Martin E. O'Boyle v. Town of Gulf Stream

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10865

Non-Argument Calendar

____________________

MARTIN E. O'BOYLE,

JONATHAN O'BOYLE,

WILLIAM RING,

Plaintiffs-Appellants,

versus

COMMERCE GROUP, INC., et al. ,

Defendants,

TOWN OF GULF STREAM,

Defendant-Appellee.

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2 Opinion of the Court 22-10865

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 9:19-cv-80196-AMC

____________________

Before ROSENBAUM, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

We deny the appellants’ petition for rehearing but withdraw

our previous opinion dated Feb. 8, 2023, O’Boyle v. Com. Grp.,

No. 22-10865, 2023 WL 1816381 (11th Cir. Feb. 8, 2023), and sub-

stitute the following opinion in its place:

* * *

Martin O’Boyle, his son Jonathan O’Boyle, and their lawyer

William Ring sued the Town of Gulf Stream for violating the First

Amendment by allegedly retaliating against their extensive public

records litigation. The district court granted summary judgment

in Gulf Stream’s favor because the town had probable cause to take

the allegedly retaliatory conduct. On appeal, Ring and the

O’Boyles argue that they did not need to show a lack of probable

cause to show retaliation. But, under our precedent, they did. So

we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This opinion is the third in a saga that chronicles Martin

O’Boyle’s feud with Gulf Stream and its leadership. See Town of

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Gulf Stream v. O’Boyle (O’Boyle I), 654 F. App’x 439 (11th Cir.

2016); DeMartini v. Town of Gulf Stream, 942 F.3d 1277 (11th Cir.

2019). Most of the relevant facts are set out at greater length in

O’Boyle I and DeMartini, so we tell here an abbreviated version of

the story.

A.

Martin O’Boyle is a Gulf Stream resident who has long dis-

liked town leadership. After the town denied him a building per-

mit, he painted cartoons on his house ridiculing the town’s mayor

and hung signs criticizing town leadership from a truck that he

parked at the town hall. He also began filing public records re-

quests with the town, often in the name of various companies he

owned. In January 2014, O’Boyle started the Citizen’s Awareness

Foundation, Inc., a nonprofit ostensibly dedicated to government

transparency, and staffed it with his longtime employees and busi-

ness associates. The Foundation also lodged public records re-

quests against the town, overwhelming the small handful of mu-

nicipal staff who had to respond to them. See DeMartini, 942 F.3d

at 1281–82. Between 2013 and late 2014, O’Boyle and his associates

filed nearly 2,000 public records requests—many for vague and

hard-to-identify topics like “[a]ll email addresses created or re-

ceived by the Town of Gulf Stream” or “[A]ll phone numbers in

the town’s records.” Id. at 1282 (citing O’Boyle I, 654 F. App’x at

441–42).

When the town failed to respond timely to a public records

request, Martin O’Boyle or the Foundation would sue the town

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under Florida’s sunshine law. Id. at 1283. Jonathan O’Boyle and

Ring—both attorneys—represented the entities related to Martin

O’Boyle in these lawsuits. Id. Usually acting through The O’Boyle

Law Firm, Jonathan O’Boyle and Ring would sue or threaten to

sue the town, then demand settlements far in excess of costs and

fees actually incurred. Id.

In April 2014, Gulf Stream’s town commission elected a new

mayor, Scott Morgan. Frustrated by the lawsuits and records re-

quests that Martin O’Boyle and his team were filing, Mayor Mor-

gan announced in a letter to Gulf Stream residents that the town

would be “stepping up its defense” of the litigation and taking a

“firm stance . . . to limit the detrimental effects” of the lawsuits on

the town’s morale and budget. The letter stated that by June 2014,

the town had spent more than $160,000 in legal fees—against a le-

gal budget of $15,000 for the whole year—defending the lawsuits

and receiving advice on how to combat the O’Boyles’ activities.

Gulf Stream and its outside counsel took a three-pronged le-

gal approach to fighting the public records litigation, all starting in

early 2015. First, the town filed several counterclaims in one of the

state-court public records lawsuits and moved for sanctions against

Jonathan O’Boyle and Ring, based partly on their flying banners

and signs that the town felt demeaned its outside counsel. Second,

Mayor Morgan filed bar complaints against Jonathan O’Boyle and

Ring that alleged the two had violated various legal ethics rules.

Third, the town sued the O’Boyles, Ring, The O’Boyle Law Firm,

and several others in federal district court under the Racketeer

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Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.

§§ 1962(c), 1964(c).

