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

Court: Court of Appeals for the Eleventh Circuit
Date filed: 2023-03-21
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USCA11 Case: 22-10865   Document: 36-1    Date Filed: 03/21/2023    Page: 1 of 14




                                                 [DO NOT PUBLISH]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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        22-10865              Opinion of the Court                       3

        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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        4                       Opinion of the Court                 22-10865

        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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        22-10865               Opinion of the Court                        5

        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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        6                      Opinion of the Court                22-10865

        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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        22-10865               Opinion of the Court                        7

        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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        8                       Opinion of the Court                  22-10865

        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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        22-10865                Opinion of the Court                         9

        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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        10                      Opinion of the Court                  22-10865

        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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        22-10865                Opinion of the Court                        11

                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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        12                      Opinion of the Court                 22-10865

        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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        22-10865               Opinion of the Court                       13

        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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        14                     Opinion of the Court                 22-10865

        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.