Fane Lozman back to the Supreme Court — again

Most lawyers dream of getting a shot to argue in front of the Supreme Court.  Non-lawyer Fane Lozman has convinced the Supreme Court to hear him twice.  The second one has oral argument tomorrow.  From the Washington Post:

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.
***
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.

***
At issue is Lozman’s arrest at a city council meeting in November 2006.

Fane Lozman’s home floating in the waters near North Bay Village, Fla., in 2014. (J Pat Carter/Associated Press)
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.

Fane Lozman is headed back to SCOTUS

Most lawyers dream of getting a golden ticket to the Supreme Court.  Fane Lozman, who isn't a lawyer, just found his second golden ticket.  SCOTUSblog describes the case this way:

With today’s grant in his lawsuit against Riviera Beach, Florida, Fane Lozman – whose eponymous website describes him as a “persistent and tenacious underdog who fought against the government seizure of 2200 homes and businesses” – joins Carol Ann Bond and Encino Motorcars in the pantheon of recent repeat litigants on the merits at the Supreme Court. But unlike Bond’s and Encino’s, Lozman’s latest case involves an entirely different set of legal issues from those presented in his first case, even though his opponent is the same.
In Lozman’s first visit to the Supreme Court, the justices ruled that Lozman’s floating home was not a “vessel” for purposes of federal maritime jurisdiction. His second case, however, arises from his November 2006 arrest at a city council meeting, after he refused to stop talking about local government corruption when a councilmember directed him to do so.
The charges against Lozman were quickly dropped, but that didn’t end the matter. Lozman filed a lawsuit in federal district court, alleging that he had been arrested in retaliation for his criticism of the government and for a lawsuit that he had filed against the city. The U.S. Court of Appeals for the 11th Circuit ruled, however, that Lozman’s retaliatory-arrest claim could not succeed because the jury found that the police had probable cause to arrest him. Now the Supreme Court will decide whether that ruling is correct.

Fane Lozman to take on Department of Justice...

 ... and my money is on Fane Lozman.  The guy has gone to the Supreme Court twice and won twice.  It's pretty amazing.  This time, DOJ is hounding him about a floating home on his property.  Here's the letter he received:

Here is the home at issue:

I spoke to Mr. Lozman and he told me that he was going to respond to the DOJ with a letter that basically says "F*** off."  And that he did just that.  Here's the intro to his response:

Dear Brandon

Your letter, attached below, is a sloppy attempt to intimidate me.  Let's start with my answer to your settlement offer, that would require me to remove my floating residential structure from my homesteaded, private property in ten days. 

I am never moving my floating home off of my private property!

Your request is Un-American.  What country do you represent?

My floating home is not fill, which is usually rock and sand that is placed in submerged lands to create dry land.  Instead my floating home is the legal equivalent of a residential house built on land, as recognized by the State of Florida with my homestead designation, and the U.S. Supreme Court in its opinion, Lozman v. Riviera Beach. 568 U.S. 115 (2013). Both of my cases were argued at Georgetown's Supreme Court Moot Court program.  Did you really graduate from Georgetown law school, because that is hard to believe given the multiple grammatical errors in your letter and lack of comprehension as to what is Supreme Court precedent.  

And it concludes this way:

So go for it, criminally charge me along with pursuing a civil enforcement case, that you can set for trial.  Both the district judge and jury will think that you and Sydney are bullies and have wasted their time with your nonsensical pleadings. By the way, does Attorney General Merrick Garland know that you threatened me with your bullshit letter? Your flippant attitude for SCOTUS precedent, and lack of comprehension as to the limitations of 33 U.S.C.§ 403, reflects poorly on the Department of Justice.  I and others will make sure that it is formally addressed with Attorney General Garland and those in your direct chain of command.

All the best,

Fane Lozman

If I told you that a pro se defendant beat back a temporary injunction request against 4 DOJ lawyers....

 ...and gave you only one guess who the pro se defendant was, who would you guess?

Yup, you got it -- Fane Lozman.  The same Fane Lozman who has won twice in the Supreme Court.  

The PBP covers his most recent case, before Judge Middlebrooks -- who patiently presided over a 5-hour hearing:

Longtime Riviera Beach gadfly Fane Lozman this week towed his 20-foot-long floating home away from the banks of Singer Island to comply with a state court order saying that its bottom was damaging environmentally sensitive seagrasses that are protected by Florida law.

On Friday, federal officials told U.S. District Judge Donald Middlebrooks that Lozman is now running afoul of federal rules.

The floating container home, anchored in a cove south of John D. McArthur Beach State Park, poses a hazard to marine navigation and should be removed from the water immediately, an attorney for the U.S. Department of Justice said during a five-hour court hearing.

The dueling lawsuits — one filed against Lozman by the Florida Department of Environmental Protection in Palm Beach County Circuit Court and the other by the U.S. Army Corps of Engineers in federal court — has put the former U.S. Marine and self-made millionaire in an untenable position, Middlebrooks said.

