SLLC Files Supreme Court Amicus Brief in First Amendment Retaliatory Arrest Case

Most Supreme Court cases are not accompanied by a video showing at least part of the story.

BLOG POST | Jan 30, 2018
Lisa Soronen

by Lisa Soronen, executive director, State and Local Legal Center

The State and Local Legal Center (SLLC) Supreme Court amicus brief in Lozman v. City of Riviera Beach argues if probable cause exists to make an arrest, the arrestee should be barred from bringing a First Amendment retaliatory arrest lawsuit.

Fane Lozman lived in a floating house in the Riviera Beach, Florida, marina. The city proposed to redevelop the marina using eminent domain, and Lozman became “an outspoken critic” and regularly criticized the mayor and councilmembers at council meetings. At one council meeting, Lozman offered comments on the arrests of former county commissioners who had served in other local governments. A councilmember had Lozman arrested for refusing to stop talking. Lozman was not ultimately charged with disorderly conduct or resisting arrest.

Watch Fane Lozman get arrested here.

He sued the city, claiming they arrested him in violation of his First Amendment free speech rights for opposing the city’s redevelopment plan. The city argued Lozman was arrested for violating the city’s rule that comments during the public comment period must relate to city business.

A jury ruled against Lozman. The Eleventh Circuit held that the jury’s finding of probable cause to arrest him for disturbing a lawful assembly wasn’t against the great weight of the evidence. The Eleventh Circuit then concluded that because the arrest was supported by probable cause, Lozman’s First Amendment retaliatory arrest claim failed.

Before the Supreme Court, Lozman argues that even if probable cause existed to arrest him he should still be able to bring a First Amendment retaliatory arrest claim.

The SLLC amicus brief argues that the Supreme Court should decide that arrestees must prove the absence of probable cause to bring a First Amendment retaliatory arrest claim. If probable cause is present and officers can still be sued, state and local governments will have more difficulty maintaining order and safety at local government meetings, public protests and demonstrations, and political rallies. The 50 state constitutions also protect free speech. State courts may interpret state constitutions more broadly than the federal constitution. And internal disciplinary measures within state and local police departments offer “meaningful remedies for true victims of retaliation.”

Sean Gallagher, Bennett Cohen, and Britton St. Onge of Polsinelli wrote the SLLC amicus brief, which these organizations joined: National Association of Counties, National League of Cities, United States Conference of MayorsInternational City/County Management Association, and International Municipal Lawyers Association.

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