Lozman v. Riviera Beach

(Slip Opinion) OCTOBER TERM, 2017 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

LOZMAN v. CITY OF RIVIERA BEACH, FLORIDA

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 17–21. Argued February 27, 2018—Decided June 18, 2018

After petitioner Lozman towed his floating home into a slip in a marina

owned by the city of Riviera Beach, he became an outspoken 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 meet-

ings. 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 held a closed-door session, in part to

discuss Lozman’s lawsuit. He alleges that the meeting’s transcript

shows that councilmembers devised an official plan to intimidate

him, and that many of his subsequent disputes with city officials and

employees were part of the City’s retaliation plan. Five months after

the closed-door meeting, the Council held a public meeting. During

the public-comment session, Lozman began to speak about the ar-

rests of officials from other jurisdictions. When he refused a coun-

cilmember’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 he was arrested for violating the City Council’s rules of

procedure by discussing issues unrelated to the City and then refus-

ing to leave the podium. Lozman claims that his arrest was to retali-

ate for his lawsuit and his prior public criticisms of city officials. The

State’s attorney determined that there was probable cause for his ar-

rest, but decided to dismiss the charges.

Lozman then filed suit under 42 U. S. C. §1983, alleging a number

of incidents that, under his theory, showed the City’s purpose was to

harass him, including by initiating an admiralty lawsuit against his

floating home, see Lozman v. Riviera Beach, 568 U. S. 115. The jury

2 LOZMAN v. RIVIERA BEACH

Syllabus

returned a verdict for the City on all of the claims. The District

Court instructed the jury that, for Lozman to prevail on his claim of a

retaliatory arrest at the city council meeting, he had to prove that the

arresting officer was motivated by impermissible animus against

Lozman’s protected speech and that the officer lacked probable cause

to make the arrest. The Eleventh Circuit affirmed, concluding that

any error the District Court made when it instructed the jury to con-

sider the officer’s retaliatory animus was harmless because the jury

necessarily determined that the arrest was supported by probable

cause when it found for the City on Lozman’s other claims. The ex-

istence of probable cause, the court ruled, defeated a First Amend-

ment claim for retaliatory arrest.

Held: The existence of probable cause does not bar Lozman’s First

Amendment retaliation claim under the circumstances of this case.

Pp. 5–13.

(a) The issue here is narrow. Lozman concedes that there was

probable cause for his arrest. Nonetheless, he claims, the arrest vio-

lated 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. Pp. 5–6.

(b) In a §1983 case, a city or other local governmental entity cannot

be subject to liability unless the harm was caused in the implementa-

tion of “official municipal policy.” Monell v. New York City Dept. of

Social Servs., 436 U. S. 658, 691. The Court assumes that Lozman’s

arrest was taken pursuant to an official city policy.

Two major precedents bear on the issue whether the conceded ex-

istence of probable cause for the arrest bars recovery regardless of

any intent or purpose to retaliate for past speech. Lozman argues

that the controlling rule is found in Mt. Healthy City Bd. of Ed. v.

Doyle, 429 U. S. 274, 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 em-

ployment termination. Id., at 285287. The City counters that the

applicable precedent is Hartman v. Moore, 547 U. S. 250, where the

Court held that a plaintiff alleging a retaliatory prosecution must

show the absence of probable cause for the underlying criminal

charge, id., at 265266. If there was probable cause, the case ends.

If the plaintiff proves the absence of probable cause, then the Mt.

Healthy test governs. Pp. 6–10.

(c) Whether Hartman or Mt. Healthy governs here is a determina-

tion that must await a different case. For Lozman’s claim is far

afield from the typical retaliatory arrest claim, and the difficulties

Cite as: 585 U. S. ____ (2018) 3

Syllabus

that might arise if Mt. Healthy is applied to the mine run of arrests

made by police officers are not present here. Lozman alleges that the

City itself retaliated against him pursuant to an “official municipal

policy” of intimidation. Monell, supra, at 691. The fact that he must

prove the existence and enforcement of an official policy motivated by

retaliation separates his claim from the typical retaliatory arrest

claim. An official retaliatory policy can be long term and pervasive,

unlike an ad hoc, on-the-spot decision by an individual officer. And it

can be difficult to dislodge. A citizen can seek to have an individual

officer disciplined or removed from service, but there may be little

practical recourse when the government itself orchestrates the retali-

ation. Lozman’s allegations, if proved, also alleviate the problems

that the City says will result from applying Mt. Healthy in retaliatory

arrest cases, for it is unlikely that the connection between the alleged

animus and injury in a case like this will be “weakened . . . by [an of-

ficial’s] legitimate consideration of speech,” Reichle v. Howards, 566

U. S. 658, 668, and there is little risk of a flood of retaliatory arrest

suits against high-level policymakers. Because Lozman alleges that

the City deprived him of the right to petition, “ ‘one of the most pre-

cious of the liberties safeguarded by the Bill of Rights,’ ” BE&K Con-

str. Co. v. NLRB, 536 U. S. 516, 524, his speech is high in the hierar-

chy of First Amendment values. On these facts, Mt. Healthy provides

the correct standard for assessing a retaliatory arrest claim. On re-

mand, the Eleventh Circuit may consider any arguments in support

of the District Court’s judgment that have been preserved by the

City, including whether a reasonable juror could find that the City

formed a retaliatory policy to intimidate Lozman during its closed-

door session, whether a reasonable juror could find that the arrest

constituted an official act by the City, and whether, under Mt.

