Florida man gets rare second case before Supreme Court

Richard Wolf | USA TODAY

WASHINGTON — Fane Lozman's first foray at the Supreme Court resulted in a relatively narrow victory for the owners of floating homes. His return visit could have a much broader impact on police powers and freedom of speech.

The high court granted Lozman a rare distinction Monday by agreeing to hear his second case in five years against his nemesis, the city of Riviera Beach, Fla. Few people get two Supreme Court cases in their name, and those who do usually return over the same issue.

But Lozman is a rare breed — someone who, lawyers for the city contend, moved to Riviera Beach in 2006 and "spent much of the time since protesting, and filing lawsuits in opposition to, local policies and local officials."

In the first case to reach the high court in 2012, the justices ruled 7-2 that the city wrongly seized and destroyed his floating home by claiming it was a boat and therefore subject to maritime law. Chief Justice John Roberts later called it his "favorite case" of the term.

"It was one of those cases where a picture was worth a thousand words," Roberts told a judicial conference in 2013. "If you look at a picture of the thing on the water, it looks like a house that got swept into the ocean, rather than a boat that got swept away."

Now Lozman is returning with a case that has a longer history — and that's arguably more important. He is seeking damages against the city for actions taken 11 years ago, when he was tossed from a city council meeting and arrested in retaliation for his battles with city officials.

The question is whether police or government officials can overcome citizens' free speech rights when they have probable cause to make an arrest, no matter how minor the infraction. Lawyers for the city said in court papers that they can.

"Probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law," the city's brief argues.

That standard has been used in the past against protesters who criticize the government and media trying to cover protests.

"There are numerous examples of First Amendment retaliatory arrest cases from around the country," the First Amendment Foundation argued in a brief supporting Lozman. "The danger of being arrested in retaliation for engaging in protected speech threatens to chill the exercise of core First Amendment rights."

While he once had to represent himself in court, Lozman now has the influential Stanford Law School Supreme Court clinic to argue his case early next year. Its brief examines the history of police "enforcing minor laws" to block protesters, such as Martin Luther King Jr.'s 1956 arrest and jailing for driving 5 miles over the speed limit.

"Recent years have seen a fresh surge of civic engagement, much of it involving criticism of the government," Pamela Karlan, a law professor and former top Justice Department official, said in court papers. "Thus, the risk of retaliatory arrests remains a pressing concern."

Paul Sherman of the Institute for Justice, which also filed a brief backing Lozman, said the case is the latest example of a phenomenon dubbed "overcriminalization."

"If police want to arrest you, they can find probable cause," he said.

Lozman has little to show for his first Supreme Court victory, other than Roberts' amusement and "the satisfaction of knowing I stopped 8,000 other floating home owners from going through the horror show that I did.”

This time, he said, he hopes to stop government officials from "using these bogus arrests to shut up citizen activists, to shut up the media.”

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