Lozman v. City of Riviera Beach (2018)

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.[1] 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.[2]

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.[3][4] The city council then held a closed-door session, the transcript of which was later made public.[5] Councilmember Elizabeth Wade proposed that the city "intimidate" Lozman and others who had sued the city, an idea that other councilmembers supported.[3] 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.[4][6]

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.[7][3]

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."[8][9] The city later said that Lozman had been ordered to stop speaking because the topics he was discussing were unrelated to the city.[8]

Lozman then sued Riviera Beach pro se under 42 U.S.C. § 1983, alleging several instances of deprivation of civil rights, including the arrest.[10] 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.[10] Hurley allowed the city to argue that there had been probable cause to arrest Lozman for the offense of disturbing a lawful assembly,[11] and instructed the jury to consider that question.[10] The jury found for the city on every count of the complaint. Lozman appealed the judgment.[12]

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."[13]

Lozman subsequently learned of the circuit split regarding probable cause in retaliatory arrest cases.[14] 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.[14][15] The Supreme Court granted certiorari in November 2017.[16]

Oral arguments were held on February 27, 2018, with Karlan representing Lozman and Shay Dvoretzky representing Riviera Beach.[17] The office of the United States Solicitor General, which had sided with Lozman in the 2013 Supreme Court case,[18] appeared as amicus curiae on the city's side, represented by Deputy Solicitor General Jeffrey Wall.[17]

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.[17] Karlan was questioned extensively on how to avoid setting a bad precedent, and was seen as struggling.[19] 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.[19][20] Dvoretsky argued for extending the Hartman test from retaliatory prosecutions to retaliatory arrests.[21]

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."[17][22] Chief Justice John Roberts replied:[17][23]

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.[19]

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.[24] 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,[25] 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."[26] 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.[26][27]

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."[28] 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.[29][30] 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".[29][31]