest the speaker for jaywalking, speeding, disturbing the peace or committing any criminal violation at all.
To illustrate the potential for abuse, Lozman points to the facts of his own case. Shortly after his arrest, Lozman was given a “notice to appear” that listed two charges: “disorderly conduct” and “resisting arrest without violence.” Both charges were soon dismissed by the state’s attorney, who found “no reasonable likelihood” that they could be prosecuted with success. At the trial in Lozman’s Section 1983 suit, the question resurfaced as to whether there had been probable cause to arrest him for a crime. The trial court judge concluded that no probable cause had existed to arrest him for either charging offense. The city then “identified two new candidates” for provisions that Lozman might have violated: a prohibition on “‘trespass after warning’” and a law against “‘willfully interrupt[ing] or disturb[ing] any school or any assembly of people met for the worship of God or for any lawful purpose.’” After initially leaning toward the trespass provision, the district court settled on the willful-disturbance law as the one “at play here.” Ultimately, the latter offense was the only one “as to which the jury was asked to assess probable cause.”
For its part, the city denies that there are meaningful, material distinctions between the retaliatory-arrest and retaliatory-prosecution settings. It maintains that each type of claim presents the same fundamental causality problem: “[S]omething other than [retaliatory] animus – the prosecutor’s independent decision to prosecute, or the officer’s decision to arrest for reasons unrelated to animus toward the arrestee’s speech – may have led to the supposed retaliatory action.” Nor do retaliatory arrests threaten free-speech interests any more than do retaliatory prosecutions. If anything, the opposite is true, because a “criminal prosecution is a far greater intrusion on a defendant’s liberty than an arrest.” The city also dismisses the notion that the arrest setting is comparatively rife with the potential for government abuse of the probable-cause bar. “Rarely,” the city notes, “is an officer who harbors some ill will towards a speaker present at the exact moment the speaker does something that gives probable cause for an arrest.” And in any event, “arrests backed by probable cause pose little danger to the freedom of speech.” Far greater threats are posed by “arrests unsupported by probable cause.”
The city also stresses the practical value of the probable-cause bar in the retaliatory-arrest setting. The city observes that “officers must often consider protected speech when deciding whether to make an arrest.” For example, speech might “provide ‘evidence of a crime.’” Or it might influence an officer’s assessment of whether a suspect threatens public safety. With a probable-cause bar in place, officers can “make arrests in such circumstances without fear of having to later litigate whether their real motivation was preventing [crime] or punishing speech.” To illustrate this point, the city highlights the example of the U.S. Court of Appeals for the 9th Circuit, which does not impose a probable-cause bar. The city summarizes a number of retaliatory-arrest cases that went to trial in the 9th Circuit, and suggests that they lacked merit.
Among the questions to watch for from the justices are those designed to tease out the practical dangers each party’s position might pose. For example, the city might be asked to grapple with scenarios in which government officers intentionally and openly retaliate against protestors for their protected speech by targeting those people for aggressive enforcement of laws against minor transgressions, such as jaywalking. Lozman’s attorney might be pushed, on the other hand, to consider the limits of a complainant’s ability to state a claim for retaliatory arrest based on speech that is protected but that may show violent impulses on the speaker’s part. It will be interesting as well to see to what extent, if at all, the justices’ questions reflect recent events, such as the demonstrations and violence in Charlottesville, Virginia, protests against President Donald Trump’s administration, and protests by Black Lives Matter. And of course, we can count on old First Amendment chestnuts like the chilling effect and the heightened value of “core” political speech to crop up throughout the discussion.
Lozman faces Riviera Beach in U.S. Supreme Court for rare second time
Fane Lozman outside Riviera Beach City Hall in 2016. On Tuesday, Feb. 27, 2018, he will take his second legal fight with Riviera Beach to the U.S. Supreme Court. (Meghan McCarthy / The Palm Beach Post)
“I hope Mr. Lozman takes from this that there was no retaliation,” said attorney Ben Bedard, who represented Riviera Beach in the month-long trial in U.S. District Court. “I’m hoping he moves on with his life and leaves the city alone.”
In retrospect, city leaders should have known better than to hope their longtime nemesis would quietly fade away.
On Tuesday, five years after the 56-year-old former U.S. Marine, commodities trader and self-made millionaire notched his first U.S. Supreme Court victoryagainst the city, he will be back for round two.
Lozman — possibly the first person, other than hired lawyers, to win a return trip to the high court to contest two starkly different issues — acknowledges that the thorny First Amendment battle he is asking justices to decide is far more important than the one that took him to Washington in 2012 and that the Supreme Court decided in 2013.
Back then, he argued that the city illegally seized and destroyed his 60-foot, two-story home docked at the Riviera Beach marina by using centuries-old maritime laws. In the case, which Chief Justice John Roberts called his favorite of the term, the court agreed with Lozman, ruling that everything that floats is not a boat.
This time, Lozman claims that one of Americans’ most cherished rights — the ability to speak freely without fear of arrest — is at stake.
