Amicus Curiae Brief — Fane Lozman, Petitioner v. City of Riviera Beach, Florida

No. 17-21

IN THE

Supreme Court of the United States

————–

FANE LOZMAN

V.

CITY OF RIVIERA BEACH, FLORIDA

————–

On Writ of Certiorari to the United States Court of

Appeals for the Eleventh Circuit

————–

BRIEF OF THE RODERICK AND SOLANGE

MACARTHUR JUSTICE CENTER AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

————–

DAVID M. SHAPIRO

Counsel of Record

RODERICK AND SOLANGE MACARTHUR

JUSTICE CENTER

375 E. Chicago Ave.

Chicago, IL 60611

(312) 503-0711

david.shapiro@law.northwestern.edu

Counsel for Amicus Curiae the

Roderick and Solange MacArthur

Justice Center

i

TABLE OF CONTENTS

Table Of Authorities ............................................................ii

Interest Of Amicus Curiae .................................................. 1

Summary Of Argument ....................................................... 1

Argument ............................................................................. 3

I.

Illegal Arrests for Disfavored Protests and “Contempt

of Cop” Present A Systemic Problem in Many Law

Enforcement Agencies.................................................. 3

II. Broad Statutes and Ordinances Make It All Too Easy

For Police Officers To Find Probable Cause To Arrest

People for Speech They Dislike. .................................. 9

A. Because Laws Affecting Protest Provide Probable

Cause For Arrest In A Wide Range Of

Circumstances, A Holding That Probable Cause

Automatically Defeats A Retaliatory Arrest Claim

Would Grant Police Massive Power To Arrest People

For Disfavored Speech. ............................................ 11

1. Unlawful Assembly And Failure To Disperse ...... 12

2. Blocking Roads And Sidewalks ............................ 13

3. Disorderly Conduct Ordinances ........................... 14

4. Noise Ordinances .................................................. 14

B.

Police Officers Exploit The Discretion Created By

Broad Laws By Arresting Protesters With Whom

They Disagree. ....................................................... 16

Conclusion .......................................................................... 20

ii

TABLE OF AUTHORITIES

CASES

Ahmad v. City of St. Louis, No. 17-2455,

2017 WL 5478410 (E.D. Mo. Nov. 15, 2017) ............... 6, 19

Allee v. Medrano 416 U.S. 802 (1974)............................... 19

City of Houston v. Hill, 482 U.S. 451 (1987) ................ 1, 10

F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978) ........ 11

Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013).... 19

Lewis v. City of New Orleans, 415 U.S. 130 (1974) .......... 10

Lewis v. City of Tulsa, 775 P.2d 821 (Okla. Crim. App.

1989) ................................................................................ 14

NAACP v. Button, 371 U.S. 415 (1963) ............................ 10

New York Times Co. v. Sullivan, 376 U.S. 254 (1964). .... 20

STATUTES

Abbeville, La. Code of Ordinances § 13-25 ....................... 10

Berkeley, Mo. Code of Ordinances § 210.2250 ................. 10

Cal. Penal Code § 407 ........................................................ 12

Cal. Penal Code § 408 ........................................................ 13

Chicago Ill. Mun. Code § 8-32-070(a) (2017) .................... 15

D.C. Code § 22–1307(a) (2016) .......................................... 13

Ga. Stat. § 16-11-43 (2017)................................................ 13

Idaho Code § 18-6404(2017) .............................................. 13

Idaho Code § 18-6405 (2017) ............................................. 13

Iowa Code § 723.2 (2017) .................................................. 13

La. Rev. Stat. § 14:97 (2017) ............................................. 13

Norfolk, Va. Code of Ordinances § 26-4 (2017) ................ 15

Pagedale, Mo. Code of Ordinances § 210.750................... 10

Revised Ordinances of Honolulu, Haw. § 15-24.23 .......... 10

iii

OTHER AUTHORITIES

20 Arrested at North Carolina Legislature Protest in April

Face Judge, 11 ABC News (Jun. 8, 2017)...................... 16

Amy Wang, Cops Accidentally Record Themselves

Fabricating Charges Against Protester, Lawsuit Says,

Wash. Post (Sept. 20, 2016) .......................................... 16

Contempt of Cop, POLICE MAGAZINE: COP SLANG

http://www.policemag.com/cop-slang/contempt-ofcop.aspx (last visited Dec. 19, 2017) ............................... 7

