Lozman v. City of Riviera Beach et al

Filing 666

ORDER Granting in part and Denying in part 557 Defendant's Motion in Limine to Exclude Evidence Relating to Admiralty Proceeding, Arrest and Seizure of Floating Home & Damages to Floating Home. Signed by Judge Daniel T. K. Hurley on 11/4/14. (lr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 08-80134-CIV-HURLEY
FANE LOZMAN,
Plaintiff,
vs.
CITY OF RIVIERA BEACH,
Defendant.
__________________________/
ORDER GRANTING IN PART & DENYING IN PART
DEFENDANT’S MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATING
TO ADMIRALTY PROCEEDING, ARREST and SEIZURE
OF FLOATING HOME & DAMAGES TO FLOATING HOME
THIS CAUSE is before the court upon the motion of defendant City of Riviera Beach
(“City”) to exclude all evidence relating to a certain collateral admiralty proceeding, including the
arrest, seizure and destruction of the plaintiff’s floating home in the context of that proceeding, and
damages arising from the destruction of the home, at the trial of this matter [ECF 557], the plaintiff’s
response in opposition [ECF 612] and the City’s reply [ECF 624].
In essence, the City contends that this court’s prior ruling finding the existence of probable
cause to support the arrest and seizure of plaintiff’s floating home as a factor which necessarily
defeated plaintiff’s alleged Fourth Amendment violation based on seizure of this property also
applies to defeat any asserted First Amendment retaliation claim to the extent premised on the
seizure of this property. The City further contends that with the elimination of the arrest and seizure
evidence as a premise for the plaintiff’s First Amendment retaliation claim, there is no legitimate
claim or issue remaining to which the evidence relates, requiring the prohibition of the evidence for
any purpose at time of trial.

In support of its motion, the City relies on Dahl v. Holley, 312 F.3d 1228 (11th Cir. 2002) and
other Eleventh Circuit cases which hold that the existence of probable cause for the arrest of a person
defeats a First Amendment retaliation claim stemming from that arrest. See Dahl v Holley, 312 F.3d
1228 (11th Cir. 2002), citing Redd v City of Enterprise, 140 F.3d 1378, 1383 (11th Cir. 1998). See
also Anderson v City of Naples, 501 Fed. Appx. 910, 2012 WL 6570895 (11th Cir. 2012) (unpub)
(existence of probable cause is absolute bar to both Fourth Amendment false arrest claim and First
Amendment retaliation claim); Wood v Kesler, 323 F.3d 872 (11th Cir. 2003) (retaliatory prosecution
claim).
In a related vein, the United States Supreme Court has held that a Bivens plaintiff is required
to plead and prove the absence of probable cause to support a claim for retaliatory prosecution.
Hartman v. Moore, 547 U.S. 250, 126 S. Ct. 1695, 164 L.Ed.2d 441 (2006). Whether the holding
in Hartman extends to retaliatory arrests has been the subject of some conflict between the circuits.
Compare Dahl v. Holley 312 F.3d 1228 (11th Cir. 2002) with Skoog v. County of Clackamas, 469
F.3d 1221, 1235 n. 57 (9th Cir. 2006) (recognizing existence of a right to be free of police action for
which retaliation is a but-for cause, even if probable cause exists for that action, but finding law on
point in sufficient flux at the time of incident in question so as to entitle officer to qualified
immunity). See also Royal Crown Day Care LLC v. Dept. of Health and Mental Hygiene of City of
New York, 746 F.3d 538, 544 n. 4 (2d Cir. 2014) (plaintiff may prove First Amendment retaliation,
even if measures taken by defendants were otherwise justified, if defendants retained some discretion
as to whether to take such measures and measures were improperly motivated by retaliation for
protected speech), citing Blue v. Koren, 72 F.3d 1075, 1083 n. 5 (2d Cir. 1995).