“If I lose this case, it will be a sad day for our democracy,” said Lozman, who made a fortune inventing software that tracks stock market volatility. “Our country will slide further into a police state, where municipalities and its elected leaders and public servants will be immunized from any penalties for retaliatory arrests.”
To shore up his weighty claim, he points out that First Amendment groups and civil libertarians are backing his efforts to make it easier for people to win civil lawsuits alleging that they were arrested because police or elected officials didn’t like their views. Claiming news reporters are increasingly targeted by police for arrest for simply doing their jobs, more than 25 media organizations also have joined Lozman’s appeal.
Constitutional lawyer Floyd Abrams, who helped the New York Times win the right to publish The Pentagon Papers over the objections of the Nixon Administration, has thrown his considerable legal weight behind Lozman and his legal team from Stanford University Law School.
“Arrests made in retaliation for the exercise of First Amendment rights are a particularly chilling form of governmental response to constitutionally protected but officially disfavored speech,” Abrams wrote on behalf of the Virginia-based Institute for Free Speech.
Riviera Beach, which has spent more than $1 million battling Lozman in court, has its own formidable backing.
Claiming the ability of police to do their jobs would be compromised if Lozman wins, Acting U.S. Solicitor General Jeffrey Wall has asked to address the court during Tuesday’s oral arguments. Organizations representing cities and counties and the attorneys general for 10 states and the District of Columbia are also supporting Riviera Beach, which is represented by attorney Shay Dvoretzky and two other former clerks for the late U.S. Supreme Court Justice Antonin Scalia.
“Adopting Fane Lozman’s contrary rule will have significant negative effects on state and local governments,” wrote attorneys representing the National Association of Counties, the National League of Cities and the U.S. Conference of Mayors.
“It will make it more difficult to maintain order and safety at local government meetings, public protests and demonstrations, and political rallies,” they continued. “Also … local governments, in addition to their officers, will face an increased likelihood of defending against meritless lawsuits based on lawful arrests.”
Those who all-too vividly remember the clashes the council had with Lozman after he moved his floating home to Riviera Beach in 2005 and began fighting the city’s now-scuttled multi-billion-dollar redevelopment plan say they are surprised the dispute has attracted such high-powered attention.
To Ann Iles, a Riviera Beach councilwoman when Lozman was arrested, the issue is simple: “I don’t think that just because you have a First Amendment right to speak that you have a right to attack people personally,” she said. “He would attack us, he would attack our staff. He was disruptive.”
During the 2014 trial, Bedard told jurors Lozman had attended 121 council meetings and spoken 296 times. “Does that sound like someone whose First Amendment rights are being impeded?” he asked.
But Lozman countered with a transcript of a closed meeting the City Council had convened to discuss his lawsuit. In it, council members discussed hiring a private investigator that one of them said “would help to intimidate” him.
That trial in federal court settled a 2008 First Amendment retaliation lawsuit Lozman filed against the city after he was led from the council chambers in handcuffs in 2006 when he refused to leave the podium, seconds after he began talking about recent arrests of a county commissioner and West Palm Beach city commissioner — subjects that Riviera council members declared irrelevant.
In the suit, Lozman alleged that city officials launched a campaign against him after he sued them to block the redevelopment plan by accusing them of violating the state’s open meeting laws. They demonized his dachshund, had him arrested and later destroyed his floating home, he claimed at trial.
Constitutional lawyer Bruce Rogow, a professor of law at Nova Southeastern University Law Center who has argued 11 cases before the Supreme Court, said petty disputes often create far-reaching law. He cited the 2007 “Bong Hits 4 Jesus” case in which the high court expanded the ability of educators to stifle students’ First Amendment rights.
Like the Bong Hits case, which involved a banner flown by an Alaskan student, Lozman’s case made it to the Supreme Court, in part, because of what is often described as the liberal 9th Circuit Court of Appeals, which handles cases in nine western states from its courthouse in San Francisco.
In those nine states, a First Amendment retaliation claim doesn’t turn solely on whether a police officer had probable cause to make an arrest. It is just one of several factors that are considered. The more conservative Atlanta-based 11th Circuit, which decides appeals from Florida, Georgia and Alabama, bars First Amendment retaliation lawsuits if cops can show they had probable cause to make an arrest. The different ways of handling such cases throughout the country set the stage for the issue to be decided by the Supreme Court.
Lozman argues that Riviera Beach simply manufactured a reason to arrest him. He was charged with disorderly conduct and resisting arrest without violence, but the charges were dropped by state prosecutors. In the 2014 civil trial in which Lozman alleged retaliation by the city, U.S. District Judge Daniel Hurley allowed the city to argue that Lozman violated an obscure law, disturbing a lawful assembly.
Lozman claims Hurley’s ruling sunk his case because as long as the city could claim it believed he had violated some law he couldn’t win his retaliation claim. Such a standard hurts anyone who wants to prove they were punished for expressing unpopular views and empowers elected officials and police to illegally curb the public’s First Amendment rights, Lozman said.
