FANE LOZMAN, PETITIONER v. CITY OF RIVIERA BEACH, FLORIDA
Supreme Court of the United States, Kennedy, June 18, 2018,
First Amendment – Probable cause to arrest does not automatically defeat a retaliatory arrest lawsuit against a city if that city ordered the arrest as part of an “official plan to intimidate” the suspect for prior exercise of his First Amendment rights.

(Dissent – Thomas – Lack of probable cause should be an element of a First Amendment retaliatory arrest claim)

Facts:
Fane Lozman was an “outspoken critic” of a city plan to use eminent domain to seize homes along the waterfront for private development. This included a lawsuit against the city and numerous speeches and statements against the city plan.
At a city council meeting that included a public-comment session, Lozman spoke about the recent arrest of various government officials. When told to stop speaking, Lozman did not.
Lozman was approached by an officer who asked him to leave the podium. Lozman refused. A councilmember then ordered the officer to “carry him out.” The officer handcuffed Lozman and removed him from the meeting.
According to Lozman, the arrest was to retaliate for his lawsuit against the City and his prior
public criticisms of city officials.
The State’s Attorney determined that there was probable cause to arrest Lozman, but decided to dismiss the charges.
Lozman then sued the city for retaliatory arrest and other charges.
At trial, the judge informed the jury that in order to find that there was a retaliatory arrest, they needed to believe that the arresting officer himself was motivated to retaliate against Lozman’s protected speech and that the officer lacked probable cause to make the arrest.
The jury found for the city.
Lozman appealed. He agreed that there was probable cause to arrest, but argued that this does not make his arrest constitutional because it was done to retaliate against him for previously exercising his First Amendment rights.

Held: The Supreme Court held that a lawsuit for retaliatory arrest can go forward even if there was probable cause to arrest if the arrest was ordered as part of an official policy of intimidation.

First Amendment – The First Amendment prohibits government officials from retaliating against individuals for engaging in protected speech

Civil Action for Deprivation of Rights – “1983” suit- A government official can be sued in federal court for depriving someone of their federal constitutional rights. This is commonly referred to as a “1983” suit since it comes from 42 USC 1983.

Civil Action for Deprivation of Rights – “1983” suit- A 1983 case against a local government must involve harm caused by the implementation of an official policy

From the Case: “Lozman’s §1983 damages claim is against only the City itself” alleging that “the City, through its city councilmembers, formed an official policy to retaliate against him and ordered his arrest.”

Retaliation (Employment) – A decision to take action against a government employee who has previously participated in protected speech against the government can be done as long as the government can show that the action “would have been ordered even without reference to the protected speech.” If retaliation was the driving force behind the action, however, then the government is liable for violating the First Amendment.

Retaliation (Prosecution) – A retaliatory prosecution case requires proof of a retaliatory motive as well as an absence of probable cause.

Retaliatory Arrest (Official Policy) – If an arrest is made with probable cause, it can still violate the First Amendment if that arrest was ordered as part of an official policy of retaliating against an individual for prior protected speech.

From the Case: “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. 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.”

Note: The Supreme Court did not decide whether or not probable cause would defeat a retaliatory arrest claim for an “on the spot” arrest by a police officer. The Court noted that allowing these suits would be problematic because police are frequently allowed to consider a suspect’s speech in deciding whether or not to arrest him.

From the Case: “Lozman does not sue the officer who made the arrest. Indeed, Lozman likely could not have maintained a retaliation claim against the arresting officer in these circumstances, because the officer appears to have acted in good faith, and there is no showing that the officer had any knowledge of Lozman’s prior speech or any motive to arrest him for his earlier expressive activities.”