“Mr. Lozman is caught between state and federal regulatory agencies,” he said.

Further, Middlebrooks said, it appears Lozman may be the victim of selective enforcement.

The Army Corps cited Lozman for last year anchoring his 910-square-foot container home on submerged land he owns off Singer Island. Yet, Middlebrooks noted, it has done nothing to force the removal of a partially submerged rusted barge that has been in the Lake Worth Lagoon for at least four years and appears to pose a far greater risk to boaters.

“I realize that there’s a fair amount of regulatory discretion that the Corps has,” Middlebrooks said. “But seeing that barge and that metal and comparing it to what Mr. Lozman has, well, there’s no comparison.”

Further, he said, living on the Intracoastal Waterway, he is no stranger to local waters.

“Going down the Intracoastal Waterway, I’ve seen more structures that pose more harm than Mr. Lozman’s stripped-down container home,” he said.

In other SDFLA news, Judge Kathy Williams presided over a civil trial last week.  The plaintiff, represented by Mark Schweikert, won $6 million against the Miami-Dade School Board.  From the Herald:

A federal jury has ordered the Miami-Dade School Board to pay $6 million to a former student of an ex-Palmetto High teacher accused of harassing and sexually abusing a string of female students. In a verdict late Friday, jurors concluded the school district, despite multiple warnings, did nothing to stop Jason Edward Meyers, a creative writing teacher. 

The verdict found Meyers “posed a substantial risk of sexual abuse or harassment to female students,” yet the district was “deliberately indifferent” in how it handled the accusations. The federal lawsuit was filed on behalf of an unidentified student in 2019. It was the second lawsuit filed in the Meyers saga — an earlier lawsuit from another former student settled for $1.1 million.

Jurors deliberated less than two hours in ruling in favor of the young woman, who was about 16 and 17 when she was groomed into having sex with Meyers on campus. Now 23, the woman testified during last week’s trial, as did several other victims. “She was one who was brave and courageous to be scrutinized in that way,” said her attorney, Mark Schweikert. “To win it in the eyes of the jurors — members of this community — is incredibly cathartic for her and for myself as her advocate.”

***

Meyers, 46, is still awaiting trial in Miami-Dade criminal court in a case involving the same victim from last week’s trial — she will have to testify again. To the frustration of his victims, the criminal trial has been pending for more than five years, because Meyers changed attorneys — and then because of the pandemic. He’s awaiting trial on three felony counts of engaging in sex with a minor. 

Meyers was not named in the federal lawsuit. “No one was interested in hearing his side of the story in that civil case,” said his criminal defense attorney, Bradley Horenstein. “Jason Meyers is innocent. Looking forward to our day in court.” 

The Miami-Dade school district, in a statement on Monday, did not say whether it will appeal.

Tuesday news & notes

1.  John Pacenti covers the Kaley case going to the Supreme Court:

On the 50th anniversary of its landmark Gideon ruling giving all criminal defendants access to a lawyer, the U.S. Supreme Court accepted a South Florida case asking whether defendants are entitled to hire the counsel of their choice when federal prosecutors freeze their assets before trial.
The Supreme Court unanimously ruled in the 1963 case of Clarence Gideon, who received a five-year sentence for a pool room theft in Panama City, that state courts are required to provide free representation to indigent defendants under the 14th Amendment. The decision caused the release of 2,000 Florida prisoners.
Fifty years later, the high court agreed to decide whether the federal government can freeze a defendant's assets before trial without an evidentiary hearing.
"Gideon couldn't afford a lawyer, so the government said he had to go to trial without the court appointing one for him," said attorney Howard Srebnick. "Fifty years later, the federal government is now arguing that because court-appointed lawyers are available to indigent defendants, the government can restrain assets needed for counsel of choice without first having to prove to a judge that the government has the evidence and legal authority to justify the restraint."
Srebnick is the partner at Miami criminal defense firm Black, Srebnick, Kornspan & Stumpf. He has teamed up with Miami appellate attorney Richard Strafer in leading the charge for Kerri and Brian Kaley. ( Read Petition for Cert. Read brief.)

2.  Fane Lozman wins again, this time in the 11th Circuit:

 Two months after the U.S. Supreme Court handed Fane Lozman a huge victory in his long-running legal battle with Riviera Beach, another court on Monday paved the way for the fervent activist to seek millions from the city for his troubles.
The 11th Circuit Court of Appeals reinstated a 2008 lawsuit Lozman filed against the city, claiming it repeatedly violated his civil rights by hiring a private investigator to trail him, kicking him out of public meetings and, at one point, having him arrested when he refused to leave.
“Today felt just a tad lower than winning at the Supreme Court,” Lozman said shortly after the decision was announced. “The Supreme Court ruling was a 10. Today was a 9½.”
City officials didn’t return emails or phone calls for comment about their latest loss to the former Marine who became a thorn in their sides shortly after docking his unconventional floating home at the city marina in 2006. City hall was closed Monday as part of budget-cutting measures.
But, while the high court’s ruling may have stung more, the 11th Circuit’s could be more costly.
When the nation’s high court in January ruled that the city improperly used ancient maritime law to seize and ultimately destroy Lozman’s 60-foot two-story floating home, the possible damages were somewhat fixed. City officials were faced with the prospect of paying Lozman for the $167,000 he claims it would cost to replace his home, the $300,000 he spent for attorneys and an undetermined amount to reimburse him for the money he shelled out for living expenses after his home was destroyed.
However, he said, if he succeeds in proving that the city violated his constitutional rights, the damages could skyrocket.
“If I was the city, I’d be concerned,” he said. “That’s a seven-figure sum.”

