Petitioners Brief — Lozman v. City of Riviera Beach, 138 S. Ct. 447 (2017) (No. 17-21)

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No. 17-21

IN THE

Supreme Court of the Uwiied States

FANE LOZMAN,

Petitioner,

Vv.

CITY OF RIVIERA BEACH, FLORIDA,

Respondent.

On a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

BRIEF FOR PETITIONER

Kerri L. Barsh Pamela S. Karlan

GREENBERG TRAURIG Counsel of Record

333 S.E. Second Avenue _ Jeffrey L. Fisher

Miami, FL 33131 David T. Goldberg

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 725-4851

karlan@stanford.edu

QUESTION PRESENTED

When a plaintiff claims that the government

retaliated against his First Amendment-protected

expression by arresting him, does the existence of

probable cause for the arrest operate as an absolute

bar to his claim?

TABLE OF CONTENTS

QUESTION PRESENTED ..............-cccs:csecseeseeeeeeeees

TABLE OF AUTHORITIES ...............cccssssseseeeeeees

BRIEF FOR PETITIONER .................--ssesessecseseeees

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS ..............<cccc0000000

I. Petitioner's Sunshine Law suit and his

public criticism of city policies and city

officials are entitled to the highest level of

First Amendment protection ...........................

Il. The First Amendment forbids the

government from abusing its arrest power

to retaliate against protected activity .............

A. Government cannot use its otherwise

lawful powers to punish or deter

protected expression ....................ccceeeeeeeee

B. Use of the arrest power for retaliatory

reasons is especially pernicious.................

C. Compliance with the Fourth

Amendment cannot shield an arrest

from First Amendment scrutiny ...............

III. Plaintiffs are entitled to a remedy when an

arrest would not have occurred but for

government officials’ intent to retaliate for

First Amendment activity.........................s0000

iii

IV. Hartman v. Moore provides no basis for an

absolute bar rule in cases involving arrests.......

A. Absolute prosecutorial immunity

makes “retaliatory prosecution” claims

I calenintiveitdabtnticisisctataniienctaciatnciigutariesccees

B. Litigating probable cause in retaliatory

arrest cases is entirely different from

litigating the issue in retaliatory

IED erstnccccnscientectnnsantiatinasatennunnens

IED Sedtectcacesidhtesinnsbertuseisnsnictmnmesnmeniniiiien

TABLE OF AUTHORITIES

Pages

Cases

Abrams v. United States, 250 U.S. 616 (1919)......... 19

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................ 34, 37

Atwater v. City of Lago Vista, 532 U.S. 318

ETI nniiesihiedlinseciakaabeclabiaiapatinatiastbnsidiapibiedncaiidiniienmiaas 22-23

Bd. of Cty. Comm'rs v. Umbehr, 518 U.S. 668

Ear lidscntcacecinlicabutineseinaiimsinitunsiaiintndn 19, 21, 32, 39

Bd. of Educ., Island Trees Union Free Sch.

Dist. No. 26 v. Pico, 457 U.S. 853 (1982)............ 32

BE&K Const. Co. v. NLRB, 536 U.S. 516

III Aidehitinces: enaninnett eanatlaiataeenaeeeiaaabas tdainantitinnennianniniiine 17

Beck v. Ohio, 379 U.S. 89 (19G4)................cccccecceeeeees 25

Bell Atlantic Corp. v. Twombly, 550 U.S 544

IIIT ciacintciesiaiesideehegusduapilitecdetiandpsenlidnneiainsents 34, 35, 37

Bennett v. Hendrix, 423 F. 3d 1247 (11th Cir.

EERE TERT SE RES Scone Oe ana LN mE OE 8

Bordenkircher v. Hayes, 434 U.S. 357 (1978)........... 42

Borough of Duryea v. Guarnieri, 564 U.S. 379

SII ciisiodisieraneinecineinieaniniomientinsidemnlinisiistiidiamisinienneeniiie 17

Buckley v. Fitzsimmons, 509 U.S. 259 (1993) .......... 41

Chavez v. Ill. State Police, 251 F.3d 612 (7th

Se ii catiiandicincehieetiniaebesaedacnilenciininestiteptianiunsiisins 30

Church of Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520 (1993) ..............cccececeeeeeees 27

City of Houston v. Hill, 482 U.S. 451 (1987)....... 22, 28

City of Lakewood v. Plain Dealer Pub. Co., 486

ee I chdncnnicinsncicntenscendempntabeinntinaniabstannapecl 29

Cohen v. California, 403 U.S. 15 (1971).................... 26

Connick 7. Meyers, 461 U.S. 138 (1983)................... 18

County of Riverside v. McLaughlin, 500 U.S.

SE cel iacntinrisaninietioaiidesidaaistinniaiinceanitninnnecnmases 24

Dahl v. Holley, 312 F.3d 1228 (11th Cir.

SENET iiicisicastnskichicdalaansientiomenebeanainldnibiermibien 8, 13, 26, 38

Devenpeck v. Alford, 543 U.S. 146 (2004) ....10, 16, 47

First Nat’] Bank of Boston v. Bellotti, 435 U.S.

IT icteciehal inicinhisichteealbieeanibeninhuaictialetaiccaeeicieasiingtsinni 21

Florence v. Bd. of Chosen Freeholders, 566

0 IEE ES a Oe 24

Florida v. Royer, 460 U.S. 491 (1983) ..................0000 27

Ford v. City of Yakima, 706 F.3d 1188 (9th Cir.

ESET RE SEN LIAL ROO AOR NR PT 24

Forrester v. White, 484 U.S. 219 (1988)................... 41

Garrison v. Louisiana, 379 U.S. 64 (1964)................ 27

Gibson v. Superintendent of N.J. Dep’t of Law &

Pub. Safety, 411 F.3d 427 (3d Cir. 2005),

overruled on other grounds, Dique v. N.J.

State Police, 603 F.3d 181 (3d Cir. 2010)........... 30

Giordenello v. United States, 357 U.S. 480

AAR ea SS SE ee 45

Hampton v. Chicago, 484 F.2d 602 (7th Cir.

SIIII catinestacisiipdihestolitaesteainiatinhiastnitcucanieeaiadunsinisinilinnaanpeeh 41

Hartman v. Moore, 547 U.S. 250 (2006)........... passim

Holland v. City of Portland, 102 F.3d 6 (ist Cir.

BEES ESN aw nae See Ae ene 30

Hudson v. Palmer, 468 U.S. 517 (1984).................... 28

Imbler v. Pachtman, 424 U.S. 409 (1976)........... 40, 42

Ingraham v. Wright, 430 U.S. 651 (1977)................. 28

Johnson v. Crooks, 326 F.3d 995 (8th Cir. 2003) ..... 30

Johnson v. United States, 333 U.S. 10 (1948).......... 45

Laird v. Tatum, 408 U.S. 1 (1972)..............cccce0eeeeeeee 21

Lozman v. City of Riviera Beach, 568 U.S. 115

re eciieiesetonseishsiilteatdiisiensstinilscatian tiniddieasseaiideisiiigdadenateece 4,5

Lozman v. City of Riviera Beach, 713 F.3d 1066

IED wildsnninsnsneptinisnictinemmtanbniapniopeenimenens 4-5

Marshall v. Columbia Lea Reg’ Hosp., 345 F.3d

Se ny Us SI icticcniscnsisbesouisidshindeaphuevaneieesonvens 30

Monell v. Dep't of Social Services, 436 U.S. 658

TEITIUT Leas)asihtiendedshestdansidsunetasdicchaniiinmseniedhieiabmeeimeues 9

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

gS Ee ee ee passim

NAACP v. Button, 371 U.S. 415 (1963) ..........0......... 17

NAACP vy. Claiborne Hardware, 458 U.S. 886

SNE Sicisnigidhiedhisnbisieabcbsieniamnaibantentanenanetberseesidansentites 18

N.Y. Times Co. v. Sullivan, 376 U.S.

Se TINIE iniintodpinpiasicinaininidipseipeniabensineninschoenets 18, 19

O’Shea v. Littleton, 414 U.S. 488 (1974) .................. 26

Packingham v. North Carolina, 137 S. Ct. 1730

SUIT chiisciotiianiediniiaiahinibipiabpdiniibisaindetmidedimpizaptaannitenene 33

Pearson v. Reed, 44 P.2d 592 (Cal. Dist. Ct. App.

