Courtesy of James R. Touchstone, Esq.
Does the existence of probable cause defeat a First Amendment claim under 42 U.S.C. section 1983 for retaliatory arrest? On June 18, 2018, in the case of Lozman v. City of Riviera Beach 2018 U.S. LEXIS 3691 (U.S. June 18, 2018), the Supreme Court of the United States held that the existence of probable cause did not bar a plaintiff’s First Amendment retaliatory-arrest claim under the circumstances. The petitioner, Fane Lozman, did not dispute here that probable cause existed for his arrest when he attempted to comment during the public comment part of a public Riviera Beach City Council meeting. Instead, he argued that his arrest violated the First Amendment because the arrest allegedly was ordered by City Council members in retaliation for his earlier lawsuit and his prior public criticisms of City officials.
Background
By the time he attempted to speak at the City Council public meeting in November 2006, Lozman had already developed an adversarial history with City officials of Riviera Beach (“City”). He had spoken at prior public Council meetings as a vocal critic of City officials and the City’s development plans, and had filed a lawsuit alleging the City violated Florida’s open-meetings laws. Five months before Lozman’s arrest at the November 2006 Council meeting, the City Council held a closed-door session, in part to discuss Lozman’s open-meetings lawsuit.
During the public-comment session of the November Council meeting, Lozman began to speak at the podium about the arrests of officials from other jurisdictions. After he refused a councilmember’s request to stop making such remarks, the councilmember told an attending police officer to “carry him out.” Lozman was handcuffed and ushered out of the meeting. The City maintained that he was arrested for violating the City Council’s rules of procedure when he discussed issues unrelated to the City and then refused to leave the podium. Lozman claimed that his arrest was part of a plan to retaliate for his lawsuit and his prior public criticisms of City officials.
The State’s attorney determined that there was probable cause for his arrest, but decided to dismiss the charges. Lozman sued under 42 U.S.C. section 1983, contending the City arrested him as part of a premeditated plan to retaliate against him for the open-meetings lawsuit. After a jury verdict for the City, Lozman appealed. The Eleventh Circuit Court of Appeals affirmed, holding that because the jury must have determined that Lozman’s arrest was supported by probable cause, precedent required the defeat of his First Amendment retaliatory arrest claim. The Supreme Court of the United States granted certiorari on the issue of whether the existence of probable cause defeats a First Amendment retaliatory arrest claim under Section 1983,
Discussion
The Supreme Court of the United States noted that Lozman conceded that there was probable cause for his arrest, but argued that, notwithstanding the presence of probable cause, his arrest at the City Council meeting violated the First Amendment because the arrest was ordered in retaliation for his earlier, protected speech, his open-meetings lawsuit and his prior public criticisms of City officials. As an initial matter, the Court observed that Monell v. Dep’t of Soc. Servs.[1] held that, in a Section 1983 case, “a city or other local governmental entity cannot be subject to liability unless the harm was caused in the implementation of ‘official municipal policy.’” The Court assumed that Lozman’s arrest was taken pursuant to an official City policy for the sake of proceeding with the discussion of the issue at hand: whether the conceded existence of probable cause for the arrest barred recovery regardless of any intent or purpose to retaliate for past speech.
The Court next discussed two precedents that related to this issue. Lozman argued that the Supreme Court’s prior decision in Mt. Healthy City Bd. of Ed. v. Doyle[2] applied here. Mt. Healthy was a civil case in which a city board of education chose not to rehire an untenured teacher after a series of incidents, including a telephone call to a local radio station. The Court determined that the phone call was protected speech. However, the Court also determined the other incidents, without the phone call, would have justified the dismissal. Thus, if the board could show that the discharge would have been ordered even without reference to the protected speech, there was no city liability. In other words, Mt. Healthy held that there was no liability unless the alleged constitutional violation was a “but-for” cause of the board’s decision not to rehire, even if retaliation might have been a substantial motive for the board’s decision.
The City argued Mt. Healthy was not the sole precedent to consider; the Supreme Court’s decision in Hartman v. Moore[3] should also apply. Hartman held that a plaintiff alleging a retaliatory prosecution must show the absence of probable cause for the underlying criminal charge. In a retaliatory prosecution case, the applicable procedure was as follows: (1) If there was probable cause, the case should end; and (2) If the plaintiff proves the absence of probable cause, then the Mt. Healthy “but-for” test governs. The Court in Hartman focused on the existence of probable cause in discussing challenges in proving causation in retaliatory prosecution cases, noting that prosecutors have absolute immunity from retaliatory prosecution with respect to their decisions to prosecute. Instead, the plaintiff bringing a retaliatory prosecution suit must sue “some other government official and prove that the official “‘induced the prosecutor to bring charges that would not have been initiated without his urging.’” Requiring plaintiffs in retaliatory prosecution cases to prove the lack of probable cause would help “bridge the gap between the nonprosecuting government agent’s motive and the prosecutor’s action.” In the instant case, the City argued that the existence of probable cause was a bar to retaliatory prosecution, and argued for a similar bar in the retaliatory arrest case here.