Fane Lozman wants back in the Supreme Court

You all remember him -- he's the guy who won the floating home case.  Well, he's back.  From Curt Anderson:

Four years ago, Fane Lozman won an improbable longshot victory when the U.S. Supreme Court agreed with him that his floating home was a house, not a vessel subject to seizure by a Florida city.

The justices set a new national legal standard: Not everything that floats is a boat.

It was far from certain that the nation's highest court would even take his case, and the verdict in January 2013 seemed a resounding victory for the little guy in battle with local officials. Now Lozman is asking the justices to enforce their ruling by forcing the city pay him legal fees and reimburse him for the home's value after it was seized and destroyed.

Lozman's 60-by-12-foot floating home had no engines, sails or rudder. It had to be towed to a Riviera Beach marina where Lozman took up residence in 2006 before becoming embroiled in a fight with that Florida city over its plans to turn the marina over to a developer. Lozman said the city's actions were in retaliation for his vocal opposition.

The city sought to evict him and, when that failed, sued under maritime law in federal court to have the floating home seized as a vessel. After a federal judge sided with the city in 2010, it had the home destroyed - launching the legal battle all the way to the Supreme Court.

Lozman contends in new filings that the city should reimburse him the estimated $165,000 value of the floating home destroyed, plus $200,000 in legal fees. The same district judge and appeals court whose rulings were overturned by the Supreme Court justices have essentially told Lozman to take a long walk on a short pier.

To Lozman, the rulings rejecting reimbursement fly in the face of the original Supreme Court decision, forcing him to return for a second longshot.

Jeffrey Toobin covers Fane Lozman

Fane Lozman, of SDFLA fame, has become the stuff of Supreme Court legend...  Jeffrey Toobin covers him and his cases here:

Lozman had an unusual problem before the Justices: his case was too good. Every Justice who spoke seemed to acknowledge that Lozman’s rights had been violated. As Chief Justice John Roberts put it, “I found the video pretty chilling. I mean, the fellow is up there for about fifteen seconds, and the next thing he knows he’s being led off in handcuffs, speaking in a very calm voice the whole time. Now, the Council may not have liked what he was talking about, but that doesn’t mean they get to cuff him and lead him out.” Still, several Justices worried that the egregious facts of Lozman’s case might lead them to create a standard that would subject many communities to similar lawsuits. They needed to figure out how to create a standard that would not discourage law enforcement from keeping order in public meetings, while preventing the kind of abuse that Lozman suffered. “I’m very concerned about police officers in difficult situations,” Justice Anthony Kennedy told Pamela Karlan, a Stanford Law professor who was representing Lozman. “In this case, there’s a very serious contention that people in elected office deliberately wanted to intimidate this person, and it seems to me that maybe in this case we should cordon off or box off what happened here from the ordinary conduct of police officers."

Here's the video of the arrest:

Welcome back.

We start year 12 with this cool article from the Herald about Fane Lozman, who has this message for his town:  Fane Lozman returns, Thank you... U.S. Supreme Court 

From the article:

“I want to make a statement,” he said. “I want people to see who I am and then they can look up the case to find out more.”
Lozman’s troubles began when Riviera Beach “arrested” his houseboat in April 2009 and later destroyed it. Lozman, a former Marine Corps officer, argued that the city couldn’t regulate his home as a maritime vessel.
His houseboat had been moored at the Riviera Beach marina after Hurricane Wilma destroyed his former marina in North Bay Village in 2005. The structure did not have an engine and was equipped to be connected to sewer lines on dry land.
In 2013, the Supreme Court, by a 7-2 vote, overturned an 11th Circuit Court of Appeals ruling, deciding that Riviera Beach didn’t have the jurisdiction to have his boat seized. He said he still hasn’t recovered his financial losses — including the cost of the boat — from the city, and hopes he will soon.

Meantime, Justice Sotomayor is kicking some ass (via NYT):

The Supreme Court term had barely gotten underway in early November when Justice Sonia Sotomayor issued her first dissent. A police officer’s “rogue conduct,” she wrote, had left a man dead thanks to a “‘shoot first, think later’ approach to policing.”

Justice Sotomayor went on to write eight dissents before the term ended last week. Read together, they are a remarkable body of work from an increasingly skeptical student of the criminal justice system, one who has concluded that it is clouded by arrogance and machismo and warped by bad faith and racism.

