RIVIERA BEACH, Fla. — The many descriptions bestowed on Fane Lozman over the years include political gadfly, relentless opponent of public corruption, and bored rich guy always spoiling for a fight.
If every town has a you-can’t-shut-me-up activist who second-guesses council members and dominates the public comments portions of meetings, few have elevated the art like Lozman. He has offered a $50,000 reward for dirt on local politicians and taunted them at a ribbon-cutting with an airplane flying overhead. “Adios,” said the banner that called the council corrupt.
So remarkable are his battles with the political leaders of this town of 35,000 people that they have drawn the attention of the U.S. Supreme Court.
Not once, but twice.
The latest rendition of Lozman v. City of Riviera Beach has grown from a ham-handed attempt to cut him off at a city council meeting into a major free-speech showdown that will have nationwide implications for citizens arrested — as Lozman was — by government officials they criticize. The court will hear arguments in the case Tuesday.
“He’s a formidable citizen-activist,” said Barbara Petersen, president of the Florida First Amendment Foundation. The group honored Lozman last month for being the kind of watchdog that keeps local governments honest. In his wake are officials who lost jobs and politicians drummed from office.
Another view comes from former Riviera Beach city council member Elizabeth Wade, who spoke most colorfully of being the target of Lozman’s barbs.
“I told him I would put my foot so far up his behind, he would think my toe was his tonsil,” she once told a reporter.
The first time Lozman and the city met at the Supreme Court, the justices reviewed Lozman’s claim that Riviera Beach had improperly used federal admiralty law to seize (and later destroy) his two-story, plywood-and-French-doors houseboat, moored at the city marina. The court ruled 7-to-2 against the city, saying Lozman’s houseboat was more house than boat.
This time, Lozman says, the fight is bigger than him.
“If I lose this case, it will be a sad day for our democracy,” Lozman said recently. “Our country will slide further into a police state. . . . It sounds hokey, but this is kind of a noble battle to fight.”
At issue is Lozman’s arrest at a city council meeting in November 2006.
During the public comments portion of the meeting, Lozman began to use his three minutes to talk about his favorite subject: corruption in Palm Beach County, where Riviera Beach is located.
Wade, who was presiding at the meeting, immediately stopped him. If he continued to rant about a county official at the meeting of the city council, she warned, he would be arrested.
He refused, adding: “I have a right to make my public comment.”
“Carry him out,” Wade told a police officer. Lozman was led away in handcuffs and spent hours in jail. The episode can be seen on YouTube.
More than 11 years later, there have been dropped charges and court hearings, a 19-day federal trial in which Lozman served as his own attorney and a return trip to the appeals court in Atlanta that ruled against him in the houseboat case.
This time at the Supreme Court, Lozman is supported by First Amendment organizations, the American Civil Liberties Union and a coalition of media organizations who say Lozman’s fight is especially important at a time when protests of government policies are on the rise and government officials are geared up to shut them down.
The city of Riviera Beach, meanwhile, is backed by the Trump administration, the District of Columbia and 10 states who say that showing there was probable cause for an arrest — as a jury found in Lozman’s case — should be the end of a retaliatory arrest claim.
Otherwise, they say, the courts will be flooded with lawsuits by unhappy arrestees who claim the government was simply biased against them.
On a recent sunny afternoon on the Intracoastal Waterway, Lozman piloted a long, black inflatable boat like those Navy SEALs favor and acknowledged that controversy seems to find him. His unusual first name, he joked, is derived from the word “profane.”
Behind him, about eight miles to the south, was President Trump’s Mar-a-Lago estate. On one side of him was Peanut Island, where a bunker was built for President John F. Kennedy in case nuclear war arrived while he was visiting his family’s Palm Beach compound.
And on the other side was the Riviera Beach marina, the place at the heart of his disputes with the city.
Lozman would like the record to reflect that he is not the antagonist here.
“This was initiated by the city,” he said. “I didn’t ask them to [take] my floating home and destroy it. They did it. I didn’t ask them to arrest me at a city council hearing. They did it. I didn’t seek these battles.”
Lozman searched the green water for dolphins and manatees. “It morphed into this legal soap opera that you can’t make up,” he said. “But, I mean, it wasn’t like I didn’t have anything else to do.”
Lozman, 56, had never attended a local government meeting until he moved back to Florida in 2003. He’s a Miami native, but left for a stint in the Marines and an apparently lucrative life as what he calls a “zombie day trader” in Chicago.
He holds a patent on some computer software and makes investments. He came home for QTL — “quality time left” — and moored a floating home in a marina north of Miami.
When a hurricane wrecked the marina, he moved about 80 miles north to Riviera Beach. But as soon as he arrived, Lozman found the city council was about to use eminent domain to turn the marina and some surrounding homes over to a private developer.