“They can always come up with some bogus little misdemeanor to argue that they had probable cause,” he said.
So-called “catch and release arrests” happen frequently, wrote attorneys for the National Press Photographers Association, the Associated Press, Dow Jones & Co. and more than two dozen media organizations. According to the U.S. Press Freedom Tracker, 32 reporters were arrested last year while covering news events, such as protests at President Trump’s inauguration. More than 90 were arrested while covering Occupy Wall Street protests in 2011 and 2012, the media attorneys wrote.
“Arrests such as these thwart the well-established First Amendment right to record police activity in public, which is a crucial function journalists must be able to perform in order to ensure that the police remain accountable to the public they serve,” the media attorneys wrote.
Attorneys for the First Amendment Foundation and the American Civil Liberties Union said average citizens are also regularly arrested without cause. Such arrests have dire consequences.
“Retaliatory arrests not only silence the individual in question, but also send the message to others in the community that expression of disfavored views may result in being taken into law enforcement custody,” attorneys for the two groups wrote.
However, attorneys for cities, counties and state governments argue that someone’s incendiary speech often alerts police or other public officials that a person is dangerous. Further, people often make derogatory comments about cops or society in general when faced with arrest. To allow them to then argue that they were arrested because of their words, not their actions, would have a chilling effects on police, the governments’ attorneys wrote.
“Officers frequently encounter intoxicated and verbally combative suspects, and they must make split-second decisions in volatile circumstances,” wrote Alaska Attorney General Jahna Lindemuth. “Exposing officers to retaliation claims for arrests that were supported by probable cause risks eroding their willingness to make lawful arrests required to protect public safety.”
Noting that it is rare for people to be ejected from public meetings, attorneys representing cities and counties said there are times when it is necessary. “Maintaining order at these meetings can unintentionally abridge speech, as where a citizen must be removed because he or she is causing a disturbance,” they wrote.
Abrams and some of the others who support Lozman suggest a compromise similar to that embraced by the 9th Circuit. While police or elected officials could be allowed to argue that they had probable cause to arrest someone, that would be only one of the factors that would be considered.
“If the presence of probable cause alone defeats the existence of a First Amendment retaliatory arrest claim under all circumstances, arrests rooted in an effort to stifle protected speech will become judicially unscrutinized and undisturbed throughout the nation,” Abrams wrote.
Like many other constitutional questions that come before the court, the eventual ruling could have far-reaching consequences, Rogow said. “It will set some precedent,” he said.
It could also affect Riviera Beach if the court overturns the jury verdict and orders a new trial. Lozman was seeking about $500,000 from the city, including the cost of his floating home. While he previously persuaded the U.S. Supreme Court that it was destroyed illegally, a federal judge ultimately decided it was worth only $7,500 — far less than the nearly $270,000 Lozman sought.
For now, however, Lozman says the battle isn’t about money. “At this time in our nation’s history, when there’s been such an assault on the First Amendment, I’m just so grateful that the U.S. Supreme Court has allowed me to defend the First Amendment,” he said. “It’s a special privilege we have as Americans.”
Who is Fane Lozman?
Personal: A 56-year-old Miami native, he graduated from the University of Miami with a bachelor’s degree in mathematics before joining the U.S. Marines. After a six-year stint as a pilot, he moved to Chicago where he traded commodities. He made millions from patenting software that tracks market volatility and returned to Miami.
Prior to Riviera Beach: While living on a boat in North Bay Village in 2003, he was kicked out of public meetings and arrested for accusing officials of corruption. He eventually gathered information that led to the arrests of the mayor and three city commissioners in the town, which is north of Miami. After Hurricane Wilma destroyed the marina in 2005, he moved his floating home to the Riviera Beach Marina.
Life in Riviera Beach: He arrived as the city council was planning to use its power of eminent domain to condemn homes and businesses as part of a multibillion-dollar redevelopment plan. At public meetings, Lozman accused council members of corruption. In 2006, he sued to block the redevelopment, claiming the council violated the state’s opening meeting laws, but later dropped that suit. After a protracted battle to evict him from the marina, the city sued Lozman in federal court in 2009 and got permission to seize and destroy the boat under admiralty law. Meanwhile, Lozman had filed a First Amendment retaliation lawsuit in 2008, claiming his 2006 arrest for refusing to leave the podium and the city’s effort to evict him were part of an unconstitutional effort to stop him from expressing his opposition to the redevelopment plan.
U.S. Supreme Court: In 2013, the high court agreed with Lozman that the city illegally destroyed his floating home using centuries-old maritime laws. But a federal judge later awarded him only $7,500. On Tuesday, Lozman, who now lives in Miami, will try to persuade justices that the Riviera Beach Council violated his First Amendment rights by having him arrested at the 2006 meeting.
Philosophy: “I look at myself as someone who fights corrupt elected officials … who do what’s best for them, not what’s best for the community.” He said his riches give him an edge. “You can’t fight City Hall if you have a job.”