EI aicienttnebeeenenialanescinbncisgenniicabeitibipgbitisniniiiatinimieanioenss 42

Pembaur v. City of Cincinnati, 475 U.S. 469

IIIT tanncsinniciiiindinedhicsabenaciaptinaniabiadbiebamsbessbectepned 9

Perry v. Sindermann, 408 U.S. 593 (1972)............... 21

Pierson v. Ray, 386 U.S. 547 (1967).........0....2cccccceees 43

Rankin v. Evans, 133 F.3d 1425 (11th Cir. 1998) ....13

Rankin v. McPherson, 483 U.S. 378 (1987).............. 20

vii

Redd v. City of Enterprise, 140 F.3d 1378 (11th

SR. Sie insviecsinscitnsntsinbinsieptnbsvaementidianieindienibvaidtinies 38

Reichle v. Howards, 566 U.S. 658

GEREN citudstibississcisinniecpedanshibianasingiiaiaiinecmions 16, 37, 38, 43

Rizzo v. Goode, 423 U.S. 362 (1976).................... 13, 26

Snyder v. Phelps, 562 U.S. 443 (2011)..............0000008 18

Soldal v. Cook County, 506 U.S. 56 (1992) ...20, 28, 29

Soldal v. Cook County, 942 F.2d 1073 (7th Cir.

UN SED ccccncrciccasctebispviacinentaiednadhidmedaas 28-29

Speiser v. Randall, 357 U.S. 513 (1958)..............00006 21

Texas v. Johnson, 491 U.S. 397 (1989)................ 18-19

Texas v. Lesage, 528 U.S. 18 (1999).............. 15, 32, 38

Town of Palm Beach v. Gradison, 296 So. 2d 473

GP: Sie inteinsentsicentssessnmeapentiedeniiaiialinkaion 17-18

United Mine Workers of Am. v. Ill. St. Bar Ass’n,

ae EP CED cctisnstcntssedetancietedioninnsiaunsmninas 17

United States v. Armstrong, 517 U.S. 456 (1996)....42

United States v. Chem. Found., Inc., 272 U.S. 1

United States v. Cruikshank, 92 U.S. 542 (1876)....17

United States v. Miller, 146 F.3d 274 (5th Cir.

STITT sesussecnecsusinsanninenedpendiitaabisiaptetissisadaialaiiniiemitind 30

United States v. O’Brien, 391 U.S. 367 (1968) ....33-34

Utah v. Strieff, 136 S. Ct. 2056 (2016)...................... 36

Vakilian v. Shaw, 335 F.3d 509 (6th Cir. 2003) ....... 30

Village of Willowbrook v. Olech, 528 U.S. 562

Ce GP Sa escicctcnscivsncsninerstcsevecsnesinnein 20, 39

Village of Arlington Heights v. Metro. Housing

Dev. Corp., 429 U.S. 252 (1977)...........ccccccceeeeeeee 38

viii

Weidner v. State, 380 So. 2d 1286 (Fla. 1980).....36-37

Whren v. United States, 517 U.S. 806 (1996).....29, 30

Wilkie v. Robbins, 551 U.S. 537 (2007)..................... 21

Constitutional Provisions

Sh) re passim

SATII III, TUT sc scnccncnesscenenssovessesencsecnesees passim

U.S. Const. amend. XIV.................0000cc000008 7, 30, 38, 39

Statutes

EEE EO 37

I aa semnnenanennneiets 1

ae passim

Bs IIA TI ciccccccersccccacsesscasece 3, 5, 7,9, 12, 17, 18

A a 3,4

ae 10

Ss Se IIOED ncccccosscccsccacesecocccceccessscesecs 23, 35

Ee 23

inde seeciansnnenesonecnenenseutes 23

EE 7

ERE 23

a cicricncict scans ernnsennnegnanscenianneete 23

i a cnneedncnne passim

ala al cer endamatamseaumnenuenteeatente 7

Other Authorities

Activist Arrested at Riviera Beach City Council

Meeting, YouTube (Sept. 15, 2009)....................... 6

Brandeis, Louis D., Other People’s Money and

How the Bankers Use It (1914) .....................00 18

City of Riviera Beach, RBTV (city website).......... 6, 25

City of Riviera Beach, Regular City Council

Meeting Minutes (Nov. 15, 2006) ............... 6, 7, 44

City of Riviera Beach, Your Elected Officials

Se ele rcek deencnncatenentiavessninnenenmsinentannnesensenase 3

Cooper, William, Fears Fail to Ease Over Loss

of Land, Palm Beach Post (Nov. 17, 2006)........... 5

F.B.1L., National Incident-Based Reporting

System User-Mannuaal ..............ccccccccceeeeserenereeeenees 35

Fields, Gary & John R. Emshwiller, As Arrest

Records Rise, Americans Find

Consequences Can Last a Lifetime, Wall

i a Ny Be SII eniccencescecscdenscosensnecsneccscusesese 24

Jackson, Robert H., The Federal Prosecutor

SEI Ta Tt ciidenvescenaeesinedntiipeansn eeeniatihentateadestttinsin leasicsthecaptannti 22

Jain, Elisha, Arrests as Regulation, 67 Stan. L.

8 EEE Ee LES 24

Kalven, Harry, Jr., The Negro and the First

ee itnitacitnicnansdenticennscinesetssennese 31

Kennedy, Randall, Martin Luther King’s

Constitution: A Legal History of the

Montgomery Bus Boycott, 98 Yale L.J. 999

ie tirtininisitncencinncathinsintideniateiiguiaaatisinsinapsaiaetcemtemsten 31

LaFave, Wayne R., Search and Seizure (5th ed

SSE PR aes Soaewcn VON eat Nc MeOee NTO 23

Madison, James, Report of 1800, in 4 Elliot's

Debates on the Federal Constitution (1863)...... 18

Osborne, John Jay, Jr., The Paper Chase (40th

Co DS ee 48

Simon, Robert I., The Psychological and Legal

Aftermath of False Arrest and

Imprisonment, 21 Bull. Am. Acad.

Psychiatry & L. 523 (1993) ...........ccccccccccceeeeeeneees 24

Tr. of Oral Arg., Maslenjak v. United States, 137

S. Ct. 1918 (2017) (No. 16-309) .............cccccceereeees 23

Tr. of Oral Arg., Reichle v. Howards, 566 U.S. 658

ITI SEIU inins ccisinctenesieiintteniipaiiiiinenhianiatuniiie’ 23

BRIEF FOR PETITIONER

Petitioner Fane Lozman respectfully requests

that this Court reverse the judgment of the United

States Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Eleventh Circuit, Pet. App. 1a, is unreported

but is available at 2017 WL 765771. The order of the

United States District Court for the Southern District

of Florida denying respondent’s motion for summary

judgment, Pet. App. 15a, is reported at 39 F. Supp. 3d

1392.

JURISDICTION

The judgment of the United States Court of

Appeals for the Eleventh Circuit was entered on

February 28, 2017. Pet. App. la. On May 15, 2017,

Justice Thomas extended the time to file the petition

for a writ of certiorari to and including June 28, 2017.

See No. 16A1100. Petitioner filed his petition that day,

and this Court granted it on November 13, 2017. This

Court has jurisdiction under 28 U.S.C. § 1254.

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The First Amendment to the United States

Constitution provides:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free exercise

thereof, or abridging the freedom of speech, or of the

press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of

grievances.

42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity,

or other proper proceeding for redress .. . .

STATEMENT OF THE CASE

This case arises from a dispute over municipal

policy between petitioner and the City of Riviera

Beach that culminated in petitioner's arrest in

November 2006. Petitioner claims that the arrest was

the product of the City’s hostility toward his First

Amendment-protected activity. Pet. App. 5a. The

Eleventh Circuit acknowledged that at trial petitioner

had “established a sufficient causal nexus” between

his arrest and retaliatory animus on the part of the

City Council. Id. 10a. Nonetheless, it held that

petitioner could not recover because the jury’s finding

that a police officer had probable cause to arrest him

for disturbing a lawful assembly—a crime with which

he was never charged—created an “absolute bar” to

his First Amendment retaliation claim, id. 7a.

1. Factual background. In early 2006, petitioner,

a former United States Marine Corps officer and a

financial trader, moved to the City with his floating

home and leased a slip in the municipally-owned

marina. Pet. App. 16a. Shortly thereafter, petitioner

learned that the City planned to redevelop its water-

front area. Among other things, the City planned to

seize “thousands of homes through the power of

eminent domain” and transfer property “to a private

developer.” Id.

Petitioner became an outspoken critic of the plan.

As the City was finalizing its agreement with the

developers, the Florida Legislature passed a bill pro-

hibiting the use of eminent domain for private devel-

opment. Pet. App. 2a. But the day before the Governor

was scheduled to sign that bill into law, the Riviera

Beach City Council convened an “eleventh-hour” meet-

ing to approve the agreement. Id. 3a.’

In response, petitioner filed a lawsuit alleging

that the agreement was invalid because the City had

violated Florida’s “Government in the Sunshine Law,”

Fla. Stat. ch. 286. One of that law’s requirements is

that governments within the state provide reasonable

public notice before holding a meeting at which official

action will be taken. Fla. Stat. § 286.011; see Pet. App.