Healthy, the City has proved that it would have arrested Lozman re-

gardless of any retaliatory animus. Pp. 10–13.

681 Fed. Appx. 746, vacated and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, KAGAN, and GORSUCH,

JJ., joined. THOMAS, J., filed a dissenting opinion.

Cite as: 585 U. S. ____ (2018) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–21

_________________

FANE LOZMAN, PETITIONER v. CITY OF RIVIERA

BEACH, FLORIDA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 18, 2018]

JUSTICE KENNEDY delivered the opinion of the Court.

This case requires the Court to address the intersection

of principles that define when arrests are lawful and

principles that prohibit the government from retaliating

against a person for having exercised the right to free

speech. An arrest deprives a person of essential liberties,

but if there is probable cause to believe the person has

committed a criminal offense there is often no recourse for

the deprivation. See, e.g., Devenpeck v. Alford, 543 U. S.

146, 153 (2004). At the same time, the First Amendment

prohibits government officials from retaliating against

individuals for engaging in protected speech. Crawford-El

v. Britton, 523 U. S. 574, 592 (1998).

The petitioner in this case alleges that high-level city

policymakers adopted a plan to retaliate against him for

protected speech and then ordered his arrest when he

attempted to make remarks during the public-comment

portion of a city council meeting. The petitioner now

concedes there was probable cause for the arrest. The

question is whether the presence of probable cause

bars petitioner’s retaliatory arrest claim under these

2 LOZMAN v. RIVIERA BEACH

Opinion of the Court

circumstances.

I

The city of Riviera Beach is on the Atlantic coast of

Florida, about 75 miles north of Miami. The petitioner

here is Fane Lozman. In 2006 Lozman towed his floating

home into a slip in the City-owned marina, where he

became a resident. Thus began his contentious relation-

ship with the City’s elected officials.

Soon after his arrival Lozman became an outspoken

critic of the City’s plan to use its eminent domain power to

seize homes along the waterfront for private development.

Lozman often spoke during the public-comment period at

city council meetings and criticized councilmembers, the

mayor, and other public employees. He also filed a lawsuit

alleging that the Council’s approval of an agreement with

developers violated Florida’s open-meetings laws.

In June 2006 the Council held a closed-door session, in

part to discuss the open-meetings lawsuit that Lozman

recently had filed. 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. Id., at

181182. Lozman alleges that these remarks formed an

official plan to intimidate him. The City, on the other

hand, maintains that the only consensus reached during

the meeting was to invest the money and resources neces-

sary to prevail in the litigation against it.

In all events, Lozman became embroiled in a number of

disputes with city officials and employees over the ensuing

years, many of which Lozman says were part of the City’s

plan of retaliation. The dispute that led to this litigation

took place in 2006. In November of that year, five months

Cite as: 585 U. S. ____ (2018) 3

Opinion of the Court

after the closed-door meeting where the “intimidate” com-

ment was made, the City Council held a public meeting.

The agenda included a public-comment session in which

citizens could address the Council for a few minutes. As

he had done on earlier occasions and would do more than

200 times over the coming years, see Tr. in No. 9:08–cv–

80134 (SD Fla.), Doc. 785, p. 61, Lozman stepped up to the

podium to give remarks. He began to discuss the recent

arrest of a former county official. Councilmember Wade

interrupted Lozman, directing him to stop making those

remarks. Lozman continued speaking, this time about the

arrest of a former official from the city of West Palm

Beach. Wade then called for the assistance of the police

officer in attendance. The officer approached Lozman and

asked him to leave the podium. Lozman refused. So

Wade told the officer to “carry him out.” The officer hand-

cuffed Lozman and ushered him out of the meeting. The

incident was recorded on video. See Record, Def. Exh. 505,

Doc. 687, available at https://www.supremecourt.gov/media/

video/mp4files/Lozman_v_RivieraBeach.mp4. According to

the City, Lozman was arrested because he violated the

City Council’s rules of procedure by discussing issues

unrelated to the City and then refused to leave the po-

dium. According to Lozman, the arrest was to retaliate for

his open-meetings lawsuit against the City and his prior

public criticisms of city officials.