Department of Justice, Investigation of the Baltimore

City Police Department (2016)......................................... 5

Final Report of the State Police Interview Team (1999) .. 8

First Amended Complaint, Powers v. City of Ferguson,

No. 16-1299, (E.D. Mo. filed August 9, 2016) ................ 16

John Inazu, Unlawful Assembly as Social Control, 64

U.C.L.A. L. Rev. 2 (2017) ......................................... 12, 13

Letter from Thomas E. Perez, Assistant Attorney

General, to William R. Jones, Counsel, Maricopa County

Sheriff’s Office (Dec. 15, 2011) ......................................... 5

Second Amended Complaint, Nylen v. City of Grand

Rapids, No. 17-716, (W.D. Mich. filed Nov. 20, 2017) .. 15

Third Amended Complaint, Tennart v. City of Baton

Rouge, No. 17-179-JWD-EWD

(M.D. La. filed July 13, 2017) ........................................ 14

United States Department of Justice, Investigation of the

Ferguson Police Department (2015) ...................... 3, 9, 18

United States Department of Justice, Investigation of the

Newark Police Department (2014) .................................. 8

William C. Vandivort, Note, I See London, I See France:

The Constitutional Challenge to “Saggy” Pants Laws,

75 BROOK L. REV. 667 (2009)......................................... 7

1

INTEREST OF AMICUS CURIAE1

The Roderick and Solange MacArthur Justice

Center (RSMJC) is a public interest law firm founded

in 1985 by the family of J. Roderick MacArthur to

advocate for human rights and social justice through

litigation. RSMJC has offices at the Northwestern

Pritzker School of Law, at the University of

Mississippi School of Law, in New Orleans, in St.

Louis, and in Washington, D.C. RSMJC attorneys

have led civil rights battles in areas that include

police misconduct, the rights of the indigent in the

criminal justice system, compensation for the

wrongfully convicted, and the treatment of

incarcerated men and women.

SUMMARY OF ARGUMENT

“The freedom of individuals verbally to oppose or

challenge police action without thereby risking arrest

is one of the principal characteristics by which we

distinguish a free nation from a police state.” City of

Houston v. Hill, 482 U.S. 451, 462–63 (1987). These

words resonate in this moment like never before.

Outraged by police violence, protesters have taken to

the streets. In Ferguson: “Hands up, don’t shoot!” In

New York: “I can’t breathe!” In Chicago: “Sixteen

shots!” Across the nation: “No justice, no peace!”

1 The parties have consented to the filing of this brief. Counsel of

record for all parties received notice at least 10 days prior to the

due date of amicus curiae’s intention to file this brief. No counsel

for a party authored this brief in whole or in part, and no counsel

for a party (nor a party itself) made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than amicus or its counsel made a monetary

contribution to its preparation or submission.

2

The police have long patrolled protests devoted to

other matters, from women’s suffrage, to Jim Crow, to

wars abroad, but now they are called upon to

supervise and control a new wave of protests—

demonstrations about themselves. This new reality

creates a new temptation for police to retaliate

against protesters, threatening to erode Hill’s line

between a “free nation” and a “police state.” 482 U.S.

at 463.

We show in this brief that police departments from

Arizona to Maryland have displayed a pattern and

practice of arresting people in retaliation for protected

expression. Speech that triggers police retaliation

takes two principal forms. First, officers retaliate with

arrests when protesters direct their outrage at police

misconduct. Second, in “contempt of cop” arrests,

police retaliate against people who disagree with or

criticize them, effectuating full-blown arrests for

technical infractions that would normally result in

citation and release or no citation at all.

If a person can be arrested for her speech so long

as there happens to be probable cause to arrest her for

something else, police will have broad discretion to

arrest people whose speech they disfavor. It is easy to

find a pretext for arrest because statutes and

ordinances forbid a wide range of unremarkable

human activity—wearing saggy pants, crossing the

street while reading a text message, and barbecuing

in a front yard.

More specifically, protesters commonly violate an

array of statutes and municipal ordinances that

prohibit a wide range of activity, such as blocking

sidewalks, unlawful assembly, violating noise

ordinances, and disorderly conduct. These laws

3

extend to so much conduct that the police have

probable cause to round up large numbers of

protesters. Therefore, if probable cause categorically

defeats a retaliatory arrest claim, the police will

acquire the power to arrest protesters for the very

purpose of silencing disfavored messages.

ARGUMENT

I.

ILLEGAL ARRESTS FOR DISFAVORED

PROTESTS AND “CONTEMPT OF COP”

PRESENT A SYSTEMIC PROBLEM IN

MANY LAW ENFORCEMENT AGENCIES.

Recent years have witnessed a series of welldocumented findings that certain police departments

systemically arrest people in retaliation for their

speech. Two types of protected speech commonly

trigger retaliatory arrests: (1) protests and

demonstrations perceived as “anti-police,” and (2)

“contempt of cop” encounters in which an officer feels

slighted or insulted.