2a-3a.

After petitioner filed his lawsuit, members of the

City Council came under investigation by the Florida

Department of Law Enforcement. Pet. App. 3a.

Members of the Council perceived a connection

' According to the City’s official website, “Riviera Beach has

a Mayor-Council-Manager form of government, in which the City

Council appoints the City Manager as the chief executive officer

to manage the day-to-day operations of the city.” The Manager

reports directly to the Council (not to the Mayor) and the

members of the Council “also sit as the Board of the Community

Redevelopment Agency.” City of Riviera Beach, Your Elected

Officials, https://tinyurl.com/1721RBGOV (last visited Dec. 19,

2017).

between petitioner's lawsuit and the investigation.

See J.A. 171, 175.

On June 28, 2006, the City Council held a closed-

door meeting to discuss petitioners lawsuit.’

Councilmembers expressed their anger at petitioner.

Councilmember Elizabeth Wade proposed that the

City “intimidate” him and make him “feel the same

kind of unwarranted heat that we are feeling.” J.A.

176. After further discussion, a second counci!member

asked whether “we have a consensus of what Ms.

Wade is saying”—namely, to send petitioner a “mes-

sage.” Id. 181 (Councilmember Iles). A third council-

member agreed that “what Ms. Wade says is right. We

do have to beat this thing, and whatever it takes, I

think we should do it.” Id. (Councilmember Jackson).

A fourth councilmember and the City Attorney each

replied “Okay.” Id. at 182 (Councilmember Duncombe

and City Attorney Ryan). See Pet. App. 18a.

The City soon took a series of actions against

petitioner. One example already familiar to this Court

involved efforts to evict him from the municipal

marina, where petitioner was living on his floating

home. See Lozman v. City of Riviera Beach, 568 U.S.

115 (2013). The City first brought eviction proceedings

against petitioner in state court. But a jury returned a

verdict in his favor. The jury found “that Lozman’s pro-

tected speech was a substantial or motivating factor in

the City’s decision to terminate his lease.” Lozman v.

® Florida’s Sunshine Law allows city councils to hold closed-

door meetings to discuss pending litigation. Fla. Stat.

§ 286.011(8). These meetings, however, must be transcribed and

the transcripts made public once the litigation concludes. Id.

§ 286.011(8\c), (e).

City of Riviera Beach, 713 F.3d 1066, 1070 (11th Cir.

2013).

Undeterred by these “unsuccessful efforts,”

Lozman, 568 U.S. at 118, the City turned to federal

admiralty law to evict petitioner. Invoking that law’s

special rules allowing in rem actions against vessels,

the City seized, and ultimately destroyed, petitioner’s

floating home. Id. at 120. But this Court held that the

seizure was improper because petitioner’s floating

home was not a “vessel.” Id. at 118.

2. Petitioner’s arrest. This case springs from yet

another action the City took against petitioner. The

City Council met in regular public session on Novem-

ber 15, 2006. Immediately before the meeting, the City

had finally abandoned its plans to redevelop the

waterfront. See William Cooper, Fears Fail to Ease

Over Loss of Land, Palm Beach Post (Nov. 17, 2006).*

The meeting, as usual, included a non-agenda

public comment period. During that portion of a meet-

ing, there are no subject-matter limitations on a

speaker. J.A. 123. As one city councilmember ex-

plained, “when you come to the microphone and you're

speaking, you have your three minutes to really ex-

press yourself on how you feel about what’s going on

with reference to the City, community, just whatever

is going on at that time.” Id. (testimony of

Councilmember Davis). A speaker can talk about

county issues. Id. Indeed, he can “read a nursery

® Available at https://tinyurl.com/1721PBP (last visited Dec.

21, 2017). Shortly thereafter, petitioner dismissed his Sunshine

Law case.

rhyme for three minutes as long as [he does] not use

profanity.” Id. 124.*

The events that followed were, as the court of

appeals noted, captured on video. Pet. App. 3a. For a

currently available version of the video, see Activist

Arrested at Riviera Beach City Council Meeting,

YouTube (Sept. 15, 2009), https://tinyurl.com/lbj5qqj

(at 0:30).°

At his allotted time, petitioner approached the

lectern and began to speak about public corruption in

Palm Beach County, where Riviera Beach is located.

After a few seconds, Councilmember Wade, who was

presiding at the time, see J.A. 115, attempted to cut

him off, Pet. App. 4a. When petitioner continued his

remarks, she summoned Riviera Beach Police Officer

Francisco Aguirre, who was on duty at the meeting.

Petitioner told Officer Aguirre that he was not finished

speaking. Councilmember Wade then ordered the

officer to “carry him out.” Id. At that point petitioner

was arrested, handcuffed, and removed from the meet-

ing. Id. The City Council’s official minutes described

the event this way: “Fane Lozman, City Marina, was

escorted out to [sic] the meeting at the request of

Councilperson Wade.” City of Riviera Beach, Regular

* The official city council minutes refer to the time limit for

non-agenda public comments as being two minutes, see, e.g., City

of Riviera Beach, Regular City Council Meeting Minutes at 3

(Nov. 15, 2006), https://tinyurl.com/RBMin1115, but that time

difference is immaterial to this case.

® Per City Council policy, all meetings are broadcast live and

posted on the City of Riviera Beach's website for later viewing.

City of Riviera Beach, RBTV, https://tinyurl.com/1721RBTV (last

visited Dec. 20, 2017).

City Council Meeting Minutes at 4 (Nov. 15, 2006),

https://tinyurl.com/RBMin1115.

Petitioner was taken to the police station and

placed in a holding cell. When he was released, he was

given a notice to appear. Ultimately, that notice con-

tained two charges: “disorderly conduct,” see Fla. Stat.

§ 877.03, and “resisting arrest without violence,” see

id. § 843.02; Pet. App. 4a.

The state’s attorney, however, soon dismissed

both charges on the basis that there was “no reasona-

ble likelihood of successful prosecution.” Pet. App. 4a-

5a (quoting Pl. Ex. 12).

3. District court proceedings. Petitioner filed this

Section 1983 lawsuit in the U.S. District Court for the

Southern District of Florida. As is relevant here, he

alleged that the City violated the First Amendment’s

Petition and Free Speech Clauses by directing his

arrest in retaliation for his Sunshine Law suit and his

public criticism of city officials and policies. Pet. App.

29a; J.A. 31.°

To prevail on his First Amendment retaliation

claim, petitioner was required to prove three elements

common to all such claims. First, petitioner had to

show that he had engaged in protected First Amend-

ment expression. Second, he had to show that the

action he was challenging—here, his arrest—is the

kind of action that would chill a person of ordinary

firmness from exercising First Amendment rights.

* Petitioner brought several other claims under the First,

Fourth, and Fourteenth Amendments, as well as under state law.

Pet. App. 22a-23a; J.A. 32, 38-41. Those claims, which have been

finally resolved, are not at issue here.

Third, he had to show that animus against his pro-

tected expression motivated the City’s action. See

Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir.

2005).

But because petitioner was _ challenging

retaliation that took the form of an arrest, Eleventh

Circuit precedent required that he prove a fourth ele-

ment as well—that there was no probable cause for

that arrest. Dahl v. Holley, 312 F.3d 1228, 1236 (11th

Cir. 2002).

The district court held before trial that petitioner

satisfied the first two elements. First, “the record

plainly show[ed]” that he “was engaged in expressive

political speech, as well as the valid exercise of his

right to petition the government.” Pet. App. 32a. And

there was no dispute that the prospect of an arrest

could deter a person of ordinary firmness from exercis-

ing his First Amendment rights.

But the district court determined that a trial was

necessary to resolve the third and fourth elements of

petitioner’s claim. The court saw “sufficient circum-

stantial evidence” in the record to make the existence

of an “unlawful motivation behind the City’s actions”

a “jury question.” Pet. App. 32a. That evidence would

permit the jury to find that a majority of the City

Council “harbored illicit motivation to punish and

deter Lozman based on his exercise of free speech and

petition of government.” Id. 3la. It was also a jury

question whether the alleged retaliatory actions were

“taken with [their] support.” Id. 32a.’

With respect to the final element, the court like-

wise identified “a genuine issue of material fact on the

question of whether City of Riviera Beach police

officers had probable cause to arrest Plaintiff for dis-

orderly conduct or resisting arrest without violence.”

Pet. App. 30a.

The trial in this case lasted nineteen days, with

petitioner proceeding pro se. Along with other evi-

dence, petitioner introduced the videotape of the

public City Council meeting at which he was arrested.

He also introduced the transcript of the closed-door

meeting called to address his Sunshine Law case, at

which councilmembers had expressed their animosity

toward petitioner and their consensus to respond

forcefully. J.A. 175, 180-81.

