Let's assume that the § 1983 plaintiff claims that she was arrested by the defendant police officer in retaliation for her exercise of free speech rights. The evidence shows that the arrest was supported by probable cause. Probable cause is a complete defense to a § 1983 Fourth Amendment false arrest claim. But is it also a complete defense to a § 1983 First Amendment retaliatory arrest claim?

In Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018), the U.S. Supreme Court recently held, 8-1, that probable cause did not automatically defeat a §1983 First Amendment retaliatory arrest claim asserted against the city based upon its alleged enforcement of a policy of retaliation. Justice Anthony Kennedy wrote the opinion for the court. Justice Clarence Thomas was the sole dissenter.

The court's decision in Lozman, however, did not resolve whether probable cause defeats a retaliatory arrest claim against the arresting officer. On June 28, the day after Justice Kennedy announced his retirement, the court granted certiorari in a case from the U.S. Court of Appeals for the Ninth Circuit holding that probable cause does not defeat a retaliatory arrest claim against the arresting officer, see Nieves v. Bartlett, 138 S. Ct. 2709(2018), granting certiorari to 712 Fed. Appx. 613 (9th Cir. 2017).

We will start with some First Amendment basics and work our way to the more difficult issues in Lozman and Nieves.The First Amendment bars a police officer from arresting an individual solely because the individual made a political statement with which the officer disagreed, disapproved or found offensive. This is so even if the individual used course or crude language verbally attacking the officer, the police department or the municipality. In Lewis v. City of New Orleans, 415 U.S. 130, 135 (1974), Justice Lewis F. Powell Jr., concurring, reasoned that an individual's use of “obscene or opprobrious language” directed at a police officer is unlikely to constitute “fighting words,” a category of unprotected speech, because “a properly trained police officer may reasonably be expected 'to exercise a higher degree of restraint' than the average citizen, and thus be less likely to respond belligerently” to a private citizen's crude or provocative language. See also Houston v. Hill, 483 U.S.451,461(1987) (First Amendment protects a “significant amount of verbal criticism and criticism directed at police officers.”) But while an individual cannot be arrested merely for saying something with which the officer disagrees or finds offensive, an individual can be arrested if her speech interferes with or disrupts the officer's law enforcement functions, for example, by attempting to divert the attention of an officer who is in the midst of interrogating or apprehending a suspect.

When a § 1983 complaint asserts a First Amendment retaliatory arrest claim, the arresting officer will almost certainly deny having a retaliatory animus. The officer may also argue that, assuming that the officer had a retaliatory animus, probable cause to arrest absolutely bars the retaliatory arrest claim; and the officer would have arrested the plaintiff even if she had not exercised her free speech rights. This second defense is the Mount Healthy City Board of Education v. Doyle, 429 U.S. 274 (1977) mixed motive defense, and it may well raise disputed issues of fact.

The officer's charging crime of choice in retaliatory arrest cases is usually disorderly conduct, disturbing the peace or obstructing an officer. Remember that under the Fourth Amendment the officer need only have probable cause to arrest for some crime; it need not be the crime articulated by the officer at the time of the arrest, see Devenpeck v. Alford, 543 U.S. 146 (2004). It is not hard to see how the existence of probable cause to arrest can go a long way toward satisfying the officer's Mount Healthy “I would have arrested her anyway” defense. But the big legal issue is not the Mount Healthy defense, which is well established First Amendment law, but whether probable cause is an absolute bar to a First Amendment retaliatory arrest claim.

This issue has been giving the courts fits for years, provoking a split in the circuit courts of appeals.The Second Circuit, for over 25 years, has held that probable cause is an absolute bar to a retaliatory arrest claim, as in Curley v. Village of Suffern, 268 F. 3d 65 (2d Cir. 2001); Mozzochi v. Borden, 959 F. 2d 1174 (2d Cir. 1990), a position with which the Fifth, Eighth and Eleventh circuits agree. The Fourth, Ninth, and Tenth disagree. It was widely assumed that the Supreme Court granted certiorari in Lozman v. City of Riviera Beach in order to resolve this circuit split. But, as we will see, the court in Lozman rendered a quite narrow decision, ducking the key issue, and leaving it unresolved.