In a 2015 report, the Department of Justice found

that “suppression of speech” by the Ferguson,

Missouri Police Department (FPD) “reflects a police

culture that relies on the exercise of police power—

however unlawful—to stifle unwelcome criticism.”

UNITED

STATES

DEPARTMENT

OF

JUSTICE,

INVESTIGATION

OF

THE

FERGUSON

POLICE

DEPARTMENT 28 (2015).2 The report noted that despite

a settlement agreement and a consent decree in two

separate cases regarding protest activities, “it appears

that FPD continues to interfere with individuals’

2 Available

athttps://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/ferguson_police_department_r

eport.pdf

4

rights to protest and record police activities.” Id. at 27.

For example, on February 15, 2015, the six-month

anniversary of the death of Michael Brown,

“protesters stood peacefully in the police department’s

parking lot, on the sidewalks in front of it, and across

the street.” Id. The police responded with retaliatory

arrests:

Video footage shows that two FPD vehicles

abruptly accelerated from the police parking lot

into the street. An officer announced,

“everybody here’s going to jail,” causing the

protesters to run. Video shows that as one man

recorded the police arresting others, he was

arrested for interfering with police action.

Officers pushed him to the ground, began

handcuffing him, and announced, “stop

resisting or you’re going to get tased.” It

appears from the video, however, that the man

was neither interfering nor resisting. A

protester in a wheelchair who was live

streaming the protest was also arrested. . . . Six

people were arrested during this incident. It

appears that officers’ escalation of this incident

was unnecessary and in response to derogatory

comments written in chalk on the FPD parking

lot asphalt and on a police vehicle.

Id. at 27–28.

Similarly, in 2011, the Department of Justice

issued a findings letter regarding the Maricopa

County Sheriff’s Office (MCSO) in Arizona:

We find that MCSO command staff and

deputies have engaged in a pattern or practice

of retaliating against individuals for exercising

5

their First Amendment right to free speech.

Under the direction of Sheriff Arpaio and other

command staff, MCSO deputies have sought to

silence individuals who have publicly spoken

out

and

participated

in

protected

demonstrations against the policies and

practices of MCSO—often over its immigration

policies.

Letter from Thomas E. Perez, Assistant Attorney

General, to William R. Jones, Counsel, Maricopa

County Sheriff’s Office, at 13 (Dec. 15, 2011).3 For

example, during two separate meetings of the County

Board of Supervisors, deputies arrested several

individuals who expressed criticism of the MCSO. Id.

at 14. None of them were convicted. Id. The

Department of Justice concluded: “The arrests and

harassment undertaken by MCSO have been

authorized at the highest levels of the agency and

constitute a pattern of retaliatory actions intended to

silence MCSO’s critics.” Id.

The Department of Justice made similar findings

regarding the Baltimore Police Department in 2016:

“BPD violates the First Amendment by retaliating

against individuals engaged in constitutionally

protected activities. Officers frequently detain and

arrest members of the public for engaging in speech

the officers perceive to be critical or disrespectful.”

DEPARTMENT OF JUSTICE, INVESTIGATION OF THE

BALTIMORE CITY POLICE DEPARTMENT 9 (2016).

A recent preliminary injunction decision issued by

the United States District Court for the Eastern

Available at https://www.justice.gov/sites/default/files/crt/

legacy/2011/12/15/mcso_findletter_12-15-11.pdf

3

6

District of Missouri analyzes the St. Louis Police

Department’s response to protests triggered by the

acquittal of Officer Jason Stockley for the shooting of

Anthony Lamar Smith. Ahmad v. City of St. Louis,

No. 17-cv-2455, 2017 WL 5478410, at *1 (E.D. Mo.

Nov. 15, 2017). These protests, which began on

September 15, 2017, were directed at both the verdict

and “broader issues, including racism and the use of

force by police officers.” Id. “The participants often

express[ed] views critical of police.” Id.

As the protests continued on Sunday, September

17, there were reports of protesters damaging

property, and some protesters put on goggles and

masks (likely because of concerns about tear gas or

mace). Id. at *3.

In an illustration of the manner in which very

broad laws empower the police to retaliate against

speakers, the police declared an “unlawful assembly”

and then carried out a mass arrest. Id. at *3–5. In fact,

Lieutenant Timothy Sachs testified that officers have

sole discretion to declare an assembly unlawful and

that there are no policies or guidelines defining when

it is appropriate to do so. Id. at *6.

After declaring an unlawful assembly, and giving

orders to disperse, police blocked off points of egress

and trapped the protesters in an intersection by

marching toward it. Id. at *4–5. Then they made a

mass arrest of everyone trapped in the intersection,

even though the protesters complied with police

commands. Id. at *5.

