Riviera Beach Council Cannot Arrest Lozman for Speaking a Public Meeting in Lozman v City of Riviera Beach

In Lozman v City of Riviera Beach, 585 U. S. ____ (2018), Fane Lozman, an outspoken critic of the Riviera Beach City Council, scored a second victory before the U.S. Supreme Court. By a vote of 8-1, the Court held that the existence of probable cause does not bar Lozman’s First Amendment retaliation claim under the unique circumstances of his case. The Court declined to address whether the existence of probable cause could ever defeat a First Amendment retaliatory arrest claim.

Facts of Lozman v City of Riviera Beach

After Lozman (Lozman) towed his floating home into a slip in a marina owned by the city of Riviera Beach (City), he became a leading critic of the City’s plan to use its eminent domain power to seize waterfront homes for private development and often made critical comments about officials during the public comment period of city council meetings. He also filed a lawsuit alleging that the City Council’s approval of an agreement with developers violated Florida’s open-meetings laws.

In June 2006 the Council discussed Lozman’s lawsuit in a closed-door session. He alleges that the Council also devised a retaliation plan to silence his criticism. Five months later, the Council held a public meeting. During the public comment session, Lozman began to speak about the arrests of officials from other jurisdictions. When he refused a councilmember’s request to stop making his remarks, the councilmember told the police officer in attendance to “carry him out.” The officer handcuffed Lozman and ushered him out of the meeting.

The City contends that Lozman was arrested for violating the City Council’s rules of procedure by discussing issues unrelated to the City and then refusing to leave the podium. Meanwhile, Lozman claims that his arrest was to retaliate for his lawsuit and his prior public criticisms of city officials. Although the State’s attorney found that there was probable cause for Lozman’s arrest, the charges were dismissed.

Lozman subsequently filed suit under 42 U.S.C. §1983, alleging the arrest violated the First Amendment because it was ordered in retaliation for his earlier, protected speech: his open-meetings lawsuit and his prior public criticisms of city officials. The jury sided with the City on all of the claims. The Eleventh Circuit affirmed, concluding that the existence of probable cause defeated a First Amendment claim for retaliatory arrest.

Supreme Court’s Decision in Lozman v City of Riviera Beach

By a vote of 8-1, the Supreme Court vacated the Eleventh Circuit decision and remanded the case back to the appeals court for further proceedings. As Justice Anthony Kennedy wrote on behalf of the Court, the key issue before the justices was whether the conceded existence of probable cause for the arrest bars recovery regardless of any intent or purpose to retaliate for past speech. The Court held that the existence of probable cause does not bar Lozman’s First Amendment retaliation claim. However, its decision was limited to his unique circumstances and avoided deciding whether the existence of probable cause could ever defeat a First Amendment retaliatory arrest claim.

In reaching its decision, the Court considered two precedents, one favored by each party. Lozman argued that the controlling rule is found in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977), a civil case in which a city board of education decided not to rehire an untenured teacher after a series of incidents, including a telephone call to a local radio station. The phone call was protected speech, but, the Court held, there was no liability unless the alleged constitutional violation was a but-for cause of the employment termination. The City maintained that Hartman v. Moore, 547 U.S. 250 (2006) should control. In that case, the Court held that a plaintiff alleging a retaliatory prosecution must show the absence of probable cause for the underlying criminal charge. If there was probable cause, the case ends. If the plaintiff proves the absence of probable cause, then the Mt. Healthy test governs.

The Court declined to decide which test should generally govern First Amendment retaliatory arrest claims. “For Lozman’s claim is far afield from the typical retaliatory arrest claim, and the difficulties that might arise if Mt. Healthy is applied to the mine run of arrests made by police officers are not present here,” Justice Kennedy explained.

The Court recognized that “it can be difficult to discern whether an arrest was caused by an officer’s legitimate or illegitimate consideration of speech… And the complexity of proving (or disproving) causation in these cases creates a risk that the courts will be flooded with dubious retaliatory arrest suits.” However, it went on to determine that Mt. Healthy provides the correct standard for assessing Lozman’s retaliatory arrest claim. Justice Kennedy wrote:

There are substantial arguments that Hartman’s framework is inapt in retaliatory arrest cases, and that Mt. Healthy should apply without a threshold inquiry into probable cause. For one thing, the causation problem in retaliatory arrest cases is not the same as the problem identified in Hartman. Hartman relied in part on the fact that, in retaliatory prosecution cases, the causal connection between the defendant’s animus and the prose­cutor’s decision to prosecute is weakened by the “presump­tion of regularity accorded to prosecutorial decisionmak­ing.”…That presumption does not apply in this context… In addition, there is a risk that some police officers may exploit the arrest power as a means of suppressing speech.

In remanding the case, the Supreme Court advised that the lower court should consider “whether any reasonable juror could find that the City actually formed a retaliatory policy” against Lozman, “whether any reasonable juror could find that the November 2006 arrest constituted an official act by the City,” and whether, “under Mt. Healthy, the City has proved that it would have arrested Lozman regardless of any retaliatory animus.”