Cocoa Beach, Palm Bay, Or Satellite Beach. Which Is The Next Riviera Beach?

The City of Riviera Beach, Florida (population 32,000 est.) sits on the east coast of Florida, right around Palm Beach.

However, unlike many small-ish sized cities, Riviera Beach is somewhat famous (or infamous) for having had two cases that have gone to the Supreme Court. What is more interesting is that both cases involve one man – resident Fane Lozman. In a case where the City tried to evict Lozman from the marina where Lozman was living, the City lost after the Supreme Court ruled that maritime law applied to the eviction.

The latest case was just heard before the Supreme Court and the Court’s ruling will have a tremendous effect on how governments treat citizens who speak out against elected officials.

Eleven years ago, fresh off his court victory and armed for bear, Lozman was making comments in front of the City Council. He was told by the Mayor to stop talking and then was arrested when he failed to do so. You can watch the exchange below which starts at the 0:32 mark:

Lozman sued the city, arguing that his arrest was in retaliation to his First Amendment-protected criticism of city policies and corruption. Before this arrest, city council members were on record suggesting “intimidating” him due to his opposition of the city’s redevelopment plan. The city had also made Lozman “the target of a string of legal pressures,” including attempting to evict him from the local marina (which a jury found to be retaliation for Lozman’s First Amendment expression), arresting and removing him from a different council meeting, and much more.

Despite all that, the U.S. Court of Appeals for the Eleventh Circuit ruled that Lozman was barred from suing the city because there may have been probable cause for his arrest, and further that the existence of probable cause categorically barred a claim for retaliatory arrest. What’s worse is that the crime for which “probable cause” the city relies on—“disturbance of a lawful assembly”—wasn’t mentioned or identified until trial eight years later.

In short, the City officials decided to bar Lozman from speaking and then made a charge up against him justifying the arrest and preventing Lozman from suing the City.

Sound familiar?

We can point to examples in Cocoa Beach, Palm Bay and Satellite Beach where citizens were threatened with arrest for speaking their minds and raising the ire of government officials. Make no mistake, these officials will sometimes make up a charge to protect themselves and not the Constitution they swore to uphold.

For example, the offense that was ultimately claimed as the basis for Lozman’s arrest—“disturbing a lawful assembly”—requires only that one act with reckless disregard for whether one’s conduct will “impede the successful functioning of the assembly.” That vagueness could include anyone who speaks passionately at a public meeting. The result is to insulate arresting officials from liability even where, as here, the circumstances of the arrest strongly indicate a retaliatory motive.

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.”

One never knows how the Supreme Court will rule, but it seems to leaning toward Lozman:

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.”

As the Supreme Court does not allow cameras, here is the audio of the arguments synced with a “cartoon” of the lawyers and justices. (It beats trying to read the transcript.)

The decision will most likely be released in the summer, but the decision will basically decide whether a person who was speaking can be arrested under the “probable cause” that their speech was about to “disturb” a meeting. (Whatever that means.)

Justice Kagan is correct. There are people that “pains.” The problem here that in a town rift with legal and ethical issues, the City Council decided they would try to “intimidate” (their words, not ours) a person who was exposing the corruption. Even in the “Sunshine State,” people don’t like it when their corruption is brought to light. They don’t like it when people exercise their right of free speech. Because they did not like Lozman, the Mayor and the City Council sic’ced the police on this man.

As we said, sound familiar?

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