What was the relevant Supreme Court precedential landscape pre-Lozman? In Hartman v. Moore, 547 U.S. 250 (2006), the court held that probable cause to prosecute defeats a retaliatory prosecution claim against a law enforcement officer who allegedly influenced or instigated the prosecution. In other words, lack of probable cause is an essential element of a First Amendment retaliatory prosecution claim. Note that a First Amendment retaliatory prosecution claim cannot be asserted against a prosecutor who initiated the prosecution because a prosecutor's decision to prosecute is at the heart of her advocacy functions and, therefore, shielded by absolute prosecutorial immunity, see Imbler v. Pachtman, 424 U.S. 409 (1976). In holding that probable cause is an absolute bar to a First Amendment retaliatory prosecution claim, the court in Hartman relied upon the likely difficult chain of causation between the “upstream” actions of the law enforcement officer charged with a retaliatory animus in bringing about the prosecution, and the “downstream” decision of the prosecutor to initiate the prosecution. In Reichle v. Howards, 566 U.S. 658 (2012), the court held only that qualified immunity shielded the arresting officers from liability on a retaliatory arrest claim because the plaintiff's alleged First Amendment right not to be arrested for exercising his free speech rights even when there was probable cause for the arrest was not clearly established.

So the stage is now set for Lozman v. City of Riviera Beach. There was bad blood between Fane Lozman and city of Riviera Beach officials. Lozman had a “contentious relationship with the city's elected officials,” and was “embroiled in a number of disputes” with them. The saga started when Lozman “towed his floating home into a slip in the city-owned marina, where he became a resident.” Lozman was an outspoken critic of the city's plan to use eminent domain to acquire property along the waterfront for private development, criticized the mayor and city council members, and filed suit in state court claiming that the city council violated the state's open meeting laws. In 2013, Lozman defeated the city in the U.S. Supreme Court, obtaining a favorable decision in an in rem admiralty forfeiture proceeding that his floating home was a house and thus not a “vessel” within the meaning of the federal forfeiture law. The city's arguments to the contrary did not hold water! Lozman v. City of Riviera Beach, 133 S.Ct. 735 (2013).

Over the years Lozman spoke at over 200 city council meetings. At one of these meetings council member Elizabeth Wade asked Lozman to stop commenting about the arrests of former county officials. When Lozman continued speaking, Wade asked a police officer in attendance for assistance. After Lozman refused the officer's request to leave the podium, Wade told the officer to “carry him out.” 138 S. Ct. at 1949-50. “The officer handcuffed Lozman and ushered him out of the meeting. The incident was recorded on video.” At the oral argument in the Supreme Court, Chief Justice John Roberts told the city's attorney that he 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,” 2018WL 1383161*35 (Oral Argument) (U.S.Feb.27,2018). Lozman was taken to police headquarters and charged with disorderly conduct and resisting arrest. The state's attorney determined that there was probable cause to arrest Lozman for those offenses, but decided to dismiss the charges.

Lozman brought suit against the city in federal court under 42 U.S.C. §1983. He did not sue the arresting officer. He alleged that “city policymakers adopted a plan to retaliate against him for his protected speech and ordered his arrest when he attempted to make remarks during the public comment portion of city council meetings.” He conceded there was probable cause for his arrest, but claimed that his arrest violated his First Amendment free speech rights. The jury returned a verdict for the city, and the Eleventh Circuit affirmed. The circuit court, relying on Dahl v. Holley, 312 F. 3d 1228 (11th Cir. 2002), held that probable cause defeated Lozman's claim. 681 Fed. Appx. 746 (11th Cir. 2017). The Supreme Court overturned the circuit court's decision that probable cause automatically barred Lozman's First Amendment retaliatory arrest claim. The Supreme Court in Lozman held that a §1983 First Amendment retaliatory arrest claim against a municipality based upon enforcement of municipal policy is not automatically defeated by probable cause to arrest.

