Fane Lozman v. City of Riviera Beach

Filing

Opinion issued by court as to Appellant Fane Lozman. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10550
Non-Argument Calendar
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D.C. Docket No. 9:08-cv-80134-DTKH

FANE LOZMAN,
Plaintiff-Appellant,
versus
CITY OF RIVIERA BEACH,
a Florida municipal corporation,
Defendant-Appellee,
MICHAEL BROWN,
an individual, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(February 28, 2017)

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Before HULL, MARCUS, and MARTIN, Circuit Judges.
PER CURIAM:
Plaintiff Fane Lozman brought suit pursuant to 42 U.S.C. § 1983 against the
City of Riviera Beach, Florida (“the City”) after he was arrested at a Riviera Beach
City Council meeting on November 15, 2006. Lozman claimed his arrest violated
the First and Fourth Amendments, and constituted a false arrest under Florida state
law. The case was tried before a jury and the jury returned a verdict in favor of the
City on all claims. Lozman appeals (1) the district court’s denial of his motion for
new trial, and (2) various instructions the district court gave the jury. After careful
review, we affirm.
I.
A.
Lozman moved to the City in March 2006 and lived in a floating home in the
Riviera Beach Marina. After moving there, Lozman learned that the City had
proposed a redevelopment plan for the Marina, which sought to revitalize the
City’s waterfront through the use of eminent domain. While many residents
opposed the plan, especially the proposed use of eminent domain, Lozman became
“an outspoken critic.” He attended City Council meetings in May and June 2006 at
which he sharply criticized the Mayor and the Council.

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While the City was finalizing its redevelopment plan, the Florida legislature
passed a bill prohibiting the use of eminent domain for private development. In an
effort to pass the redevelopment plan before the law went into effect, the City
Council held a special emergency meeting the day before the Governor was
scheduled to sign the bill into law. That evening, the City approved the
redevelopment plan. On June 8, 2006, Lozman filed a lawsuit against the City
under the Florida Sunshine Law, seeking to invalidate the City’s approval of the
redevelopment plan on the ground that the eleventh-hour meeting was convened
without sufficient public notice. On June 28, 2006, the Council held a closed
executive session to discuss Lozman’s suit. 1 During this meeting, Councilperson
Elizabeth Wade said:
I think it would help to intimidate the same way as [the Florida
Department of Law Enforcement] is coming to my house. I am
wondering if my lines are tapped or whatever. I think they should be
questioned by some of our people . . . so that they can feel the same
kind of unwarranted heat that we are feeling . . . .
In response, another councilperson said: “I think what Ms. Wade says is right. We
do have to beat this thing, and whatever it takes, I think we should do it.”

1

Florida law permits city councils to hold closed executive sessions for the purpose of
discussing pending litigation with counsel. See Fla. Stat. § 286.011(8). Although the sessions
are closed to the public, the entire session must be transcribed by a court reporter, and the
transcript must be made available to the public upon conclusion of the litigation. Id.
§ 286.011(8)(c) & (e)
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On November 15, 2006, the City Council held a regular public session.
Lozman was granted permission to speak during the “non-agenda” public
comments portion of the meeting.2 The events surrounding Lozman’s comments at
the meeting, and his subsequent arrest, were captured on video. Upon reaching the
podium, Lozman said, “As is typical, the Mayor and [another Councilperson]
aren’t here during my comments.” The Council remained silent. Lozman
proceeded: “The U.S. Attorney’s Office has arrested the second corrupt local
politician . . . former Palm Beach County Commissioner Tony Masilotti.” At that
point, Councilperson Wade interjected, “You will not stand up and go through that
kind of . . . .” Lozman interrupted Councilperson Wade and said “Yes, I will.”
Councilperson Wade responded, “No, you won’t.” Lozman continued with his
allegations despite Councilperson Wade’s instructions. Wade then called out
“Officer,” summoning City Police Officer Francisco Aguirre who was providing
security for the meeting. As Officer Aguirre approached Lozman at the podium,
Lozman, speaking louder, said, “I am informing the citizens that two County
Commissioners . . . .” After walking up to Lozman, Officer Aguirre gestured to
him and said “Will you walk outside with me[?] I need to talk to you.” In
response, Lozman said, “I’m not finished,” and continued speaking. Officer

