I’m psyched that Fane Lozman has agreed to talk to High School SCOTUS about his second case before the Supreme Court, Lozman v. Riviera Beach.
Lozman’s first high-profile case was in 2012. The question was whether Lozman’s floating home – which was indefinitely moored, received power and other utilities from shore, and was not intended for maritime transportation or commerce – should be defined as a vessel. If Lozman lost, then his vessel would be towed away to make room for private development along the Riviera Beach Marina.
He triumphed by a 7-2 vote. The Court used a “reasonable observer” test, holding that the floating home’s ability to float didn’t necessarily make it a vessel.
On rare occasions, litigants return to the Court because their case requires re-argument. Perhaps they bring the same set of facts with a slightly different question. Not so for Lozman, whose current case is almost entirely unrelated to his first. You’ll learn more about the situation below. In short, the Court is now examining whether claims of retaliatory arrest are automatically defeated by probable cause under the First Amendment.
This interview has been edited for length and clarity. Questions below appear in bold, and Lozman’s responses follow in plain text.
How would you describe the dispute in your most recent SCOTUS case, Lozman v. Riviera Beach?
Boy, I don’t even know where to start with that question. [laughs] Let’s start with horror show. Let’s start with a soap opera that just never ends. I went to Riviera Beach to try to live a quiet life on my floating home. I remember as soon as I pulled in, I went to the tiki bar for lunch. And a guy there said, “Hey! Why would you come here?” I go, “What are you talking about?” He said, “In a few months, they’re going to privatize the marina, and you’re going to have to leave again.” I come in to check the facility out before I moved up there, and no one bothered to tell me that.
And then I learned more about what was going on – not only was I moving into a privatized marina, but they were also going to take 2200 homes via eminent domain to give to the private developer, along with the marina. And my research showed that the marina had been donated in perpetuity for the public. I said, ‘I need to fight this out.’ That led to killing that redevelopment deal, which led to secret meetings among elected officials to intimidate me, which led to multiple legal actions that the city initiated against me. They said I had a dangerous dog. I have a ten-pound Dachshund named Lady.
Back in 2006, when the eminent domain battle was raging and privatizing the marina, part of the city’s plan was to intimidate me for fighting the redevelopment. And that intimidation was multi-faceted. When I’d walk my dog, they tried to evict my floating home from the marina. And then when I made public comments – your audience can go look at the video on YouTube – about 15 seconds into my comments, the chairperson directed the police to arrest me and drag me out.
What is the Sunshine Law, and how was the Riviera Beach council violating it?
The Sunshine Law basically says that elected officials have to conduct business out in public. They can’t have closed-room deals. When you have a meeting, you have to give reasonable notice for the public to attend.
In this particular case, there were multiple Sunshine violations. But the one that I challenged was in May 2006. The legislature had passed Florida’s anti-eminent domain law, meaning that you could use eminent domain to take a road to build a school or hospital. But the Supreme Court in its Kelo decision said you could take private property and give it to a private developer. Riviera Beach jumped on that, and that’s how they were going to take the 2200 homes around the marina. Florida had passed a law saying that we’re not going to abide by the Kelo decision, and the word came down that Governor Bush was going to sign it on May 11th, 2006.
When Riviera Beach got wind of that, they had a special meeting on May 10th, the day before. But they didn’t give proper notice of the meeting. So I signed a legal challenge saying I wanted a do-over. It was the most important meeting in the city’s history and they didn’t give proper notice because they were trying to beat his signing deadline. That’s what precipitated this whole drama. They were livid that the do-over would come after he signed the law, and that would be the end of the redevelopment plan.
In a 2011 case called Reichle v. Howards, Chief Justice Roberts was worried that people could game the system. For example, people could put “I hate police” on their bumpers and then sue for retaliatory arrest if they were pulled over for speeding. Do you think that new rules about retaliatory arrest could open some major loopholes?
You have to have some evidence to show retaliatory animus. So if you have that bumper sticker example, and a police officer pulls you over and says “here’s a ticket,” you have nothing to prove retaliatory animus. But if on the dash camera, he says, “the only reason I’m giving you a ticket is because I don’t like that bumper sticker,” now you can show retaliatory animus. You can’t just insinuate – you have to have evidence of the retaliatory animus.
Now, in my situation, we had a transcript where the elected official who directed my arrest, she said in the transcript of the closed-door meeting that she wanted to intimidate me. She wanted me to feel “unwarranted heat.” And that intimidation was manifested by the arrest that evening. I wasn’t disorderly. I just started talking about public corruption, and I was arrested. Formally, they said that was disorderly conduct. When the state attorney looked at the video, he laughed. Because disorderly conduct is screaming or yelling or going beyond your three minutes. He said, that’s not disorderly conduct. And ultimately that’s what the court ruled at trial.