A Florida provocateur has his day before the U.S. Supreme Court — again
Fane Lozman poses for photos holding his dog near his home floating in the waters near North Bay Village, Fla., in 2014. (J Pat Carter/Associated Press)
RIVIERA BEACH, Fla. — The many descriptions bestowed on Fane Lozman over the years include political gadfly, relentless opponent of public corruption, and bored rich guy always spoiling for a fight.
If every town has a you-can’t-shut-me-up activist who second-guesses (sic) council members and dominates (sic) the public comments portions of meetings, few have elevated the art like Lozman. He has offered a $50,000 reward for dirt on local politicians and taunted them at a ribbon-cutting with an airplane flying overhead. “Adios,” said the banner that called the council corrupt.
So remarkable are his battles with the political leaders of this town of 35,000 people that they have drawn the attention of the U.S. Supreme Court.
Not once, but twice.
The latest rendition of Lozman v. City of Riviera Beach has grown from a ham-handed attempt to cut him off at a city council meeting into a major free-speech showdown that will have nationwide implications for citizens arrested — as Lozman was — by government officials they criticize. The court will hear arguments in the case Tuesday.
Fane Lozman talks to a reporter in Miami Beach, Fla. in 2012. (Alan Diaz/Associated Press)
“He’s a formidable citizen-activist,” said Barbara Petersen, president of the Florida First Amendment Foundation. The group honored Lozman last month for being the kind of watchdog that keeps local governments honest. In his wake are officials who lost jobs and politicians drummed from office.
Another view comes from former Riviera Beach city council member Elizabeth Wade, who spoke most colorfully of being the target of Lozman’s barbs.
“I told him I would put my foot so far up his behind, he would think my toe was his tonsil,” she once told a reporter.
The first time Lozman and the city met at the Supreme Court, the justices reviewed Lozman’s claim that Riviera Beach had improperly used federal admiralty law to seize (and later destroy) his two-story, plywood-and-French-doors houseboat, moored at the city marina. The court ruled 7-to-2 against the city, saying Lozman’s houseboat was more house than boat.
This time, Lozman says, the fight is bigger than him.
“If I lose this case, it will be a sad day for our democracy,” Lozman said recently. “Our country will slide further into a police state. . . . It sounds hokey, but this is kind of a noble battle to fight.”
At issue is Lozman’s arrest at a city council meeting in November 2006.
Fane Lozman’s home floating in the waters near North Bay Village, Fla., in 2014. (J Pat Carter/Associated Press)
During the public comments portion of the meeting, Lozman began to use his three minutes to talk about his favorite subject: corruption in Palm Beach County, where Riviera Beach is located.
Wade, who was presiding at the meeting, immediately stopped him. If he continued to rant (sic) about a county official at the meeting of the city council, she warned, he would be arrested.
He refused, adding: “I have a right to make my public comment.”
“Carry him out,” Wade told a police officer. Lozman was led away in handcuffs and spent hours in jail. The episode can be seen on YouTube.
More than 11 years later, there have been dropped charges and court hearings, a 19-day federal trial in which Lozman served as his own attorney and a return trip to the appeals court in Atlanta that ruled against him in the houseboat case.
This time at the Supreme Court, Lozman is supported by First Amendment organizations, the American Civil Liberties Union and a coalition of media organizations who say Lozman’s fight is especially important at a time when protests of government policies are on the rise and government officials are geared up to shut them down.
The city of Riviera Beach, meanwhile, is backed by the Trump administration, the District of Columbia and 10 states who say that showing there was probable cause for an arrest — as a jury found in Lozman’s case — should be the end of a retaliatory arrest claim.
Otherwise, they say, the courts will be flooded with lawsuits by unhappy arrestees who claim the government was simply biased against them.
On a recent sunny afternoon on the Intracoastal Waterway, Lozman piloted a long, black inflatable boat like those Navy SEALs favor and acknowledged that controversy seems to find him. His unusual first name, he joked, is derived from the word “profane.”
Behind him, about eight miles to the south, was President Trump’s Mar-a-Lago estate. On one side of him was Peanut Island, where a bunker was built for President John F. Kennedy in case nuclear war arrived while he was visiting his family’s Palm Beach compound.
And on the other side was the Riviera Beach marina, the place at the heart of his disputes with the city.
Lozman would like the record to reflect that he is not the antagonist here.
“This was initiated by the city,” he said. “I didn’t ask them to [take] my floating home and destroy it. They did it. I didn’t ask them to arrest me at a city council hearing. They did it. I didn’t seek these battles.”
Lozman searched the green water for dolphins and manatees. “It morphed into this legal soap opera that you can’t make up,” he said. “But, I mean, it wasn’t like I didn’t have anything else to do.”
Lozman, 56, had never attended a local government meeting until he moved back to Florida in 2003. He’s a Miami native, but left for a stint in the Marines and an apparently lucrative life as what he calls a “zombie day trader” in Chicago.
