Issues
Does the existence of probable cause prevent a plaintiff from pursuing a retaliatory arrest claim against the government?
The Supreme Court will decide whether an individual can pursue a retaliatory arrest claim against the government for violating his First Amendment free speech rights, even though his arrest was supported by probable cause. Petitioner Fane Lozman argues that if a plaintiff who asserts a retaliatory arrest claim can establish a causal connection between his protected speech and the subsequent government action, the burden should then shift to the government to prove that it would have made the same decision even without the alleged animus. Lozman admits that the existence of probable cause may be sufficient for the government to meet its burden in some cases, but argues that a finding probable cause should not automatically defeat a retaliatory arrest claim. In contrast, Respondent City of Riviera Beach argues that probable cause should operate as an absolute bar to a retaliatory arrest claim. This case will clarify the government’s ability to arrest people suspected of committing a crime while engaged in protected speech and also the liability of government officials who allegedly encourage selectively arresting political dissidents for committing minor offenses.
Questions as Framed for the Court by the Parties
When a plaintiff claims that the government retaliated against his First Amendment-protected expression by arresting him, does the existence of probable cause operate as an absolute bar to his claim?
Facts
In March 2006, Fane Lozman moved his floating home to the Riviera Beach Marina. Shortly after moving there, Lozman learned that the City of Riviera Beach (“Riviera Beach”) planned to redevelop the Marina. Lozman became “an outspoken critic” of the proposed redevelopment project when he discovered that Riviera Beach planned to seize thousands of homes through eminent domain and give the land to a private developer.
On May 4, 2006, before Riviera Beach could implement the redevelopment plan, the Florida legislature passed House Bill 1567, which drastically limited the government’s eminent domain power. Riviera Beach consequently held a special emergency meeting and approved the redevelopment plan before the governor signed the bill into law. On June 8, 2006, Lozman filed a lawsuit against Riviera Beach, alleging that it violated the Florida Sunshine Law by holding the special emergency meeting without timely public notice. In response, Riviera Beach held a closed meeting later that month to discuss Lozman’s lawsuit. A public transcript later revealed that during the meeting, Councilperson Elizabeth Wade stated, “I think it would help to intimidate the same way as [the Florida Department of Law Enforcement] is coming to my house. I am wondering if my lines are tapped or whatever. I think they should be questioned by some of our people . . . so that they can feel the same kind of unwarranted heat that we are feeling[.]”
On November 15, 2006, Lozman made a speech at a public meeting held by Riviera Beach. During his speech, Lozman noted that the mayor and another councilperson were absent and that the U.S. Attorney’s Office had recently arrested another local politician. Councilperson Wade, who was in attendance, interrupted Lozman and instructed him to remain on-topic. Despite Wade’s warning, Lozman continued criticizing various local officials. Wade then called over Officer Francisco Aguirre, who was providing security during the meeting. Officer Aguirre approached Lozman while Lozman was still speaking and asked Lozman to talk with him outside. Lozman responded that he was not finished and continued speaking. Officer Aguirre then threatened to arrest Lozman if he did not go outside. Still, Lozman refused and protested that he had not finished his speech. At that point, Wade exclaimed, “Well, carry him out.” Officer Aguirre handcuffed Lozman. Lozman was subsequently charged with disorderly conduct and resisting arrest without violence, but the charges were later dropped because there was “no reasonable likelihood of successful prosecution.”