Under arrest, Lozman was escorted to police headquar-

ters. He was charged with disorderly conduct and resist-

ing arrest without violence and then released. Later, the

State’s attorney determined there was probable cause to

arrest Lozman for those offenses but decided to dismiss

the charges.

Lozman filed this lawsuit under Rev. Stat. §1979, 42

U. S. C. §1983. The complaint described a number of

alleged incidents that, under Lozman’s theory, showed the

City’s purpose to harass him in different ways. These

4 LOZMAN v. RIVIERA BEACH

Opinion of the Court

ranged from a city employee telling Lozman that his dog

needed a muzzle to the City’s initiation of an admiralty

lawsuit against Lozman’s floating home—the latter result-

ing in an earlier decision by this Court. See Lozman v.

Riviera Beach, 568 U. S. 115 (2013). The evidence and

arguments presented by both parties with respect to all

the matters alleged in Lozman’s suit consumed 19 days of

trial before a jury. The jury returned a verdict for the City

on all of the claims.

Before this Court, Lozman seeks a reversal only as to

the City’s alleged retaliatory arrest at the November 2006

city council meeting. The District Court instructed the

jury that, for Lozman to prevail on this claim, he had to

prove that the arresting officer was himself motivated by

impermissible animus against Lozman’s protected speech

and that the officer lacked probable cause to make the

arrest. The District Court determined that the evidence

was insufficient as a matter of law to support probable

cause for the offenses charged at the time of the arrest

(disorderly conduct and resisting arrest without violence).

But the District Court concluded that there may have

been probable cause to arrest Lozman for violating a

Florida statute that prohibits interruptions or disturb-

ances in schools, churches, or other public assemblies.

Fla. Stat. §871.01 (2017). (The City had brought this

statute to the District Court’s attention during the course

of the litigation.) The District Court allowed the jury to

decide whether there was probable cause to arrest for the

public-disturbance offense.

Judgment having been entered for the City after the

jury’s verdict, Lozman appealed. The Court of Appeals for

the Eleventh Circuit affirmed. 681 Fed. Appx. 746 (2017).

As relevant here, the Court of Appeals assumed that the

District Court erred when it instructed the jury that the

officer, rather than the City, must have harbored the

retaliatory animus. But the Court of Appeals held that

Cite as: 585 U. S. ____ (2018) 5

Opinion of the Court

any error was harmless because the jury necessarily de-

termined that the arrest was supported by probable cause

when it found for the City on some of Lozman’s other

claims—specifically, his claims that the arrest violated the

Fourth Amendment and state law. Id., at 751752. And,

under precedents which the Court of Appeals deemed

controlling, the existence of probable cause defeated a

First Amendment claim for retaliatory arrest. See id., at

752 (citing Dahl v. Holley, 312 F. 3d 1228, 1236 (CA11

2002)).

This Court granted certiorari, 583 U. S. ___ (2017), on

the issue whether the existence of probable cause defeats a

First Amendment claim for retaliatory arrest under §1983.

The Court considered this issue once before, see Reichle v.

Howards, 566 U. S. 658, 663 (2012), but resolved the case

on different grounds.

II

The issue before the Court is a narrow one. In this

Court Lozman does not challenge the constitutionality of

Florida’s statute criminalizing disturbances at public

assemblies. He does not argue that the statute is overly

broad, e.g., Terminiello v. Chicago, 337 U. S. 1 (1949);

Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of

Stratton, 536 U. S. 150 (2002); or that it impermissibly

targets speech based on its content or viewpoint, e.g.,

Texas v. Johnson, 491 U. S. 397 (1989); Cohen v. Califor-

nia, 403 U. S. 15 (1971); or that it was enforced in a way

that curtailed Lozman’s right to peaceful assembly, e.g.,

Brown v. Louisiana, 383 U. S. 131 (1966). Lozman, fur-

thermore, does not challenge the validity of the City Coun-

cil’s asserted limitations on the subjects speakers may

discuss during the public-comment portion of city council

meetings (although he continues to dispute whether those

limitations in fact existed).

Instead Lozman challenges only the lawfulness of his

6 LOZMAN v. RIVIERA BEACH

Opinion of the Court

arrest, and even that challenge is a limited one. There is

no contention that the City ordered Lozman’s arrest to

discriminate against him based on protected classifica-

tions, or that the City denied Lozman his equal protection

rights by placing him in a “class of one.” See Village of

Willowbrook v. Olech, 528 U. S. 562 (2000) (per curiam).

Lozman, moreover, now concedes that there was probable

cause for the arrest. Although Lozman does not indicate

what facts he believes support this concession, it appears

that the existence of probable cause must be based on the

assumption that Lozman failed to depart the podium after

receiving a lawful order to leave.