The “kicker' is that a municipality may not be held liable under § 1983 on the basis of repondeat superior, and only when the deprivation of the plaintiff's federally protected rights can be attributed to the enforcement of a municipal policy or practice. Section 1983 plaintiffs generally find it quite difficult to satisfy the policy or practice and causation requisites for establishing municipal liability. A municipality will almost certainly not promulgate an express policy of retaliation, and proving a practice of retaliation will normally be quite difficult.

Justice Kennedy's opinion for the court discusses the “difficult questions” presented by “mine run” retaliatory arrest claims against arresting officers, detailing the arguments on both sides. There are around 29,000 arrests in the United States each day and police officers often must make split second decisions on whether to arrest. In making these decisions an officer might consider whether the content of the suspect's speech indicates that the suspect is ready to cooperate or, conversely, that he presents a continuing threat. Recognizing a retaliatory arrest claim even when there is probable cause might risk a flood of “dubious retaliatory arrest suits.” In addition, while retaliatory arrest claims do not typically present the difficult “multiple player” causation issues in retaliatory prosecution cases, retaliatory arrest claims can generate difficult Mount Healthy v. Doyle mixed motive issues. On the other hand, the causation issues in retaliatory arrest claims are not likely to be as complex as in retaliatory prosecution cases. And, there is a risk that if probable cause automatically defeated the retaliation claim some police officers might “exploit the arrest power as a means of suppressing speech.”

The Supreme Court did not decide whether probable cause defeats a First Amendment retaliatory arrest claim against an arresting officer because Lozman sued only the city, and not the arresting officer. True, the court could nevertheless have chosen to give guidance on the arresting officer issue, but declined to do so. It is possible that the justices were sharply divided on that issue. In any case the court focused on Lozman's specific claim against the city, which was “far afield” from a typical retaliatory arrest claim, and allowed his claim to proceed even in the face of probable cause. The court did not view retaliatory policy claims as likely to present especially difficult issues of Mount Healthy causation. The court also pointed to the importance of the right to petition the government, (citing BE&K Construction v. NLRB, 536 U.S. 516-524 (2002) (one of the most precious liberties protected by Bill of Rights)), and the troubling specter of an official municipal policy of retaliation from which there may be “little practical recourse,” 138 S. Ct. at 1954 (“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.”). Sidestepping whether probable cause defeats a retaliatory arrest claim against an arresting officer, the Court rendered a “narrow” holding in unique circumstances very unlikely to often replicate themselves.

The Supreme Court articulated some of the questions the court of appeals may wish to address on remand: Could a reasonable juror find that the city had a retaliatory policy; could a reasonable juror find that Lozman's arrest was an official act by the city; and whether under Mount Healthy the city proved it would have arrested Lozman regardless of any retaliatory animus, for example, for his conduct in violating city council rules as to proper subjects of discussion, which may explain why the council sought to have him arrested,

Justice Thomas' dissenting opinion chided the court for not deciding the question on which certiorari was granted, namely, whether probable cause would bar a First Amendment retaliation claim against an arresting officer. He would hold that probable cause defeats all retaliatory arrest claims. He reasoned that there are almost always words exchanged between the officer and arrestee. In his view if retaliatory arrest claims can go forward even in the face of probable cause, arresting officers might be deterred from arresting suspects who, for example, have a political bumper sticker, participate in a political protest, or criticize the officer during an arrest of a third party. Presumably the court granted certiorari in Nieves v. Bartlett to answer the major issue left unresolved in Lozman, namely, whether probable cause automatically defeats a First Amendment retaliation claim against an arresting officer.

Martin A. Schwartz, Professor Emeritus of Law, is the author of a multi-volume treatise on Section 1983 litigation published by Wolters Kluwer Law and Business.