Lozman v. City of Riviera Beach (2018)
Lozman v. City of Riviera Beach, 585 U.S. ___ (2018), is a United States Supreme Court case in which the Court decided that the mere existence of probable cause for an arrest did not bar the plaintiff's First Amendment retaliatory arrest claim, but deferred consideration of the broader question of when it might. The case concerned a § 1983 lawsuit filed against Riviera Beach by Fane Lozman, who had been arrested while criticizing local politicians during the public comments section of a City Council meeting. The city argued that under "Hartman v. Moore" he  could not sue for retaliation, as they had probable cause to arrest him for the offense of disturbing a lawful assembly. Lozman conceded that they had probable cause, but argued that "Hartman", a case about retaliatory prosecutions, did not extend to retaliatory arrests, and that instead "Mt. Healthy City School District Board of Education v. Doyle" allowed his suit. At oral arguments, justices expressed both sympathy for Lozman and hesitance to issue a ruling that might hinder law enforcement. Their eventual ruling in Lozman's favor was very narrow, holding that the "Mt. Healthy" test was appropriate "on facts like  these", based on the alleged "official policy to retaliate" and the importance of the right to petition. A year later, the Court considered the matter again in "Nieves v. Bartlett", that time finding that probable cause generally bars a claim of retaliatory arrest. Lozman had already won once at the Supreme Court against Riviera Beach, in a 2013 admiralty case also captioned "Lozman v. City of Riviera Beach". The second case was noted for the very rare occurrence of two parties returning to the court over a dispute separate from the first. They settled after the case was remanded, with  the city reimbursing Lozman for $875,000 in legal fees. Background. Prior jurisprudence. In the 1977 case of "Mt. Healthy City School District Board of Education v. Doyle", the Supreme Court established a standard of but-for causation for claims of official retaliation against speech. However, in the 2006 case of "Hartman v. Moore", the Supreme Court established an exception for claims of retaliatory prosecution, requiring that a plaintiff show a lack of probable cause for their prosecution. Prior to "Hartman" there was already a circuit split as to whether the same principle applied to retaliatory arrests. "Hartman" further complicated  the matter, with some circuits accepting the "Hartman" rule as controlling and others accepting the "Mt. Healthy" rule. Lozman and Riviera Beach. Fane Lozman sued the city of Riviera Beach, Florida in June 2006 over a planned use of eminent domain, arguing the city had violated open-meeting laws in approving a private development plan. The city council then held a closed-door session, the transcript of which was later made public. Councilmember Elizabeth Wade proposed that the city "intimidate" Lozman and others who had sued the city, an idea that other councilmembers supported. In September 2006, the city sued  in state court to evict Lozman from his floating home in the city marina. Lozman argued that this was retaliation for constitutionally protected speech, and the court ruled in his favor. Lozman often spoke during the public comments portion of City Council meetings. At a meeting in November 2006, he began his remarks by noting the arrests of two officials of Palm Beach County, which Riviera Beach is a part of. The presiding council member ordered him to stop talking about the matter. When he refused, she ordered a police officer to arrest him. The officer removed Lozman from the  room in handcuffs. At the police station, Lozman was charged with disorderly conduct and resisting arrest without violence. The state's attorney found that there was probable cause for the charges but dismissed them as there was "no reasonable likelihood of successful prosecution." The city later said that Lozman had been ordered to stop speaking because the topics he was discussing were unrelated to the city. Proceedings in lower courts. Lozman then sued Riviera Beach "pro se" under 42 U.S.C. § 1983, alleging several instances of deprivation of civil rights, including the arrest. Judge Daniel T. K. Hurley instructed the jury  that, for Lozman to prevail on the claim of retaliatory arrest, he had to prove that the officer acted with impermissible animus toward his speech and that there was no probable cause for the arrest. Hurley allowed the city to argue that there had been probable cause to arrest Lozman for the offense of disturbing a lawful assembly, and instructed the jury to consider that question. The jury found for the city on every count of the complaint. Lozman appealed the judgment. Regarding the jury instruction about probable cause, the Eleventh Circuit held that, even were they to accept Lozman 's "compelling" argument that the jury instruction should have concerned animus by the city itself and not just by Aguirre, the error was harmless, as "The jury's determination that the arrest was supported by probable cause defeats Lozman's First Amendment retaliatory arrest claim as a matter of law." Lozman subsequently learned of the circuit split regarding probable cause in retaliatory arrest cases. He had already successfully taken the city to the Supreme Court in 2013 with Jeffrey L. Fisher of the Stanford Law School Supreme Court Litigation Clinic as counsel, and again obtained representation from Fisher and the  clinic, with Pamela S. Karlan as lead counsel. The Supreme Court