Lozman’s claim is that, notwithstanding the presence of

probable cause, his arrest at the city council meeting

violated the First Amendment because the arrest was

ordered in retaliation for his earlier, protected speech: his

open-meetings lawsuit and his prior public criticisms of

city officials. The question this Court is asked to consider

is whether the existence of probable cause bars that First

Amendment retaliation claim.

III

It is well established that in a §1983 case a city or other

local governmental entity cannot be subject to liability at

all unless the harm was caused in the implementation of

“official municipal policy.” Monell v. New York City Dept.

of Social Servs., 436 U. S. 658, 691 (1978); see Los Angeles

County v. Humphries, 562 U. S. 29, 36 (2010). Lozman’s

§1983 damages claim is against only the City itself, based

on the acts of its officers and employees—here, the mem-

bers of the City Council. Lozman says that the City,

through its city councilmembers, formed an official policy

to retaliate against him and ordered his arrest. The Court

assumes in the discussion to follow that the arrest was

taken pursuant to an official city policy, but whether there

was such a policy and what its content may have been are

Cite as: 585 U. S. ____ (2018) 7

Opinion of the Court

issues not decided here.

This brings the discussion to the issue the parties deem

central to the case: whether the conceded existence of

probable cause for the arrest bars recovery regardless of

any intent or purpose to retaliate for past speech. Two

major precedents could bear on this point, and the parties

disagree on which should be applicable here. The first is

this Court’s decision in Mt. Healthy City Bd. of Ed. v.

Doyle, 429 U. S. 274 (1977). See also Board of Comm’rs,

Wabaunsee Cty. v. Umbehr, 518 U. S. 668 (1996). Lozman

urges that the rule of Mt. Healthy should control and that

under it he is entitled to recover. The second is this

Court’s decision in Hartman v. Moore, 547 U. S. 250

(2006), which the City cites for the proposition that once

there is probable cause there can be no further claim that

the arrest was retaliation for protected speech.

Mt. Healthy arose in a civil, not criminal, context. A city

board of education decided not to rehire an untenured

school teacher after a series of incidents indicating unpro-

fessional demeanor. 429 U. S., at 281283. One of the

incidents was a telephone call the teacher made to a local

radio station to report on a new school policy. Id., at 282.

Because the board of education did not suggest that the

teacher violated any established policy in making the call,

this Court accepted a finding by the District Court that

the call was protected speech. Id., at 284. The Court went

on to hold, however, that since the other incidents, stand-

ing alone, would have justified the dismissal, relief could

not be granted if the board could show that the discharge

would have been ordered even without reference to the

protected speech. Id., at 285287. In terms of precepts in

the law of torts, the Court held that even if retaliation

might have been a substantial motive for the board’s

action, still there was no liability unless the alleged consti-

tutional violation was a but-for cause of the employment

termination. Ibid.; see also Umbehr, supra, at 675.

8 LOZMAN v. RIVIERA BEACH

Opinion of the Court

The City resists the applicability of the Mt. Healthy test

as the sole determinant here. It contends that, where

there was probable cause for the arrest, the applicable

precedent is Hartman—a case that was in the criminal

sphere and that turned on the existence of probable cause.

The background in Hartman was that a company and its

chief executive, William Moore, had engaged in an exten-

sive lobbying and governmental relations campaign oppos-

ing a particular postal service policy. 547 U. S., at

252253. Moore and the company were later prosecuted

for violating federal statutes in the course of that lobbying.

Id., at 253254. After being acquitted, Moore filed suit

against five postal inspectors, alleging that they had

violated his First Amendment rights when they instigated

his prosecution in retaliation for his criticisms of the

Postal Service. Id., at 254. This Court held that a plain-

tiff alleging a retaliatory prosecution must show the ab-

sence of probable cause for the underlying criminal

charge. Id., at 265266. If there was probable cause, the

case ends. If the plaintiff proves the absence of probable

cause, then the Mt. Healthy test governs: The plaintiff

must show that the retaliation was a substantial or moti-

vating factor behind the prosecution, and, if that showing

is made, the defendant can prevail only by showing that

the prosecution would have been initiated without respect

to retaliation. See 547 U. S., at 265–266.

The Court in Hartman deemed it necessary to inquire as

to the existence of probable cause because proving the link

between the defendant’s retaliatory animus and the plain-

tiff ’s injury in retaliatory prosecution cases “is usually

more complex than it is in other retaliation cases.” Id., at

261. An action for retaliatory prosecution “will not be

brought against the prosecutor, who is absolutely immune

from liability for the decision to prosecute.” Id., at

261262. Instead, the plaintiff must sue some other gov-

ernment official and prove that the official “induced the

Cite as: 585 U. S. ____ (2018) 9

Opinion of the Court

prosecutor to bring charges that would not have been

initiated without his urging.” Id., at 262. Noting that

inquiries with respect to probable cause are commonplace

in criminal cases, the Court determined that requiring

plaintiffs in retaliatory prosecution cases to prove the lack

of probable cause would help “bridge the gap between the

nonprosecuting government agent’s motive and the prose-

cutor’s action.” Id., at 263.