In February 2008, Lozman filed claims of retaliation by false arrest, unreasonable seizure, and common law false arrest against Riviera Beach pursuant to § 1983 in the U.S. District Court for the Southern District of Florida. Lozman alleged that Riviera Beach retaliated against him for opposing their redevelopment plan by having him arrested at the November 15, 2006 meeting. Following trial in 2014, the jury returned a verdict in favor of Riviera Beach on all three counts. Lozman subsequently challenged two of the district court’s jury instructions and filed a motion for a new trial, which the district court denied. Lozman then appealed the decision to the Eleventh Circuit Court of Appeals. The Eleventh Circuit affirmed, holding in part that, Lozman could not succeed on his retaliatory arrest claim because the jury believed that Officer Aguirre had probable cause to arrest Lozman. Lozman consequently appealed to the United States Supreme Court, which granted certiorari on November 13, 2017
Analysis
PROPER ROLE OF THE FOURTH AMENDMENT
Lozman argues that because the rights to petition the government and speak on public issues are so central to First Amendment protection, the fact that an arrest does not also violate the Fourth Amendment should not matter in proving a retaliatory arrest claim. Lozman furthers this proposition by asserting that arrest, compared to other retaliatory government action, warrants special protection because of the “chilling” effect the possibility of arrest has on free speech. Lozman adds that arrest should be treated differently because the government can use retaliatory arrests against any citizen, not merely citizens whose actions necessitate arrest. Lozman argues that requiring a Fourth Amendment violation, that is, lack of probable cause, to prove a First Amendment violation renders a citizen unable to successfully bring a retaliatory arrest claim, regardless of proof of retaliatory motive, as long as the arresting officer was able to find probable cause for arrest. Under this “absolute bar” rule, Lozman points out that the government can allow officers to target certain citizens for breaking a simple law, like jaywalking, on the basis of their exercise of free speech, thus contravening the First Amendment and not the Fourth. This, Lozman argues, impermissibly conflates the purposes of the two amendments.
Riviera Beach asserts that, just because the First and Fourth Amendments serve distinct purposes, courts need not treat them with two different tests when an act involves a potential breach of both. Indeed, Riviera Beach argues, there are other areas where First Amendment issues will overlap with other legal issues, such as in the case of copyright law, which has “built-in” First Amendment protections. Riviera Beach also counters Lozman’s concern that a government will enact laws targeting the arrest of certain individuals based on their exercise of the First Amendment—pointing out that other First Amendment protections, such as the protection against viewpoint discrimination, will prevent the government from enacting such laws. Lastly, Riviera Beach asserts that the absolute bar of probable cause defeating a retaliatory arrest claim does not sacrifice First Amendment protections, as it will be the rare case where an officer is targeting a citizen for his or her protected speech and also happens to have probable cause for the arrest.
APPLICABILITY OF THE MT. HEALTHY FRAMEWORK
Lozman urges the Court to use the framework for First Amendment retaliation claims from Mt. Healthy City School District Board of Education v. Doyle, which requires the plaintiff in a retaliation case to show that protected expression was a motivating factor in the adverse government action against him or her, thus establishing a causal connection between the two. Under such a framework, Lozman notes, the government can still prevail by establishing a “same decision defense”—showing by a preponderance of the evidence that it would have made the same decision without the alleged retaliatory motive. While Lozman admits that probable cause could establish the same decision defense in some cases, he asserts that, in his case, the police officer could not establish such a defense. Lozman argues that because the police officer did not know of the statute under which the state later charged Lozman, the officer cannot show by a preponderance of the evidence that he would have made the same decision to arrest Lozman without the retaliatory motive. Thus, Lozman maintains that the government here would fail to establish the same decision defense of the Mt. Healthy framework, even though Lozman cannot prove lack of probable cause. Additionally, Lozman argues that since federal courts use the Mt. Healthy framework for all other First Amendment retaliation cases and discriminatory arrests in the Fourteenth Amendment cases, it should apply this standard to retaliatory arrest cases for “doctrinal consistency.”
Riviera Beach argues that the court should not apply the Mt. Healthy framework for the following reasons: (1) arresting officers often must consider protected speech in legitimate ways when deciding to make an arrest; (2) the framework subjects officers to unnecessary trials; and (3) the framework produces less accurate verdicts. Riviera Beach asserts that officers often must consider protected speech, such as confessions, when making arrests. Riviera Beach also contends that, because the Mt. Healthy test takes into account an officer’s state of mind, and is, thus, subjective in nature, there will always be a factual dispute as to whether the officer’s animus motivated the arrest. For this reason, it argues that most cases will make it past the summary judgment phase of litigation, subjecting the government to lengthy and expensive trials for every case. Riviera Beach suggests that adding the objective component of probable cause solves this issue. Finally, Riviera Beach asserts that Mt. Healthy’s subjective inquiry into the motive of the government does not work for arrests because officers, unlike employers in the employment context, make these decisions in short periods of time and often have no previous relationship with the individual. Thus, Riviera Beach argues that without the use of an objective probable cause standard, this will cause jurors to render verdicts based on mere “speculation” in these cases.