At a town meeting in September 2015, Mayor Morgan ex-

pressed hope that the town’s legal strategy was working. He stated

that “[t]hings have returned, at least in physical and visual nature,

to the way [the] town used to be,” because the O’Boyles were no

longer flying banners critical of the town. Mayor Morgan said that

if the banners started flying again, “that would be deemed abusive

and malicious, with legal connotation.” He also told the town that

the number of public records requests had decreased substantially

and that the public records lawsuits were “winnowing down” in

response to the motions for sanctions they had filed.

Meanwhile, in the courtroom, the town mostly saw defeat.

The Florida Bar declined to discipline Ring or Jonathan O’Boyle,

and the state court declined to sanction them. The state court also

dismissed the town’s counterclaims. The federal district court dis-

missed the RICO suit, and we affirmed the dismissal because the

town had not alleged facts showing that Martin O’Boyle and his

associates had conspired to do anything illegal. Boyle I, 654 F.

App’x at 445.

After the town meeting in September 2015, Gulf Stream Po-

lice Sergeant John Passeggiata saw Martin O’Boyle attempting to

write on a bulletin board in the lobby of the town hall. Sergeant

Passeggiata and his boss, Police Chief Garrett Ward, confronted

O’Boyle to get him to stop. O’Boyle and Chief Ward began argu-

ing, and eventually the officers escorted a noncompliant O’Boyle

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out of the building. While O’Boyle was being driven away by am-

bulance—he had suffered minor injuries in the scuffle—Chief

Ward told Sergeant Passeggiata that he would charge O’Boyle for

the incident. The State Attorney filed an information against

O’Boyle for trespass, resisting arrest, and disorderly conduct. In

August 2021, a state judge dismissed the trespassing and resisting

arrest charges, and a jury found O’Boyle not guilty of disorderly

conduct.

B.

The O’Boyles and Ring sued Gulf Stream under section 1983

for allegedly retaliating against their First-Amendment-protected

activity. The complaint identified three forms of alleged retalia-

tion: (1) the town’s RICO lawsuit, (2) the bar complaints filed

against Ring and Jonathan O’Boyle, and (3) Martin O’Boyle’s pros-

ecution. After discovery closed, the parties filed cross-motions for

summary judgment. The town argued that it had civil probable

cause to file the RICO suit and bar complaints—and that the State

Attorney had criminal probable cause to prosecute Martin

O’Boyle—so the plaintiffs could not establish a First Amendment

retaliation claim. The O’Boyles and Ring argued in response that

they did not need to show a lack of probable cause because their

case paralleled Lozman v. City of Riviera Beach, where the Su-

preme Court allowed a false arrest claim to proceed even though

probable cause existed to arrest the plaintiff. 138 S. Ct. 1945, 1955

(2018). They also argued that, even if Lozman did not apply, there

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was still a genuine dispute of material fact whether the town had

probable cause to take legal action against them.

The district court initially denied summary judgment. It

agreed with the town that Lozman did not apply, so the O’Boyles

and Ring had to show the town lacked probable cause to take legal

action against them. The district court relied heavily on our deci-

sion in DeMartini. There, we held that Martin O’Boyle’s employee

Denise DeMartini—not a party here—hadn’t provided evidence

that would bring her within Lozman’s exception to the principle

that probable cause defeats a First Amendment retaliation claim

based on an allegedly retaliatory legal process. See DeMartini, 942

F.3d at 1306. Based on DeMartini, the district court concluded

there was no dispute the town had probable cause to file the RICO

lawsuit—and the state-court counterclaims—notwithstanding ad-

ditional evidence that Ring and the O’Boyles had submitted.

The district court also concluded that the town’s bar com-

plaints against Ring and Jonathan O’Boyle were “sufficiently anal-

ogous to civil litigation” that, unless Lozman applied, the town

would prevail if it had probable cause to file them. And the town

did have probable cause, the district court explained, to send the

initial bar complaints. But there was a genuine dispute about

whether the town had probable cause to file additional complaints

after receiving notice that the initial complaints had been resolved.

Finally, as to the criminal charges, the district court found

no genuine dispute that the state attorney had probable cause to

prosecute Martin O’Boyle for trespass. But, the district court

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concluded, there were genuine disputes as to whether there was

probable cause to charge O’Boyle with disorderly conduct and re-

sisting arrest.

After the district court denied summary judgment, the par-

ties filed a joint stipulation that (1) the town hadn’t filed additional

bar complaints against Ring or Jonathan O’Boyle after receiving

notice that the initial complaints had been resolved and (2) there

was probable cause to charge Martin O’Boyle with disorderly con-

duct and resisting arrest. The district court then entered a revised

order granting summary judgment for Gulf Stream. Ring and the

O’Boyles timely appealed.