Ultimately, the district court issued a preliminary

injunction. Id. at *17–18. One provision enjoins the

police from declaring “an unlawful assembly . . . for

the purpose of punishing persons for exercising their

7

constitutional rights to engage in expressive activity.”

Id. at *18.

One particularly common form of retaliation

occurs when police arrest people for what has come to

be called “contempt of cop.” In these cases, a police

officer has probable cause to believe an offense has

occurred, but the suspect’s speech, perceived as

disrespectful, is the real reason the officer arrests her,

rather than just citing and releasing her. Notably,

Police Magazine, which bills itself as “the law

enforcement magazine” and a “community for cops[,]”

has a glossary of “cop slang” which defines “Contempt

of Cop” as “the true underlying behavior of disrespect

toward an officer leading to an expensive ticket or

arrest for an offense that actually is a law violation.”

Contempt of Cop, POLICE MAGAZINE: COP SLANG,

http://www.policemag.com/cop-slang/contempt-ofcop.aspx (last visited Dec. 19, 2017).

A 1999 review of the New Jersey State Police by

then-New Jersey Attorney General John J. Farmer

documented a common practice of arresting people for

“contempt of cop”:

The single most common allegation among all

the allegations reviewed was improper attitude

and demeanor. This is true in law enforcement

nationwide. We observed in several cases a

problem which, for lack of a better term, may

be called “occupational arrogance.” The

discussion of this problem is by no means

unique to the New Jersey State Police. In fact,

internal affairs detectives at one municipal

police department, noting its prevalence,

termed this phenomenon “contempt of cop.”

Simply put, it is the tendency for certain police

8

officers to approach the public with an attitude

that they, the officer, are in no way to be

challenged or questioned. Among the cases we

reviewed, several seem to illustrate this

phenomenon.

FINAL REPORT OF THE STATE POLICE INTERVIEW TEAM

93–94 (1999).4

More recently, the Department of Justice found a

systemic practice within the Newark Police

Department of arresting people for contempt of cop:

“The [Newark Police Department’s] arrest reports and

[internal affairs] investigations . . . reflect numerous

instances of the [department’s] inappropriate

responses

to

individuals

who

engage

in

constitutionally protected First Amendment activity,

such as questioning or criticizing police actions.”

STATES

DEPARTMENT

OF

JUSTICE,

UNITED

INVESTIGATION OF THE NEWARK POLICE DEPARTMENT

13 (2014).5 In one instance, for example, “an

individual was arrested after he questioned officers’

decision to arrest his neighbor.” Id.

Similarly, in the Ferguson report, the Department

of Justice found that police not only retaliated against

demonstrators, but also that officers routinely made

“contempt of cop” arrests:

[O]fficers frequently make enforcement

decisions based on what subjects say, or how

they say it. Just as officers reflexively resort to

arrest immediately upon noncompliance with

4 Available at https://pdfs.semanticscholar.org/649c/

a046a3baca0f9ebafa2641b744c8a2b80e06.pdf

5 Available at https://www.justice.gov/sites/default/files/crt/

legacy/2014/07/22/newark_findings_7-22-14.pdf

9

their orders, whether lawful or not, they are

quick to overreact to challenges and verbal

slights. These incidents—sometimes called

“contempt of cop” cases—are propelled by

officers’ belief that arrest is an appropriate

response to disrespect.

UNITED

STATES

DEPARTMENT

OF

JUSTICE,

INVESTIGATION

OF

THE

FERGUSON

POLICE

DEPARTMENT 25 (2015). Notably, the breadth of

offenses contained in Feguson’s municipal code made

it easy to come up with charges: “These arrests are

typically charged as a Failure to Comply, Disorderly

Conduct, Interference with Officer, or Resisting

Arrest.” Id.

II.

BROAD STATUTES AND ORDINANCES

MAKE IT ALL TOO EASY FOR POLICE

OFFICERS TO FIND PROBABLE CAUSE

TO ARREST PEOPLE FOR SPEECH

THEY DISLIKE.

