Does the First Amendment Protect You From False Imprisonment?
The First Amendment guarantees freedom of expression by prohibiting Congress from restricting the rights of individuals to speak freely, but does the First Amendment protect you from false imprisonment? The question will be answered in the case of Lozman v. City of Riviera Beach.1)www.scotusblog.com/case-files/cases/lozman-v-city-riviera-beach-florida/ Fane Lozman lived on a floating boat in the City of Riviera Beach, Florida. The City planned to redevelop the waterfront where Lozman lived. Under the plan, the City would seize homes on the waterfront and transfer the property to a private developer.
Lozman started complaining at city council meetings. He even filed a lawsuit against the City Council’s process in trying to approve the redevelopment. At a later council meeting, Lozman was speaking during the regularly-scheduled public comment period about public corruption in the City. One of the Councilmembers tried to cut him off and then requested an officer to escort Lozman out. Lozman was arrested.
In February 2008, Lozman filed suit against the City under 42 U.S.C. § 1983 on the grounds that the City had arrested him at the city council meeting in retaliation for his opposition to the redevelopment plan. He alleged (1) retaliation by false arrest under the First Amendment, (2) unreasonable seizure under the Fourth Amendment, and (3) common law false arrest. The case went to trial in November 2014 with Lozman appearing pro se. The jury found in favor of the City on all claims. Lozman filed a motion for a new trial, which the district court denied.2)https://www.oyez.org/cases/2017/17-21
Shay Dvoretzky for the respondent argued “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.”
Disturbance vs. Retaliation
The Eleventh Circuit ruled the officer had the technical right to arrest Lozman because the officer had “probable cause”: Lozman had disturbed the assembly. But, Lozman argued, he was arrested for a different reason. Lozman argued the real reason he was arrested is because he spoke out. He argued that when he spoke out the City retaliated and that the disturbance complaint is a pretext for the City’s unlawful conduct.
Does Probable Cause Preclude Retaliation?
The lower courts said that the City of Riviera Beach cannot be liable for retaliatory arrest because the officer had probable cause to arrest. The court decided that the existence of probable cause ended the inquiry. The court would not even consider if the real reason Lozman was arrested was something else (i.e. retaliation for speaking out). Lozman argues that misses the whole point of First Amendment protection. The government cannot abuse its power to arrest, even by hiding behind a lawful reason.
How Does Lozman Prove Retaliation?
Courts often create methods3)McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for proving various types of claims. A First Amendment retaliation claim has a framework for determining who wins. The plaintiff (Lozman) would show that (1) he was speaking out; (2) that the defendant (the City) had “retaliatory animus” against him (disliked him for speaking out); and (3) the animus was a substantial factor in Lozman’s arrest.
If Lozman shows all of these things, then the City has a chance to show4)The burden shifts to the City the arrest would have happened despite the retaliatory animus. Lozman faces a hurdle. The defendant argues the Supreme Court case, Hartman v. Moore. In Hartman, the Supreme Court ruled that a claim of retaliation against law enforcement agents for encouraging prosecution cannot win if the prosecution had probable cause to prosecute. Lozman will have to argue that the First Amendment retaliation claim is different than prosecutorial retaliation claim. 5)http://www.subscriptlaw.com/blog/lozman-v-city-of-riviera-beach Subscript Law has a really cool graph on its website explaining the case of Lozman. You can view it here.
Photo Credit Below6)Pamela S. Karlan for petitioner (Art Lien)
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|3.||↑||McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)|
|4.||↑||The burden shifts to the City|
|6.||↑||Pamela S. Karlan for petitioner (Art Lien)|