Only Justice Clarence Thomas wrote more dissents last term, but his agenda was different. Laconic on the bench, prolific on the page and varied in his interests, Justice Thomas is committed to understanding the Constitution as did the men who drafted and adopted it centuries ago.

Justice Sotomayor’s concerns are more contemporary and more focused. Her dissents this term came mostly in criminal cases, informed as much by events in Ferguson, Mo., in 2014 as by those in Philadelphia in 1787.

She dissented again in January, from Justice Antonin Scalia’s final majority opinion. Joined by no other member of the court, she said the majority in three death penalty cases might have been swayed by the baroque depravity of the crimes. “The standard adage teaches that hard cases make bad law,” she wrote. “I fear that these cases suggest a corollary: Shocking cases make too much law.” 

Read more here: http://www.miamiherald.com/news/local/community/miami-dade/miami-beach/article87493917.html#storylink=cpy

A houseboat is a house!

So says the High Court (at least in this case) in a nice win for local Fane Lozman in: Lozman v. Riviera Beach.  Prior blog coverage here.

Lozman was pro se in the district court case here in the SDFLA, but ended up being represented by a number of high powered lawyers, including Jeffrey Fischer. 

Here's SCOTUSBlog's coverage of the decision today:

Casting aside the simplistic notion that “anything that floats” is a watercraft whose use and activity is controlled by maritime law, the Supreme Court on Tuesday installed a “reasonable observer” at dockside to make the judgment about whether a floating structure qualifies, or not, as a “vessel.” The vote was seven to two, in favor of a maverick Florida owner of a houseboat who was constantly in hot water with marina owners, but now appears to have the last word: the marina probably will have to pay him, not the other way around.
The dissenters complained that the Court was introducing confusion and complexity into what should be straightforward and explicit, and thus upsetting the expectations of the entire maritime industry. The majority, in an opinion by Justice Stephen G. Breyer, insisted that its “reasonable observer” test would work in the real world of floating structures.

While this case turned on a boxy two-story floating home that Fane Lozman had lived in at various marinas in Florida, the Court treated his case (Lozman v. Riviera Beach, 11-626) as one with considerably wider impact on maritime law. What came out of it, in the end, was a reliance upon the traditional legal figure of the “reasonable man” (to be politically correct, now the “reasonable observer”) to make a common-sense assessment of the physical characteristics and activities of a floating structure, and then decide whether it was meant to be a vehicle of water transportation. Courts, of course, will be deciding what the “reasonable observer” would see, presumably on a case-by-case basis.
Under this test, not all houseboats will be exempt from maritime regulation, since many of them have motors to propel them, so a reasonable view of them is likely to be that they can be moved over water, carrying goods and people. But neither will all dockside structures used as homes, and ill-fitted for gliding over the waves, come under the new definition, because they probably will not be seen as transport vessels. It may take some time, and quite a bit of litigation, to see the difference between them, and between other floating structures.

Thursday News and Notes

1.  Douglas Bates is going to plead guilty after seeing how the Kitterman trial went.  Paula McMahone covers the development:

Douglas Bates, 55, a Plantation lawyer who lives in Parkland, was indicted in August on the conspiracy charge and three separate wire fraud counts. His trial was scheduled to begin Monday in federal court in West Palm Beach.
But prosecutors filed updated court records on Wednesday charging Bates with the lone conspiracy count and U.S. District Judge Donald Middlebrooks scheduled a change-of-plea hearing for 11 a.m. Thursday, a sign that Bates has reached a plea agreement with the government.
The charge carries a maximum punishment of five years in federal prison and significant fines. A felony conviction would also lead to Bates' disbarment from practicing law.
His decision to plead guilty comes a week after a jury found Christina Kitterman, an attorney who formerly worked for Rothstein, guilty of three counts of wire fraud. She could face nine years or more in prison when she is sentenced later this year, prosecutors said.

2.  Fane Lozman is not a happy camper, even after winning in the Supreme Court (from the DBR):

Fane Lozman won a U.S. Supreme Court decision finding his floating home was a house and not boat, but he said he's still not getting justice after a federal magistrate valued his loss at $7,500.
Lozman offered advertisements of comparable floating homes in the Florida Keys priced from $185,000 to $265,000 in a motion filed Tuesday to vacate U.S. Magistrate Judge Lurana Snow's report.
The West Palm Beach judge used a 5-year-old report ordered by a federal judge when Lozman's floating home, which had no engine, was originally seized as a maritime vessel by the U.S. Marshals Service in Riviera Beach.
"Are they pissed off I got them reversed? Now I'm being punished for winning this," Lozman told the Daily Business Review. "This is pathetic."
The 57-foot, two-story structure was towed to the Miami River by the city and set aflame in 2009 in a legal dispute that filled state and federal court files. Riviera Beach and federal authorities contended they had the right to seize the property under maritime law.
U.S. District Judge William Dimitrouleas in Fort Lauderdale sided with the city, but Lozman appealed. He had retired after making millions of dollars during the tech boom as a stock trader and made his floating home a cause celebre.