He holds a patent on some computer software and makes investments. He came home for QTL — “quality time left” — and moored a floating home in a marina north of Miami.
When a hurricane wrecked the marina, he moved about 80 miles north to Riviera Beach. But as soon as he arrived, Lozman found the city council was about to use eminent domain to turn the marina and some surrounding homes over to a private developer.
(Really) long story short: Lozman rallied opposition to the project, and the Florida legislature passed a law prohibiting such deals. On the day before the law was going into effect, the city council called an emergency meeting and approved the proposal.
Lozman and others sued, saying the council had violated the state’s open-meeting laws.
The council had met behind closed doors to discuss its legal strategy — and, as a transcript released under public records law showed — what to do about Lozman.
Wade said the council needed to “intimidate” Lozman and make him “feel the same kind of unwarranted heat we are feeling.” Other members agreed.
But by the fall, the deal with the developer was falling apart because of the lawsuits and negative publicity. At the fateful Nov. 15, 2006, meeting, the council was scheduled to officially throw in the towel.
“Normally, I don’t dress up but I was wearing a suit,” Lozman said, because he was scheduled to be interviewed by a local television reporter.
He began to speak, he said, “but it was like, ‘No, we’re going to teach you a lesson.’ ”
Instead of reporting on Lozman’s triumph in sinking the development, “everyone’s story that night was the guy who killed the deal went to jail,” Lozman recalled. “Never in a million years did I think they’d arrest me in the middle of this media circus.”
The charges were “disorderly conduct” and “resisting arrest without violence.” A state prosecutor declined to pursue them, however, saying there was no reasonable likelihood of conviction.
Lozman then filed a civil rights lawsuit against the city, saying the council violated his First Amendment rights with a retaliatory arrest.
To prevail, Lozman had to show his speech was protected by the First Amendment, that the arrest would be enough to deter the average person from speaking, and that “animus” motivated those responsible for his arrest.
But the U.S. Court of Appeals for the 11th Circuit, which covers Florida, Georgia and Alabama, imposes a fourth factor. If the government can show there was a reasonable belief that any law was broken — probable cause — the claim of retaliation cannot go forward.
Courts in other regions of the country do not have such a requirement, which is why the Supreme Court accepted Lozman’s case.
The judge presiding over Lozman’s lawsuit told Riviera Beach’s lawyers there was no probable cause for disorderly conduct or resisting arrest. What else? he asked.
They found an obscure Florida law making it a misdemeanor to interrupt or disturb “any school or any assembly of people met for the worship of God or for any lawful purpose.”
It is possible that is what Lozman was about to do, the judge reasoned, and a jury agreed.
The appeals court affirmed.
The Supreme Court years ago decided that a finding of probable cause barred a claim of retaliatory prosecution. The question before the court now is whether the same standard should be applied to arrests.
The Justice Department said a finding of probable cause provides a “clear and objective basis” for judges and juries to decide that government may not be sued for an arrest. It will argue Tuesday on Riviera Beach’s behalf.
Riviera Beach’s brief to the court deals more with the larger consequences of ruling for Lozman, rather than their unpleasant history.
But it denies that council members were intolerant of Lozman. Indeed, they often let him “harangue them without interruption,” the brief states.
“They did so even on May 17, 2006, when he threatened to launch recall proceedings against a councilmember if she did not resign by noon the next day,” the brief states. “And they did so again on June 21, when Lozman asked the public for information regarding mayoral corruption that he could share with ‘investigators.’ ”
Lozman is represented by Stanford law professor Pamela S. Karlan and the law school’s Supreme Court Litigation Clinic. They told the court that free-speech rights would mean little if “government and government officials were free to retaliate against individuals who exercise those rights.”
The free-speech organizations and media groups supporting Lozman provide a long list of journalists and protesters arrested by police as a means of intimidation, often on the most minor infractions.
Back in Riviera Beach, only one council member remains from the day Lozman was arrested, and there is a different mayor, as well.
Mayor Thomas A. Masters and Lozman are friendly, and he seems sanguine about the city’s case. “I think it’s important we finally get an answer,” Masters said in an interview.
Asked what he thinks of Lozman, Masters, a minister, paused. “If I could use a biblical reference, I’d say Fane Lozman is Riviera Beach’s John the Baptist,” he said, referring to Christianity’s fiery prophet.
After Lozman’s initial success at the Supreme Court, he’s excited to return.
“The Supreme Court is there to interpret the law and be professional about it,” Lozman said. “They don’t have anything to prove. The district court judges and the circuit judges are not there to be professional; they’re there to bust your balls and hold grudges.”
Still, Lozman said, he almost walked out of the grand courtroom in 2012, when the justices were considering the case involving his floating home. Justice Anthony M. Kennedy sarcastically called the houseboat a “magnificent structure” that “was mercifully destroyed.”
Said Lozman: “I thought that was a cheap shot.”