The City’s argument here is that, just as probable cause

is a bar in retaliatory prosecution cases, so too should it be

a bar in this case, involving a retaliatory arrest. There is

undoubted force in the City’s position. Reichle, 566 U. S.,

at 667–668. There are on average about 29,000 arrests

per day in this country. Dept. of Justice–FBI, Uniform

Crime Report, Crime in the United States, 2016 (Fall

2017). In deciding whether to arrest, police officers often

make split-second judgments. The content of the suspect’s

speech might be a consideration in circumstances where

the officer must decide whether the suspect is ready to

cooperate, or, on the other hand, whether he may present

a continuing threat to interests that the law must protect.

See, e.g., District of Columbia v. Wesby, 583 U. S. ___, ___

(2018) (slip op., at 10) (“suspect’s untruthful and evasive

answers to police questioning could support probable

cause” (internal quotation marks omitted)).

For these reasons retaliatory arrest claims, much like

retaliatory prosecution claims, can “present a tenuous

causal connection between the defendant’s alleged animus

and the plaintiff ’s injury.” Reichle, 566 U. S., at 668.

That means it can be difficult to discern whether an arrest

was caused by the officer’s legitimate or illegitimate con-

sideration of speech. Ibid. 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. See Brief for District of Columbia et al. as Amici

Curiae 511.

10 LOZMAN v. RIVIERA BEACH

Opinion of the Court

At the same time, 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 prose-

cutor’s decision to prosecute is weakened by the “presump-

tion of regularity accorded to prosecutorial decisionmak-

ing.” 547 U. S., at 263. That presumption does not apply

in this context. See Reichle, supra, at 669. In addition,

there is a risk that some police officers may exploit the

arrest power as a means of suppressing speech. See Brief

for Institute for Free Speech as Amicus Curiae.

IV

The parties’ arguments raise difficult questions about

the scope of First Amendment protections when speech is

made in connection with, or contemporaneously to, crimi-

nal activity. But whether in a retaliatory arrest case the

Hartman approach should apply, thus barring a suit

where probable cause exists, or, on the other hand, the

inquiry should be governed only by Mt. Healthy is a de-

termination that must await a different case. For Loz-

man’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 offi-

cers are not present here.

Here Lozman does not sue the officer who made the

arrest. Indeed, Lozman likely could not have maintained

a retaliation claim against the arresting officer in these

circumstances, because the officer appears to have acted in

good faith, and there is no showing that the officer had

any knowledge of Lozman’s prior speech or any motive to

arrest him for his earlier expressive activities.

Cite as: 585 U. S. ____ (2018) 11

Opinion of the Court

Instead Lozman alleges more governmental action than

simply an arrest. His claim is that the City itself retali-

ated against him pursuant to an “official municipal policy” of

intimidation. Monell, 436 U. S., at 691. In particular, he

alleges that the City, through its legislators, formed a

premeditated plan to intimidate him in retaliation for his

criticisms of city officials and his open-meetings lawsuit.

And he asserts that the City itself, through the same high

officers, executed that plan by ordering his arrest at the

November 2006 city council meeting.

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 disci-

plined 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.

In addition, Lozman’s allegations, if proved, alleviate

the problems that the City says will result from applying

Mt. Healthy in retaliatory arrest cases. The causation

problem in arrest cases is not of the same difficulty where,

as is alleged here, the official policy is retaliation for prior,

protected speech bearing little relation to the criminal

offense for which the arrest is made. In determining

whether there was probable cause to arrest Lozman for

disrupting a public assembly, it is difficult to see why a

city official could have legitimately considered that Loz-

man had, months earlier, criticized city officials or filed a

12 LOZMAN v. RIVIERA BEACH

Opinion of the Court

lawsuit against the City. So in a case like this one it is

unlikely that the connection between the alleged animus

and injury will be “weakened . . . by [an official’s] legiti-

mate consideration of speech.” Reichle, 566 U. S., at 668.

This unique class of retaliatory arrest claims, moreover,

will require objective evidence of a policy motivated by

retaliation to survive summary judgment. Lozman, for

instance, cites a transcript of a closed-door city council

meeting and a video recording of his arrest. There is thus

little risk of a flood of retaliatory arrest suits against high-

level policymakers.

