Probable Cause Doesn't Excuse Retaliatory Arrest, Supreme Court Rules

from the you-can-be-technically-correct-but-still-completely-wrong dept

A very, very narrow ruling by the Supreme Court might provide a few more opportunities for citizens to seek redress for retaliatory acts by their government. This probably won't do much for Fane Lozman, unfortunately. He may have won the big battle but it's being remanded to the appeals court which has a lot of options on how to approach this and not many of them point to Lozman winning this lawsuit.

Lozman was no fan of the Riviera Beach (FL) city council. He attended many meetings to criticize council members and their plans to use eminent domain to seize waterfront homes. He also sued the city for violating open meetings law by approving an agreement with developers without allowing the issue to be publicly discussed first.

The city didn't know what to do with a problem like Lozman. In a 2006 closed door session, it decided to do something it shouldn't. From the decision [PDF]:

According to the transcript of the meeting, Councilmember Elizabeth Wade suggested that the City use its resources to “intimidate” Lozman and others who had filed lawsuits against the City. App. 176. Later in the meeting a different councilmember asked whether there was “a consensus of what Ms. Wade is saying,” and others responded in the affirmative.

Lozman said these comments should be taken at face value. The city argued that by "intimidation" it meant only to prevail in litigation by using available tax dollars against taxpayers like Lozman. Five months later, Lozman attended another council meeting and, again, complained about various city actions. Council members ordered him removed -- an act performed by the officer on duty.

Lozman sued the city, alleging the arrest was retaliatory and an infringement on his First Amendment rights. The city defended itself by claiming the officer had probable cause to arrest Lozman because of his refusal to leave the meeting voluntarily. Lozman does not contest the arrest or question the probable cause determination. He does not challenge the constitutionality of the city ordinance used to effect his arrest. His issue is stripped down to one thing: the arrest stemmed directly from the council's agreement to "intimidate" Lozman and other litigants.

This means the single narrow issue, as constructed in Lozman's case, is worth examining further, rather than simply being overlooked in favor of the existence of probable cause. If left unaddressed (and the Supreme Court has punted on far broader cases than this), it would ostensibly allow governments to engage in retaliatory acts with little fear of punishment.

The fact that Lozman must prove the existence and enforcement of an official policy motivated by retaliation separates Lozman’s claim from the typical retaliatory arrest claim. 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. An official policy also can be difficult to dislodge. A citizen who suffers retaliation by an individual officer can seek to have the officer disciplined or removed from service, but there may be little practical recourse when the government itself orchestrates the retaliation. For these reasons, when retaliation against protected speech is elevated to the level of official policy, there is a compelling need for adequate avenues of redress.

This doesn't mean Lozman will prevail upon return to the lower court. It may decide to kick this all the way back to the district court level to let a jury weigh in on the "reasonable" interpretation of the council's intimidation comments. But it does at least make one thing clear: the highest court says lawsuits alleging retaliation can be brought even if probable cause exists for arrests stemming from allegedly retaliatory actions/instructions. This is more than litigants used to have to work with to survive dismissal during the summary judgment round. Criticizing the government is what the First Amendment was put in place to protect above all else. Allowing government entities to sidestep this protection by arresting their critics doesn't do anything to ensure these protections retain their value.

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Filed Under: 4th amendment, fane lozman, probable cause, supreme court