3.  Roy Black has an excellent post, explaining how to cross the sympathetic witness.  From the intro to the lengthy post on the SAC insider trading trial:

The government’s star witness and “insider” is Dr. Sidney Gilman, an 81 year old drug researcher who long sought a cure for Alzheimer’s and had published nine books and 240 articles during a highly distinguished career. Gilman testified that he at first “accidentally” passed confidential information to Martoma. He claimed he “slipped” in telling him about the deleterious side effects of an experimental Alzheimer’s drug. He admitted that after his slip he knowingly gave further detailed data on the drug’s failed clinical trial.
Gilman appears grandfatherly, vulnerable and fragile and has been taking anti-cancer drugs. A defense lawyer’s worst nightmare. And the government did their best to elevate Gilman while casting Martoma in an ugly light. Gilman testified that Martoma reminded him of his eldest son who had committed suicide, and suggested that Martoma used this to seduce Gilman, squarely placing most of the blame on their target Martoma. The government’s theme was that Martoma took advantage of a befuddled sick old man.
Despite the government’s efforts to paint him in a good light, Gilman came to the witness stand toting a lot of baggage. The government needed his testimony and gave Gilman a sweet deal. He received a non-prosecution agreement, a settlement with regulators requiring only repaying his consulting fees and retirement from the University of Michigan Medical Center in lieu of being fired. A pretty good global resolution of his myriad problems. All superior benefits the defense lawyer must explore on cross.
There are high stakes in this cross examination for Martoma because a month earlier, another former SAC employee, Michael S. Steinberg, was convicted of insider trading. Matoma’s lawyers are well aware that caution must be abandoned. This cross could go either way and maybe the difference between going home and 20 years in a federal facility.

4.  Rumpole posted about an elderly nun being sentenced to federal prison.  Is this insane or is it me?  From the Chicago Tribune:

A U.S. judge sentenced an 84-year-old nun, Sister Megan Rice, on Tuesday to 35 months in prison for breaking into a Tennessee military facility used to store enriched uranium for nuclear bombs.
...
Rice asked the judge not to take her age into consideration when handing out the sentence.
"To remain in prison for the rest of my life would be the greatest honor," the nun said in court. "I hope that happens."
Rice and the others admitted to spray painting peace slogans and hammering on exterior walls of the facility. When a guard confronted them, they offered him food and began singing.
The three were convicted by a federal jury last May of damaging national defense premises under the sabotage act, which carries a prison sentence of up to 20 years, and of causing more than $1,000 of damage to U.S. government property.
Prosecutors contended the break-in at the primary U.S. site for processing and storage of enriched uranium disrupted operations, endangered U.S. national security and caused physical damage.
Dozens of supporters held a prayer vigil for the group outside the courthouse.
Federal sentencing guidelines called for Rice to receive up to a little more than seven years in prison; Walli, 65, more than nine years; and Boertje-Obed, 58, more than eight years. The defendants have been in custody since their convictions.

5.  And here's your moment of blog zen:

SCOTUS Monday

Everyone is covering the first Monday in October today.  I will point out two local cases--

1)  The houseboat question presented by Fane Lozman (previous coverage here).  

John Pacenti has coverage today:

Fane Lozman made a boatload of money off the tech bubble and appropriately decided to live the good life with his dachshund Lady on a houseboat at a Riviera Beach marina.
The city, though, had a $2.4 million redevelopment plan for the public marina with its easy access to the ocean. Lozman stood in the city's way and was determined to fight the city's use of eminent domain.
Now the former Chicago financial trader is a cause celebre for fellow houseboat residents around the country, fighting his eviction all the way to the U.S. Supreme Court. The high court opens its fall session today by hearing arguments in the case.
The question for the nine justices is a simple one: whether a houseboat is a house or a boat. Their answer could have wide-ranging consequences for houseboat owners, floating casinos and government agencies.
"I think it's amazing this little landlord-tenant dispute made it all the way to the Supreme Court," said renowned appellate attorney Jeffrey Fisher, a Stanford University law professor handling the case for Lozman.
Amicus briefs have been filed in favor of Lozman's position by the U.S. solicitor general's office, the American Gaming Association and the floating home associations of Seattle and Sausalito, California.

This reminds me of the question Scalia raised in his recent book about what counts as a vehicle in the park....

