One of my first thoughts upon reading yesterday’s decision in Lozman v. City of Riviera Beach was of an old headline from “The Onion”: “Supreme Court Issues Landmark ‘It Depends’ Ruling.” Indeed, the majority opinion in Lozman, written by Justice Anthony Kennedy and joined by seven other justices, explicitly limits its holding to “facts like […]
One of my first thoughts upon reading yesterday’s decision in Lozman v. City of Riviera Beach was of an old headline from “The Onion”: “Supreme Court Issues Landmark ‘It Depends’ Ruling.” Indeed, the majority opinion in Lozman, written by Justice Anthony Kennedy and joined by seven other justices, explicitly limits its holding to “facts like these.” And although the court granted certiorari in Lozman to decide the validity of the “probable cause bar” – that is, whether “the existence of probable cause defeat[s] a First Amendment retaliatory-arrest claim as a matter of law” — the majority concluded that it “need not, and does not, address the elements required to prove a retaliatory arrest claim” in settings unlike the one in this case.
Still, Kennedy’s opinion is hardly insignificant. It is true that the majority declined to decide whether the existence of probable cause could ever defeat a First Amendment retaliatory arrest claim, and, if so, under what circumstances. The majority opinion does, however, make clear that probable cause does not invariably defeat such claims. At minimum, the Lozman court concluded that under circumstances like those before it, a city cannot defeat a Section 1983 claim of retaliatory arrest for protected speech simply by pointing to some additional basis on which it could have arrested the plaintiff.
Because the majority opinion in Lozman relies so heavily on its facts, it is important to step back and revisit them. As I recounted in my argument preview and argument analysis, Fane Lozman moved to Riviera Beach in early 2006. Shortly thereafter, he became “publicly critical of the city’s redevelopment plan, as well as the corruption that he perceived was prevalent throughout the city’s government.” In June 2006, Lozman filed a lawsuit challenging the redevelopment plan. The city council held a closed-door meeting to discuss the lawsuit, and the meeting transcript reflects the councilmembers’ frustrations with Lozman. At one point, councilmember Elizabeth Wade proposed that the members “intimidate” him. Several months after that meeting – and following other charged interactions between Lozman and the city – Lozman attended the November 2006 city council meeting.
During the November meeting’s public comment period, Lozman began to speak about the arrests of two former local officials. Councilperson Wade interrupted Lozman and demanded that he cease his remarks. When Lozman refused to comply, Wade called for assistance from a police officer who was on the scene. After Lozman refused the officer’s request to leave the podium, Wade instructed the officer to “carry him out.” At that point, the officer handcuffed Lozman and removed him from the meeting. Lozman was charged with disorderly conduct and resisting arrest without violence. The state’s attorney dismissed both charges.
Lozman sued the city under Section 1983, alleging that his arrest constituted retaliation for protected speech, including his criticisms of the city and his lawsuit over the redevelopment plan. The trial judge instructed the jury that Lozman could prevail only if he proved that the arresting officer himself retaliated against Lozman for his protected speech, and that there was no alternative, legitimate source of probable cause to arrest Lozman. The judge concluded that the city had lacked probable cause to arrest Lozman for either of the offenses with which it had charged him. Nonetheless, the judge allowed the city to present a third basis for probable cause to the jury. Specifically, he allowed the jury to consider whether there had been probable cause to arrest Lozman for “‘willfully interrupt[ing] or disturb[ing] any school or any assembly of people met for the worship of God or for any lawful purpose.’” The jury returned a verdict for the city.
Lozman appealed to the U.S. Court of Appeals for the 11th Circuit. The court of appeals assumed that the trial judge had erred in instructing the jury that Lozman was required to demonstrate that the arresting officer, as opposed to the city, had retaliated against Lozman for his protected speech. The court held, however, that any such error was harmless, because the jury had found that the officer had probable cause to arrest Lozman. The court relied on an earlier 11th Circuit case, Dahl v. Holley, which had adopted the probable cause bar.