granted certiorari in November 2017. At the Supreme Court. Oral arguments. Oral arguments were held on February 27, 2018, with Karlan representing Lozman and Shay Dvoretzky representing Riviera Beach. The office of the United States Solicitor General, which had sided with Lozman in the 2013 Supreme Court case, appeared as "amicus curiae" on the city's side, represented by Deputy Solicitor General Jeffrey Wall. Karlan argued for applying the "Mt. Healthy" test to cases of retaliatory arrest like Lozman's. The justices expressed significant concerns to Karlan about what  that might mean for law enforcement, giving examples of criminals who insult the police. Karlan was questioned extensively on how to avoid setting a bad precedent, and was seen as struggling. However, when it was Dvoretsky's turn to speak, Justice Elena Kagan interrupted to warn him that "Ms. Karlan was having some difficulty with hypotheticals. But you might have some difficulty with the facts of your case," which elicited laughter from the gallery. Dvoretsky argued for extending the "Hartman" test from retaliatory prosecutions to retaliatory arrests. Speaking for the federal government, Wall argued that Lozman's case was "troubling  but that the court, as in "Hartman", should not make a general rule for the facts of this case." Chief Justice John Roberts replied: I found the video pretty chilling. I mean, the fellow is up there for about 15 seconds, and the next thing he knows, he's being led off in handcuffs, speaking in a very calm voice the whole time. Now the Council may not have liked what he was talking about, but that doesn't mean they get to cuff him and lead him out. The other justices were seen as likewise sympathetic to Lozman. Opinion  of the Court. Justice Anthony M. Kennedy wrote for an eight-member majority. The majority held that, at least in Lozman's specific case, the existence of probable cause did not bar a claim of retaliatory arrest. The city could only be held liable if there was an official municipal policy to retaliate against Lozman, and the court assumed that there existed one without deciding on that matter. The court highlighted various similarities and differences between retaliatory prosecutions and retaliatory arrests, but declined to rule on the general applicability of "Hartman" to the latter, highlighting the exceptional circumstances of Lozman 's arrest, especially the alleged municipal policy of retaliation against him, categorizing it among a "unique class of retaliatory arrest claims," which "will require objective evidence of a policy motivated by retaliation to survive summary judgment." Considering this, and the high importance of the right to petition within First Amendment jurisprudence, the Court found that the "Mt. Healthy" test was the correct one to apply in Lozman's specific case. The court vacated the judgment below and remanded the case back to the Eleventh Circuit, but concluded by noting a number of arguments under which Lozman might be denied relief . Thomas's dissent. Justice Clarence Thomas, in a solo dissent, wrote that Lozman "must plead and prove a lack of probable cause as an element of a First Amendment retaliatory-arrest claim." He advocated an approach based on common law rules that existed prior to the enactment of § 1983 in 1871, analogizing Lozman's claim to the common law torts of false imprisonment, malicious prosecution, and malicious arrest. He further argued that police officers need the same protections that prosecutors enjoy under "Hartman" because "Police officers almost always exchange words with suspects before arresting them". Impact and subsequent developments. The  court's opinion in "Lozman" was unusual in that it was largely limited to Lozman's specific case or ones with "facts like these", without setting a broader standard. Heidi Kitrosser of "SCOTUSblog" compared its limited scope to the "Onion" headline "Supreme Court Issues Landmark 'It Depends' Ruling". Writing in "The Atlantic," Garrett Epps characterized the "narrow, and perhaps temporary, win for Fane Lozman" as part of a trend of the Supreme Court "keeping its head down", referencing also its decisions that term in "Gill v. Whitford" and "Benisek v. Lamone". Lozman's narrow victory was noted for the extreme  rarity of someone taking the same opponent to the Supreme Court in two different cases and winning both times. The case returned to the Eleventh Circuit, which in turn remanded it to the District Court to determine whether Lozman was entitled to a new trial, invoking the Supreme Court opinion's closing remarks. Lozman and the city subsequently settled for $875,000—$1 for the arrest, the rest to offset Lozman's legal fees. In November of 2018, the Supreme Court heard oral arguments in "Nieves v. Bartlett", which posed the same question as "Lozman" had. Lozman and the First Amendment  Foundation filed a brief "amicus curiae" supporting Russell Bartlett, who alleged that his arrest by an Alaska state trooper had been retaliatory. In "Nieves", the court decided that in general probable cause does generally defeat a claim of retaliatory arrest, citing Thomas's dissent in "Lozman". The opinion referred to Lozman's circumstances as "unusual" and "Nieves" case as more "representative". The "Nieves" decision nonetheless allowed that retaliatory arrest claims may be brought despite the presence of probable cause if the law in question was inconsistently enforced on the basis of protected speech. Viewed together, "Lozman" and "Nieves" have been  taken to create two narrow exceptions to "Hartman".