In 2006, Lozman was living in his anchored plywood structure, which was moored at a marina in Riviera Beach. City officials planned to use eminent domain to condemn the marina site and redevelop it; Lozman sued to block the plan.
In retaliation, city officials first tried to evict him from the marina. Lozman, representing himself, argued to the jury that this was retaliation, and the jurors threw out the city’s case. The city then brought a bizarre proceeding “in admiralty” against the houseboat itself, claiming it was a “vessel” and thus subject to federal maritime law (hint: no jury). They won an order from a federal court allowing them to destroy the home. Lozman, again acting as his own lawyer, appealed the order—and in 2013 the Supreme Court reversed.
But the struggle was far from over. His original lawsuit against the city had alleged a violation of Florida’s open-meetings law. State authorities sent law enforcement agents to interview council members about those charges. The elected officials were so infuriated that, as one said on the record in a private 2006 meeting, they decided to “intimidate” Lozman and other critics “so that they can feel the same kind of unwarranted heat that we are feeling.” A few months later, Lozman went to the microphone during open comment time at a City Council meeting; but when he mentioned “public corruption” in Palm Beach County (where the city is located), the presiding council member ordered a police officer to arrest him.
He was charged with “disorderly conduct” and “resisting arrest without violence,” but the local prosecutor dropped the charges, saying in essence that no reasonable person would believe them. Lozman then brought a federal lawsuit against the city for “First Amendment retaliation.” A federal judge agreed that Lozman had “compelling” evidence that he’d been arrested as punishment for his protected speech. But the judge then threw out the case, reasoning that he actually could have been charged with the obscure state offense of “willfully interrupt[ing] or disturb[ing] any school or any assembly of people met for the worship of God or for any lawful purpose.”
What this meant, the court decided, was that the officer who arrested Lozman would have had “probable cause” (a reasonable basis to believe a crime had been committed) to arrest him if he had known about “assembly of people” statute and wanted to enforce it. The fact that the officer didn’t know about it was irrelevant—and so was the city’s unconstitutional motive. As long as an officer could have arrested Lozman for something, in other words, the retaliatory motive didn’t matter. The Eleventh Circuit affirmed: The existence of probable cause for any offense is an “absolute bar” to a suit for retaliatory arrest, it said.
If you are not a lawyer, ask yourself: Can this possibly be right? Did you by any chance violate, or do anything that might make someone think you had violated any statute, ordinance, or regulation—littering, speeding, failure to signal, improper parking, excessive use of car horn, leash-law or pet waste violation, soliciting beverage-container deposits on beverages bought out of stage, unlicensed cosmetology, unlicensed practice of geology, discharge into a storm drain, spitting on the sidewalk, barratry, champerty, maintenance, affray, seduction, or being a common scold—at any point today? Under the Eleventh Circuit’s rule (which some other circuits also use), police or officials can arrest and silence a Deyshia Hargrave when a politician wants to silence her—if, after the fact, some earnest lawyer can find a such a law, however obscure, that police at the time might have thought she was violating, even though they weren’t thinking about that.