Beginning on the eighth day of trial, the district

court held lengthy, repeated discussions with the par-

ties regarding the question whether there was proba-

ble cause for petitioner’s arrest. The starting point was

the two offenses that had been listed on the notice to

appear petitioner had received after his arrest. The

court pointed out that there was no dispute over

Services, 436 U.S. 658 (1978), a city may be held liable under

Section 1983 for acts taken “pursuant to official municipal policy

of some nature.” Id. at 691. This Court has held it “plain that

municipal liability may be imposed for a single decision by

municipal policymakers.” Pembaur v. City of Cincinnati, 475 U.S.

469, 480 (1986).

“exactly what happened on November 15th of 2006 be-

cause we have a video clip, with both sight and sound.”

J.A. 105. Taking that evidence “in the light most

favorable to the City” with respect to those offenses,

the court found a lack of probable cause as a matter of

law. Id. 105, 108. There was “nothing there that would

establish the crime of disorderly conduct.” Id. 105.

Nor, despite the City attorney’s “interesting” and

“intriguing” arguments, id., did the crime of “resisting

or obstructing a police officer appl[y] to what happened

here,” id. 108.

But the district court did not find the absence of

probable cause as to the offenses listed on the notice to

appear to be dispositive of whether petitioner had

established the fourth element of his retaliation claim.

Instead, consistent with Devenpeck v. Alford, 543 U.S.

146, 153 (2004)—which holds that the Fourth Amend-

ment’s “probable-cause inquiry” is not “confined” to

“the offense actually invoked at the time of arrest”—

the court declared that “the real issue” was whether

Officer Aguirre had “probable cause to arrest [peti-

tioner] for anything.” J.A. 100 (emphasis added).

Accordingly, it asked the City “[wJhat else” it might

have—that is, whether there were other laws for

which there might have been probable cause to arrest

petitioner. Id. 105.

The City identified two new candidates. The first

was “trespass after warning.” J.A. 86; see Fla. Stat.

§ 810.08(1) (“Whoever, . . . having been authorized,

licensed, or invited [into any structure], is warned by

the owner or lessee of the premises, or by a person

authorized by the owner or lessee, to depart and re-

fuses to do so, commits the offense of trespass in a

structure or conveyance.”). The putative theory here

was that “the Chair of the City Council certainly has a

right to withdraw [an] invitation” to the lectern “if the

Chair concludes that the speaker is not abiding by the

rules.” J.A. 110.

The second option the City proffered was Florida

Statutes Section 871.01(1), J.A. 95. That statute pro-

vides that “[w)Jhoever willfully interrupts or disturbs

any school or any assembly of people met for the wor-

ship of God or for any lawful purpose commits a mis-

demeanor of the second degree.” Fla. Stat. § 871.01(1).

The court wrestled for several days with whether

either of these statutes could support petitioner's

arrest. On the tenth day of trial, it expressed some

doubt that the disturbance statute could apply. In

order “to meet constitutional standards,” behavior

that qualified as disturbance of an assembly had to be

“somewhat akin” to the behavior covered by the disor-

derly conduct statute. J.A. 108. And the court had

already held as a matter of law that the evidence did

not support probable cause for disorderly conduct. Id.

105.

The court therefore suggested that the trespass

after warning statute was the only one that potentially

“applie(d]” to petitioner. J.A. 108. The court recognized

difficulties with applying that statute to petitioner's

conduct. But it explained that “it bothers me” that

once Councilmember Wade had directed petitioner to

stop talking, “we could leave that policeman and say

there’s not really a law that he’s capable of enforcing.”

Id. 113. According to the district court, “there must be

some law in the Florida statutes that covers this kind

of situation.” Id.

On the thirteenth day of trial, the court back-

tracked. Although it had earlier given the City’s attor-

ney an “A for effort” with respect to the argument for

applying the trespass statute, J.A. 89, the district

court announced that now it was “really thinking that

the crime that we ought to focus on is the disturbing

the public meeting.” Id. 120. “[I)f we had to pick a stat-

ute, that really is the statute that I think is at play

here.” Id. The next day, the court announced itself

“well-satisfied that if there’s any crime, it’s the dis-

turbance crime.” Id. 121. Ultimately, Section 871.01(1)

was the only offense as to which the jury was asked to

assess probable cause with respect to petitioner's

arrest. J.A. 133-34.

At the close of evidence, the district court

instructed the jury that, as a matter of law, peti-

tioner’s litigation under the Sunshine Law and his

public criticism of the City in the months leading up to

his arrest were protected First Amendment activity.

J.A. 127. With respect to the question of retaliatory

animus, petitioner had requested an instruction that

the jury consider the city councilmembers’ state of

mind. But over petitioner’s objection, the district court

instead instructed the jury to consider only whether

Officer Aguirre had “impermissible animus” against

petitioner. Id. 132.

Finally, in keeping with Eleventh Circuit law, the

district court also instructed the jury that petitioner

had to p: ve that there was no probable cause to arrest

him for disturbing a lawful assembly. J.A. 133-34

(requiring proof that there was “a lack of probable

cause” for the arrest). Under the court’s instructions,

any animus by the City would become relevant if and

only if the jury found that Aguirre himself acted with

retaliatory animus in arresting petitioner without

probable cause. See id. 136-39.

The jury found probable cause for petitioner's

arrest, Pet. App. 7a, and returned a verdict for the

City. Based on the jury's verdict, the court entered

judgment for respondent.

4. Eleventh Circuit appeal. On appeal, petitioner

argued, among other things, that the jury instruction

had erroneously directed the jury’s attention to Officer

Aguirre’s intent rather than the city councilmembers’.

The court stated that petitioner's argument was

“compelling, as he seems to have established a suffi-

cient causal nexus between Councilperson Wade and

the alleged constitutional injury of his arrest.” Pet.

App. 10a. Even though Officer Aguirre had made the

actual arrest, the court pointed out that Section 1983

imposes liability “for conduct which ‘subjects, or

causes to be subjected’ the complainant to a depriva-

tion of a right secured by the Constitution and laws.”

Pet. App. 10a (quoting Rizzo v. Goode, 423 U.S. 362,

370-71 (1976), and 42 U.S.C. § 1983) (emphasis added

by the court of appeals)).

But the Eleventh Circuit concluded that any error

with regard to the jury instruction was immaterial in

light of the Eleventh Circuit's “absolute bar” rule. Pet.

App. 7a (quoting Rankin v. Evans, 133 F.3d 1425, 1435

(11th Cir. 1998)). The fact that “the arrest was sup-

ported by probable cause defeatied] Lozman’s First

Amendment retaliatory arrest claim as a matter of

law.” Id. 11a (citing Dahl, 312 F.3d at 1236).

With respect to the existence of probable cause in

this case, the court of appeals held that “the video foot-

age of Lozman’s conduct at the City Council meeting”

permitted the jury to find that “Officer Aguirre reason-

ably believed Lozman was committing, or was about to

commit, the offense of Disturbing a Lawful Assembly.”

Pet. App. 9a. As the Eleventh Circuit put it, the video

showed that petitioner had “interrupted and refused

to listen to Councilperson Wade when she tried to

admonish him.” Id. It also showed that petitioner

declined to leave the lectern when asked to do so by

Officer Aguirre. Accordingly, the court of appeals con-

cluded “Officer Aguirre could have reasonably

believed” that petitioner was violating Section

871.01(1)}—“or was about to.” Pet. App. 9a.

SUMMARY OF ARGUMENT

The First Amendment’s guarantees of freedom of

speech and the right to petition for redress of griev-

ances would mean little if governments and govern-

ment officials were free to retaliate against individuals

who exercise those rights. The Eleventh Circuit’s deci-

sion in this case, however, provides a license to use the

arrest power to carry out such retaliation.

The Eleventh Circuit’s rule that probable cause

“constitutes an absolute bar” to any First Amendment

retaliation claim involving an arrest, Pet. App. 7a,

both erodes First Amendment protection in an area

where such protection is especially needed and is

irreconcilable with the most closely related

constitutional precedents. The arrest power is a

readily available and highly effective means of

deterring protected expression. This Court repeatedly

has recognized that government actions can

implicate—and violate—more than one right. This

Court has already held that the Equal Protection

Clause imposes an independent limitation on arrests:

Probable cause that satisfies the Fourth Amendment

does not bar a claim that an arrest was racially

discriminatory. It should likewise hold that the fact

that an arrest comports with the Fourth Amendment

does not immunize it from scrutiny under the First.

This Court has a “well-established framework” for

analyzing retaliation claims involving First Amend-

ment-protected expression. Texas v. Lesage, 528 U.S.

18, 20 (1999) (per curiam). In the forty years since the

framework was articulated in Mount. Healthy City

School District Board of Education v. Doyle, 429 U.S.

