On June 18, 2018, the Supreme Court decided Lozman v. City of Riviera Beach, 585 U. S. ____ (2018). In Lozman, a vocal critic of city officials owned a floating home in a marina in Riviera Beach, Florida. Over the course of his residency in the city, the resident often spoke during public comment during city council meetings, doing so more than two-hundred (200) times. The resident frequently criticized city officials and filed an open meetings lawsuit against the City. During a closed-session meeting of the city council, a council-member suggested using City resources to intimidate the resident, and the council appeared to assent to that suggestion. Five months later, during another city council meeting, the resident strayed off-topic during the public comment period – remarking on the arrest of city officials. He was instructed by a councilmember to stop. The resident refused to do so, and the councilmember sought assistance from a police officer at the meeting. The officer requested the resident to move from the podium, but he refused. The resident was arrested for disorderly conduct after the officer was directed to “carry him out” by the councilmember.
Despite a determination of probable cause for the arrest by the local State’s Attorney, the charges were later dropped. The resident filed a lawsuit for retaliatory arrest under 42 U.S.C. § 1983. The resident alleged that the arrest was in retaliation for his exercise of his First Amendment rights to speak at the council meetings, his open meetings litigation, and frequent criticism of city officials. The resident argued that his retaliatory arrest was pursuant to official city policy, under Monell v. Dept. of Social Services, 436 U.S. 658 (1978). At a jury trial, the City prevailed against his claim of retaliation because the arrest was supported by probable cause. The resident appealed, arguing that the City should be liable for such a retaliatory arrest even where probable cause existed to arrest him for disorderly conduct.
The Supreme Court reversed the lower courts, finding that the existence of probable cause is not a bar to a retaliatory arrest claim. Instead, the Supreme Court adopted a test found in retaliatory employment cases and held that, even where probable cause existed for such an arrest, the plaintiff should have been allowed to show that retaliatory animus was a substantial motive for his arrest. The City may then rebut this evidence by arguing that the resident would have been arrested even absent a retaliatory motive and that the retaliatory motive was not the “but-for” cause of his arrest.
The Supreme Court found that the plaintiff’s claim was a “unique class of retaliatory arrest claims” and held that a plaintiff who alleges a retaliatory arrest pursuant to an official policy must show “objective evidence of a policy motivated by retaliation to survive summary judgment.” However, the existence of probable cause, in and of itself, will not bar the action.