By Steve Plunkett
“Martin O’Boyle is a Gulf Stream resident who has long disliked town leadership.”
So begins an opinion by the 11th Circuit Court of Appeals affirming a U.S. District Court ruling in Gulf Stream’s favor that the town did not violate the First Amendment rights of O’Boyle, his son Jonathan O’Boyle and their lawyer William Ring.
The trio sued over what they alleged was retaliation by the town over extensive public records litigation and on appeal argued that they did not need to show a lack of probable cause in order to show retaliation.
But in this case, they did have to show the town did not have probable cause, a panel of three 11th Circuit judges ruled on Feb. 8.
The judges gave a short history of the case, which they called “the third in a saga that chronicles Martin O’Boyle’s feud with Gulf Stream and its leadership.” After the town denied him a building permit, he painted cartoons on his house ridiculing the mayor and hung signs criticizing town leaders on a truck parked at Town Hall.
He also began filing public records requests. 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,” the judges wrote.
When the town did not respond in time, O’Boyle or his nonprofit Citizen’s Awareness Foundation Inc. would sue Gulf Stream under the state’s Sunshine Law.
In 2015, the town launched a three-pronged offensive against the records requests, which had overwhelmed Gulf Stream’s small municipal staff. It filed counterclaims in one of the records lawsuits in state court and asked for sanctions against Jonathan O’Boyle and Ring; Mayor Scott Morgan filed bar complaints against the two alleging ethical violations; and the town sued the O’Boyles, Ring and several others in federal court under the Racketeer Influenced and Corrupt Organizations Act.
But the Florida Bar declined to discipline Jonathan O’Boyle or Ring and the state court declined to sanction them; the state court also dismissed the counterclaims; and the federal court dismissed the RICO lawsuit.
After a town meeting in September 2015, town police saw Martin O’Boyle trying to write on a bulletin board in the lobby of Town Hall and confronted him to get him to stop.
They began arguing and eventually escorted a noncompliant O’Boyle out of the building.
The state attorney later charged O’Boyle with trespassing and disorderly conduct; a state judge dismissed the trespassing charge in August 2021 and a jury acquitted O’Boyle of disorderly conduct.
The O’Boyles and Ring sued the town for allegedly violating their First Amendment rights via the RICO suit, the bar complaints and Martin O’Boyle’s prosecution. The town argued that it had civil probable cause to file the RICO litigation and the bar complaints and that the state attorney had criminal probable cause to prosecute O’Boyle, so the trio could not establish a First Amendment retaliation claim.
The O’Boyles and Ring argued that they did not need to show a lack of probable cause, citing what they considered a similar case, Lozman v. City of Riviera Beach, in which the U.S. Supreme Court allowed a false arrest claim to proceed even though probable cause existed to arrest the plaintiff.
The district court at first denied giving a summary judgment to either side. After the parties agreed to a joint stipulation that the town had probable cause to file the bar complaints and to charge Martin O’Boyle with trespass and disorderly conduct, the district judge granted summary judgment to Gulf Stream. The O’Boyles and Ring appealed.
The 11th Circuit judges said under Lozman, along with other elements, where there is “little relation” between the First Amendment-protected expression and the allegedly retaliatory action, a plaintiff must show only that an official act would not have occurred “but-for” the protected expression.
In this case, however, the judges found more than just a “little relation.” Gulf Stream filed its RICO complaint and state-court counterclaims as a direct response to the hundreds of records requests and multiple lawsuits that were draining town resources and manpower, they said. The bar complaints were also closely related to the public records litigation, they said.
And, they wrote, “a layer of independent judgment” was added to the criminal case against Martin O’Boyle when the state attorney pressed charges and not the town police. Case law makes showing “an absence of probable cause” a necessary element of retaliatory prosecution, they said.
The joint stipulation “that there was probable cause to charge Martin O’Boyle with trespass and disorderly conduct was fatal to his retaliatory prosecution claim,” they ruled.
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