274 (1977), it has been applied to First Amendment

retaliation claims across a broad range of contexts—

from the firing of government employees to the

termination of government contracts, and from

removing books in school libraries to disciplining

prisoners.

Under this standard framework, a plaintiff

alleging retaliation must show that he engaged in

First Amendment-protected expression, that the

defendant harbored retaliatory animus against that

expression, and that the animus was a substantial fac-

tor in the gov -rnment decision he is challenging. If a

plaintiff meets this burden—and it is a substantial one

indeed—the government defendant can still defeat

liability by showing that the challenged decision would

have been the same even absent the retaliatory

animus.

This well-established framework should govern

First Amendment claims when a plaintiff alleges that

retaliation took the form of an arrest. The framework

properly balances core First Amendment rights and

legitimate government decisionmaking. In particular,

the framework is well equipped to handle evidence

regarding whether there was probable cause for the

challenged arrest. In some cases, probable cause will

be close to dispositive on the question whether there

was retaliatory animus or causation. But in other

cases the existence of probable cause may have little

evidentiary value. The facts of petitioner’s case and of

Reichle v. Howards, 566 U.S. 658 (2012), show why the

Eleventh Circuit’s absolute bar rule is both unneces-

sary and pernicious.

The Eleventh Circuit's rule finds no support in

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

250 (2006). There, the Court created an exception to

the Mt. Healthy framework for lawsuits in which the

alleged form of retaliation involves a criminal prosecu-

tion. But the analysis in Hartman rests entirely on the

fact that prosecutors themselves are absolutely im-

mune from suit. That immunity, and a special

“presumption of regularity” for prosecutorial deci-

sionmaking, is the source of the causal complexity that

led this Court to require that “want of probable cause

must be alleged and proven” in a retaliatory prosecu-

tion case, id. at 252. There is no such complexity in

cases involving arrests. There is no barrier to a plain-

tiff suing the actor who arrested him, or who “cause(d

him] to be subjected” to an arrest, 42 U.S.C. § 1983.

And this Court has already stated that the presump-

tion of regularity simply “does not apply” to arrests.

Reichle, 566 U.S. at 669. Finally, this Court’s decision

in Devenpeck v. Alford, 543 U.S. 146 (2004), and the

lack of an instrument like an indictment or an

information that can anchor the probable cause

inquiry, makes it unworkable and unfair to extend the

Hartman exception to cases involving arrests.

ARGUMENT

I. Petitioner’s Sunshine Law suit and his public

criticism of city policies and city officials are

entitled to the highest level of First

Amendment protection.

The litigation and civic involvement that sparked

the city councilmembers’ antagonism toward peti-

tioner and preceded the order to arrest him lie at the

heart of the First Amendment.

1. The First Amendment right to “petition the

Government for a redress of grievances” is so funda-

mental as to be “implied by ‘[t]he very idea of a govern-

ment, republican in form.” BE&K Const. Co. v. NLRB,

536 U.S. 516, 524-25 (2002) (quoting United States v.

Cruikshank, 92 U.S. 542, 552 (1876)). This right is

“one of ‘the most precious of liberties safeguarded by

the Bill of Rights.” Id. at 524 (quoting United Mine

Workers of Am. v. Ill. St. Bar Ass’n, 389 U.S. 217, 222

(1967)). And the ability to seek redress from the courts

is a central aspect of the Petition Clause. Borough of

Duryea v. Guarnieri, 564 U.S. 379, 387 (2011).

“(U]nder the conditions of modern government, litiga-

tion may well be the sole practicable avenue open to a

minority to petition for redress of grievances.” NAACP

v. Button, 371 U.S. 415, 430 (1963).

Indeed, petitioner’s action against the City under

Florida’s Sunshine Law is the epitome of a lawsuit pro-

tected by the Petition Clause. The Sunshine Law

requires that local governments hold their meetings

publicly and with proper notice. It is designed to

ensure a “marketplace of ideas” in which government

has “sufficient input from the citizens who are going to

be affected by the subsequent action of the

municipality.” Town of Palm Beach v. Gradison, 296

So. 2d 473, 475 (Fla. 1974). The Sunshine Law enables

citizens to monitor the work of their representatives.

It instantiates Justice Brandeis’s axiom that sunlight

is the best disinfectant. Louis D. Brandeis, Other

People’s Money and How the Bankers Use It 92 (1914).

In short, petitioner’s lawsuit is protected precisely be-

cause of, and not despite, its consequences for city

officials, see Pet. App. 3a, 17a-18a.

2. So, too, with respect to petitioner’s criticisms of

city policies and city officials over the months leading

up to the November 2006 meeting. This sort of

expression lies at the heart of the speech the First

Amendment protects. Because “the Constitution

created a form of government under which ‘[tjhe

people, not the government, possess the absolute

sovereignty,” the “right of free public discussion of the

stewardship of public officials” is “fundamental.” N.Y.

Times Co. v. Sullivan, 376 U.S. 254, 274-75 (1964)

(quoting James Madison, Report of 1800, in 4 Elliot’s

Debates on the Federal Constitution 569 (1863)).

3. Precisely because litigation and public criticism

are essential to holding government accountable, this

Court “has frequently reaffirmed that speech on public

issues occupies the ‘highest rung on the hierarchy of

First Amendment values,’ and is entitled to special

protection.” Connick v. Meyers, 461 U.S. 138, 145

(1983) (quoting NAACP v. Claiborne Hardware, 458

U.S. 886, 913 (1982)). This is particularly true where,

as here, the expression comes from a private citizen.

Relying on this principle, this Court has explained

that “[s)uch speech cannot be restricted simply be-

cause it is upsetting.” Snyder v. Phelps, 562 U.S. 443,

458 (2011). It is “a bedrock principle underlying the

First Amendment” that “the government may not pro-

hibit the expression of an idea simply because society

finds the idea itself offensive or disagreeable.” Texas

v. Johnson, 491 U.S. 397, 414 (1989). Even less can it

suppress expression on the ground that the expression

is upsetting, offensive, or disagreeable to government

officials. “[D)ebate on public issues should be uninhib-

ited, robust, and wide-open,” and “it may well include

vehement, caustic, and sometimes unpleasantly sharp

attacks on government and public officials.” N.Y.

Times Co., 376 U.S. at 270. This Court long ago

repudiated the doctrine of seditious libel in favor of a

“theory of our Constitution,’ which values free speech

as essential to, not subject to the vicissitudes of, our

political system.” Bd. of Cty. Comm'rs v. Umbehr, 518

U.S. 668, 681 (1996) (quoting Abrams v. United States,

250 U.S. 616, 630 (1919) (Holmes, J., dissenting)).

Il. The First Amendment forbids the government

from abusing its arrest power to retaliate

against protected activity.

Governments cannot use their legitimate powers

to retaliate against individuals who exercise their

First Amendment rights. This longstanding prohibi-

tion on retaliation is particularly important when it

comes to arrests, both because the arrest power is so

sweeping and because the prospect of an arrest is so

chilling of protected expression. The fact that a

particular arrest does not also violate the Fourth

Amendment—because information known to the

arresting officer can support a finding of probable

cause with respect to some offense—should not shield

the responsible actor(s) from liability under the First

Amendment. This Court has repeatedly held, in a

variety of contexts, that a particular official action can

“implicate more than one of the Constitution’s com-

mands.” Soldal v. Cook County, 506 U.S. 56, 70 (1992).

Since the concerns at which the First and Fourth

Amendments are directed are distinct, it is entirely

possible for an arrest to violate one amendment but

not the other. When it does, the plaintiff's ability to

recover under Section 1983 for the violation of his

rights under one amendment should not be foreclosed

by the absence of a second constitutional] violation.

A. Government cannot use its otherwise

lawful powers to punish or deter protected

expression.

Governments engage in myriad interactions with

their citizens. This gives a government or official

motivated by animus a variety of opportunities for

retaliation against protected expression. A munici-

pality might improperly deny an easement given to

other property owners on account of “ill will resulting

from the [owners’) previous filing of an unrelated, suc-

cessful lawsuit against the Village.” Village of Willow-

brook v. Olech, 528 U.S. 562, 563 (2000) (per curiam).

Or a county constable might improperly fire a clerical

employee because she expressed distasteful views

about the recent attempted assassination of the presi-

dent. Rankin v. McPherson, 483 U.S. 378, 380-82

(1987).

The prospect that the government may deny

benefits or impose burdens based on a person’s pro-

tected expression may deter that individual from exer-

cising his First Amendment rights. The consequences

of that deterrence radiate outward to injure

individuals beyond the aspiring speaker himself be-

cause the public has a stake in individuals’ contribu-

tions to the marketplace of ideas. When government

deters protected expression, it “limitis) the stock of

information from which members of the public may

draw”—something the First Amendment directly “pro-

hibit(s].” First Nat'l Bank of Boston v. Bellotti, 435

U.S. 765, 783 (1978).