(Really) long story short: Lozman rallied opposition to the project, and the Florida legislature passed a law prohibiting such deals. On the day before the law was going into effect, the city council called an emergency meeting and approved the proposal.
Lozman and others sued, saying the council had violated the state’s open-meeting laws.
The council had met behind closed doors to discuss its legal strategy — and, as a transcript released under public records law showed — what to do about Lozman.
Wade said the council needed to “intimidate” Lozman and make him “feel the same kind of unwarranted heat we are feeling.” Other members agreed.
But by the fall, the deal with the developer was falling apart because of the lawsuits and negative publicity. At the fateful Nov. 15, 2006, meeting, the council was scheduled to officially throw in the towel.
“Normally, I don’t dress up but I was wearing a suit,” Lozman said, because he was scheduled to be interviewed by a local television reporter.
He began to speak, he said, “but it was like, ‘No, we’re going to teach you a lesson.’ ”
Instead of reporting on Lozman’s triumph in sinking the development, “everyone’s story that night was the guy who killed the deal went to jail,” Lozman recalled. “Never in a million years did I think they’d arrest me in the middle of this media circus.”
The charges were “disorderly conduct” and “resisting arrest without violence.” A state prosecutor declined to pursue them, however, saying there was no reasonable likelihood of conviction.
Lozman then filed a civil rights lawsuit against the city, saying the council violated his First Amendment rights with a retaliatory arrest.
To prevail, Lozman had to show his speech was protected by the First Amendment, that the arrest would be enough to deter the average person from speaking, and that “animus” motivated those responsible for his arrest.
But the U.S. Court of Appeals for the 11th Circuit, which covers Florida, Georgia and Alabama, imposes a fourth factor. If the government can show there was a reasonable belief that any law was broken — probable cause — the claim of retaliation cannot go forward.
Courts in other regions of the country do not have such a requirement, which is why the Supreme Court accepted Lozman’s case.
The judge presiding over Lozman’s lawsuit told Riviera Beach’s lawyers there was no probable cause for disorderly conduct or resisting arrest. What else? he asked.
They found an obscure Florida law making it a misdemeanor to interrupt or disturb “any school or any assembly of people met for the worship of God or for any lawful purpose.”
It is possible that is what Lozman was about to do, the judge reasoned, and a jury agreed.
The appeals court affirmed.
The Supreme Court years ago decided that a finding of probable cause barred a claim of retaliatory prosecution. The question before the court now is whether the same standard should be applied to arrests.
The Justice Department said a finding of probable cause provides a “clear and objective basis” for judges and juries to decide that government may not be sued for an arrest. It will argue Tuesday on Riviera Beach’s behalf.
Riviera Beach’s brief to the court deals more with the larger consequences of ruling for Lozman, rather than their unpleasant history.
But it denies that council members were intolerant of Lozman. Indeed, they often let him “harangue them without interruption,” the brief states.
“They did so even on May 17, 2006, when he threatened to launch recall proceedings against a councilmember if she did not resign by noon the next day,” the brief states. “And they did so again on June 21, when Lozman asked the public for information regarding mayoral corruption that he could share with ‘investigators.’ ”
Lozman is represented by Stanford law professor Pamela S. Karlan and the law school’s Supreme Court Litigation Clinic. They told the court that free-speech rights would mean little if “government and government officials were free to retaliate against individuals who exercise those rights.”
The free-speech organizations and media groups supporting Lozman provide a long list of journalists and protesters arrested by police as a means of intimidation, often on the most minor infractions.
Back in Riviera Beach, only one council member remains from the day Lozman was arrested, and there is a different mayor, as well.
Mayor Thomas A. Masters and Lozman are friendly, and he seems sanguine about the city’s case. “I think it’s important we finally get an answer,” Masters said in an interview.
Asked what he thinks of Lozman, Masters, a minister, paused. “If I could use a biblical reference, I’d say Fane Lozman is Riviera Beach’s John the Baptist,” he said, referring to Christianity’s fiery prophet.
After Lozman’s initial success at the Supreme Court, he’s excited to return.
“The Supreme Court is there to interpret the law and be professional about it,” Lozman said. “They don’t have anything to prove. The district court judges and the circuit judges are not there to be professional; they’re there to bust your balls and hold grudges.”
Still, Lozman said, he almost walked out of the grand courtroom in 2012, when the justices were considering the case involving his floating home. Justice Anthony M. Kennedy sarcastically called the houseboat a “magnificent structure” that “was mercifully destroyed.”
Said Lozman: “I thought that was a cheap shot.”
link to Washington Post story »
