Supreme Court Finds Retaliation Claim May Proceed Even with Probable Cause for Arrest

By Carmen M. Aguado

Synopsis: Fane Lozman conceded there was probable cause to support his 2006 arrest at a city council meeting when he ignored a lawful order to leave the podium during the public-comments session. Lozman’s concession that there was probable cause for his arrest would, in a retaliatory prosecution case, bar his ability to recover for any deprivation of rights that resulted from the arrest. But, that was not the result in Lozman’s retaliation case against the City.

The 2006 Arrest That Wound Up Before The Supreme Court.

Lozman was an outspoken critic of the City of Riviera Beach (“City”) and its officials. He took advantage of the public-comments periods at city council meetings to voice his criticisms, and he filed a lawsuit against the City alleging the City violated Florida’s open-meetings laws. In June 2016, the Council held a closed-door session, in part to discuss Lozman.

During the closed-door session, a councilmember suggested the City use resources to “intimidate” Lozman and others responded in the affirmative. A transcript of the closed-door session confirmed the discussion. Five months later, during the public comment session at a city council public meeting, Lozman took to the podium. After his comments went off topic, a councilmember directed Lozman to step down. Lozman ignored the order, which prompted the councilmember to have an officer “carry him out.” Lozman was charged with disorderly conduct and resisting arrest. The charges were later dropped.

Lozman filed a civil rights lawsuit against the City and alleged, in pertinent part, the City retaliated against him for exercising his First Amendment rights (e.g. filing a lawsuit against the City and criticizing public officials) by ordering his arrest, and that the City had adopted a plan to retaliate against him. Lozman pointed to the transcript from the closed-door session to support his allegation that there was a premeditated plan to retaliate against him.

The Court of Appeals found the existence of probable cause to support Lozman’s arrest barred his First Amendment claim for retaliatory arrest; however, the Supreme Court disagreed.

Lozman’s Allegation That The City Had An Official Policy To Retaliate Against Him Saved His First Amendment Retaliation Claim.

The Supreme Court grappled with an appropriate standard to apply. The City suggested applying Hartman v. Moore, 547 U. S. 250 (2006), a retaliatory prosecution case, where the finding of probable cause for the arrest barred the plaintiff’s recovery. Lozman relied on Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977) to argue a “but-for” test should be applied:  there is no liability unless the alleged retaliation was the but-for cause of the prosecution/arrest.

The Supreme Court did not decide which standard should be applied – either Hartman or Mt. Healthy – in retaliatory arrest cases going forward. But it did decide that in Lozman’s case, where he alleged City officials had a retaliatory policy against him, as opposed to a spur-of-the-moment retaliatory arrest, he need not prove the absence of probable cause to maintain his claim of retaliatory arrest against the City.

What Does This Mean For Public Entities?

The verdict is still out on which standard will be applied in retaliatory arrest cases. However, to defeat a claim on summary judgment where a plaintiff alleges (1) the public entity has an official policy to retaliate against him or her; and (2) that it ordered the arrest of the plaintiff in execution of the policy, the public entity will need to demonstrate either that a reasonable juror could not find the entity formed a retaliatory policy, a reasonable juror could not find the arrest was an official act by the entity, or prove the arrest would have occurred regardless of the alleged retaliatory animus.

It appears that the holding of this case will be narrowly applied in the future and that cities and law enforcement agencies should not be afraid to appropriately deal with unruly members of the public.  In this case, there was a recorded statement where a councilmember said they should use City resources to “intimidate” the plaintiff.  It is unlikely that there will be many situations where a plaintiff is able to submit such evidence of retaliatory animus.  Nonetheless, this case is a cautionary reminder that comments made by public officials, including during closed-door sessions, may provide evidence of a retaliatory motive.

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