As a final matter, it must be underscored that this

Court has recognized the “right to petition as one of the

most precious of the liberties safeguarded by the Bill of

Rights.” BE&K Constr. Co. v. NLRB, 536 U. S. 516, 524

(2002) (internal quotation marks omitted). Lozman alleges

the City deprived him of this liberty by retaliating against

him for his lawsuit against the City and his criticisms of

public officials. Thus, Lozman’s speech is high in the

hierarchy of First Amendment values. See Connick v.

Myers, 461 U. S. 138, 145 (1983).

For these reasons, Lozman need not prove the absence

of probable cause to maintain a claim of retaliatory arrest

against the City. On facts like these, Mt. Healthy provides

the correct standard for assessing a retaliatory arrest

claim. The Court need not, and does not, address the

elements required to prove a retaliatory arrest claim in

other contexts.

This is not to say, of course, that Lozman is ultimately

entitled to relief or even a new trial. On remand, the

Court of Appeals, applying Mt. Healthy and other relevant

precedents, may consider any arguments in support of the

District Court’s judgment that have been preserved by the

City. Among other matters, the Court of Appeals may

wish to consider (1) whether any reasonable juror could

find that the City actually formed a retaliatory policy to

Cite as: 585 U. S. ____ (2018) 13

Opinion of the Court

intimidate Lozman during its June 2006 closed-door ses-

sion; (2) whether any reasonable juror could find that the

November 2006 arrest constituted an official act by the

City; and (3) whether, under Mt. Healthy, the City has

proved that it would have arrested Lozman regardless of

any retaliatory animus—for example, if Lozman’s conduct

during prior city council meetings had also violated valid

rules as to proper subjects of discussion, thus explaining

his arrest here.

For these reasons, the judgment of the Court of Appeals

is vacated, and the case is remanded for further proceed-

ings consistent with this opinion.

It is so ordered.

Cite as: 585 U. S. ____ (2018) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 17–21

_________________

FANE LOZMAN, PETITIONER v. CITY OF RIVIERA

BEACH, FLORIDA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 18, 2018]

JUSTICE THOMAS, dissenting.

We granted certiorari to decide “whether the existence

of probable cause defeats a First Amendment claim for

retaliatory arrest under [42 U. S. C.] §1983.” Ante, at 5.

Instead of resolving that question, the Court decides that

probable cause should not defeat a “unique class of retalia-

tory arrest claims.” Ante, at 12. To fall within this unique

class, a claim must involve objective evidence, of an official

municipal policy of retaliation, formed well before the

arrest, in response to highly protected speech, that has

little relation to the offense of arrest. See ante, at 11–12.

No one briefed, argued, or even hinted at the rule that the

Court announces today. Instead of dreaming up our own

rule, I would have answered the question presented and

held that plaintiffs must plead and prove a lack of prob-

able cause as an element of a First Amendment retaliatory-

arrest claim. I respectfully dissent.

I

The petition for certiorari asked us to resolve whether

“the existence of probable cause defeat[s] a First Amend-

ment retaliatory-arrest claim as a matter of law.” Pet. for

Cert. i. That question has divided the federal courts for

decades. See id., at 10–13. We granted certiorari to con-

sider it six years ago in Reichle v. Howards, 566 U. S. 658,

2 LOZMAN v. RIVIERA BEACH

THOMAS, J., dissenting

663 (2012). But we did not resolve it then because the

petitioner’s second question presented—whether qualified

immunity applied—fully resolved the case. Ibid. Since

Reichle, the split in the federal courts has widened. See

Pet. for Cert. 12–13. In this case, we again granted certio-

rari, 538 U. S. ___ (2017), this time only on the question of

probable cause, see Pet. for Cert. i.

Yet the Court chooses not to resolve that question,

leaving in place the decades-long disagreement among the

federal courts. The parties concentrated all their argu-

ments on this question in their briefs and at oral argu-

ment. Neither party suggested that there was something

special about Fane Lozman’s claim that would justify a

narrower rule. See, e.g., Tr. of Oral Arg. 15–16 (refusing

to take the “fallback position” that this “is some special

kind of case”). Yet the Court does that work for them by

defining a “unique class of retaliatory arrest claims” that

do not require plaintiffs to plead and prove a lack of prob-

able cause. Ante, at 12.

By my count, the Court has identified five conditions

that are necessary to trigger its new rule. First, there

must be “an ‘official municipal policy’ of intimidation.”

Ante, at 11 (quoting Monell v. New York City Dept. of

Social Servs., 436 U. S. 658, 691 (1978)). Second, the

policy must be “premeditated” and formed well before the

arrest—here, for example, the policy was formed “months

earlier.” Ante, at 11.1 Third, there must be “objective

evidence” of such a policy. Ante, at 12. Fourth, there must

be “little relation” between the “protected speech” that

prompted the retaliatory policy and “the criminal offense

——————

1 This requirement suggests that the Court’s rule does not apply

when the “policy” that the plaintiff challenges is an on-the-spot decision

by a single official with final policymaking authority, like the “policy”

that this Court recognized in Pembaur v. Cincinnati, 475 U. S. 469

(1986). See id., at 484–485 (holding that a county prosecutor’s order to

forcibly enter the plaintiff’s clinic was a “municipal policy”).