Accordingly, this Court has held, across a wide

range of domains, that governmental actions “that fal!

short of a direct prohibition against the exercise of

First Amendment rights” can still violate the Consti-

tution. Laird v. Tatum, 408 U.S. 1, 11 (1972). Take, for

example, Board of County Commissioners v. Umbehr,

518 U.S. 668 (1996). There, a local government termi-

nated a trash hauler’s contract because he was an

“outspoken critic” of the local government who had

alleged violations “of the Kansas Open Meetings Act.”

Id. at 671. Even though local governments have broad

discretion over their contracting, the Court held that

terminating a contract purely to retaliate against pro-

tected expression violates the First Amendment. Id. at

686. These sorts of adverse actions are prohibited be-

cause they “allow the government to ‘produce a result

which [it] could not command directly.” Perry v.

Sindermann, 408 U.S. 593, 597 (1972) (quoting

Speiser v. Randall, 357 U.S. 513, 526 (1958)).

In short, there is “longstanding recognition that

the Government may not retaliate for exercising First

Amendment speech rights.” Wilkie v. Robbins, 551

U.S. 537, 555 (2007). And the Court has further held

that Section 1983 provides a cause of action for indi-

viduals who have been subjected to such retaliation.

See, e.g., Umbehr, 518 U.S. at 674-75; Perry, 408 U.S.

at 597.

B. Use of the arrest power for retaliatory

reasons is especially pernicious.

The right to criticize the government “without

thereby risking arrest” is a “principal characteristic|]

by which we distinguish a free nation from a police

state.” City of Houston v. Hill, 482 U.S. 451, 462-63

(1987). Two features of arrests make them an espe-

cially serious threat to First Amendment freedoms.

First, the arrest power provides an opportunity for the

government to retaliate against virtually every mem-

ber of the public—and not just individuals who work

for, or seek benefits from, the government. Second, the

consequences of arrests may be especially chilling.

1. More than seventy-five years ago, Justice

Jackson warned that “[wJith the law books filled with

a great assortment of crimes,” there is a “fair chance

of finding at least a technical violation of some act on

the part of almost anyone.” When the government

“pick[s] the man and then searchles] the law books,”

government abuse of power becomes most dangerous.

“It is here that law enforcement becomes personal, and

the real crime becomes that of being unpopular with

the predominant or governing group.” Robert H.

Jackson, The Federal Prosecutor 4-5 (1940),

https://www justice.gov/sites/default/files/ag/legacy/20

11/09/16/04-01-1940. pdf.

Given the breadth of offenses in modern criminal

codes, virtually every citizen has violated some law—

or, more precisely, there is probable cause to believe

he has done so. And once there is probable cause to

believe a person has committed “even a very minor

criminal offense” for which the only punishment is a

fine, this is enough to justify a custodial arrest.

Atwater v. City of Lago Vista, 532 U.S. 318, 354

(2001); see also id. at 355-60 (listing statutes in all fifty

states and the District of Columbia that permit war-

rantless misdemeanor arrests).

Such minor crimes are legion. In Florida, for

example, a person can be arrested if there is probable

cause to believe he has taken some computer paper

home from the office without permission, Fla. Stat.

§ 815.06(2)(c); has buried his child’s dead hamster less

than two feet below ground level, Fla. Stat.

§ 823.041(1); has played a casual game of poker with

friends, Fla. Stat. § 849.08; or has participated in his

office’s NCAA tournament pool, Fla. Stat. § 849.14.

And beyond the sheer number of crimes, many

offenses are so broad as to potentially support proba-

ble cause in a wide variety of circumstances. See, e.g.,

Fla. Stat. § 823.01 (criminalizing “all nuisances that

tend to annoy the community”).

And that does not even count traffic offenses.

“(Viery few drivers can traverse any appreciable

distance without violating some traffic regulation”;

thus, “virtually everyone who ventures out onto the

public streets and highways” may be subject to seizure

as well. 3 Wayne R. LaFave, Search and Seizure

§ 5.2(e), at 156 (5th ed. 2012) (internal quotation

marks and citation omitted). Even members of this

Court have admitted to speeding. See Tr. of Oral Arg.

9, Reichle v. Howards, 566 U.S. 658 (2012) (No. 11-

262) (“I might sometimes have driven 60 miles an hour

in a 55-mile zone”); Tr. of Oral Arg. 27, Maslenjak v.

United States, 137 S. Ct. 1918 (2017) (No. 16-309) (“I

drove 60 miles an hour in a 55-mile-an-hour zone.”).

2. The short- and long-term consequences of being

arrested make arrest an especially powerful deterrent.

“[A] person of ordinary firmness would be chilled from

future exercise of his First Amendment rights if he

were booked and taken to jail in retaliation for his

speech.” Ford v. City of Yakima, 706 F.3d 1188, 1194

(9th Cir. 2013) (per curiam).

Once a person is arrested, he may end up

spending two days in jail before any neutral magis-

trate reviews the arrest. County of Riverside v.

McLaughlin, 500 U.S. 44, 56-57 (1991). Even individ-

uals “suspected of committing minor offenses” can be

repeatedly strip searched. Florence v. Bd. of Chosen

Freeholders, 566 U.S. 318, 330 (2012). And for some

people, the psychological effects of arrest are severe.

See Robert I. Simon, The Psychological and Legal

Aftermath of False Arrest and Imprisonment, 21 Bull.

Am. Acad. Psychiatry & L. 523 (1993).

The long-term conseyuences of an arrest are

severe enough to deter expression even if, as here, for-

mal charges are never filed. Arrests become a matter

of public record. A host of outside actors routinely

review and use arrest records in making decisions

about how to treat individuals. Among them are “im-

migration enforcement officials, public housing

authorities, public benefits administrators, employers,

licensing authorities, social services providers, and

education officials.” Elisha Jain, Arrests as Regula-

tion, 67 Stan. L. Rev. 809, 810 (2015). A prior arrest—

even one that took place long ago and resulted in no

permanently affect a person’s livelihood.

Gary Fields & John R. Emshwiller, As Arrest Records

Rise, Americans Find Consequences Can Last a Life-

time, Wall St. J. (Aug. 18, 2014), http://on.wsj.cono/

21V1viR.

The deterrent effects of an arrest also extend far

beyond the individual who was arrested. Arrests often

occur in public. Petitioner’s arrest, for example, was

filmed, broadcast on local television, and later posted

on the City’s website for everyone to see. See Riviera

Beach TV, https://tinyurl.com/1721RBTV (last visited

Dec. 20, 2017). By arresting petitioner on camera, the

City was able to “send [the] message,” J.A. 180, 181,

that any person in Riviera Beach who contemplates

challenging city actions in court or criticizing city offi-

cials in public should think twice before doing so. And

even beyond Riviera Beach, members of the public who

read about or see what happened to Fane Lozman may

hesitate to speak out in their own communities.

C. Compliance with the Fourth Amendment

cannot shield an arrest from First Amend-

ment scrutiny.

An arrest made without probable cause is always

a Fourth Amendment violation. Beck v. Ohio, 379 U.S.

89, 91 (1964). By holding that the presence of probable

cause is an “absolute bar” to a retaliatory arrest claim

“brought under the First Amendment,” Pet. App. 7a,

the Eleventh Circuit’s rule in effect makes proof of a

Fourth Amendment violation an indispensable ele-

ment of a First Amendment claim. This requirement

undermines the central protections provided by the

First Amendment and is inconsistent with this Court’s

decisions regarding constitutional rights generally

and the First and Fourth Amendments in particular.

1. The Eleventh Circuit’s absolute bar rule gives

carte blanche for governments and government offi-

cials to undermine the First Amendment. It allows

them to use arrests to retaliate against their critics or

against ‘ndividuals who engage in other forms of pro-

tected expression. Indeed, under the Eleventh

Circuit’s rule, it does not matter how strong the proof

is of a retaliatory motive.

To see how this is so, imagine a slightly different

version of Cohen v. California, 403 U.S. 15 (1971).

Instead of being arrested for disturbing the peace by

wearing his famous jacket, this Paul Cohen is arrested

for jaywalking on his way to the courthouse by an

officer who announces, “I usually don’t arrest people

for this, but I hate you anti-war protesters.” The

Eleventh Circuit would impose an absolute bar on any

Section 1983 claim as long as the officer had probable

cause. In fact, even if it turned out that the officer

lacked probable cause to believe Cohen had jaywalked,

he would escape liability if it turned out there was

probable cause for any offense in the statute book.

