by Lisa Soronen, executive director, State and Local Legal Center 

Fane Lozman may be the only person to fit within a “unique class of retaliatory arrest claims.” Yet that is all it took for him to win his (second) Supreme Court case.

In an 8-to-1 decision in Lozman v. Riviera Beach, the Supreme Court held that a citizen who was arrested for making comments at a city council meeting (possibly because the city had an official policy of retaliating against him) was not barred from bringing a First Amendment retaliatory arrest claim against the city even if it had probable cause to arrest him.

The State and Local Legal Center (SLLC) filed an amicus brief arguing that an arrestee could not bring a First Amendment retaliatory arrest lawsuit if probable cause existed. The court declined to decide whether as a general rule probable cause bars First Amendment retaliation cases against police officers.    

Fane Lozman was an “outspoken critic” of the city of Riviera Beach, Florida’s proposed plan to redevelop the city-owned marina using eminent domain. He also sued the city, claiming it violated open meetings law. He alleged that the city council held a closed-door meeting in which it devised an official plan to intimidate him in retaliation for his lawsuit. Five months after the closed-door meeting, a councilmember had Lozman arrested during the public comment period for discussing issues unrelated to the city and refusing to leave the podium. Watch Fane Lozman get arrested here.

Lozman conceded that the city had probable cause to arrest him. Even so, he claimed the city should be liable for violating the First Amendment because its strategy to intimidate him to stop speaking was a “but for” cause of his arrest. In contrast, the city argued that Lozman could not sue it for retaliatory arrest under any circumstances if probable cause existed to arrest him.

In an opinion written by Justice Kennedy, the court declined to decide whether to extend either the “but for” cause rule proposed by Lozman or the absolute bar to retaliatory arrest claims proposed by the city to the “mine run” of First Amendment retaliatory arrest claims. Instead, the court held that because of the unique facts of this case, Lozman “need not prove the absence of probable cause to maintain a claim of retaliatory arrest against the city.”

These unique facts include that Lozman claims he was the victim of an official policy motivated by retaliation. “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.” Second, causation problems don’t exist in this case where “the official policy is retaliation for prior, protected speech bearing little relation to the criminal offense for which the arrest is made.” Finally, the court noted that because Lozman’s speech concerned the right to petition the government it was “high in the hierarchy of First Amendment values.”

The SLLC amicus brief argued that if probable cause is present and officers can still be sued, local and state governments will have more difficulty maintaining order and safety at local government meetings, public protests and demonstrations, and political rallies. Additionally, the brief pointed to the role of state constitutions, state courts, and internal disciplinary measures within state and local police departments to protect free speech and offer “meaningful remedies for true victims of retaliation.”

Sean Gallagher, Bennett Cohen, and Britton St. Onge of Polsinelli wrote the SLLC amicus brief, which the following organizations joined: National Association of Counties, National League of Cities, United States Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association.

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