In Lozman v. City of Riviera Beach, Florida, published June 18, 2018, the U.S. Supreme Court reversed and remanded a judgment for the defendant city after a jury trial. The plaintiff was an outspoken critic of the city. After the plaintiff filed a lawsuit against the city, the city council held a closed-door meeting on the lawsuit and others. A councilmember suggested that the city "intimidate" the plaintiff and others who sued the city. Other councilmembers appeared to agree. Later that same year, the plaintiff spoke at the public comment segment of a council meeting. The plaintiff spoke about a subject and was told to stop. He continued, and was arrested. The state's attorney determined there was probable cause to arrest him, but decided to dismiss the charges. The plaintiff sued the city under 42 U.S.C. section 1983 for retaliatory arrest. The district court instructed the jury that for the plaintiff to prevail on that claim, he had to prove that the officer lacked probable cause to make the arrest. The jury returned a verdict for the defendants. The issue before the court was whether the existence of probable cause bars a First Amendment retaliatory arrest claim.
The court declined to address the broad question of whether the existence of probable cause negates a claim for retaliatory arrest. Instead, it ruled that in a case where the plaintiff alleges that the muncipality itself (rather than an officer) retaliated against him, under an official municipal policy of intimidation, executing a pre-meditated plan of intimidation in retaliation for the plaintiff exercising high-value speech such as the freedom to petition government (by filing lawsuits), the plaintiff need not prove lack of probable cause. Instead, the Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977) standard will apply, and the plaintiff must prove that retaliation was a but-for cause of the arrest.
Justice Thomas dissented. He would not have narrowed the analysis, and would have ruled that the existence of probable cause to arrest barred the retaliatory arrest claim.
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