Probable Cause for Arrest Does Not Bar Retaliation Claim

(CN) – The U.S. Supreme Court on Monday held that the existence of probable cause for the arrest of a Florida gadfly at a City Council meeting does not bar his pursuit of a First Amendment retaliation claim against the body.

In March 2006, Fane Lozman towed his floating home to a marina owned by the city of Riviera Beach, Florida, and soon after became an outspoken and frequent critic of the city’s plan to use its eminent domain power to seize water home for private development.

Lozman often appeared before the city council and voiced his concerns during the public-comment period of their meetings. He also filed a lawsuit alleging the council’s approval of an agreement with developers violated Florida’s open-meetings laws.

In June 2006 the Council held a closed-door session, in part to discuss Lozman’s lawsuit. He alleges that the meeting’s transcript shows that council members devised a plan to intimidate him, and that many of his subsequent disputes with city officials and employees stemmed from that plan.

Five months later, in November 2006, Lozman once again rose to speak during the public-comment period of a city counsel meeting. This time he began to speak about the arrests of officials in neighboring communities. When he refused a councilmember’s request that he stop speaking on matters unrelated to city affairs, the council had him arrested, directing the police officer in attendance to “carry him out.”

Lozman was arrested and charged with violating the council’s rules of procedure by discussing issues unrelated to the City and then refusing to leave the podium. A state attorney determined there was probably cause for Lozman’s arrest, but decided to dismiss the charges.

Lozman promptly sued the city, contending his arrest was just one of several instances in which city officials tried to intimidate him. These included the city’s filing an ultimately unsuccessful admiralty lawsuit against his floating home.

A jury returned a verdict for the city on all of Lozman’s claims, and the district court instructed the jury that, for Lozman to prevail on his claim of a retaliatory arrest at the city council meeting, he had to prove that the
arresting officer was motivated by impermissible animus against his protected speech and that the officer lacked probable cause to make the arrest.

The 11th Circuit affirmed, concluding that any error the district court made when it instructed the jury to consider
the officer’s retaliatory animus was harmless because the jury necessarily determined that the arrest was supported by probable cause when it found for the city on Lozman’s other claims.

The existence of probable cause, the court ruled, defeated a First Amendment claim for retaliatory arrest.

But writing for the majority on Monday, Justice Anthony Kennedy said the 11th Circuit got it wrong.

“The fact that Lozman must prove the existence and enforcement of an official policy motivated by retaliation separates Lozman’s claim from the typical retaliatory arrest claim,” Kennedy wrote. “An official retaliatory policy is a particularly troubling and potent form of retaliation, for a policy can be long term and pervasive, unlike an ad hoc, on-the-spot decision by an individual officer.

“An official policy also can be difficult to dislodge,” Kennedy continued. “A citizen who suffers retaliation by an individual officer can seek to have the officer disciplined or removed from service, but there may be little
practical recourse when the government itself orchestrates the retaliation. For these reasons, when retaliation
against protected speech is elevated to the level of official policy, there is a compelling need for adequate avenues of

In his writ for a grant of certiorari, Lozman argued that the controlling rule is found in the Supreme Court’s ruling in Mt. Healthy City Bd. of Ed. v. DoyleMt. Healthy was a civil case in which a city board of education decided not to rehire an untenured teacher after a series of incidents, including a telephone call to a local radio station.

The phone call was protected speech, but, the Court held, there was no liability unless the alleged constitutional violation was a but-for cause of the employment termination. Kennedy and that majority of his colleagues on the court agreed the Mt. Healthy ruling applies to Lozman’s case.

But Kennedy added that just became Lozman need not prove the absence of probable cause to maintain a claim of retaliatory arrest against the city, that doesn’t necessarily mean he is entitled for relief or even a new trial.

“On remand, the Court of Appeals, applying Mt. Healthy and other relevant precedents, may consider any arguments in support of the District Court’s judgment that have been preserved by the City,” he wrote. “Among other matters, the Court of Appeals may wish to consider (1) whether any reasonable juror could find that the City actually formed a retaliatory policy to intimidate Lozman during its June 2006 closed-door session; (2) whether any reasonable juror could find that the November 2006 arrest constituted an official act by the City; and (3) whether, under Mt. Healthy, the City has proved that it would have arrested Lozman regardless of any retaliatory animus—for example, if Lozman’s conduct during prior city council meetings had also violated valid rules as to proper subjects of discussion, thus explaining his arrest here.”

Justice Clarence Thomas, the lone dissenter in the case, argued the high court granted certiorari to decide one question — “whether the existence of probable cause defeats a First Amendment claim for retaliatory arrest under [42 U. S. C.] §1983” — but instead of resolving that question, decided that probable cause should not defeat a “unique class of retaliatory arrest claims.”

“No one briefed, argued, or even hinted at the rule that the Court announces today,” Thomas wrote. “Instead of dreaming up our own rule, I would have answered the question presented and held that plaintiffs must plead and prove a lack of probable cause as an element of a First Amendment retaliatory arrest claim.”

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