What is more, the Eleventh Circuit’s rule would

seem to permit a town to adopt a formal policy direct-

ing its police department to enforce a jaywalking

statute against only those jaywalkers who are engaged

in particular First Amendment-protected expres-

sion—say, wearing Black Lives Matter t-shirts or

Make America Great Again hats. Because no individ-

ual arrested under the policy would have a First

Amendment damages claim (since, after all, there

would be probable cause for each individual arrest), it

is unclear how anyone could sue to enjoin the policy.

See, e.g., Rizzo v. Goode, 423 U.S. 362 (1976); O’Shea

v. Littleton, 414 U.S. 488 (1974).*®

* And the Eleventh Circuit's absolute bar is not limited to

Petition Clause or Speech Clause cases. By its terms, it governs

all “First Amendment claim|s).” Dahi/ v. Holley, 312 F.3d 1228,

1236 (11th Cir. 2002). Therefore, a city with an ordinance

Under the Eleventh Circuit’s rule, the only

arrestees who can vindicate their right to be free from

retaliation are those injured by governments whose

counsel prove so inept that they cannot find a single

offense for which probable cause arguably exists. The

Eleventh Circuit leaves unremedied arrests that have

no valid law enforcement purpose and that concededly

would never have occurred absent the desire to retali-

ate against protected expression.

2. The Eleventh Circuit’s absolute bar confuses

the prohibitions of the First and Fourth Amendments.

To begin, the interests the two amendments pro-

tect are not the same. The Fourth Amendment pro-

tects one’s right to be left alone, while the First

Amendment's Free Speech and Petition Clauses

protect one’s ability to communicate with others.

Thus, the First Amendment is about “more than

[simply] self-expression; it is the essence of self-

government.” Garrison v. Louisiana, 379 U.S. 64, 74-

75 (1964). A particular arrest can easily violate one

provision but not the other. For example, in Florida v.

Royer, 460 U.S. 491 (1983), the arrest of a nervous

young man carrying heavy luggage who paid cash for

his ticket violated the Fourth Amendment, because

these facts did not give rise to probable cause to believe

he had committed a crime. Id. at 507. It did not,

however, violate the First Amendment, since Royer

was not engaged in any protected expression.

generally prohibiting animal slaughter within municipal limits is

free to harass practitioners of Santeria by engaging in a series of

catch-and-release arrests, even if it would never enforce the anti-

slaughtering law against anyone else. Cf. Church of Lukumi

Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993).

Conversely, in City of Houston v. Hill, 482 U.S. 451

(1987), this Court struck down a municipal ordinance

that made it unlawful to interrupt a police officer in

the performance of his or her duties. The ordinance

was “admittedly violated scores of times daily.” Id. at

466. The First Amendment infirmity came from the

danger that, in selecting whom to arrest from among

the individuals for whom there was probable cause,

police would choose individuals who were engaged in

“constitutionally protected speech.” Id. Thus, the ordi-

nance was unconstitutionally overbroad.

This Court has never required an individual

seeking to prove that one constitutional right has been

violated to prove that the government has violated a

second constitutional prohibition as well. To the con-

trary, “[clertain wrongs affect more than a single right

and, accordingly, can implicate more than one of the

Constitution’s commands.” Soldal, 506 U.S. at 56.

When this is the case, the Court “examine(s] each

constitutional provision in turn.” Id. (citing Hudson v.

Palmer, 468 U.S. 517 (1984); Ingraham v. Wright, 430

U.S. 651 (1977)).

In Soldal itself, the court of appeals had barred

the plaintiff from challenging a seizure of his mobile

home under the Fourth Amendment; it thought that

the more “straightforward way for a plaintiff to mount

a challenge under section 1983” was to “claim|[] he was

deprived of his property without due process of law.”

Soldal v. Cook County, 942 F.2d 1073, 1075 (7th Cir.

1991) (en banc). This Court rejected that approach. It

explained that when a government act implicates

more than one constitutional right, courts should

reject the “habit” of identifying “the claim’s ‘dominant’

character.” Soldal, 506 U.S. at 70. They should,

instead, entertain every constitutional claim that fits

the facts.’

This same directive applies in the context of First

Amendment claims. In City of Lakewood v. Plain

Dealer Publishing Co., 486 U.S. 750 (1988), the

defendant argued that because it could ban all

newsracks if it chose to, it necessarily had the power

to ban newsracks for particular publications. The

Court was unpersuaded, recognizing that this

“greater-includes-the-lesser’ syllogism” has no place

in the First Amendment. Id. at 762-68.

The Eleventh Circuit’s absolute bar rule

contravenes this precedent. It rests on the proposition

that because the government can arrest anyone for

whom there is probable cause, there is no problem

when the government arrests only the subset of people

against whom it also possesses retaliatory animus. It

is true that petitioner has no categorical right to be

free from an arrest supported by probable cause. But

he does have the First Amendment right not to be sin-

gled out for such an arrest based on his protected

expression.

* Similarly, in Mt. Healthy City School District Board of

Education v. Doyle, 429 U.S. 274 (1977), the Court emphasized

that the First Amendment retaliation claim did not depend on

employee had “no constitutional right to a hearing” under the

Due Process Clause before he was fired because, as an untenured

employee, he had no property interest in the job. Yet the Court

recognized that he “may nonetheless establish a claim to

reinstatement if the decision not to rehire him was made by

reason of his exercise of constitutionally-protected First

Amendment freedoms.” Id. at 283-84.

3. This Court’s decision in Whren v. United States,

517 U.S. 806 (1996), confirms that probable cause for

petitioner's arrest should not bar his First Amend-

ment claim.

In Whren, this Court addressed the issue of

pretextual traffic stops. It held that as long as such

stops are based on “probable cause to believe [a driver]

has committed a civil traffic violation,” 517 U.S. at

808, they are permissible as a matter of Fourth

Amendment law, even if the basis for the stop is dif-

ferent from the officer’s motivation for making it. Id.

at 813. Nonetheless, the Court explained, the

Fourteenth Amendment imposes an independent pro-

hibition against “selective enforcement of the law

based on considerations such as race.” Id. Adhering to

this guidance, the courts of appeals have uniformly

recognized that probable cause cannot immunize

racially discriminatory law enforcement practices

from equal protection scrutiny. See, e.g., Holland v.

City of Portland, 102 F.3d 6, 11 (1st Cir. 1996); Gibson

v. Superintendent of N.J. Dep't of Law & Pub. Safety,

411 F.3d 427, 440-41 (3d Cir. 2005), overruled on other

grounds, Dique v. N.J. State Police, 603 F.3d 181 (3d

Cir. 2010); United States v. Miller, 146 F.3d 274, 279

n.3 (5th Cir. 1998); Vakilian v. Shaw, 335 F.3d 509,

521 (6th Cir. 2003); Chavez v. Ill. State Police, 251

F.3d 612, 635 (7th Cir. 2001); Johnson v. Crooks, 326

F.3d 995, 999-1000 (8th Cir. 2003); Marshall v.

Columbia Lea Reg’l Hosp., 345 F.3d 1157, 1166-67

(10th Cir. 2003).

The Eleventh Clircuit’s absolute bar is

inconsistent with Whren and all of this case law.

Respondent has acknowledged as much, suggesting

that “an arrest motivated by protected speech may

constitute an arbitrary enforcement decision that

gives rise to an equal protection claim,” and that an

equal protection challenge to an arrest can be brought

“even if it were supported by probable cause.” BIO 21.

But if respondent is prepared to litigate the equal pro-

tection claim without requiring the plaintiff to show a

lack of probable cause, there is no basis for imposing

that requirement on an identical First Amendment

claim.

Just as the presence of probable cause for a

seizure is not dispositive of a race discrimination

claim, it also does not determine whether the govern-

ment is abusing its arrest power to retaliate against

protected speech. Dr. Martin Luther King, Jr., was

arrested and jailed for driving five miles above the

speed limit outside Montgomery, Alabama. See

Randall Kennedy, Martin Luther King’s Constitution:

A Legal History of the Montgomery Bus Boycott, 98

Yale L.J. 999, 1028 (1989). Had Dr. King sued for

damages under Section 1983, it should not have mat-

tered whether he had alleged that he was arrested

because he was African American or had alleged that

he was arrested due to his advocacy of racial equality.

See generally Harry Kalven, Jr., The Negro and the

First Amendment (1965).

III. Plaintiffs are entitled to a remedy when an

arrest would not have occurred but for govern-

ment officials’ intent to retaliate for First

Amendment activity.

1. This Court has a “well-established framework”

for analyzing retaliation claims involving First

Amendment-protected expression. Texas v. Lesage,

528 U.S. 18, 20 (1999) (per curiam). For forty years,

that framework has been applied to First Amendment

retaliation claims across a broad range of contexts—

from employment to government contracting to school

library deacquisition policies to prison operations. See,

e.g., Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274 (1977) (employment); Bd. of Cty.