2

At each public meeting of the City Council, once the City Council has completed
discussion of the agenda items, there is a non-agenda public comment period during which
members of the public can address the Council on matters that were not on the agenda.
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Aguirre then told Lozman, “You’re going to be arrested if you don’t walk outside.”
Lozman responded, “Excuse me? I’m not walking outside, I haven’t finished my
comments.” Councilperson Wade then said, “Well, carry him out.” Officer
Aguirre handcuffed Lozman. Lozman yelled, “Why am I being arrested! I have a
First Amendment right!” Councilperson Wade responded, “If you go out, you
won’t be arrested.” After Lozman was removed from the meeting, the next person
to speak was called to the podium.
Lozman was charged with disorderly conduct and resisting arrest without
violence. The state’s attorney determined there was probable cause for the arrest
but dismissed the charges because there was “no reasonable likelihood of
successful prosecution.”
B.
In February 2008, Lozman filed a § 1983 action against the City. Lozman
claimed the City retaliated against him for opposing the City’s redevelopment plan
by having him arrested at the City Council meeting. Lozman brought claims for:
(1) retaliation by false arrest, in violation of the First Amendment; (2)
unreasonable seizure, in violation of the Fourth Amendment; and (3) common-law
false arrest.
In November 2014 the case went to trial, with Lozman proceeding pro se.
Among the many instructions the district court gave the jury, Lozman challenges
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two on appeal. The first is the district court’s instruction on retaliatory animus.
The court instructed the jury that, in order to find the City liable for the First
Amendment retaliatory arrest claim, the jury had to find that “a [City] police
officer arrested [Lozman] and the officer was motivated to take this action because
he had an impermissible animus to retaliate against Mr. Lozman for engaging in
constitutionally protected speech or conduct.” (Emphasis added.)
The second instruction relevant to Lozman’s appeal consists of two
comments the district court made when instructing the jury on the City’s authority
to limit the subject matter of public comment during City Council meetings. First,
during Lozman’s testimony, the court said:
Clearly, it would not be appropriate for someone to come in and take a
copy of the New York Times and just simply read the editorial section
of the New York Times, that would have nothing to do with the City
of Riviera Beach. . . .
Then, during the final charge, the court said:
[I]f a chairperson [of the City Council] was saying to Mr. Lozman,
Mr. Lozman, you need to sit down because we’re only going to hear
comments about the City of Riviera Beach, even if they didn’t have
that rule but if the person was doing that, exercising her discretion or
his discretion as the chairperson that would not be discriminatory.
(Emphasis added.)
The jury returned a verdict in favor of the City on all counts. Lozman filed a
Motion for New Trial, which the district court denied. This appeal followed.

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II.
We review a district court’s denial of a motion for new trial for an abuse of
discretion. Hewitt v. B.F. Goodrich Co., 732 F.2d 1554, 1556 (11th Cir. 1984).
When ruling on a motion for new trial, a trial judge must determine “if in his
opinion, the verdict is against the clear weight of the evidence or will result in a
miscarriage of justice.” Id. (quotation omitted and alteration adopted). “To assure
that the judge does not simply substitute his judgment for that of the jury, . . . new
trials should not be granted on evidentiary grounds unless, at a minimum, the
verdict is against the great—not merely the greater—weight of the evidence.” Id.
(quotation omitted and alteration adopted).
“We review jury instructions de novo to determine whether they misstate the
law or mislead the jury to the prejudice of the objecting party.” Palmer v. Board of
Regents, 208 F.3d 969, 973 (11th Cir. 2000). When reviewing a trial court’s jury
instruction, “our task is to examine whether the jury charges, considered as a
whole, sufficiently instructed the jury so that the jurors understood the issues and
were not misled.” Id. (quotation omitted). Reversal is warranted only if the failure
to give an instruction prejudiced the requesting party. Id.
III.
A.

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Lozman first argues that the district court erred in denying his motion for
new trial because the jury’s verdict finding probable cause to arrest for a violation
of Fla. Stat. § 871.01 was against the great weight of the evidence. 3
Probable cause “constitutes an absolute bar” to a claim for false arrest.
Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998). That is true whether the
false arrest claim is brought under the First Amendment, Dahl v. Holley, 312 F.3d
1228, 1236 (11th Cir. 2002), the Fourth Amendment, Rankin, 133 F.3d at 1430,
1435, or state law, id. at 1435. Thus, for all three false arrest claims, the district
court instructed the jury that, in order to find in favor of Lozman, the jury had to
find that “the arresting officer lacked probable cause to believe that Mr. Lozman
had or was committing a crime.” The jury was instructed, more specifically, to
consider whether the officer had probable cause to arrest Lozman for the offense of
Disturbing a Lawful Assembly, Fla. Stat. § 871.01(1). By finding for the City on
the three false arrest claims, the jury thus found Officer Aguirre did have probable
cause to arrest Lozman for disturbing a lawful assembly under § 871.01(1).
Lozman argues the district court erred in denying his motion for new trial
because the jury’s finding of probable cause was against the great weight of the
3