Cite as: 585 U. S. ____ (2018) 3

THOMAS, J., dissenting

for which the arrest is made.” Ante, at 11. Finally, the

protected speech that provoked the retaliatory policy must

be “high in the hierarchy of First Amendment values.”

Ante, at 12. Where all these features are present, the

Court explains, there is not the same “causation problem”

that exists for other retaliatory-arrest claims. Ante, at 11.

I find it hard to believe that there will be many cases

where this rule will even arguably apply, and even harder

to believe that the plaintiffs in those cases will actually

prove all five requirements. Not even Lozman’s case is a

good fit, as the Court admits when it discusses the rele-

vant considerations for remand. See ante, at 12–13. In

my view, we should not have gone out of our way to fash-

ion a complicated rule with no apparent applicability to

this case or any other.

II

Turning to the question presented, I would hold that

plaintiffs bringing a First Amendment retaliatory-arrest

claim must plead and prove an absence of probable cause.2

This Court has “repeatedly noted that 42 U. S. C. §1983

creates ‘ “a species of tort liability.” ’ ” Memphis Commu-

nity School Dist. v. Stachura, 477 U. S. 299, 305 (1986)

(footnote omitted). Accordingly, we “defin[e] the contours

and prerequisites of a §1983 claim” by “look[ing] first to

the common law of torts.” Manuel v. Joliet, 580 U. S. ___,

___ (2017) (slip op., at 12); see, e.g., Heck v. Humphrey,

512 U. S. 477, 484 (1994) (analogizing to the “common-law

cause of action for malicious prosecution”); id., at 491

(THOMAS, J., concurring) (emphasizing that the decision

——————

2 I am skeptical that 42 U. S. C. §1983 recognizes a claim for retalia-

tory arrests under the First Amendment. I adhere to the view that “no

‘intent-based’ constitutional tort would have been actionable under the

§1983 that Congress enacted.” Crawford-El v. Britton, 523 U. S. 574,

612 (1998) (Scalia, J., dissenting). But because no party presses this

argument, I assume that such claims are actionable under §1983.

4 LOZMAN v. RIVIERA BEACH

THOMAS, J., dissenting

was “consistent . . . with the state of the common law at

the time §1983 was enacted”).

When §1983 was enacted, there was no common-law tort

for retaliatory arrest in violation of the freedom of speech.

See Hartman v. Moore, 547 U. S. 250, 259 (2006). I would

therefore look to the common-law torts that “provid[e] the

closest analogy” to this claim. Heck, supra, at 484. The

closest analogs here are the three arrest-based torts under

the common law: false imprisonment, malicious prosecu-

tion, and malicious arrest. In defining the elements of

these three torts, 19th-century courts emphasized the

importance of probable cause.

Consider first the tort of false imprisonment. Common-

law courts stressed the need to shape this tort with an

“indulgence” for peace officers, who are “specially charged

with a duty in the enforcement of the laws.” T. Cooley,

Law of Torts 175 (1880) (Cooley); see, e.g., Hogg v. Ward, 3

H. & N. 417, 423, 157 Eng. Rep. 533, 536 (Ex. 1858) (opin-

ion of Watson, B.) (stressing “the utmost importance that

the police throughout the country should be supported in

the execution of their duty”). Accordingly, private citizens

were always liable for false imprisonment if the arrestee

had not actually committed a felony, but constables were

“excused” if they had “made [the arrest] on reasonable

grounds of belief ”—i.e., probable cause. Cooley 175; ac-

cord, 2 C. Addison, Law of Torts §803, p. 18 (1876); 1 F.

Hilliard, The Law of Torts or Private Wrongs §18, pp. 207–

208, and n. (a) (1866). As Lord Mansfield explained, it

was “of great consequence to the police” that probable

cause shield officers from false-imprisonment claims, as “it

would be a terrible thing” if the threat of liability dissuaded

them from performing their official duties. Ledwith v.

Catchpole, 2 Cald. 291, 295 (K. B. 1783). This concern

outweighed “the mischief and inconvenience to the public”

from the reality that “[m]any an innocent man has and

may be taken up upon suspicion.” Ibid. Many State Su-

Cite as: 585 U. S. ____ (2018) 5

THOMAS, J., dissenting

preme Courts agreed with Lord Mansfield’s reasoning.