When should police officers have qualified immunity?
In the example of the ticket, that would definitely be a factor. I think the qualified immunity would come into the arrest conduct, and what is reasonable relative to that. It gets really complicated. One of the things that’s unique about my case is that I didn’t sue the individual officer. I sued the city of Riviera Beach, and municipalities do not have qualified immunity. Qualified immunity actually would go the police officer individually.
Then it comes back to Monell. ‘Monell liability’ comes back from the final policy-makers and decision-makers of the city; in this case, you have the five member city council. And the decisions of the chairperson were ratified by the silence of the other four council members. That then became the policy for the municipality. So that goes to show how detailed the layers are between liability under Monell for a municipality versus the illegal actions of an individual police officer. They would not come under qualified immunity, but still not transfer to the municipality.
What is the Mt. Healthy framework, and how does it apply to your case?
Let’s step back a second. Why did the Supreme Court take this case? The Supreme Court takes cases when the law’s being interpreted two different ways. The short term for that is a “circuit split.” The circuits are the US Court of Appeals, and I think there are 12 or 13 circuits around the country. For example, we’re in the 11th Circuit, which is Florida, Georgia and Alabama. Then you have the 9th Circuit, which is the largest circuit – it has California, Oregon, Washington State, Arizona, and maybe Nevada.
Let’s look at the admiralty case and then we’ll come back to this case. In the 9th Circuit, a floating home was not a vessel. In the 11th circuit, a floating home was a vessel under the federal admiralty laws. So the definition of “vessel” would be interpreted in two different ways. The Supreme Court took the case to have one one definition of “vessel.”
In this case, probable cause in the 9th Circuit is not an absolute bar to first amendment retaliatory arrest claims. If you can show probable cause, you never get to the retaliatory aspect of the case in the 11th Circuit. Which is the standard? That’s why the Supreme Court took each of my cases, because there was a circuit split.
Getting back to the Mt. Healthy standard, you have probable cause as an element to be considered. It’s not an absolute bar, as it is in the 11th. So it’s just a factor to be considered. If the arrest would have been justified anyway, you don’t have a retaliatory arrest claim. So for example, if you commit a violent crime and you say, “I punched out this police officer because of blah” and you tried to blame it on retaliatory arrest, you would have been arrested anyway for punching the police officer. The retaliatory animus would not have been a factor. There’s a multi-factor approach, but now, out here in the 11th Circuit, you never get to any analysis. That makes it ripe for abuse.
What was going through your mind at oral argument?
I think I was able to appreciate the setting more. The first time I went there, it was kind of overwhelming. There’s so much visual pomp and circumstance in the whole process, between the justices coming out and the magnificence of the courtroom – the carvings around the ceiling and the different scenes. It’s just an amazing courtroom to be inside and to take it all in.
How closely did you read the news coverage of the argument, and did the coverage differ from your own opinion of how it went?
I think a lot of the news coverage of the argument focused on Chief Justice Roberts’ analysis. He looked at the video and said it was very chilling that I’d only been talking for 15 seconds when they handcuffed me, arrested me and removed me from the meeting. He made a very important point that I was speaking in a normal tone – that I wasn’t doing anything that would have justified this disorderly conduct charge.
If I had said, “Hey councilperson, you’re the greatest councilperson in the world, and you’re blah blah blah,” I could talk for an hour. Elected officials love to be complimented. But if you criticize their policies or criticize them, they improperly use the police to silence their critics. And people see that. I have people come up to me, and they say, “I have a lot of complaints, but I can’t afford to be arrested. I have to go to work the next day.” I had somebody speak up for me one day, and then the next thing, they were getting citations and having their water turned off. The water bill had been paid, but they were just doing it to send a message: don’t say stuff that’s critical of the Riviera Beach government.
I’m sure you’ve met some interesting people now that you’re in the Supreme Court spotlight. Who were you most excited to talk with?
Well, certainly what was very exciting was meeting the Washington Post Supreme Court writer Robert Barnes. Robert actually flew down to Tallahassee and met me when I was getting the First Amendment Foundation’s Pete Weitzel Award in January. And then he met me in Riviera Beach. I took him for a ride in my former military attack boat.
He wrote an article that was on the front page of the Washington Post a week ago Monday. That was quite an honor for him to come down, and for the Post to put that on the front page. It reinforces why this is such an important story. Not only for public speakers, but when you look at how my case will impact reporters, photojournalists, and citizen reporters, who are arrested for pretextual arrests.
Adam Liptak interviewed you too, right?
He did. He interviewed me in December, and he wrote a significant story for the New York Times. And then in the same newspaper they had coverage of the online sports gambling case with Gov. Christie, and that was delegated to a smaller column further back in the paper. So I thought that was like, wow. Governor Christie’s sports gambling case gets a little article while I have this big article about my First Amendment case. I thought that again reinforced that this, at least where the media’s concerned, really has an impact on the media doing their job. The police think they can intimidate the press for covering stories that make them look bad. And then when the press goes to federal court out here in circuits where probable cause is an absolute bar, they’re immunized.