2

More recently, the United States Supreme Court granted certiorari on the issue of whether
the rule of Hartman, governing retaliatory prosecutions, is properly extended to retaliatory arrests,
but ultimately decided the case presenting the issue on qualified immunity grounds, finding that law
in the Tenth Circuit on the point was sufficiently ambiguous to permit a reasonable official in the
shoes of the defendant to interpret the rationale of Hartman to extend to retaliatory arrests. Reichle
v Howards, ___ U.S. ____, 132 S. Ct. 2088, 182 L.Ed. 2d 985 (2012).
On this background, this court is bound to apply controlling Eleventh Circuit precedent on
the issue. The Eleventh Circuit has consistently held that a First Amendment retaliatory arrest claim
will not lie where there is probable cause to support the underlying arrest. See Dahl v Holley, 312
F.3d 1228 (11th Cir. 2002), citing Redd v City of Enterprise, 140 F.3d 1378, 1383 (11th Cir. 1998).
The rule of Dahl still controls in the Eleventh Circuit and this court is compelled to follow it.
The court accordingly concludes that the plaintiff’s First Amendment retaliation claim in this
case, to the extent premised on the arrest, seizure and destruction of his floating home, does not lie
because there was probable cause to support the issuance of the warrant for the arrest of his home
as determined by the admiralty court which issued the warrant on motion of the City, which alleged
it was the holder of a statutory maritime lien for necessaries pursuant to 46 U.S.C. §31342 entitled
to enforce its lien against the floating home. See City of Riviera Beach v That Certain Unnamed
Gray, Two-Story Vessel approximately fifty-seven feet in length, etc., in rem, Case NO. .09-80594CIV-DIMITROULEAS (S.D. Fla. 2010) (DE 4,6).
The court will accordingly grant the City’s motion in limine to prohibit any evidence or
reference to the federal admiralty proceedings, including the arrest, seizure and/or destruction of the
plaintiff’s floating home as a predicate for the plaintiff’s First Amendment retaliation claim.
3

However, this court recently granted plaintiff’s motion for reconsideration on the summary
judgment disposition of his equal protection selective enforcement claim, finding that plaintiff has
presented a cognizable “selective enforcement” claim, based on alleged uneven treatment in the
City’s collection activities (including the enforcement of a maritime lien against plaintiff’s floating
residence), regardless of whether there was probable cause for the arrest and seizure of the floating
home in the first instance. See e.g. Wayte v. United States, 470 U.S. 598, 105 S. Ct. 1524, 84
L.Ed.2d 547 (1985) (decision to prosecute may not deliberately be based on unjustifiable standard
such as race, religion or other arbitrary classification, including exercise of protected statutory and
constitutional rights); Whren v United States, 517 U.S. 806, 813 116 Ct. 1769, 135 L.Ed.2d 89
(1996) (in selective enforcement claim based on race, right to equal protection may be violated even
if actions of police are acceptable under Fourth Amendment ); Marshall v Columbia Lea Regional
Hosp., 345 F.3d 1157 (10th Cir. 2003) (that stop and arrest of motorist was based on probable cause
did not resolve selective enforcement claim which hinged on determination of whether law
enforcement officials were motivated by a discriminatory purpose and whether their actions had
discriminatory effect).
In light of this ruling on the selective enforcement claim, evidence pertaining to the arrest,
seizure and destruction of the plaintiff’s floating home will likely be a relevant item of damages on
the Fourteenth Amendment equal protection claim, should the plaintiff succeed in advancing that
claim for a determination by the jury at time of trial. As there may be some legitimate purpose for
the introduction of this evidence bearing on this independent alleged constitutional violation, the
Court shall deny the City’s motion in limine to the extent that it seeks the exclusion of all evidence
pertaining the admiralty proceedings, including the arrest, seizure and destruction of the home, for
4

any purpose at time of trial.
Based on the foregoing, it is ORDERED AND ADJUDGED:
1. The City’s motion in limine to exclude evidence relating to the federal admiralty
proceeding, including the arrest, seizure and destruction of plaintiff’s floating home, and damages
to floating home is GRANTED to the extent that such evidence may not be used to support the
plaintiff’s First Amendment retaliation claim.
2. Because the evidence may have some relevancy to the plaintiff’s Fourteenth Amendment
equal protection “selective enforcement” claim, however, the City’s motion in limine to exclude the
evidence for any purpose at time of trial is DENIED.
DONE AND ORDERED in Chambers at West Palm Beach, Florida this 4th day of
November, 2014.

_____________________________
Daniel T. K. Hurley
United States District Judge
cc.
All counsel
Fane Lozman, pro se

For updated court information, see unofficial website
5
at www.judgehurley.com