On June 18, 2018, the Supreme Court decided Lozman v. City of Riviera Beach, No. 17-21, holding in a 8-1 decision that the petitioner need not prove the absence of probable cause to maintain a § 1983 claim of retaliatory arrest against a municipality.
Since moving to the city of Rivera Beach, Florida, Fane Lozman was an outspoken critic of the City’s plan to use its eminent domain power to seize homes along the waterfront for private development. Lozman criticized councilmembers, the mayor, and other public employees during the public-comment period at multiple city council meetings, and he also filed a lawsuit alleging that the Council’s approval of an agreement with developers violated Florida’s open-meetings laws. In June 2006, the City Council held a closed-door session, in part to discuss the open-meetings lawsuit Lozman had recently filed, and a councilmember suggested the City use its resources to “intimidate” Lozman and others who had filed lawsuits against the City. In November 2006, Lozman attended a public meeting of the City Council and gave remarks during the public-comment session. During his comments, a councilmember directed him to stop speaking. When Lozman refused, he was arrested and ushered out of the meeting. Lozman sued the City under 42 U.S.C. § 1983 for retaliatory arrest, arguing that his arrest was to retaliate for his open-meetings lawsuit against the City and his prior public criticisms of city officials.
The jury returned a verdict for the City on all of Lozman’s claims. Lozman appealed. The Court of Appeals held that the District Court erred in its jury instructions on the retaliatory arrest claim, but found that any error was harmless because the jury determined that the arrest was supported by probable cause for violating a Florida statute prohibiting disturbances of public assemblies. The Supreme Court granted certiorari to consider whether the conceded existence of probable cause for Lozman’s arrest barred his First Amendment retaliation claim.
The Lozman Court held that in the context of suit against a city for retaliatory arrest, versus a suit against an officer, the plaintiff need not prove the absence of probable cause to maintain a claim for retaliatory arrest. Instead, the plaintiff must show only (1) that the retaliation was a substantial or motivating factor behind the arrest, and (2) that the arrest would have occurred even without respect to retaliatory animus—i.e., the retaliatory animus was a but-for cause of the arrest.
The Court clarified that its opinion did not address the elements required to prove a retaliatory arrest claim in contexts other than suits against a city. According to the Court, the fact that Lozman had to prove the existence and enforcement of an official city policy motivated by retaliation separated his claim from the typical retaliatory arrest claim. The Court explained that “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.” Thus, when retaliation is an official city policy, there is “a compelling need for adequate avenues of redress.” Moreover, because retaliatory arrest claims against a city require evidence of a official policy motivated by retaliation to survive summary judgment, the Court dismissed concerns about a flood of retaliatory arrest suits against high-level policymakers. Finally, in Lozman’s case, the protected speech predated the arrest by several months, eliminating concerns about tenuous causation between the retaliatory animus and the arrest.
Justice Kennedy delivered the opinion of the Court, in which Chief Justice Roberts and Justices Ginsburg, Breyer, Alito, Sotomayor, Kagan, and Gorsuch joined. Justice Thomas filed a dissenting opinion.