If the existence of probable cause, standing alone,

defeats a retaliatory arrest claim, the police will

acquire vast discretion to punish dissent by rounding

up protesters with whom they disagree. Many laws

are so broadly written and prohibit so much activity

that it is very easy for police to arrest people in

retaliation for their speech. In various municipalities

across the United States, it is illegal to wear saggy

10

pants,6 to cross a street while viewing a cell phone,7

and to have a barbecue in one’s front yard.8

This Court has long recognized the threat of

censorship posed by laws that endow the police with

excessive discretion. In City of Houston v. Hill, the

Court noted that an ordinance challenged in the case

“criminalizes a substantial amount of constitutionally

protected

speech,

and

accords

the

police

unconstitutional discretion in enforcement. The

ordinance’s plain language is admittedly violated

scores of times daily, yet only some individuals—those

chosen by the police in their unguided discretion—are

arrested.” 482 U.S. 451, 466–67 (1987). The Hill Court

concluded that vast discretion to arrest people for

their speech eliminates the “‘breathing space’ that

‘First Amendment freedoms need ... to survive.’” Id. at

467 (quoting NAACP v. Button, 371 U.S. 415, 433

(1963)); see also Lewis v. City of New Orleans, 415 U.S.

130, 135 (1974) (Powell, J. concurring) (“This

6 Abbeville, Louisiana Code of Ordinances § 13-25 (“It shall be

unlawful for any person in a public place or in view of the public

to wear pants or a skirt in such a manner as to expose their

underlying garments.”); see also William C. Vandivort, Note, I

See London, I See France: The Constitutional Challenge to

“Saggy” Pants Laws, 75 BROOK L. REV. 667, 673 (2009)

(cataloging similar saggy pants ordinances across the country).

Revised

Ordinances

of

Honolulu

§

15-24.23,

https://www.honolulu.gov/rep/site/ocs/roh/ROH_Chapter_15a21

_28_.pdf (“No pedestrian shall cross a street or highway while

viewing a mobile electronic device.”).

7

8 Berkeley, Missouri Code of Ordinances § 210.2250 (“Subject to

certain exceptions mentioned hereinbelow, no person shall be

permitted to barbecue or conduct outdoor cooking in front of the

building line of any single-family dwelling, multi-family dwelling

or commercial structure.”); see also Pagedale, Missouri Code of

Ordinances § 210.750(A).

11

ordinance . . . confers on police a virtually

unrestrained power to arrest and charge persons with

a violation.”).

To be sure, the vagueness and overbreadth

doctrines provide a partial antidote to laws that confer

wide discretion to trench on protected speech. That

said, courts cannot be in the business of invalidating

every law that prohibits some protected conduct or

could be worded more lucidly. “Invalidating any rule

on the basis of its hypothetical application to

situations not before the Court is ‘strong medicine’ to

be applied ‘sparingly and only as a last resort.’” F.C.C.

v. Pacifica Foundation, 438 U.S. 726, 743 (1978)

(quoting Broadrick v. Oklahoma, 413 U.S. 601, 613

(1973)). Some laws are broad enough that the threat

of retaliatory enforcement is quite serious, but not so

broad as to warrant the “strong medicine” of facial

invalidation.

A. Because Laws Affecting Protest Provide

Probable Cause For Arrest In A Wide

Range Of Circumstances, A Holding That

Probable Cause Automatically Defeats A

Retaliatory Arrest Claim Would Grant

Police Massive Power To Arrest People

For Disfavored Speech.

Protesters often violate broad statutes and

ordinances that prohibit a wide range of activity, such

as blocking sidewalks, unlawful assembly, violating

noise ordinances, and disorderly conduct. Because

these laws sweep in so much conduct, the police have

probable cause to round up large numbers of

protesters. If probable cause categorically defeats a

retaliatory arrest claim, the police will wield the

12

power to arrest protesters for the very purpose of

silencing disfavored messages.

1. Unlawful

Disperse

Assembly

And

Failure

To

Under typical “unlawful assembly” ordinances,

“officials can disperse a protest as long as they

conclude that participants are at some point planning

to engage in forceful or violent lawbreaking.” John

Inazu, Unlawful Assembly as Social Control, 64

U.C.L.A. L. Rev. 2, 7 (2017). Because these statutes

grant police the power to disperse gatherings that

could lead to force or violence, officers “are forced to

rely on judgments and inferences about future acts”

by protesters or bystanders. Id. at 6–7. In fact, some

unlawful assembly statutes allow the police to

disperse a protest where they believe the

demonstrators will engage in an act that is illegal but

nonviolent. Id. at 7.

The ability to declare an unlawful assembly based

solely on predictions about the intent of the

protesters, and in the absence of any observed

violence or illegality, vests the police with massive

discretion to shut down protests. For example, the

California Penal Code defines “unlawful assembly” to

include two or more people gathering for the purpose

of committing an act that is unlawful, but non-violent:

“Whenever two or more persons assemble together to

do an unlawful act, or do a lawful act in a violent,

boisterous, or tumultuous manner, such assembly is

an unlawful assembly.” Cal. Penal Code § 407.

