by Lisa Soronen, executive director, State and Local Legal Center
What if a police officer arrests someone in retaliation for engaging in speech protected by the First Amendment but the officer also had probable cause to arrest that person for different, legitimate reason? In Lozman v. City of Riviera Beach, the Supreme Court will decide whether that person may sue the police officer for violating his or her First Amendment rights.
Fane Lozman lived in a floating house in the Riviera Beach Marina. The city proposed to redevelop the marina using eminent domain, and Lozman became “an outspoken critic” regularly criticizing the mayor and city council at council meetings. At a city council meeting, Lozman offered comments about former county commissioners who had served in other communities being arrested. A councilperson had Lozman arrested for refusing to stop talking. Lozman was not ultimately charged with disorderly conduct or resisting arrest.
He sued the city claiming they arrested him in violation of his First Amendment rights for opposing the city’s redevelopment plan. The city argued Lozman was arrested for violating the city’s rule that comments during the public comment period must relate to city business.
A jury ruled against Lozman. The Eleventh Circuit held that the jury’s finding of probable cause to arrest Lozman for disturbing a lawful assembly wasn’t against the great weight of evidence. The Eleventh Circuit then concluded because the arrest was supported by probable cause, Lozman’s First Amendment retaliatory arrest claim failed.
Before the Supreme Court, Lozman argues that even if probable cause existed to arrest him, he should still be able to state a First Amendment retaliatory arrest claim. In Hartman v. Moore (2006), the Supreme Court held that to bring a retaliatory prosecution claim under the First Amendment, a plaintiff must prove that no probable cause supported his or her prosecution. Since then, it has been an open question as to whether a plaintiff can bring a First Amendment retaliatory arrest claim if probable cause supports the arrest.
The Supreme Court agreed to decide this question in 2011 in Reichle v. Howards. In that case, Steven Howards touched Vice President Dick Cheney and lied to Secret Service officers about doing so in violation of federal law. He claimed he was really arrested for criticizing the Vice President. Instead of deciding whether Howards could bring a First Amendment retaliation claim despite the fact there was probable cause to arrest him, the Court granted him qualified immunity. It concluded that “[a] reasonable official also could have interpreted Hartman's rationale to apply to retaliatory arrests.” Now the Court will decide whether Hartman's rationale, in fact, applies to retaliatory arrests.