Greenberg Traurig's Kerri Barsh Reaches US Supreme Court, Just Not in Traditional Practice Area
The co-chair of Greenberg Traurig's environmental practice has been enticed into First Amendment law on retaliatory arrests.
May 06, 2019 at 06:00 AM
5 minute read
This article profiles one of three finalists for the Daily Business Review's Attorney of the Year award, the top honor at the annual Professional Excellence Awards ceremony.
The other finalists are James Sammataro of Stroock & Stroock & Lavan and the team of Jamie Cole of Weiss, Serota, Helfman, Cole & Bierman and Gary Rosen of Becker.
The winner will be announced during an event May 23 at the Rusty Pelican in Miami.
KERRI BARSH
Greenberg Traurig
Kerri Barsh's career was moving along nicely in the field of environmental law when an admiralty case took a sharp turn into the First Amendment.
The Greenberg Traurig shareholder was sucked into the well-traveled litigation of financial trader Fane Lozman, who coincidentally has been a party in two U.S. Supreme Court decisions in five years. He came up a winner in 2018 with help from Barsh serving as co-counsel.
Lozman's houseboat was destroyed in 2010 under maritime law following a prolonged battle with Riviera Beach city government over its marina redevelopment plans. That was Lozman 1, and he won.
Lozman painted himself as a corruption fighter. City officials didn't take kindly to his way of thinking, which he regularly expressed at public meetings. His arrest while speaking at the City Hall public podium triggered Lozman 2, which he won again last June. He is allowed to pursue a First Amendment retaliatory arrest claim.
Another retaliatory arrest claim flowed from drinks at the uniquely Alaskan Arctic Man event, and Barsh was drafted into the Nieves v. Bartlett case argued last fall on the strength of her Lozman work. No decision had been issued by deadline.
Russell Bartlett alleged a retaliatory arrest by Alaska state troopers when he questioned their arrest of his tipsy underage nephew. The case asks whether probable cause defeats the First Amendment retaliatory arrest claim.
Both cases balance arrest powers and safeguarding free expression. In Lozman's case, law enforcement discretion wasn't a crucial issue because video shows the low-key events as they unfolded. In the Nieves case, preservation of law and order is an element.
Karsh, co-chair of Greenberg's environmental practice, didn't argue any of the cases but sat at counsel table three times in what she considers “the pinnacle of my legal career and something I never predicted.”
“Dating back to law school I've had this interest in constitutional law, and my primary practice area is in the environmental area,” she explained. “Originally when I was in Lozman 1, I was involved in the areas that were primary in my practice: jurisdiction issues with water and admiralty and state regulation.”
Lozman's arrest during the public-comment segment of a City Council meeting placed him in a new legal arena, and a reconstituted team of attorneys took it on. Then-Justice Anthony Kennedy wrote in his favor for an 8-1 court.
Lozman maintained he became an official target of city intimidation after a closed-door council meeting that came with a transcript. The city maintained the council reached a consensus to fight an open-meeting lawsuit he filed, not him personally.
Five months later, a police officer handcuffed Lozman, an imposing figure in suit and tie, a few seconds into his remarks. at the behest of council member Elizabeth Wade. He was charged with disorderly conduct and resisting arrest without violence. The Palm Beach state attorney's office found probable cause for the arrest but dismissed the charges.
Lozman claimed his arrest was government retaliation for earlier protected speech including his criticism of city officials and the open-meeting lawsuit. On a narrow issue, Kennedy wrote, “Lozman need not prove the absence of probable cause to maintain a claim of retaliatory arrest against the city.”
The issue seems abstract until the moment of an arrest. News media interest was stimulated by the potential effects of the ruling since a journalist's arrest on a minor offense can stop unwanted coverage.
The question of relief for Lozman was left to lower courts, and Barsh is waiting for direction from the U.S. Court of Appeals for the Eleventh Circuit.
She's also involved in a U.S. Supreme Court petition filed April 12 seeking a federal hearing in a challenge to probation orders in Alabama. The Eleventh Circuit rejection of the case refers to Lozman in the second paragraph.
“I'm still doing environmental law, which I love, but I consider myself sort of a big picture person, so the ability to participate in these cases that have broad impact to a wide variety of people are interesting to me,” she said. “You look for challenges that keep you invigorated, so these are new challenges and inspiring ones.”
As for Lozman, she said he's “still living in the area and engaged in ongoing discussions about issues with Riviera Beach.”
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