13

Unlawful assembly is a misdemeanor. Cal. Penal

Code § 408.9

Police have used their discretion under unlawful

assembly laws to “target citizens across the political

spectrum, including civil rights workers, antiabortion

demonstrators, labor organizers, environmental

groups, Tea Party activists, Occupy protesters, and

antiwar protesters.” Inazu, supra, at 5.

2. Blocking Roads And Sidewalks

State and local governments often prohibit

blocking roads, highways, and sidewalks. For

example, the Code of the District of Columbia provides

that “[i]t is unlawful … [t]o crowd, obstruct, or

incommode … [t]he use of any street, avenue, [or]

alley.” D.C. Code § 22–1307(a) (2016).10

9 See also Idaho Code §§ 18-6404, 18-6405 (2017) (stating that

the misdemeanor of unlawful assembly occurs “[w]henever two

or more persons assemble together to do an unlawful act, and

separate without doing or advancing toward it, or do a lawful act

in a violent, boisterous or tumultuous manner . . .”); Iowa Code §

723.2 (2017) (“An unlawful assembly is three or more persons

assembled together, with them or any of them acting in a violent

manner, and with intent that they or any of them will commit a

public offense. A person who willingly joins in or remains a part

of an unlawful assembly, knowing or having reasonable grounds

to believe that it is such, commits a simple misdemeanor.”).

10 See also Ga. Stat. § 16-11-43 (2017) (“A person who, without

authority of law, purposely or recklessly obstructs any highway,

street, sidewalk, or other public passage in such a way as to

render it impassable without unreasonable inconvenience or

hazard and fails or refuses to remove the obstruction after

receiving a reasonable official request or the order of a peace

officer that he do so, is guilty of a misdemeanor.”); La. Rev. Stat.

§ 14:97 (2017) (“Simple obstruction of a highway of commerce is

the intentional or criminally negligent placing of anything or

performance of any act on any railway, railroad, navigable

14

The police use these laws to arrest protesters. For

example, following the police shooting of Alton

Sterling, police arrested numerous protesters in

Baton Rouge under Louisiana’s obstruction of a

highway law. Third Amended Complaint, Tennart v.

City of Baton Rouge, No. 17-179-JWD-EWD, at 4-6

(M.D. La. filed July 13, 2017). The plaintiffs in the

Tennart case allege that they were arrested on “the

pretext that the protesters had violated a state law

proscribing obstruction of highways and public roads.”

Id. at 3.11

3. Disorderly Conduct Ordinances

Police also arrest protesters under disorderly

conduct ordinances. In Lewis v. City of Tulsa, “prolife

activists were picketing an abortion clinic.” 775 P.2d

821, 822 (Okla. Crim. App. 1989). Clayton Lewis and

other activists stood 50-60 feet away from the

entrance to the clinic and yelled at people entering

that “it was murder. You should feel guilty about what

you are doing.” Id. For these lawful activities, Mr.

Lewis was arrested and convicted under Tulsa’s

disorderly conduct ordinance. Id. The Oklahoma

Court of Criminal Appeals ultimately reversed his

conviction. Id.

4. Noise Ordinances

Noise ordinances typically impose limits on the

amplification of sound. For example, the Chicago

Municipal Code provides:

waterway, road, highway, thoroughfare, or runway of an airport,

which will render movement thereon more difficult.”)

11 Roderick and Solange MacArthur Justice Center attorneys are

among the counsel for the Tennart plaintiffs.

15

No person on the public way shall employ any

device or instrument that creates or amplifies

sound, including but not limited to any

loudspeaker, bullhorn, amplifier, public

address system, musical instrument, radio or

device that plays recorded music, to generate

any sound, for the purpose of communication or

entertainment, that is louder than average

conversational level at a distance of 100 feet or

more, measured vertically or horizontally, from

the source.

Chicago Mun. Code § 8-32-070(a) (2017).12

Police often use noise and amplification provisions

to arrest protesters. For example, Stephen Nylen, a

devout Christian and Iraq war veteran, alleges in a

case proceeding in the United States District Court for

the Western District of Michigan that police have

repeatedly threatened him with arrest under a noise

and amplification ordinance. Second Amended

Compl., Nylen v. City of Grand Rapids, No. 17-cv-716,

at 5 (W.D. Mich. filed Nov. 20, 2017). Roughly half of

these arrest threats occurred while Mr. Nylen was

speaking about his faith on a public sidewalk near an

abortion clinic. Id. at 5.