The Supreme Court acknowledged that there was “undoubted force” in the City’s position in supporting such a bar, given the sheer number of arrests per day and the difficulty in discerning whether an arrest was caused by an officer’s legitimate or illegitimate consideration of speech. The Court specifically noted that the “the complexity of proving (or disproving) causation in these cases creates a risk that the courts will be flooded with dubious retaliatory arrest suits.” But the Court also stated that the causation problem in retaliatory arrest cases was not the same as the retaliatory prosecution problem identified in Hartman. Hartman relied, in part, on the fact that the causal connection between the defendant’s animus and the prosecutor’s decision to prosecute was “weakened by the ‘presumption of regularity accorded to prosecutorial decisionmaking,’ a presumption which did not apply in the retaliatory arrest context.” The Supreme Court also observed a risk that some police officers may exploit the arrest power afforded by such a potent probable cause threshold as a means of suppressing legitimate speech.
Ultimately, the Court determined that whether Mt. Healthy or Hartman governed here must be determined by a different case because Lozman’s claim was “far afield from the typical retaliatory arrest claim,” making the risk of a flood of retaliatory arrest lawsuits unlikely. Lozman alleged that the City itself, not the officer, retaliated against him pursuant to an “official municipal policy” of intimidation. The Court explained this would require him to prove the existence and enforcement of an official policy motivated by retaliation, which removed his claim from the typical retaliatory arrest claim. While probable cause considerations of an arresting police officer’s actions might be based on on-the spot decisions, an official retaliatory policy could be over an extended period.
Moreover, if the government itself planned and implemented retaliation, an individual might not find an avenue of redress. The Court also found that the problems that the City argued would result if Mt. Healthy were applied in retaliatory arrest cases were unfounded: “The causation problem in arrest cases is not of the same difficulty where, as is alleged here, the official policy is retaliation for prior, protected speech bearing little relation to the criminal offense for which the arrest is made. In determining whether there was probable cause to arrest Lozman for disrupting a public assembly, it is difficult to see why a city official could have legitimately considered that Lozman had, months earlier, criticized city officials or filed a lawsuit against the City.” Moreover, the Court found no attending risk of a flood of retaliatory arrest suits against high-level policymakers. The Court added that the right to petition had been well-established by the Supreme Court as one of the “most precious of the liberties safeguarded by the Bill of Rights,”[4] and that Lozman was deprived of speech “high in the hierarchy of First Amendment values.”
For these reasons, the Court concluded that Lozman was not required to prove the absence of probable cause for his arrest to maintain his claim of retaliatory arrest against the City. The Court thus found that, on these facts, Mt. Healthy provided the correct standard for assessing a retaliatory arrest claim. The Court added that it did not need to address the requirements of proving a retaliatory arrest claim “in other contexts.”
Finally, the Court noted that it was not suggesting whether Lozman was ultimately entitled to any relief, offering potential considerations on remand.
Accordingly, the Supreme Court vacated the Eleventh Circuit’s decision and remanded.
Dissent
In his dissent, Justice Clarence Thomas maintained that the majority did not answer the question of whether the existence of probable cause defeats a First Amendment claim for retaliatory arrest under Section 1983, but instead decided that probable cause should not defeat a “unique class of retaliatory arrest claims.” He suggested the Court created a highly selective rule that accommodated the retaliatory arrest context here. This enabled the majority to separate the case from standard retaliatory arrest cases, thereby evading those cases’ accompanying risks pertaining to probable cause standards that would otherwise apply. Justice Thomas maintained the Court should not have “gone out of our way” to make such a rule, and that plaintiffs like Lozman who brought First Amendment retaliatory arrest claims should have to prove an absence of probable cause.
HOW THIS AFFECTS YOUR AGENCY
With this decision, the Supreme Court establishes that even with probable cause to arrest a citizen for disruption at a public forum, government officials can potentially be at risk for infringing speech protected under the First Amendment. It is important to note that the holding of this case is very limited. The Court observed that “[a]n 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.” In addition, the Court stated that its holding did not apply to a “typical” retaliatory arrest claim, noting, “But whether in a retaliatory arrest case the Hartman approach should apply, thus barring a suit where probable cause exists, or, on the other hand, the inquiry should be governed only by Mt. Healthy is a determination that must await a different case. For Lozman’s claim is far afield from the typical retaliatory arrest claim, and the difficulties that might arise if Mt. Healthy is applied to the mine run of arrests made by police officers are not present here.”
If the Court were to fail to apply the Hartman rule to bar First Amendment retaliatory arrest claims for the “typical” arrest by a peace officer where probable cause for the arrest existed, it would be very troubling from a civil liability perspective. By failing to make that determination in this case, it is likely that we will see such claims filed with regularity until this question ultimately is answered by the courts of appeals.
As always, if you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446–1400 or via email at jrt@jones-mayer.com.
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[1] 436 U.S. 658 (1978).
[2] 429 U. S. 274 (1977).
[3] 547 U. S. 250 (2006)
[4] BE&K Constr. Co. v. NLRB, 536 U. S. 516 (2002).