EXTENDING THE HARTMAN FRAMEWORK TO RETALIATORY ARRESTS
Lozman argues that courts should not extend Hartman v. Moore, the source of the absolute bar rule in retaliatory First Amendment cases, from retaliatory prosecutions to retaliatory arrests. Hartman created an exception to the Mt. Healthy framework by requiring the plaintiff, in the case of retaliatory prosecutions, to show that the government lacked probable cause for the charge. Lozman argues, however, that Hartman cannot be extended to arrest cases because arrest cases do not share the causation concerns that motivated Hartman. In prosecutorial retaliation cases, Lozman points out, a plaintiff cannot claim that probable cause was not the motivating factor in the prosecution because prosecutorial immunity and independence prevent the court from looking into the motives behind the prosecutor’s decision. Thus, to win a claim for prosecutorial retaliation, Lozman notes, a plaintiff must assert that there was no probable cause for the prosecution, causing the existence of probable cause to create an absolute bar to prosecutorial retaliation claims. Lozman then argues that, in arrest cases, there is no such causation problem because the officer is the one making the decision about probable cause and the officer does not have any comparable immunity surrounding his or her decision-making. Thus, according to Lozman, arrest cases do not impose the same need to assert a lack of probable cause to show that the government action was based on retaliation.
Riviera Beach responds to the argument that prosecutorial retaliation poses unique concerns by arguing that retaliatory arrest has its own unique concerns, such as the need to consider protected speech and the risk of prolonged and unnecessary litigation. Riviera Beach contends that a showing of lack of probable cause would solve these unique concerns in the arrest context in the same way that it solves the unique concerns in the prosecutorial context, such as by providing easy-to-determine evidence on the officer’s motive for arrest. Riviera Beach also asserts that the true causation issue in Hartman was showing a cause between animus towards an individual and the resulting injury to the individual, a causation issue that it argues also exists with retaliatory arrests. Riviera Beach argues the Court should extend the Hartman doctrine to retaliatory arrests and require that a plaintiff show a lack of probable cause as a means of easily separating the cases in which retaliatory motive actually played a role in a plaintiff’s arrest.
Discussion
This case will affect claimants like Lozman, who believe that they were subject to an improper retaliatory arrest for speaking out against the government. If the Court rules in favor of Riviera Beach, claimants will be barred from raising First Amendment retaliatory arrest claims if there was probable cause for their arrests. If, however, the Court rules in favor of Lozman, a claimant may be able to succeed on a retaliatory arrest claim by showing a causal connection between the protected speech and subsequent arrest, despite the existence of probable cause.
EFFECT OF RETALIATORY ARRESTS ON FIRST AMENDMENT RIGHTS
Lozman argues that retaliatory arrests significantly infringe upon rights guaranteed by the First Amendment. First, Lozman contends that if the existence of probable cause creates an absolute bar to retaliatory arrest claims, government officials can insulate themselves from retaliatory arrest claims very easily because they can find probable cause to arrest nearly anyone for some minor crime, such as jaywalking or improperly burying a dead pet. Lozman asserts that such arrests can have a serious chilling effect on free speech, even if they ultimately do not lead to prosecutions. As evidence, Lozman points out that arrests are part of the public record and are consequently used by employers, landlords, and immigration officials, among others, in making decisions that can permanently affect a person’s future. Lozman further argues that witnessing a retaliatory arrest also has a chilling effect on the public at-large. Lozman contends that individuals who watch or read about the arrest may then be hesitant to publicly speak out against the government. The Marion B. Brechner First Amendment Project (“Brechner Project”) additionally argues that the Court’s decision will raise free press concerns. Brechner claims that in recent years, both professional and citizen-journalists have been arrested for crimes such as trespass because government officials sought to prevent potential negative coverage from those journalists. If the Court rules in favor of Riviera Beach, Brechner asserts that both professional and amateur journalists will have less protection from police misconduct.