STANDARD OF REVIEW

We review de novo an order granting summary judgment.

Broadcast Music, Inc. v. Evie’s Tavern Ellenton, Inc., 772 F.3d 1254,

1257 (11th Cir. 2014). “Summary judgment is appropriate when

‘there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.’” Id. (quoting Fed. R.

Civ. P. 56(a)).

DISCUSSION

The First Amendment’s free speech clause, see U.S. Const.

amend. I, “protects ‘not only the affirmative right to speak, but also

the right to be free from retaliation by a public official for the exer-

cise of that right.’” DeMartini, 942 F.3d at 1288 (quoting Suarez

Corp. Indus. v. McGraw, 202 F.3d 676, 685 (4th Cir. 2000)). A per-

son who suffers retaliation for activity the First Amendment

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protects can seek relief under 42 U.S.C. section 1983. See Bennett

v. Hendrix, 423 F.3d 1247, 1249–50 (11th Cir. 2005). To do so, he

must show that “(1) his speech was constitutionally protected; (2)

[he] suffered adverse action such that the [government actor’s] al-

legedly retaliatory conduct would likely deter a person of ordinary

firmness from engaging in such speech; and (3) there is a causal re-

lationship between the retaliatory action and the protected

speech.” Smith v. Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008).

Here, Gulf Stream concedes that the appellants engaged in

constitutionally protected speech when they made public records

requests, sued to enforce Florida public records laws, and offered

to settle those lawsuits. See DeMartini, 942 F.3d at 1288. And the

town doesn’t dispute that its activities could deter a reasonable per-

son from engaging in protected speech. Cf. id. at 1298–99 (analyz-

ing First Amendment retaliation cases from other circuits that in-

volved allegedly retaliatory lawsuits). The issue we must decide is

whether a reasonable factfinder could conclude that Gulf Stream’s

lawsuit and bar complaints—or O’Boyle’s criminal charges—were

causally connected to the O’Boyles’ and Ring’s protected activity.

See Smith, 532 F.3d at 1276.

To meet the causation element of a First Amendment retal-

iation claim, “a plaintiff must establish a causal connection between

the government defendant’s retaliatory animus and the plaintiff’s

subsequent injury.” Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019)

(marks and citation omitted). But where the government actor can

show it had probable cause to take legal action against the plaintiff’s

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protected activity, a retaliation claim will usually “fail[] as a matter

of law.” Id. at 1728.

We have recognized only two exceptions to this rule. The

first is where the government has selectively punished the plaintiff

but not others engaged in similar conduct. Id. at 1727. The second

is in the “unique” circumstances presented in Lozman. See DeMar-

tini, 942 F.3d at 1293.

Under the Lozman exception, the existence of probable

cause does not defeat a First Amendment retaliation claim where

several conditions are satisfied. A plaintiff must show, for example,

that he suffered retaliation as the result of an “‘official municipal

policy’ of intimidation.” Id. (quoting Lozman, 138 S. Ct. at 1954).

And he must also show that there was “little relation between the

‘protected speech that prompted the retaliatory policy’” and the ac-

tions that triggered an allegedly retaliatory response. Id. at 1294

(applying Lozman, 138 S. Ct. at 1954–55)). In Lozman, the plaintiff

was arrested for disorderly conduct at a town hall meeting for ob-

jecting to the arrest of a former town official, but he alleged that

the arrest was actually part of a municipal policy to intimidate him

for criticizing the city’s eminent domain activities. 138 S. Ct. at

1949–50. His “prior, protected speech” about eminent domain,

Lozman explained, bore “little relation to the criminal offense for

which the arrest [was] made,” so his lawsuit could proceed regard-

less whether there was probable cause for his disorderly conduct

arrest. Id. at 1954.

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Ring and the O’Boyles argue that we should reject Lozman’s

“little relation” requirement: they claim this element will insulate

government actors from liability whenever they directly target

protected speech. But this argument misunderstands how the Loz-

man exception functions. True, direct retaliation against protected

speech will always bear more than a “little relation” to the speech

itself. But there is no question that a state official who directly vi-

olates a clearly established First Amendment right can be held lia-

ble under section 1983. See, e.g., Bennett, 423 F.3d at 1255 (deny-

ing qualified immunity for officials who allegedly suppressed pro-

tected political expression).

Lozman concerned when probable cause for an allegedly re-

taliatory arrest will defeat a First Amendment retaliation claim.

