Lozman v. Riviera Beach
201 L. Ed. 2d 342, 2018 U.S. LEXIS 3691, 138 S. Ct. 1945 (2018)
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Rule of Law:
A plaintiff can maintain a First Amendment retaliatory arrest claim against a municipality despite the existence of probable cause for the arrest, if the plaintiff provides objective evidence of an official municipal policy of retaliation that motivated the arrest.
Facts:
- Fane Lozman moved his floating home into a marina owned by the City of Riviera Beach, Florida.
- Lozman became an outspoken critic of the City's plan to use eminent domain for private development, frequently criticizing officials at city council meetings.
- Lozman filed a lawsuit against the City, alleging violations of Florida's open-meetings laws.
- In a June 2006 closed-door session to discuss Lozman's lawsuit, a councilmember suggested using city resources to "intimidate" Lozman, and other councilmembers expressed agreement.
- Five months later, in November 2006, Lozman began to speak during the public-comment period of a city council meeting about the arrests of officials from other jurisdictions.
- A councilmember, Elizabeth Wade, interrupted Lozman and told him to stop speaking.
- When Lozman continued, Wade instructed a police officer to "carry him out."
- The officer handcuffed Lozman and arrested him.
Procedural Posture:
- The State's attorney determined there was probable cause for Lozman's arrest but decided to dismiss the charges.
- Lozman filed a lawsuit under 42 U.S.C. §1983 against the City of Riviera Beach in the U.S. District Court for the Southern District of Florida, the court of first instance.
- The district court instructed the jury that Lozman had to prove the arresting officer had retaliatory animus and lacked probable cause.
- The jury returned a verdict for the City.
- Lozman, as appellant, appealed to the U.S. Court of Appeals for the Eleventh Circuit.
- The Court of Appeals affirmed the district court's judgment, holding that under circuit precedent, the existence of probable cause defeated a First Amendment claim for retaliatory arrest.
- The U.S. Supreme Court granted Lozman's petition for a writ of certiorari.
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Issue:
Does the existence of probable cause for an arrest categorically bar a First Amendment retaliatory arrest claim when the plaintiff presents evidence that the arrest was made pursuant to an official municipal policy of retaliation?
Opinions:
Majority - Justice Kennedy
No. The existence of probable cause does not bar a First Amendment retaliation claim under the unique circumstances of this case. Lozman's claim is distinct from a typical retaliatory arrest case because he alleges the City itself, acting through an official municipal policy, orchestrated his arrest in retaliation for prior protected speech. This official policy, which was premeditated and evidenced by objective proof like the meeting transcript, presents a potent and troubling form of retaliation that is different from an ad hoc decision by an individual officer. In such cases, where an official policy motivated by retaliation is alleged, the causation concerns that justify a probable-cause bar in other contexts are alleviated, and the Mt. Healthy framework applies. Lozman must show his protected speech was a motivating factor for the arrest, and the burden then shifts to the City to prove it would have arrested him regardless of any retaliatory animus.
Dissenting - Justice Thomas
Yes. The Court should have held that the existence of probable cause defeats a First Amendment retaliatory arrest claim as a matter of law. Instead of answering the question presented, the majority created a new, complex, multi-factor rule for a 'unique class' of cases that was not briefed or argued by the parties. The proper approach is to look to the closest common-law torts, such as false imprisonment and malicious prosecution, which treated the presence of probable cause as a defense to protect law enforcement officers performing their duties. Requiring a plaintiff to plead and prove the absence of probable cause provides a clear rule that shields officers from harassing lawsuits and prevents the chilling of legitimate law enforcement activity.
Analysis:
This decision carves out a significant but narrow exception to the general principle that probable cause defeats a claim for retaliatory government action. By distinguishing between an individual officer's on-the-spot decision and a pre-existing, official municipal policy of retaliation, the Court creates a pathway for First Amendment claims against government entities that orchestrate retaliatory arrests. The ruling leaves open the larger, unresolved question of whether probable cause bars claims against individual officers in more typical retaliatory arrest scenarios. This creates a dual-track analysis, where the viability of a claim may depend on whether the plaintiff can produce objective evidence of a formal government policy of intimidation.
