Justices to Decide Whether Probable Cause Defeats Retaliatory Arrest Claim

(CN) – The Supreme Court on Monday agreed to decide whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.

The case was brought to court by Fane Lozman, a Florida man who previously appeared before the justices for a dispute over his floating house.

In its ruling in that 2013 case, the justices sided with Lozman, concluding his floating home was a house, not a vessel  subject to seizure by the city of Riviera Beach.

This time, the justices agreed to hear a case in which Lozman sued after being arrested at a November 2006 Riviera Beach City Council meeting.

Lozman, an outspoken critic of the city council, claims he was merely trying to speak in opposition to an eminent domain proposal before the council, during the ordained public comment period, when the council chair had him arrested.

He says the state attorney ultimately declined to prosecute him, and said he sued on the grounds his arrest was carried out solely because he was criticizing the government.

The case made its way up the 11th Circuit, which acknowledged Lozman had established “a sufficient causal nexus” between his arrest and the retaliatory animus of the city council.

But it held he could not recover damages because the jury found that police had probable cause to arrest him for disturbing a lawful assembly. Lozman says this conclusion was in error because he was never charged with that crime.

In his petition for a writ of certiorari, Lozman says that in the 2006 case Hartman v. Moore, the justices held that a plaintiff who claims he was subject to a retaliatory prosecution in violation of the First Amendment must plead and prove the absence of probably cause for the prosecution.

He says the high court subsequently granted certiorari in Reichle v. Howard, to determine whether that rule should be extended to claims of retaliatory arrest as well, but it left the question unanswered, sending the case back to the lower court on the grounds of qualified immunity.

In its response to his petition, the City of Riviera Beach argued the justices should reject Lozman’s petition because he did not raise the issue of whether probable cause defeats a First Amendment retaliatory-arrest claim.

“The Court would also have to overlook an alternative basis for affirming the Eleventh Circuit—one that rests on statutory grounds, and that would make it unnecessary to address the constitutional question Lozman presents,” the response says. “And it would have to do all of this in a case where the petitioner’s rights were not even violated, because probable cause does defeat a First Amendment retaliatory-arrest claim as a matter of law.”

As is their custom, the justices did not explain their rationale for taking the case.

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