Similarly, in the aftermath of the shooting of

Michael Brown in Ferguson, Missouri, three plaintiffs

See also, e.g, Norfolk Code of Ordinances § 26-4 (2017)

(“Operating, playing or permitting the operation or playing of

any . . . bullhorn, megaphone, sound amplifier or similar device

which produces, reproduces or amplifies sound in such a

manner as to create noise disturbance across a real property

line boundary or within a noise sensitive zone set forth in table

I, ‘Maximum Sound Pressure Levels,’ shall constitute a

violation of this section, unless allowed pursuant to an

exception established by ordinance.”).

12

16

were arrested for failure to comply with a police order

during a peaceful protest that followed a candlelight

vigil. First Amended Compl., Powers v. City of

Ferguson, No. 16-cv-1299, at 4 (E.D. Mo. filed August

9, 2016). Three days later, another plaintiff was

arrested for violating a noise ordinance while waiting

for the police to release Antonio French, an alderman

arrested during the protests. Powers was acquitted of

the charges at trial. Id. at 5. In 2015, protesters

demanding expanded Medicaid coverage were

threatened with arrest for noise violations for singing

outside the chambers of the Florida House of

Representatives. 20 Arrested at North Carolina

Legislature Protest in April Face Judge, 11 ABC News

(Jun. 8, 2017).13

B. Police Officers Exploit The Discretion

Created By Broad Laws By Arresting

Protesters With Whom They Disagree.

Police officers have used the discretion provided by

broad statutes and ordinances to retaliate against

speakers with whom they disagree. For example, in

September of 2015, Michael Picard was protesting

legally near a DUI checkpoint with a sign that read

“Cops Ahead. Keep Calm and Remain Silent.” Amy

Wang, Cops Accidentally Record Themselves

Fabricating Charges Against Protester, Lawsuit Says,

Wash. Post (Sept. 20, 2016). He was also legally

recording the police with his cell phone. Id. One of the

officers slapped Picard’s cell phone out of his hand and

confiscated it. Id. The officer inadvertently allowed

the cell phone camera to continue recording as he and

other officers discussed charging Picard. Id.

Available at http://abc11.com/politics/20-arrested-at-nclegislature-face-judge/772567/.

13

17

The transcript of the video provides a rare glimpse

into how police officers (in this case, Master Sergeant

Patrick Torneo, Sergeant John Jacobi, and Trooper

John Barone) sometimes fabricate charges to retaliate

against a protester. Torneo is heard saying: “Have

that Hartford lieutenant call me, I want to see if he’s

got any grudges.”14 Barone asks: “You want me to

punch a number [slang for opening an investigation]

on this either way? Gotta cover our ass.”15

The officers proceed to debate how to charge

Picard, illustrating how broad statutes and

ordinances often grant the police vast discretion to

effectuate retaliatory arrests:

Jacobi: So, we can hit him with reckless use

of the highway by a pedestrian and

creating a public disturbance, and

whatever he said.

Barone: That’s a ticket?

Jacobi: Two tickets.

Barone: Yeah.

Jacobi: That’s a ticket with two terms, yeah.

It’s 53a-53-181, something like that

for—

The

full

video

is

available

here:

https://www.washingtonpost.com/news/postnation/wp/2016/09/20/cops-accidentally-record-themselvesfabricating-charges-against-protester-lawsuitsays/?utm_term=.2c20c7258090.

14

15 See supra n.14.

18

Barone: I’ll hit him with that, I’ll give him a

ticket for that.

Jacobi: Crap! I mean, we can hit him with

creating a public disturbance.

Jacobi: All three are ticketsTorneo: Yep.

Jacobi: We’ll throw all charges three on the

ticket.

Torneo: And then we claim that, um, in

backup, we had multiple people, um,

they didn’t want to stay and give us a

statement, so we took our own course

of action. 16

The Department of Justice Ferguson report also

illustrates the phenomenon of police creatively

charging people in order to retaliate against them for

protected speech. In one case, “a police officer arrested

a business owner on charges of Interfering in Police

Business and Misuse of 911 because she objected to

the officer’s detention of her employee.” UNITED

STATES DEPARTMENT OF JUSTICE, INVESTIGATION OF

THE FERGUSON POLICE DEPARTMENT 25 (2015). Indeed,

the officer made the arrest after the business owner

attempted to call the police chief, which “suggests that

[the officer] may have been retaliating against her for

reporting his conduct.” Id. In another instance, an

officer arrested a man for violating an extremely

16 See supra n.14.

19

broad “Manner of Walking in Roadway” ordinance

because the man cursed at the officer. Id.

Similarly, in Allee v. Medrano, this Court found a

“persistent pattern of police misconduct,” in the

enforcement of Texas statutes, including an unlawful

assembly law, against activists seeking to organize a

farmworkers’ union. 416 U.S. 802, 815 (1974). The

Court noted that the district court found that “the

defendants selectively enforced the unlawful

assembly law … treating as criminal an inoffensive

union gathering….” Id. at 808 (citation omitted).