Where there is little relation between the protected expression and

the allegedly retaliatory action—and where the other Lozman ele-

ments are met—the plaintiff must show only that the official act

would not have occurred but-for the protected expression. See De-

Martini, 942 F.3d at 1294. But, where the official or municipality

acts in direct response to protected expression, it can be held liable

only if there was no probable cause to believe the expression was

illegal. Id. That is what the Supreme Court held in Lozman and

what we reaffirmed in DeMartini.

On appeal, Ring and the O’Boyles do not dispute the district

court’s conclusion that the town had probable cause to file its RICO

suit and state-court counterclaims, the initial bar complaints, or the

trespassing charge against Martin O’Boyle. Ring and the O’Boyles

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don’t argue that they were selectively prosecuted. Cf. Nieves, 139

S. Ct. at 1727. And the parties also jointly stipulated before the dis-

trict court there was probable cause to charge Martin O’Boyle with

disorderly conduct and resisting arrest. The sole legal issue on ap-

peal is thus whether the Lozman exception applies to the town’s

alleged retaliatory actions: the RICO lawsuit and state-court coun-

terclaims, the initial bar complaints, and Martin O’Boyle’s criminal

charges. We address each in turn.

A.

The district court correctly found that Gulf Stream’s civil lit-

igation fell outside the Lozman exception. The town filed the

RICO suit and state-court counterclaims as a direct response to the

hundreds of public records requests, and multiple lawsuits, that

were draining municipal resources and manpower. See O’Boyle I,

654 F. App’x at 442. Even though the litigation was ultimately un-

successful, the town was attempting to pursue legitimate goals:

preventing harassment and minimizing public expenditures on le-

gal fees.

The appellants argue that Mayor Morgan’s “firm stance” let-

ter and the speech he gave at the September 2015 town hall show

evidence of the town’s retaliatory intent. But the letter actually

highlights the connection between the town’s legal actions, the

public records requests, and the public records litigation. Mayor

Morgan specifically noted the financial burden of the records re-

quests as a reason for the town to adopt a more aggressive re-

sponse. The letter thus shows that the town’s litigation strategy

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bore more than “little relation” to the public records requests. Cf.

Lozman, 138 S. Ct. at 1954.

B.

The district court also correctly concluded that the bar com-

plaints the town filed against Ring and Jonathan O’Boyle were

closely related to their public records litigation activity. The bar

complaints included as potential ethics violations: (1) Jonathan

O’Boyle’s appearance in the public records litigation cases without

a license from The Florida Bar; (2) The O’Boyle Law Firm’s “feeder

relationship” with Martin O’Boyle and the businesses he created to

carry out his public records litigation; and (3) the firm’s “windfall

fee scheme” of threatening Gulf Stream with litigation unless it

agreed to settlements in excess of The O’Boyle Law Firm’s actual

fees and costs. All of these bases for the bar complaints were inti-

mately linked to Ring and the O’Boyles’ protected activity—asking

for public records and filing lawsuits about the requests.

C.

Martin O’Boyle’s criminal charges also fell outside the Loz-

man exception. As the district court explained, false prosecution

claims are governed not by Lozman but by Hartman v. Moore, 547

U.S. 250 (2006). Because the State Attorney’s decision to charge

O’Boyle added a layer of independent judgment between a govern-

ment official’s alleged retaliatory motive and the criminal charges

filed, Hartman made “showing an absence of probable cause” a

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necessary “element[] of the tort” of retaliatory prosecution. Id. at

263.

On appeal, Martin O’Boyle argues that because the Gulf

Stream police chief pressed charges against him, we should apply

Lozman rather than Hartman. But it was the State Attorney who

filed the information against Martin O’Boyle to trigger the prose-

cution, and not anyone who worked for the town. See Doe v.

State, 634 So. 2d 613, 615 (Fla. 1994) (“Florida’s state attorney acts

in noncapital investigations as a one-person grand jury . . . .”).

Even if Chief Ward wanted to retaliate against O’Boyle, “[e]vi-

dence of [a police officer’s] animus does not necessarily show that

the [officer] induced the action of a prosecutor.” Hartman, 547 U.S.

at 263. Showing the absence of probable cause is thus necessary to

“bridge the gap between the nonprosecuting government agent’s

motive and the prosecutor’s action.” Id. In light of Hartman, the

parties’ stipulation that there was probable cause to charge Martin

O’Boyle with trespass and disorderly conduct was fatal to his retal-

iatory prosecution claim. The district court did not err.

CONCLUSION

Because Ring and the O’Boyles either stipulated, or did not

contest on appeal, that probable cause existed for the actions the

complaint identified as retaliatory, and because Lozman doesn’t ap-

ply to any of those acts, the district court did not err in granting

Gulf Stream’s motion for summary judgment.

AFFIRMED.