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Florida resident Fane Lozman stands on the steps of the Supreme Court, Tuesday, Feb. 27, 2018 in Washington, after oral arguments in his case. Lozman contends he was wrongly prevented from speaking at a 2006 city council meeting through an arrest on bogus charges of disorderly conduct and resisting arrest that were later dropped. Jessica GreskoAP Photo
Supreme Court justices seemed troubled Tuesday by the arrest of a Florida man during a city council meeting in Florida, an arrest he says was retaliation for being an outspoken critic of the city.
The justices were hearing arguments in a case brought by Fane Lozman over his arrest at a 2006 city council meeting in south Florida's City of Riviera Beach. Lozman was arrested after he began using the meeting's public comment time to talk about government corruption in the county and kept speaking after a member of the council warned him not to continue with the topic. The charges against him were ultimately dropped, but Lozman then turned around and sued the city.
Lozman claimed the city violated the First Amendment's free speech guarantee by arresting him in retaliation for his criticism of city officials and policies and a separate lawsuit he'd filed against the city. A lower court ruled that because a jury found a police officer had probable cause to arrest Lozman for disturbing a lawful assembly, he couldn't bring a retaliation claim.
Chief Justice John Roberts said he found video of Lozman's arrest "pretty chilling." He said Lozman appeared to speak in a very calm voice for about 15 seconds and then "the next thing he knows, he's being led off in ... handcuffs."
"Now the council may not have liked what he was talking about, but that doesn't mean they get to cuff him," Roberts said.
Justice Sonia Sotomayor also appeared to take issue with Lozman's arrest.
"He started by saying there's been an arrest for corruption, which was true. And then he tried to say, 'And I've been telling you that other people are corrupt,'" she said. "Why is that off topic?"
Shay Dvoretzky, arguing on behalf of the City of Riviera Beach, said Lozman's comments were not about the city but the county it is part of, Palm Beach County.
Justice Elena Kagan also seemed sympathetic to Lozman, telling Dvoretzky that he "might have some difficulty with the facts of your case."
Arguing on Lozman's behalf, Stanford law professor Pamela S. Karlan, asked that the court to rule that the existence of probable cause to arrest Lozman not be an absolute bar to his retaliatory arrest lawsuit.
Numerous First Amendment and media organizations, including The Associated Press, have filed briefs supporting Lozman.
The case is notable for being the second time a case involving Lozman, 56, has been in front of the justices. In the first case, Lozman won a landmark ruling against the city that a floating home he had docked at a Riviera Beach marina was a house, not a boat subject to easier government seizure under laws that govern ships and boats.
The case is 17-21, Lozman v. City of Riviera Beach.
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Supreme Court defends free speech of Florida agitator (sic) Fane Lozman in his fight against city
Richard Wolf, USA TODAYPublished 4:51 p.m. ET Feb. 27, 2018
WASHINGTON — Political protesters had a good day at the Supreme Court Tuesday. Violent protesters did not.
Faced for the second time in six years by a Florida man whose floating home they ruled was illegally seized and destroyed by local officials, the justices appeared to find even less justification for his arrest while speaking at a city council meeting.
That would be strike two for the city of Riviera Beach — and the justices didn't seem eager to wait for strike three.
"Obviously, there is no love lost between your client and the city of Riviera Beach," Justice Samuel Alito told Pamela Karlan, the attorney representing Fane Lozman, whose arrest in 2006 and floating home seizure in 2009 led to both Supreme Court cases.
Lozman's latest battle with his adopted hometown began 12 years ago, when the city sought by eminent domain to redevelop its marina. Over the course of the next three years, he was evicted, returned, and ultimately had his floating home seized and destroyed. Lozman won that Supreme Court case in 2013.
During the course of that battle, officials had him arrested during a City Council meeting when he refused to stop speaking. Unfortunately for them, the incident is preserved on YouTube.
"I found the video pretty chilling," Chief Justice John Roberts said. "I mean, the fellow is up there for about 15 seconds, and the next thing he knows, he's being led off in handcuffs."
Lozman, 56, listened intently from the middle of the courtroom for what seemed likely to be his second successful trip to the high court.
The central issue in the case is whether a finding of probable cause can overcome an arrest carried out in retaliation. While Lozman was charged initially with disorderly conduct and resisting arrest, those charges were dropped, and the city's lawyers offered a different reason for his arrest at trial.
While nearly all the justices found little basis for Lozman's treatment, they worried that a ruling in Lozman's favor could cause problems for police who make more justifiable arrests — for felonies, say, or during riots. That point was seized upon by U.S. Deputy Solicitor General Jeffrey Wall.
"There are 10 to 11 million arrests each year and little way to protect them from claims of retaliation," Wall said. While conceding that Riviera Beach's actions were "troubling," he said, "police aren't lawyers. They arrest based on conduct."
But Karlan warned the court that if it allowed Lozman's arrest, "you are giving a green light to every vengeful city council in America to go after people when they demonstrate against abortion clinics, when they demonstrate about police, when they protest zoning decisions."
Several justices said a ruling against the city must be narrow enough that it doesn't give anyone arrested a better chance to claim retaliation.