How much time have you spent litigating this case over the past few years?
I figure in the last ten years, I’ve missed about five weekends a year of having fun. I spent five weekends working full time on this case. On a whole, I’d say I’ve worked on average probably anywhere from 5 hours during the trial to 70-80 hours a week. So 5000 hours on this case and 3000-4000 hours on the admiralty case… probably 8000-9000 hours total. [laughs]
What kind of preparation did you go through in order to defend yourself pro se?
First, I bought a book: ‘how to represent yourself pro se.’ I had the three day trial for the state eviction case that was in March of 2007, and I won that jury trial. But I also had a very good judge. He gave me some advice along the way, and I picked up a lot about trial technique from him. And then I also went and I watched trials. I watched how they were conducted, and I picked up a lot just sitting in the back, watching how the lawyers on either side prosecuted the case.
Then there are so many items that have to be written. You have motions and responses and summary judgement and what-have-you. I had to do a lot of writing for the state eviction case, and I wasn’t really that great. And then when we went to the admiralty case I got better. The docket there was maybe a few hundred entries. The initial part of the civil rights case, I was represented by an attorney for the first four or five years. I was on my own after that. That attorney taught me a lot about writing and how to fashion things. By the time he left to go work for a company and I took over the case, I really became quite proficient at the whole process. I guess you could say it was kind of a law school education by experience, by what I got from that attorney and the earlier cases.
There’s a tremendous amount of writing. They would write a motion and I had to write a response to it. Or I would file a motion and they’d write a response, and then I’d write a reply.
How much of a role did you play in working with the lawyers, writing the briefs, and generally preparing the case?
I put a lot of work into that because I was the pro se lawyer that tried the case. I had lived the case for ten years, and I knew all the facts cold. So I played a key role in assembling the fact pattern of the case, the posture of the case, what went on at trial. I think I played a much bigger role than [Stanford Supreme Court Litigation Clinic’s] typical client does.
Are there any lessons about writing that you would recommend to the audience of High School SCOTUS?
The most important thing I learned is that judges are overloaded with facts. The cases are clogged up, there’s not enough judges, and the federal court has a lot of open positions because of fighting between Republicans and Democrats. So judges’ dockets are probably at a historic high.
And what I’ve learned is you have to, if you write something ten pages long, you can’t put your key argument on page 3, 4, or 5, because they may not get that far. You have to hook your reader in the first paragraph. If you don’t grab them, by the time you make your point, the document might be thrown in the trash.
The other thing you have to do is always file a reply. If you file a brief and the other side files a response, your reply brief is the critical document because it gives you an attempt to refute what the other side has said. And they don’t get another shot at you. You have the last word. That’s why the reply is a key document – I think it’s the most critical document in the briefing process. But also, if you listen to the audio of our oral argument last week… we got the last four minutes. We think in those last four minutes, we made so many key points that refuted some of the stuff the other side said. The last thing in the Justices’ mind would be our reply.
Are you willing to make a prediction for your case?
I’ve always felt confident on the briefs. I also feel very confident based on what the Solicitor General said during his portion of the oral argument. He said the facts are quite troubling – he agreed with Justice Gorsuch that the court never should have, in the middle of trial, told the city to go look at the statute books to see what else I could have been tried with. And then he kept saying that the facts of my case were one in a thousand. The SG threw the city’s lawyer under the bus, per se. I think that bodes quite well for me. I just don’t know about the remedy they’ll fashion for me. Reversal is reversal, and that’s what we’re trying to get, but I don’t know how broad a reversal we’ll get. We just don’t know. But I feel good about how things went. I feel really good.
I have one final question: Why have your cases been so unusually good at reaching the Supreme Court?
I think because of the significance of the circuit splits. You know the admiralty case was a landmark case because you would have thought, since 1776 when our country was started, that there would have been a clear and unequivocal definition of what is a vessel and what is not. And surprisingly it was not clear. To have one circuit say that anything that floats is a vessel, and another circuit saying that’s not the case – that’s a pretty amazing split in understanding a key part of maritime law.
In this particular case, when you go back to Reichle, the Supreme Court realized that retaliatory arrests were a problem that had to be looked at. They granted cert in that case to decide the question. What happened, though, is they punted the question because the case ended up being decided on qualified immunity. So it was an important question that they took, but they never got around to answering it. We just happened to show up with the same question, and our case had a wonderful set of facts. Qualified immunity wasn’t a factor because the lawsuit was against the municipality. So it was a great set of facts to decide a question that they had already granted cert on to decide previously, but did not.