2.  The dog sniff question: This one won't be heard till Halloween, but local public defender Howard Blumberg will be arguing it.  Here's his brief.  And here is a nice post by Lyle Denniston explaining the issues presented:

Suppose, though, that police use a dog to check for narcotics on the exterior of a home that they suspect is being used for drug trafficking.  Does the fact that the site of the search is a private home make a constitutional difference?  That is one of the new factual situations that the Supreme Court is now preparing to confront.  In the case of Florida v. Jardines, Florida’s state supreme court ruled that the U.S. Supreme Court’s past rulings on the use of drug-sniffing dogs did not apply at all when a dog was used at a home, even if the dog only sniffed exterior surfaces of a house.   Nowhere is the right of privacy stronger than in a private home, the state court said.
That case originated when police in Miami got a tip from a “crime stopper” source that the home of Joelis Jardines was being used to grow marijuana.  Police went to the home, based on that tip alone, and used a trained detection dog named Franky to check out the front porch of the house.  After circling for a few minutes, Franky sat down, near the front door.  That indicated to his police handler that the dog had detected an odor of marijuana coming from under the front door.  At that point, the officers obtained a search warrant, which the officers then carried out, finding a marijuana-growing operation inside the house.  Jardines was charged with growing illegal marijuana plants, but his lawyer contended that the search was unconstitutional because it intruded on the privacy of the home.
The state’s highest court relied primarily upon a 2001 Supreme Court decision, in the case of Kyllo v. United States, a ruling that it is unconstitutional for police to use a heat-sensing device aimed at the outside walls of a house, to check to see if marijuana was being grown inside with the use of high-intensity lamps.   When the government uses a device that the general public does not employ, and the police use it to explore the details of a home, the state court said, that is a “search” under the Fourth Amendment.   A trained dog’s sniff test fits into that category, it concluded, adding that such a test reveals not only the presence of something illegal, but it also is capable — when carried out in public view — of exposing the homeowner to public humiliation and embarrassment, and further is capable of being used in a discriminatory way.   Before police may conduct such a sniff test, it ruled, they must be able to show in court — after the fact — that they had more than mere suspicion that a crime was being committed in the crime; they had to have information indicating that it was ”probable” that there was such criminal wrongdoing taking place in the home.   The bottom line of the ruling: the use of Franky at the Jardines home was “unreasonable,” so the marijuana evidence could not be used against him.
That ruling is being challenged by state officials of Florida in their appeal to the Supreme Court.   They have the support of the federal government for their challenge.   Their basic claim is that a sniff test by a drug is not a search at all, at a home or elsewhere.

3.  Also congrats to SCOTUSblog for 10 years of blogging.  No one covers the High Court better than Tom Goldstein and Amy Howe.

May the 4th be with you

 I think Fane Lozman might be a Jedi Knight.  His Supreme Court victories are legendary.  And now he has entered the trial court arena, fighting the Sith prosecutors who tried to take him down.  Of course, he won.  And with a judgment of acquittal no less.  Here's the coverage:

Fane Lozman has made a name for himself literally fighting city hall. 

He beat Riviera Beach in the U.S. Supreme Court twice. 

Now, Lozman says he is being targeted by State Attorney Dave Aronberg because he has fought corruption in his city and county. 

Tuesday, Lozman went to trial on a criminal charge and again it went his way, as the Singer Island activist turned the tables and tried to put Riviera Beach and Palm Beach County’s state attorney on trial.  

“This is a waste of your time,” Lozman told jurors at the start of his trial on criminal mischief charges for kicking and damaging a gate on a Singer Island dock near his home. “This is about retaliation for fighting corruption in Riviera Beach.” 

Lozman attacked prosecution witnesses, including dock owner Davender Kant, a former Riviera Beach city building official.  

“Have you committed homestead fraud?” Lozman asked Kant. 

Riviera Beach police arrested Lozman last February.  

***

“This case is about destruction,” countered Assistant State Attorney Nicholas Kaleel. “It is not about who owns the dock.”  

However, that argument didn’t wash with Circuit Court Judge Ashley Zukerman, who ordered the charge against Lozman dropped right after prosecutors finished their case. 

SCOTUS Monday: Fane Lozman is 2-0

Fane Lozman has won his second case before the Supreme Court, this time 8-1.  From Justice Kennedy's intro:

This case requires the Court to address the intersection of principles that define when arrests are lawful and principles that prohibit the government from retaliating against a person for having exercised the right to free speech. An arrest deprives a person of essential liberties, but if there is probable cause to believe the person has committed a criminal offense there is often no recourse for the deprivation. See, e.g., Devenpeck v. Alford, 543 U. S. 146, 153 (2004). At the same time, the First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech. Crawford-El v. Britton, 523 U. S. 574, 592 (1998).
The petitioner in this case alleges that high-level city policymakers adopted a plan to retaliate against him for protected speech and then ordered his arrest when he attempted to make remarks during the public-comment portion of a city council meeting. The petitioner now concedes there was probable cause for the arrest. The question is whether the presence of probable cause bars petitioner’s retaliatory arrest claim under these circumstances.