"I think you have a very strong case," Justice Anthony Kennedy told Karlan, co-director of Stanford Law School's Supreme Court Litigation Clinic. The problem, he said, is walling off legitimate police actions to "confine it in any way."
Argument analysis: Justices weigh threats to free speech against constraints on local policing
About midway through Tuesday’s oral argument in Lozman v. City of Riviera Beach, Justice Elena Kagan provoked audience laughter with a remark to Shay Dvorertzky, the attorney for the city. She observed that Pamela Karlan, who represents plaintiff Fane Lozman, had had “some difficulty with hypotheticals” during her argument. “But you,” she told Dvoretzky,” might have some difficulty with the facts of your case.”
More than just a laugh line, Kagan’s comment encapsulated two points around which several of the justices appeared to coalesce. First, it would be very troubling if jurisdictions could evade trial for colorable claims of retaliatory arrest for First-Amendment-protected-activity by doing what Riviera Beach did in this case: pointing to some probable cause for arrest years after the fact, after proffering and withdrawing several other possible bases for arrest. In other words, several of the justices appeared to agree that Lozman’s case marked a troubling application of the “probable-cause bar” — the rule, embraced by the U.S. Court of Appeals for the 11th Circuit and several other jurisdictions, that the presence of probable cause necessarily defeats a claim of retaliatory arrest for First-Amendment-protected expression. Second, several justices also evinced the view that the Supreme Court should strive to craft a holding that would prevent such strained uses of the probable-cause bar, while leaving law-enforcement officers with ample leeway to make arrests without undue fear of frivolous lawsuits.
Pamela S. Karlan for petitioner (Art Lien)
To understand the events that troubled the justices, it is helpful briefly to revisit the facts. Before his arrest in 2006, Lozman had filed a lawsuit to invalidate the city’s new redevelopment plan on the basis that the meeting in which the plan had been approved did not meet the requirements of Florida’s Sunshine Act. Subsequently, the city council held a closed-door meeting to discuss the lawsuit. A transcript of the meeting reflects the council members’ frustrations with Lozman. At one point, councilmember Elizabeth Wade proposed that the members “intimidate” Lozman. Several months after that meeting – and following other charged interactions between Lozman and the city, including the city’s unsuccessful efforts to evict Lozman from the municipal marina slip where he lived in a floating home, culminating in a 2013 case before the U.S. Supreme Court involving admiralty law – Lozman attended the November 2006 city council meeting that would be the scene of his arrest.
During the November meeting’s public comment period, Lozman began to speak about “corrupt local politican[s].” Within less than a minute, Wade, who was presiding, cut Lozman off and demanded that he cease that line of discussion. When Lozman refused to comply, Wade called out “Officer,” at which point Officer Francesco Aguirre arrested and handcuffed Lozman, and escorted him from the meeting. Shortly after his arrest, Lozman received a “notice to appear” listing two charges: “disorderly conduct” and “resisting arrest without violence.” Both charges soon were dismissed by the state’s attorney, who found “no reasonable likelihood” that they could be prosecuted with success.
Lozman subsequently sued the city under Section 1983, alleging that his arrest constituted retaliation for his protected speech, including his criticisms of the city and his Sunshine Act lawsuit. At trial, the question resurfaced as to whether Riviera Beach had had probable cause to arrest Lozman. The trial judge concluded that there had been no probable cause to arrest him for either of the offenses with which he was initially charged. The city then “identified two new candidates” for provisions that Lozman might have violated: a prohibition on “‘trespass after warning’” and a law against “‘willfully interrupt[ing] or disturb[ing] any school or any assembly of people met for the worship of God or for any lawful purpose.’” After initially leaning toward the trespass provision, the district court settled on the willful-disturbance law as the one “at play here.” Ultimately, the latter offense was the only one “as to which the jury was asked to assess probable cause.”
During the oral argument, several justices expressed discomfort with the circumstances surrounding Lozman’s arrest. Chief Justice John Roberts called the video of the arrest “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 – in handcuffs, speaking in a very calm voice the whole time.” Justice Anthony Kennedy expressed similar concerns. “[T]here is evidence,” he observed, “that there was a pre-determined plan to arrest somebody on account of his political speech in a political forum. And it seems to me that this is a very serious First Amendment problem.” To Kagan, the city’s troubling behavior portends broader risks of the probable-cause bar. “[I]n a local government,” she observed, “there are people who become real sorts of pains to local officials, and – and local officials want to retaliate against them … . And just the nature of our lives and the nature of our criminal statute books, there’s a lot to be arrested for… . So that’s a pretty big problem, it seems to me, and it’s right here in kind of the facts of this case.”
At the same time, the justices also seemed troubled by the notion that, without a probable-cause bar, cities might be barraged with lawsuits for arrests reasonably made in difficult and fast-moving situations. Kennedy posed a hypothetical, for example, in which “[y]ou have people that are fighting in a bar and the – the policeman has to get some order and the – one of the more difficult suspects says something bad to the policeman, and he arrests him.” Justice Stephen Breyer similarly cited the possibility of “a real riot” in which participants engage in violence while also “insulting the police.”