The Ahmad decision regarding the September

2017 protests in St. Louis provides a more recent

illustration of a police officer’s broad discretion to

effectuate arrests under unlawful assembly laws. The

court noted that, in St. Louis, “an individual officer

can decide, in his or her discretion, to declare an

unlawful assembly, and there are no guidelines, rules,

or written policies with regard to when an unlawful

assembly should be declared.” 2017 WL 5478410, at

*6.

In Ford v. City of Yakima, 706 F.3d 1188, 1191 (9th

Cir. 2013), an officer arrested and jailed a motorcyclist

under a noise ordinance. The officer decided to make

the arrest because he became irritated with the

motorist for (lawfully) talking back. Id. at 1190–91.

Prior to the arrest, the officer made a series of

statements that included, “[i]f you run your mouth, I

will book you in jail for it. Yes, I will, and I will tow

your car,” and “[i]f you have diarrhea of the mouth,

you will go to jail.” Id. The officer also said: “A lot of

times we tend to cite and release people for [noise

ordinance violations] or we give warnings. However ...

you acted a fool ... and we have discretion whether we

20

can book or release you. You talked yourself—your

mouth and your attitude talked you into jail.” Id.

CONCLUSION

In protests against the police, some see courage

and dissent, while others see insult, exaggeration, and

ingratitude. The freedom of expression lives and

breathes in that clash of ideologies, which reflect our

“profound national commitment to the principle that

debate on public issues should be uninhibited, robust,

and wide-open, and that it may well include

vehement, caustic, and sometimes unpleasantly sharp

attacks on government and public officials.” New York

Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

The present conflict of ideas must be resolved, as

others in our history have been, through public

discourse—not through retaliatory arrests made to

silence dissent. For that reason, this Court should

reverse the judgment below.

21

Respectfully submitted,

DAVID M. SHAPIRO

Counsel of Record

RODERICK AND SOLANGE MACARTHUR

JUSTICE CENTER

375 E. Chicago Ave.

Chicago, IL 60611

(312) 503-0711

david.shapiro@law.northwestern.edu

Counsel for Amicus Curiae the

Roderick & Solange MacArthur

Justice Center

December 27, 2017

CONSENTS

Marissa Spalding

From:

Sent:

To:

Subject:

David M Shapiro

Saturday, December 16, 2017 11:40 AM

emily.clark@macarthurjustice.org; Marissa Spalding

Fwd: Lozman v. City of Rivera Beach

Follow Up Flag:

Flag Status:

Flag for follow up

Completed

Consents in lozman.

Sent from my iPhone

Begin forwarded message:

From: "Dvoretzky, Shay" <sdvoretzky@JonesDay.com>

Date: December 15, 2017 at 4:31:12 PM CST

To: Pamela S Karlan <pkarlan@stanford.edu>, David M Shapiro

<david.shapiro@law.northwestern.edu>

Subject: RE: Lozman v. City of Rivera Beach

Respondent consents as well.

Shay Dvoretzky

Partner

JONES DAY® - One Firm Worldwide℠

51 Louisiana Ave., N.W.

Washington, D.C. 20001-2113

Office +1.202.879.3474

Facsimile +1.202.626.1700

sdvoretzky@jonesday.com

From: Pamela S Karlan [mailto:pkarlan@stanford.edu]

Sent: Friday, December 15, 2017 4:51 PM

To: David M Shapiro <david.shapiro@law.northwestern.edu>; Dvoretzky, Shay

<sdvoretzky@JonesDay.com>

Subject: Re: Lozman v. City of Rivera Beach

Dear Mr. Shapiro,

I consent on behalf of petitioner.

Pamela S. Karlan

Kenneth and Harle Montgomery Professor of Public Interest Law

Co-Director, Supreme Court Litigation Clinic

Stanford Law School

karlan@stanford.edu

650-725-4851

1

From: David M Shapiro <david.shapiro@law.northwestern.edu>

Sent: Friday, December 15, 2017 1:00 PM

To: Pamela S Karlan; sdvoretzky@jonesday.com

Subject: Lozman v. City of Rivera Beach

Dear Counsel:

The MacArthur Justice Center intends to file an amicus brief in this case. Please let me know if you

consent. Thanks.

Sincerely,

David Shapiro

David M. Shapiro

Assistant Clinical Professor of Law, Northwestern Pritzker School of Law

Director of Appellate Litigation, Roderick and Solange MacArthur Justice Center

375 E. Chicago Avenue

Chicago, Illinois 60611

(312) 503-0711

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