This one is more for our muni law friends, but today's post also has two eminent domain angles.
Anyone who has been to a city council meeting knows at least one fellow like this, considered a pain-in-the-butt by officials. A gadfly, who testifies on seemingly every issue. This is Fane Lozman, eminent domain protester (among other things). Familiar to readers as the Houseboat Guy. Or, more accurately, the "Floating Home" Guy who took the City of Riviera Beach, Florida to the U.S. Supreme Court once before, on the arcane issue of whether his floating home was a houseboat subject to admiralty jurisdiction. The Court held it wasn't, and wasn't.
The houseboat affair wasn't the end of it for Mr. Lozman, who already was "an outspoken critic of the City's plan to use its eminent domain power to seize homes along the waterfront for private development," according to the latest (second) U.S. Supreme Court opinion in his favor. (That's the first eminent domain angle, if only a minor one.) He remained a constant presence at city council meetings, until one day, he got arrested after he refused to stop speaking, "this time about the arrest of a former official from the City of West Palm Beach." Slip op. at 3.
He sued, but lost his retaliation claim. Eventually the Supreme Court agreed to review this question: "whether the existence of probable cause defeats a First Amendment claim for retaliatory arrest under §1983." Slip op. at 5.
Even though Lozman conceded there was probable cause for the arrest for not leaving the podium after his allotted time expired and he refused to yield the microphone, the Court (Justice Kennedy and everyone else except Justice Thomas), concluded he has a claim, and the existence of probable cause to arrest him did not absolutely cut off his ability to sue for retaliation. Because he wasn't suing the officer who arrested him (but the City itself) and therefore had to prove that retaliating against him was official municipal policy, "there is a compelling need for adequate avenues of redress." And here's your second eminent domain hook, a proving pretext angle.
The Court held that "[a]n official retaliatory policy is a particularly troubling and potent form of retaliation, for a policy can be long term and pervasive, unlike an ad hoc, on-the-spot decision by an individual officer. Slip op. at 11. Sound familiar, those trying to prove that an official statement supporting the reasons for a taking isn't really what is going on? As the Court noted, "An official policy can also be difficult to dislodge." Id. For sure.
Unfortunately there wasn't much more about how to go about doing that, but at least it is some recognition from eight Justices that people in these situations face a difficult task. Hopefully they will keep that in mind when they next consider the pretext issue.
The Court sent the case back down to the Eleventh Circuit to consider, among other things, a list of "factors" (this is Justice Kennedy, after all). See slip op. at 12-13.
Check it out for more.
Lozman v. City of Riviera Beach, No. 17-21 (U.S. June 18, 2018)