Karlan attempted to reassure the justices that multiple safeguards already protect cities from the types of lawsuits that the justices had in mind. She pointed to several such safeguards, including the heightened pleading standards of Ashcroft v. Iqbal and Bell Atlantic v. Twombly; the availability of qualified immunity for officers who do not violate “clearly established” rights; and the “Mount Healthy standard,” which provides that speech-based retaliation can be established only when the defendants would not have taken the relevant action but for their retaliatory motive.
Karlan also suggested ways in which the Supreme Court might itself draw lines between situations like those in this case and other scenarios, such as the riots and bar brawls cited by Breyer and Kennedy. She was receptive to suggestions by Breyer and Kagan that the court might treat arrests involving serious crimes, such as murder and rape, differently than arrests for lesser crimes. Karlan also noted, however, that cases involving serious crimes are unlikely to go to juries in any event, “[b]ecause it would not be plausible to say unless you had extraordinary evidence of animus, that a police officer would not arrest somebody for rape or burglary or murder” without a retaliatory motive. Karlan also was open to Justice Neil Gorsuch’s idea that municipalities might be allowed to assert probable cause only for the crimes that they cited at or around the time of the arrest.
Shay Dvoretzky for respondent (Art Lien)
For his part, Dvoretzky argued that the probable-cause bar is essential to protect municipalities and to prevent law-enforcement officers from being stymied in their ability to preserve public safety. He deemed it “critical to understand that police officers must concededly take account of speech when deciding to arrest in many situations,” and that it is “virtually impossible for police officers … to disaggregate their own thought processes” and determine the precise role played by arrestees’ speech in arrest decisions made in the midst of violence and chaos. A similar problem, Dvoretzky posited, led the Supreme Court to impose a probable-cause bar in retaliatory prosecution cases in Hartman. In the prosecution context, you have “complex causation problems … because you have multiple actors. You had the police officer who allegedly induced the prosecutor to act.” In retaliatory arrest cases too, “you have at least as significant a causation problem because of the ways in which police officers concededly must account for speech in an arrest. And police officers should not be deterred from making legitimate arrests … out of fear that later on there will be an allegation that perhaps the real reason for the arrest was the Black Lives Matter shirt.”
Dvoretzky also emphasized law-enforcement officers’ thought processes in rejecting Gorsuch’s suggestion that cities might be limited to imposing a probable-cause bar only for crimes cited at the time of or shortly after arrest. He explained that police officers are not lawyers; “they are not trained and they are not required to specifically identify at the time of arrest precisely what section of the code was violated.” Dvoretzky similarly dismissed the suggestion that the Supreme Court might draw a distinction between arrests for minor and major crimes. “[P]olice officers,” he argued, “can’t have a taxonomy in mind of what’s a significant enough crime to arrest for and what’s not.”
Fane Lozman watching arguments (Art Lien)
Finally, both parties’ attorneys, as well as the deputy United States solicitor general, Jeffrey Wall, who appeared as an amicus curiae on behalf of the city, weighed in on the prevalence of the respective threats against which each party warned. Wall acknowledged that “the facts here are troubling,” but called it a “one-in-a-thousand” case around which a rule ought not to be built. Dvoretzky disputed that that the city had acted badly, but emphasized, “more importantly,” that the court “should not make a general rule for the facts of this case.” The real threat, according to both Wall and Dvoretzky, is that posed to municipalities by the absence of a probable-cause bar. Dvoretzky pointed to a number of U.S. Court of Appeals for the 9th Circuit cases cited by the city and by the state of Alaska in the latter’s amicus curiae brief. The 9th Circuit is one of two jurisdictions without a probable cause bar. The cited cases, argued Dvoretzky, show that scenarios like the fights and riots invoked by Breyer and Kennedy “go to trial” when there is no probable-cause bar, although eventually “those cases are found in favor of the … police officer.”
Karlan disputed Dvoretzky’s characterization of the 9th Circuit cases, observing that “not a single one of those cases involves the kind of hypothetical” that troubled the justices. Justice Sonia Sotomayor backed Karlan up on this point. She told Dvoretzky that she had reviewed all of the cited cases and that the ones that went to trial proceeded only because “there was other evidence of things that … made [these] triable cases. Many of them involved excessive force claims, which can often be reflective of animus.” Sotomayor also pointed out, as had Karlan, that 12 of the 26 cases cited by Alaska were “dismissed at the motion to dismiss stage.”
Overall, Karlan argued that the real danger is the one that the probable-cause bar poses to free speech. She framed the threat as one to the integrity of the very First Amendment framework that the Supreme Court has built in other cases. Should the court impose a probable-cause bar, Karlan told the justices, it would really be saying that “all of the [First Amendment] protections that this Court is giving don’t mean very much on the ground when you’re dealing with local governments.”