The City argues Lozman waived this claim by failing to argue in his motion for new
trial that the probable cause finding was against the great weight of the evidence. Reading
Lozman’s motion for new trial in light of our rule to construe pro se filings liberally, see
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per curiam), we are not
convinced he waived the issue. In any event, we need not rule on the City’s waiver argument
because we deny Lozman’s claim on the merits.
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evidence. We disagree. In order for probable cause to exist, “an arrest must be
objectively reasonable under the totality of the circumstances.” Rankin, 133 F.3d at
1435 (quotation omitted and alteration adopted). This standard is met when “the
facts and circumstances within the officer’s knowledge, of which he or she has
reasonably trustworthy information, would cause a prudent person to believe,
under the circumstances shown, that the suspect has committed, is committing, or
is about to commit an offense.” Id. (quotation omitted).
To obtain a conviction under § 871.01(1), the State must prove three
elements: (1) the defendant “must have deliberately acted to create a disturbance[,]
[t]hat is, he must act with the intention that his behavior impede the successful
functioning of the assembly in which he has intervened, or with reckless disregard
of the effect of his behavior”; (2) “[t]he acts complained of must be such that a
reasonable person would expect them to be disruptive”; and (3) “the acts must, in
fact, significantly disturb the assembly.” S.H.B. v. State, 355 So. 2d 1176, 1178
(Fla. 1977).
Based on the evidence before the jury—especially the video footage of
Lozman’s conduct at the City Council meeting—the jury could have found that
Officer Aguirre reasonably believed Lozman was committing, or was about to
commit, the offense of Disturbing a Lawful Assembly. The video shows Lozman
interrupted and refused to listen to Councilperson Wade when she tried to
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admonish him; Lozman refused to leave the podium when Officer Aguirre first
asked him to “walk outside”; and Lozman then continued to refuse to leave after
Officer Aguirre again directed him to “walk outside” or else be arrested. Because
Lozman failed to heed Councilperson Wade and Officer Aguirre’s directions, and
repeatedly failed to leave the podium when directed to do so, Officer Aguirre could
have reasonably believed: (1) that Lozman acted with “reckless disregard of the
effect of his behavior”; (2) that “a reasonable person would expect [his conduct] to
be disruptive”; and (3) that his conduct “significantly disturb[ed] the assembly,” or
was about to. See S.H.B., 355 So. 2d at 1178. Thus, we cannot say the jury’s
finding that Officer Aguirre had probable cause to arrest Lozman for a violation of
§ 871.01(1) went against the great weight of the evidence.
B.
Next, Lozman argues the district court erred in its jury instruction on the
First Amendment retaliatory arrest claim, specifically, the part of the instruction on
retaliatory animus. The court instructed the jury that, in order to find for Lozman
on this claim, the jury had to find that Officer Aguirre possessed a retaliatory
animus. However, Lozman’s theory at trial was that it was Councilperson Wade—
not Officer Aguirre—who was the City official with the retaliatory animus.
Lozman claimed that Councilperson Wade caused his arrest by summoning Officer
Aguirre to the podium and then directing Officer Aguirre to “carry [Lozman] out.”
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Lozman argues he was entitled to have the jury instructed on this theory of animus
and causation, and that the district court erred by instructing the jury that Officer
Aguirre was the City official whose animus (or lack thereof) was dispositive of the
First Amendment claim.
Lozman’s argument is compelling, as he seems to have established a
sufficient causal nexus between Councilperson Wade and the alleged constitutional
injury of his arrest. See Rizzo v. Goode, 423 U.S. 362, 370–71, 96 S. Ct. 598, 604
(1976) (“[Section 1983] impose[s] liability . . . for conduct which ‘subjects, or
causes to be subjected’ the complainant to a deprivation of a right secured by the
Constitution and laws.” (quoting 42 U.S.C. § 1983) (emphasis added)); Sims v.
Adams, 537 F.2d 829, 831 (5th Cir. 1976) 4 (“The language of § 1983 requires a
degree of causation . . . but it does not specifically require ‘personal
participation.’”). However, even assuming Lozman is right that it was error to
restrict the jury’s animus inquiry to Officer Aguirre, this error was harmless in
light of the probable cause finding. See United States v. Webb, 655 F.3d 1238,
1249 n.8 (11th Cir. 2011) (“Jury instructions are subject to harmless error
review.”). The jury’s determination that the arrest was supported by probable