See, e.g., Burns v. Erben, 40 N. Y. 463, 469 (1869) (opinion

of Woodruff, J.) (quoting Ledwith); Brockway v. Crawford,

48 N. C. 433, 437 (1856) (“[The] exempt[ion] for responsi-

bility” for arrests based on probable cause “encourages . . .

a sharp look-out for the apprehension of felons”). As one

court put it, “How, in the great cities of this land, could

police power be exercised, if every peace officer is liable to

civil action for false imprisonment” whenever “persons

arrested upon probable cause shall afterwards be found

innocent?” Hawley v. Butler, 54 Barb. 490, 496 (N. Y. Sup.

1868).

Courts also stressed the importance of probable cause

when defining the torts of malicious prosecution and

malicious arrest. See, e.g., Ahern v. Collins, 39 Mo. 145,

150 (1866) (holding that “malice and want of probable

cause are necessary ingredients of both”). For the tort of

malicious prosecution, courts emphasized the “necessity”

of both the “allegation” and “proof ” of probable cause, in

light of the public interest “that criminals should be

brought to justice.” Hogg v. Pinckney, 16 S. C. 387, 393

(1882); see also Chrisman v. Carney, 33 Ark. 316, 326

(1878) (“The existence of probable cause is of itself alone a

complete defense . . . . The interest which society has in

the enforcement of the criminal laws requires this rule”).

Similarly, if the element of probable cause were not

“strictly guarded,” “ill consequences would ensue to the

public, for no one would willingly undertake to vindicate a

breach of the public law and discharge his duty to society,

with the prospect of an annoying suit staring him in the

face.” Ventress v. Rosser, 73 Ga. 534, 541 (1884); accord,

Cardival v. Smith, 109 Mass. 158 (1872). The element of

probable cause also played an evidentiary role for both

torts. Lack of probable cause provided “evidence of malice,

though inconclusive,” Herman v. Brookerhoff, 8 Watts 240,

241 (Pa. 1839), because “[m]alice may be inferred from a

6 LOZMAN v. RIVIERA BEACH

THOMAS, J., dissenting

total want of probable cause,” Ventress, supra, at 541;

accord, Ahern, supra, at 150.

In sum, when §1983 was enacted, the common law

recognized probable cause as an important element for

ensuring that arrest-based torts did not unduly interfere

with the objectives of law enforcement. Common-law

courts were wary of “throw[ing] down the bars which

protect public officers from suits for acts done within the

scope of their duty and authority, by recognizing the right

of every one who chooses to imagine or assert that he is

aggrieved by their doings, to make use of an allegation

that they were malicious in motive to harass them with

suits on that ground.” Chelsey v. King, 74 Me. 164, 175–

176 (1882).

Applying that principle here, it follows that plaintiffs

bringing a First Amendment retaliatory-arrest claim

under §1983 should have to plead and prove a lack of

probable cause. I see no justification for deviating from

the historical practice simply because an arrest claim is

framed in terms of the First Amendment. Even under a

First Amendment theory, “the significance of probable

cause or the lack of it looms large.” Hartman, 547 U. S., at

265. The presence of probable cause will tend to disprove

that the arrest was done out of retaliation for the plaintiff ’s

speech, and the absence of probable cause will tend to

prove the opposite. See id., at 261. Because “[p]robable

cause or its absence will be at least an evidentiary issue in

practically all such cases” and “[b]ecause showing [its]

absence . . . will have high probative force, and can be

made mandatory with little or no added cost,” the absence

of probable cause should be an “element” of the plaintiff ’s

case. Id., at 265–266; see also id., at 264, n. 10 (refusing

to carve out an exception for unusual cases).

Moreover, as with the traditional arrest-based torts,

police officers need the safe harbor of probable cause in

the First Amendment context to be able to do their jobs

Cite as: 585 U. S. ____ (2018) 7

THOMAS, J., dissenting

effectively. Police officers almost always exchange words

with suspects before arresting them. And often a suspect’s

“speech provides evidence of a crime or suggests a poten-

tial threat.” Reichle, 566 U. S., at 668. If probable cause

were not required, the threat of liability might deter an

officer from arresting a suspected criminal who, for exam-

ple, has a political bumper sticker on his car, cf. Kilpatrick

v. United States, 432 Fed. Appx. 937 (CA11 2011); is par-

ticipating in a politically tinged protest, Morse v. San

Francisco Bay Area Rapid Transit Dist., 2014 WL 572352

(ND Cal., Feb. 11, 2014); or confronts and criticizes the

officer during the arrest of a third party, Holland v. San

Francisco, 2013 WL 968295 (ND Cal., Mar. 12, 2013).

Allowing plaintiffs to bring a retaliatory-arrest claim in

such circumstances, without pleading and proving a lack

of probable cause, would permit plaintiffs to harass offi-

cers with the kind of suits that common-law courts deemed

intolerable.

* * *

Because we should have answered the question presented

and held that probable cause necessarily defeats First

Amendment retaliatory-arrest claims, I respectfully

dissent.