The Supreme Court granted certiorari to consider whether “the existence of probable cause defeat[s] a retaliatory arrest claim as a matter of law.” The city asked the court to answer that question in the affirmative by extending Hartman v. Moore – which applied a probable cause bar against First Amendment claims of retaliatory prosecution — to the retaliatory arrest setting. For his part, Lozman urged the court to apply the approach of Mt. Healthy City Board of Education v. Doyle. Under the Mt. Healthy rule, a plaintiff establishes speech-based retaliation by demonstrating that the defendants would not have taken the challenged action but for their retaliatory motive.
In his opinion for the Supreme Court, Kennedy acknowledged strengths in each side’s position. He agreed with the city that “it can be difficult to discern whether an arrest was caused by an officer’s legitimate or illegitimate consideration of speech… And the complexity of proving (or disproving) causation in these cases creates a risk that the courts will be flooded with dubious retaliatory arrest suits.” At the same time, Kennedy recognized that:
There are substantial arguments that Hartman’s framework is inapt in retaliatory arrest cases, and that Mt. Healthy should apply without a threshold inquiry into probable cause. For one thing, the causation problem in retaliatory arrest cases is not the same as the problem identified in Hartman. Hartman relied in part on the fact that, in retaliatory prosecution cases, the causal connection between the defendant’s animus and the prosecutor’s decision to prosecute is weakened by the “presumption of regularity accorded to prosecutorial decisionmaking.”…That presumption does not apply in this context… In addition, there is a risk that some police officers may exploit the arrest power as a means of suppressing speech.
Ultimately, the majority concluded that the Mt. Healthy test, with no threshold probable cause bar, must apply in Lozman’s case. The Supreme Court remanded the case to the court of appeals, instructing it to apply “Mt. Healthy and any other relevant precedents” to “consider any [preserved] arguments in support of the District Court’s judgment.” Kennedy noted that the court of appeals “may wish to consider,” among other matters, “whether any reasonable juror could find that the City actually formed a retaliatory policy” against Lozman, “whether any reasonable juror could find that the November 2006 arrest constituted an official act by the City,” and whether, “under Mt. Healthy, the City has proved that it would have arrested Lozman regardless of any retaliatory animus.”
Kennedy identified several factors that make the probable cause bar inapt for Lozman’s case. First, Lozman did not sue the arresting officer. Instead, he claimed that “the City itself retaliated against him pursuant to an ‘official municipal policy’ of intimidation.” Lozman thus alleged “a particularly troubling and potent form of retaliation.” Moreover, the “allegations, if proved, alleviate the problems that the City says will result from applying Mt. Healthy in retaliatory arrest cases,” because the alleged retaliation was “for prior, protected speech [that bore] little relation to the criminal offense for which [Lozman’s] arrest [was] made.” Furthermore, “[t]his unique class of retaliatory arrest claims will require objective evidence of a policy motivated by retaliation to survive summary judgment… There is thus little risk of a flood of retaliatory arrest suits against high-level policymakers.” Finally, the court cited the high value of the speech – a lawsuit against the city and Lozman’s criticisms of public officials — against which the city allegedly retaliated.
Justice Clarence Thomas wrote the lone separate opinion, a dissent. He chided the majority for deciding the case so narrowly, leaving in place a “decades-long disagreement among the federal courts.” Thomas himself would have held “that plaintiffs bringing a First Amendment retaliatory-arrest claim must plead and prove an absence of probable cause.” He justified this approach on two main grounds. First, he looked to the common law tort claims that, in his view, most closely resemble retaliatory arrest claims – false imprisonment, malicious prosecution and malicious arrest – and observed that “19th century courts emphasized the importance of probable cause” in defining them. Second, Thomas found the rationales underlying the common law approach – namely, the desire to prevent undue interference with law enforcement and the evidentiary relevance of probable cause – equally applicable to claims of retaliatory arrest for protected speech.
The majority opinion in Lozman marks a victory for Fane Lozman, of course, insofar as it enables him to argue his case on remand under a more favorable legal framework. It also provides some encouragement to future plaintiffs in First Amendment retaliatory arrest cases, and some warning to future defendants in such cases, that probable cause will not categorically defeat retaliatory arrest claims. Beyond that, however, this decision leaves much to be determined. As for what happens next, our friends at The Onion might say, “It depends.”