4

Under Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we are
bound by all decisions of the former Fifth Circuit handed down before October 1, 1981. Id. at
1209.
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cause defeats Lozman’s First Amendment retaliatory arrest claim as a matter of
law. See Dahl, 312 F.3d at 1236.
C.
Finally, Lozman argues the district court erred in its jury instructions about
the City’s authority to restrict public comment at City Council meetings. 5
In order to prevail on a First Amendment retaliation claim, “the plaintiff
must show that the defendant was subjectively motivated to take the adverse action
because of the protected speech.” Castle v. Appalachian Tech. Coll., 631 F.3d
1194, 1197 (11th Cir. 2011). Lozman claimed the City had him removed and
arrested because he opposed the redevelopment plan. As its defense, the City
presented evidence that Lozman was removed—regardless of his opposition to the
redevelopment plan—simply because his comments violated the rules governing
the non-agenda public comment period of City Council meetings. More
specifically, the City argued Lozman’s remarks about the arrest of a county
commissioner violated the rule that comments during the non-agenda public
comment period, while not limited to an agenda item, must still relate to City
business. Lozman countered with testimony showing no such requirement existed
and that, during the public comment period, residents could speak on any topic,
5

The City argues Lozman waived this claim by failing to argue it before the District
Court. Again, although we are not convinced that he waived the issue, see Tannenbaum, 148
F.3d at 1263, we need not rule on the City’s waiver argument because we deny the claim on the
merits.
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whether related to City business or not. Thus, one of the fact issues for the jury
was whether a person during the public comment period could speak only about a
topic related to City business. The district court instructed the jury, both during
trial and in its final charge, that the First Amendment would not prohibit a city
from imposing this sort of restriction if it wanted to.
Lozman argues that two comments the district court made while offering
instructions on this subject were error. First, during Lozman’s testimony, the court
said, “it would not be appropriate for someone to come in [to a City Council
meeting] and just simply read the editorial section of the New York Times, that
would have nothing to do with the City of Riviera Beach.” Then, during the final
charge, the court said, “even if [the City Council] didn’t have [a] rule” restricting
public comment to topics related to City business, it “would not be discriminatory”
for the Council chairperson to “exercis[e] her discretion” to say “Mr. Lozman, you
need to sit down because we’re only going to hear comments about the City of
Riviera Beach.” Lozman argues these statements effectively told the jury that the
City was merely enforcing a valid rule barring speech about non-City matters,
instead of allowing the jury to decide whether such a rule existed and whether this
rule was what motivated the City’s adverse action against Lozman.
Read out of context, it might seem that the district court’s comments could
have confused the jury by suggesting that the issue of causation—that is, whether
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the City acted out of an improper retaliatory motive or a legitimate enforcement of
its rules—was determined as a matter of law in favor of the City. But these were
two isolated remarks, and each was accompanied by a lengthy discussion that
clearly presented the fact issue for the jury to decide. After saying “it would not be
appropriate” to read The New York Times during the public comment period, the
district court continued:
The jury is going to have to decide what was in the City Council’s
mind when they [took the adverse action]. Were they trying to
retaliate against him because of something he said before? Or were
they saying, You’re not obeying our rule today, and you need to stop.
See? That’s what the jury is going to have to decide.
Similarly, after saying it “would not be discriminatory” for the Council chairperson
to “exercis[e] her discretion” to remove Mr. Lozman for speaking about non-City
matters, the court explained:
You’re looking at what is in the mind of the person making the
decision. So if the chairperson says to Mr. Lozman, you need to sit
down, if [the chairperson is] doing it because they believe they’re
enforcing a rule of procedure, and they’re not doing it to strike back at
Mr. Lozman, then Mr. Lozman would not have established a
discriminatory animus. But if Mr. Lozman has proven to you that
they did have a discriminatory animus then he would have established
that fact no matter what they say. In other words, just because
someone says, wait a minute, you’re violating this rule or that rule, if
what’s really in their mind is that they’re trying to strike back at Mr.
Lozman, that would not be appropriate. That would not be
permissible. So remember when we’re talking about discriminatory
animus we are looking at what is in the mind of the person making
that decision. Are they just trying to run an orderly meeting or are
they trying to strike back at Mr. Lozman because he engaged in
constitutionality protected speech or conduct?
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Taking the court’s instructions “as a whole,” the two comments Lozman
complains of would not have misled the jury. Christopher v. Cutter Labs., 53 F.3d
1184, 1190 (11th Cir. 1995); see also Morgan v. Family Dollar Stores, Inc., 551
F.3d 1233, 1283 (11th Cir. 2008) (“When the instructions, taken together, properly
express the law applicable to the case, there is no error even though an isolated
clause may be inaccurate, ambiguous, incomplete or otherwise subject to
criticism.” (quotation omitted)). The district court correctly stated the law
concerning the City’s authority to restrict public comment during its Council
meetings. Further, the court correctly advised the jury that, even if the City
claimed to be enforcing such a restriction, the jury would need to decide whether
this was pretext for a retaliatory motive. “So long as the instructions accurately
reflect the law, the trial judge is given wide discretion as to the style and wording
employed in the instructions.” Palmer, 208 F.3d at 973. The district court was
well within its discretion to phrase the instructions as it did.
AFFIRMED.

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