And then the intro to the analysis:

The issue before the Court is a narrow one. In this Court Lozman does not challenge the constitutionality of Florida’s statute criminalizing disturbances at public assemblies. He does not argue that the statute is overly broad, e.g., Terminiello v. Chicago, 337 U. S. 1 (1949); Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U. S. 150 (2002); or that it impermissibly targets speech based on its content or viewpoint, e.g., Texas v. Johnson, 491 U. S. 397 (1989); Cohen v. California, 403 U. S. 15 (1971); or that it was enforced in a way that curtailed Lozman’s right to peaceful assembly, e.g., Brown v. Louisiana, 383 U. S. 131 (1966). Lozman, furthermore, does not challenge the validity of the City Council’s asserted limitations on the subjects speakers may discuss during the public-comment portion of city council meetings (although he continues to dispute whether those limitations in fact existed). Instead Lozman challenges only the lawfulness of his arrest, and even that challenge is a limited one. There is no contention that the City ordered Lozman’s arrest to discriminate against him based on protected classifications, or that the City denied Lozman his equal protection rights by placing him in a “class of one.” See Village of Willowbrook v. Olech, 528 U. S. 562 (2000) (per curiam).Lozman, moreover, now concedes that there was probable cause for the arrest. Although Lozman does not indicate what facts he believes support this concession, it appears that the existence of probable cause must be based on the assumption that Lozman failed to depart the podium after receiving a lawful order to leave.
Lozman’s claim is that, notwithstanding the presence of probable cause, his arrest at the city council meeting violated the First Amendment because the arrest was ordered in retaliation for his earlier, protected speech: his open-meetings lawsuit and his prior public criticisms of city officials. The question this Court is asked to consider is whether the existence of probable cause bars that First Amendment retaliation claim.

The Court says no and reverses the 11th.

The Court also has a couple of sentencing decisions, one in favor of the defendant and one if favor of the government.  Check SCOTUSBlog for details.  (Still no Carpenter)

What was Chief Judge Roberts' favorite case of the Term?

A.  DOMA

B.  Voting Rights
C.  Affirmative Action
D.   DNA
E.  Fane Lozman's house boat case

Yup, you got it -- E.  The Chief Justice loved the case from the Southern District of Florida about whether the floating structure was a house or a boat.  From Forbes:

Turns out the Chief Justice felt the same way. In this interview on C-SPAN, John Roberts called the lawsuit over whether a floating house was a boat one of his favorites from the last term.It’s surprising to hear this, given the momentous cases that were also before the court: The Voting Rights Act, gay rights, affirmative action, human gene patents — nearly all of them had broader implications for society at large than Fane Lozman’s Quixotic battle with the authorities of a coastal city in Florida over whether they had the power to haul his home away.“There are going to be  half-dozen cases people are going to be talking about,” Roberts said in the interview with Fourth Circuit Court of Appeals Judge J. Harvie Wilkinson III.“The littler ones can be quite fascinating,” he said, however. “My favorite from last term was a case called Lozman."“The way cases develop in the law, you have something that seems to fit not comfortably on either category,” Roberts said. “Depending on which side you were on, it was either a floating home or a house boat.”In Lozman’s case, it was a seedy-looking house on a floating platform, connected to shore with a garden hose and an extension cord. Lozman had towed it hundreds of miles around the Florida peninsula, but the house didn’t have any power to move itself. City officials argued it was a boat for purposes of obtaining a maritime lien and impounding it. The court decided otherwise, in a decision with implications for much more significant structures like floating casinos.“We had a lot of fun with it …looking at the different characteristics and posing a lot of interesting hypotheticals at the argument,” Roberts said. At one point, the justices seemed to be toying with the lawyer for Riviera Beach, trying to back him into ridiculous definitions of a boat.Roberts asked if an inner tube qualified. After all, it could support a human and move him from place to place. Then Justice Stephen Breyer chimed in: “This cup. what about the cup?” Justice Sonia Sotomayorasked, “what about a garage door?” And Elena Kagan followed up with: Take the inner tube, and you know, paste a couple of pennies on the inner tube. Now it carries things.”

On a separate note, I haven't been watching the Bachelorette, but I'm told that local AUSA Michael Garofola has made the top 5....  And that he is very against other contestants cursing on the show.  

8th Circuit affirm sentence of probation where guidelines were 135-168 months

District judges, I think, are still fearful of giving large variances in white-collar cases (especially after trial), but this 8th Circuit case should give some more comfort:

A jury found Abby Rae Cole guilty of conspiracy to commit mail and wire fraud, tax evasion, and conspiracy to commit tax fraud.  The district court sentenced Cole to three years probation, a downward variance from the advisory Guidelines range of 135 to 168 months imprisonment.  The government appealed the sentence as substantively unreasonable, and Cole cross-appealed her convictions.  We affirmed the convictions but declined to reach the issue of whether the sentence is substantively unreasonable, finding procedural error in the lack of an adequate explanation by the district court for the sentence and the substantial downward variance.  We remanded the case to afford the district court a chance to supply an adequate explanation....
In our previous opinion, we noted that before reaching the substantive reasonableness of a sentence “‘[w]e must first ensure that the district court committed no significant procedural error,’” such as “failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” Id. (quoting United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)). We noted that Cole and her co-conspirators’ convictions were based on the theft of approximately $33 million from Best Buy over a four-year period and the evasion of over $3 million in taxes, Cole’s sentencing Guidelines range was 135 to 168 months imprisonment, and Cole’s co-conspirators, her husband and a Best Buy employee, received sentences of 180 and 90 months respectively. Despite these facts, the district court provided scant explanation for the profound downward variance to a sentence of probation.
On remand, the district court received additional briefing from the parties, conducted a hearing in which it heard additional argument with respect to sentencing, and then announced its reasons for the downward variance and the probationary sentence in a lengthy and comprehensive analysis concluding with the observation that this is an “unusual, extraordinary case in which a sentence of three years probation was appropriate.”  In the additional analysis, the district court touched on all of the section 3553(a) factors in explaining the rationale behind the sentence it imposed upon Cole. The district court recognized the numerous restrictions Cole endured while on probation and the “lifelong restrictions” she faces as a federal felon, see 18 U.S.C. § 3553(a)(2)(A)&(B); the court stressed that, with the probationary sentence, Cole would be less likely to commit further crimes as she “has a far greater likelihood of successful rehabilitation with family support and stable employment,” see 18 U.S.C. § 3553(a)(2)(C). The court also explained that while “[t]his was one of the largest corporate frauds in Minnesota history and was also a significant tax fraud,” Cole served a more minor role as, in the court’s judgment, she was “mostly a passive, although legally responsible, participant.” See 18 U.S.C. § 3553(a)(1).  The court focused on Cole’s history and characteristics, emphasizing that she had no prior contact with law enforcement and was “markedly different” than “most of the fraudsters who appear before th[e] Court” in that Cole “is not a consummate fraudster, she is not a pathological liar.” See 18 U.S.C. § 3553(a)(6). Finally, the district court explained that the probationary sentence would allow Cole to work and earn money to make restitution to the victims of the fraud.  See 18 U.S.C. § 3553(a)(7).
The United States persists in its appeal, contending that the district court improperly based the sentence on Cole’s socioeconomic status, her restitution obligations, and her loss of criminally derived income.  However, the facts of Cole’s fall from an industrious and highly successful entrepreneur to convicted felon and the loss of the bulk of her legitimately acquired assets cannot be denied.  We find no error in the district court’s reference to these events....
While we do not minimize the seriousness of the crimes perpetrated by Cole and the staggering nature of the fraudulent scheme in which Cole was a participant, the district court here, unlike in Dautovic, has adequately explained the sentence and appropriately considered the section 3553(a) factors in varying downward to a probationary sentence, making “precisely the kind of defendant-specific determinations that are within the special competence of sentencing courts.”  Feemster, 572 F.3d at 464 (quotation omitted).  For instance, the district court noted that Cole’s role in the offense was mostly as a passive participant and Cole was not the typical white collar defendant the court had observed in similar criminal schemes.  We find no error in the weighing of the section 3553(a) factors, and thus the district court did not abuse its substantial discretion in sentencing Cole to probation.

 In local news, Fane Lozman made the front page of the Palm Beach Post this weekend.  You remember Lozman -- he's the guy who went to the Supreme Court on the floating boat/house issue and won!  Here's the intro to the new piece:

Ducking under mangroves to reach the Intracoastal Waterway, Fane Lozman spreads his arms wide as he contemplates living on a narrow strip of land on Singer Island that most believed would never be developed.
“How can you beat his view?” he asks with a grin, gesturing toward the open blue water.
His grin is more than a little bit impish.
More than a year after he clobbered Riviera Beach by persuading the U.S. Supreme Court that the city illegally seized and destroyed his so-called houseboat, the 53-year-old self-made millionaire is back rattling city cages, trying to put that landmark decision into action.
He plunked down $24,000 this year for 29 acres of submerged land and about a third-acre of upland on the western shore of Singer Island. The pristine, mostly underwater property, will one day be home to a 60-foot-long floating home - a famous one that served as Frank Sinatra’s base of operations in the forgettable 1960 detective movie, “Lady in Cement,” he says.
But there’s more. Lozman wants neighbors. “My plan is to develop this into an upscale floating home community,” he says.
To the further chagrin of city officials, the man who has been a thorn in their sides since he moved to Riviera Beach roughly eight years ago is no longer a one-man wrecking crew.
Daniel Taylor, a 53-year-old Riviera Beach native, has recently reignited his family’s decades-long battle with the city for the right to use his submerged land as well. He, too, says it would be the perfect spot for a floating home.
With a nod to Lozman’s successful seven-year legal battle with the city, Taylor recently attached a name to his patch of land along the Intracoastal Waterway. He calls it “Lozman’s Cove.”
“I thought it was a heroic deed and I like the underdog,” he said, explaining why he honored Lozman by posting the street sign inside a fenced in area he turned into a picnic area for occasional parties.
Like Lozman, he said the U.S. Supreme Court’s decision paves the way for him to use the 2 acres of submerged land he owns that extends from his private picnic area.