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Posted on Wednesday, August 08, 2018

Probable Cause to Arrest v. The First Amendment

Lozman v. City of Riviera Beach, Florida, ___ U.S. ___, No. 17-21 (18 June 2018)

“Gadfly” – an intentionally annoying person who stimulates or provokes others, especially by persistent irritating criticism.” (See, e.g., Webster’s Ninth Collegiate Dictionary). Fane Lozman is a gadfly. So was Socrates, and the Athenians forced him to drink a cup of hemlock. The City of Riviera Beach took less extreme action; it simply had Lozman arrested.

The genesis of this case was in 2006 when Lozman towed his floating home into a slip in the city-owned marina, where he became a resident. That began his contentious relations with the city’s officials. Lozman was an outspoken critic of the city council and often spoke during the public comment period at city council meetings, and frequently criticized councilmembers, the mayor and other public employees. He also filed a lawsuit alleging that the Council’s approval of an agreement with developers violated Florida’s open-meeting laws. To put it mildly, Lozman was a thorn in the side of the city council.

In June 2006, the Council held a closed-door session in part to discuss Lozman’s open-meeting lawsuit. According to a transcript of the council meeting, Councilmember Elizabeth Wade suggested that the City use its resources to “intimidate” Lozman and others who had filed lawsuits against the City. Later in the meeting another councilmember asked whether there was “a consensus of what Ms. Wade is saying” and others responded in the affirmative.
Five months later, in November 2006, the City Council held a public meeting that included time for public comments. As he had previously done on earlier occasions, Lozman stepped up to the podium and began discussing the recent arrest of a former county official. Councilmember Wade directed him to stop making those remarks. Lozman continued speaking, this time about the arrest of a former official from the city of West Palm Beach. Wade then called for the assistance of the policeman in attendance. The officer asked Lozman to leave the podium, and Lozman refused, and Wade told the police officer to “carry him out.” The officer handcuffed Lozman and ushered him out.
According to the City, Lozman was arrested because he violated the City Council’s rules of procedure by discussing issues unrelated to the City and refusing to leave the podium. He was taken to police headquarters and charged with disorderly conduct and resisting arrest and then released. The State’s attorney later determined that there was probable cause to arrest Lozman but decided to dismiss the charges.

Lozman sued the City under 42 U.S.C. §1983, alleging, inter alia, that he was arrested in retaliation for exercising his right to free speech under the First Amendment. Lozman did not sue the arresting officer, and, by the time the case reached the Supreme Court, Lozman had conceded that the officer had probable cause to arrest him. Lozman sued only the City. He alleged that the City, through its councilmembers, formed an official policy to retaliate against him and in furtherance of the policy ordered his arrest.

There was a long jury trial lasting 19 days, during which the issue of probable cause was litigated. The district court determined that the evidence was insufficient to support probable cause to arrest for disorderly conduct and resisting arrest, but there may have been probable cause for violating a Florida statute prohibiting interruptions or disturbances in public assemblies; and the district court allowed the jury to decide whether there was probable cause to arrest Lozman for the public-disturbance offense. The jury returned a verdict for the city on all counts. The court of appeals affirmed, relying on Hartman v. Moore, 547 U.S. 250 (2006) which held that if there is probable cause to arrest, then there can be no further claim that the arrest was in retaliation for protected speech.
The question before the Supreme Court was a narrow one. Does probable cause to arrest defeat a First Amendment claim brought under §1983?

It is well-established that in a §1983 case a city or other local government entity cannot be subject to liability at all unless the harm was caused in the implementation of “official municipal policy.” Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691 (1987). As mentioned, Lozman alleged that the city, through its city councilmembers, formed an official policy to retaliate against him and that was the cause of his arrest. He did not allege that the arresting officer retaliated against him because of his protected speech. Instead, Lozman asserted that, months before his arrest, the city council had formed a plan to retaliate against him for exercising his First Amendment rights.
The Supreme Court held that Hartman did not apply to this case. In a typical retaliatory arrest case, the arresting officer is allegedly motivated by the desire to retaliate against the arrestee because of the arrestee’s speech. For example, a police officer stops a motorist because he suspects the motorist is driving under the influence. During the encounter, the motorist calls the officer an obese, racist, porcine creature and asserts that he was stopped for “driving while Black,” and that the officer would not stop a White motorist under similar circumstances. The officer arrests the motorist. Later, the motorist sues, alleging that his arrest was in retaliation for his protected speech. Under Hartman, if there was probable cause for the arrest, then the lawsuit ends. Hartman aims at protecting police officers from frivolous retaliation lawsuits, when there is probable cause for the arrest.

According to the Court, Lozman’s case is different. Official government policy to retaliate because of speech is different than and distinct from an ad hoc arrest in retaliation for speech. Because Lozman alleges that the city’s pre-existing, premeditated official policy to retaliate against him violates his speech protected under the First Amendment, he need not prove the absence of probable cause to maintain his claim of retaliatory arrest against the City. Under the facts of this case, there is no reason to apply the rule of Hartman, because the arresting officer is not the alleged retaliator; the City Council is the alleged retaliator.
On remand, the court of appeals should consider (1) whether a reasonable juror could find that the City actually formed a retaliatory policy to intimidate Lozman; (2) whether a reasonable juror could find that Lozman’s arrest was an official act of the City; and (3) whether, under Mt. Healthy City Bd. of Education v. Doyle, 429 U.S. 274 (1977), 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 also violated valid rules as to proper subjects of discussion, thus explaining his arrest.

This is an eight-to-one decision. Justice Thomas dissented because, in his view, the Court had side-stepped the issue presented and dreamed up a new rule for a unique class of retaliatory arrest cases. Justice Thomas would stick to the traditional rule and require the plaintiff to prove an absence of probable cause.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at JPolk@BerenzweigLaw.com.