In response, Riviera Beach claims that Lozman’s hypothetical example of a city directing its police officers to arrest only jaywalkers who are engaging in speech the city does not prefer has not occurred in real life. Furthermore, even if a city adopted such a policy, Riviera Beach argues that a court could proscribe this conduct based on separate First Amendment precedents that prohibit content-based and viewpoint discrimination. Riviera Beach also asserts that many jurisdictions have additional safeguards in place that limit warrantless arrests for minor offenses. Additionally, police departments would face appreciable costs for expending resources on petty-offense arrests, which disincentivizes them from making frivolous arrests. Riviera Beach challenges the Brechner Project’s contention that a considerable number of reporters have been arrested in recent years due to the government’s desire to limit their speech. Instead, Riviera Beach asserts that the few reporters who have been arrested were arrested because they either participated in the illegal activity they were covering or because they ignored posted signs or police warnings.
ARE THERE SUFFICIENT PROTECTIONS IN PLACE TO PREVENT RETALIATORY ARRESTS?
Lozman and supporting amici argue that if the Court accepts the existence of probable cause as an absolute bar to retaliatory arrest claims, the government will be incentivized to respond to speech it dislikes by finding a reason to arrest the speaker. Lozman asserts that such a decision would provide the government a blueprint for punishing citizens who publicly criticize it. The Institute for Justice and the Cato Institute argue that if Riviera Beach retaliated against Lozman in any other way besides arresting him, Lozman’s retaliation claim would be evaluated under the easier-to-meet Mt. Healthy standard. In other words, the Institutes maintain that Riviera Beach was legally better off arresting Lozman than taking any other retaliatory action against him. The Institutes contend that if the Court rules in favor of Riviera Beach, other local governments will be encouraged to arrest troublesome political dissidents.
The United States, in support of Riviera Beach, argues that sufficient protections exist to both prevent and respond to retaliatory arrests. It points out that even if a finding of probable cause defeats an individual’s retaliatory arrest claim, the United States can still prosecute officials who “willfully violate individuals’ constitutional rights under color of law (or who conspire to do so).” For example, the United States notes that it can bring civil actions against state officials for engaging in a “pattern or practice” of retaliatory arrests, despite the existence of probable cause. Accordingly, an individual does not need a private damages remedy to generally deter state officials from making retaliatory arrests.
IS AN ABSOLUTE BAR RULE NECESSARY TO SUPPORT POLICE OFFICERS?
Lozman contends that so long as a plaintiff can prove that a police officer acted out of animus, that officer should be subject to a retaliatory arrest claim. The National Press Photographers Association, et al. notes that allowing animus-based claims in the arrest contexts would not create an unwarranted evidentiary burden on police officers, because the Court has already established tests that allow officers to defend against frivolous claims. Lozman further argues that context should indicate whether an officer’s split-second decision was genuinely motivated by probable cause or, rather, was the result of animus. Where there is evidence that an officer’s motivation was based upon animus, Lozman maintains that it is fair to take the officer to trial.
Riviera Beach counters that because police officers often must make split-second decisions under high pressure, they need objective standards to rely upon. The probable cause requirement provides police officers with a clear rule: you may constitutionally arrest a suspect if you have probable cause; otherwise, you may be subject to liability. Furthermore, Riviera Beach argues that if a finding of probable cause doesn’t defeat a retaliatory arrest claim, the officer would then be unfairly exposed to the burdens of discovery and trial, even on flimsy allegations.
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Acknowledgments
Additional Resources
- Curt Anderson, Riviera Beach Man with Floating House Gets Supreme Court Hearing in Free Speech Case, Sun Sentinel (Nov. 13, 2017).
- Glenn Garvin, He's a Marine, a Renegade, a Vanquisher of Corrupt Pols. And Now: First Amendment Icon, Miami Herald (Jan. 14, 2018).