Comm'rs v. Umbehr, 518 U.S. 668, 685 (1996) (con-

tracting); Bd. of Educ., Island Trees Union Free Sch.

Dist. No. 26 v. Pico, 457 U.S. 853, 871 (1982)

(libraries).

The framework was first articulated in Mt.

Healthy, 429 U.S. 274. In that case, a school board de-

cided not to renew a schoolteacher’s contract in “sub-

stantial part” because he had called a radio station to

complain about school district policy. The call was

“protected by the First Amendment.” Id. at 283. But

this Court held that those facts alone did not entitle

the teacher to relief. Instead, the Court announced a

two-step “test of causation.” Id. at 286.

First, a plaintiff must show that his protected

expression was a “motivating factor” with respect to

the adverse action taken against him. Mt. Healthy,

429 U.S. at 287. That is, the plaintiff must prove “a

[causal] connection between the retaliatory animus”

and the government action he is challenging. Hartman

v. Moore, 547 U.S. 250, 260 (2006).

If the plaintiff satisfies this burden, the defendant

can still prevail if it can “show[] by a preponderance of

the evidence that it would have reached the same

decision” anyway. Mt. Healthy, 429 U.S. at 287. This

“same-decision” defense establishes that “retaliation

was not the but-for cause” of the challenged action.

Hartman, 547 U.S. at 260. If the defense makes this

showing, “the claim fails for lack of causal connection

between unconstitutional motive and resulting harm,

despite proof of some retaliatory animus in the

official’s mind.” Id.

2. In a First Amendment retaliation case

involving an arrest, the Mt. Healthy framework fairly

allocates burdens between the parties. The plaintiff

must plead and prove: (1) that he engaged in First

Amendment-protected activity, (2) that the defendant

harbored retaliatory animus, and (3) that the animus

was a substantial factor in the decision to arrest him.

At that point, if the plaintiff has met his burden, the

government defendant can try to show (4) that the

arrest would have occurred even absent the retaliatory

animus. For several reasons, these elements help to

properly “distinguish|] between a result caused by a

constitutional violation and one not so caused.” Mt.

Healthy, 429 U.S. at 286.

First, there will be cases where the plaintiff's

expression is not protected by the Constitution.

Speech that itself proposes or constitutes a crime is

unprotected. Packingham v. North Carolina, 137 S. Ct.

1730, 1737 (2017). Examples of this category include

fraud, extortion, blackmail, true threats, and price-

fixing conspiracies. And in particular circumstances,

otherwise protected speech will lose its protection. For

example, if a speaker during the non-agenda portion

of a Riviera Beach City Council meeting refused to

yield the floor after his allotted minutes, the fact that

he was speaking about city zoning policies would not

save him from arrest for disobeying that plainly valid,

content-neutral time, place, and manner restriction.

So, too, for speech that confesses to a crime. A person

who “state[s) to FBI agents that he ha[s] burned his

(draft) registration certificate because of his beliefs”

can be prosecuted for destroying the certificate. United

States v. O’Brien, 391 U.S. 367, 369, 382 (1968).

By contrast, much expression is protected by the

First Amendment. Petitioner’s lawsuit, his months of

criticism against the city redevelopment policy, and

his comments at the November 15 meeting itself were

entirely protected. See supra at 17-19. Nothing in any

of his expression either constituted a crime or provided

evidence of one.

Second, pleading and proof standards make it

difficult for plaintiffs to establish animus. A bare

assertion of an impermissible motive will not even sur-

vive the pleading stage. A plaintiff's complaint will be

dismissed unless it pleads facts “plausibly suggesting”

that the defendant's retaliatory animus was a cause of

the arrest. See Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 557 (2007). If a plaintiff pleads nothing more

than facts “merely consistent” with retaliation, the

complaint will not survive. See id. In Twombly itself,

the telephone companies’ alleged behavior was equally

consistent with activity prohibited and permitted by

the Sherman Act. The Court therefore held that the

facts alleged in the complaint were not enough to state

a claim. Id. at 553-57; see also Ashcroft v. Iqbal, 556

U.S. 662, 678-80 (2009). Thus, allegations that are

equally consistent with both forbidden retaliation and

legitimate law enforcement activity do not state a

claim. Plaintiffs will therefore need to do more than

allege a temporal nexus between some protected

speech and a subsequent arrest.

In short, it will be the rare case where a plaintiff

can do something like petitioner did here: cite in his

complaint an official transcript where government

actors announced their intent to “intimidate” him or

“send a message.” J.A. 176, 180-181. And even when a

case survives a motion to dismiss, the plaintiff will still

need to prove his allegations through the totality of the

evidence.

Third, with respect to causation, the existence or

nonexistence of probable cause can be highly

probative. In a case where the plaintiff can prove both

retaliatory animus and the absence of probable cause,

his First Amendment claim is strong indeed. And even

if there is probable cause, there are offenses for which

police so rarely make arrests that the presence of prob-

able cause will say almost nothing about whether a

retaliatory motive caused the arrest. For example,

when a government whistleblower is arrested for tak-

ing a few sheets of paper out of his office printer, Fla.

Stat. § 815.06(2\c), a factfinder may well conclude

that animus led to the arrest.*°

On the other hand, when there is probable cause

to believe the plaintiff committed a serious crime, his

assertion that he was arrested because of some pro-

tected expression will likely fail because his arrest is

entirely “consistent,” Twombly, 550 U.S. at 557, with

legitimate law enforcement activity. For example, im-

agine a warehouse owner who brings a lawsuit chal-

lenging a municipal zoning ordinance as a regulatory

determining whether certain crimes are commonly enforced. See

National Incident-Based Reporting System User-Manual,

Uniform Crime Reporting, 4-5, https://ucr.fbi.gov/nibrs/nibrs-

user-manual (listing data entries collected by local police

departments to report to the FBI, including “Offense Code”

(indicating the nature of the crime) and “Type of Arrest”

(indicating whether a citation was given or a custodial arrest took

place)).

taking. If the warehouse burns to the ground and the

police have probable cause to believe he committed

arson, he will lose any First Amendment retaliation

claim, however protected his takings lawsuit may

have been.

Fourth, with respect to the same-decision defense,

evidence regarding the presence of probable cause can

likewise be relevant. Suppose a police officer sees a

parked car bearing an anti-police bumper sticker.

Angered at the message, the officer runs the plates,

discovers that the owner is wanted for armed robbery,

and arrests him. Even though there was retaliatory

animus and some causal connection, the plaintiffs

claim will fail. The discovery of probable cause with

respect to a serious crime provides a “sufficient inter-

vening event to break the causal chain.” Utah v.

Strieff, 136 S. Ct. 2056, 2061-62 (2016). This is because

there is little doubt that an officer who had not noticed

the bumper sticker but had run the plates would have

made the exact same decision.

But probable cause will not always establish a

same-decision defense. Petitioner’s experience shows

why. At the time Councilmember Wade ordered

Officer Aguirre to arrest him, no one thought peti-

tioner had violated Fla. Stat. § 871.01(1)—indeed,

there is no evidence that anyone on the scene knew the

statute existed. That is hardly surprising: There is

only one other reported case in which this prohibition

on “[{djisturbing schools and religious or other assem-

blies” has come into play with regard to events in a city

council meeting. That case was decided over a quarter

century before petitioners arrest. Moreover, it

actually reversed the conviction of a citizen whose

vociferous criticism precipitated a brawl in the council

chambers. See Weidner v. State, 380 So. 2d 1286 (Fa.

1980)."

In light of the caselaw under Section 871.01(1), it

is therefore unlikely that the City could establish a

same-decision defense. If the jury is persuaded that

petitioner’s arrest was the product of retaliatory ani-

mus, it is unlikely the City will be able to persuade the

jury that petitioner would have been arrested even

had he been a random citizen or a booster of the

redevelopment plan, rather than an outspoken critic.

3. The facts in Reichle v. Howards, 566 U.S. 658

(2012), further illustrate why imposing an absolute

bar is unnecessary as well as improper. If Bivens even

permits the litigation of First Amendment claims, the

Mt. Healthy framework, as informed by the

Twombly/lqbal standard, will weed out claims like

Howards’. When a person lays hands on the Vice

President and then lies about it to Secret Service

agents, a court should conclude that the plaintiff has

not made out a prima facie case that retaliatory

animus toward his protected criticism of the Vice Pres-

ident caused the arrest. And even if a court were to

conclude that dislike of Howards’ views played some

role, it will almost certainly conclude that the physical

contact and unprotected speech of making a false

statement under 18 U.S.C. § 1001 show that the

arresting officers would have made the same decision

regardless. Finally, as Reichle illustrates, qualified

immunity can provide an additional layer of protection

'' There is a paucity of resorted prosecutions of any kind

under Section 871.01(1): Westlaw contains only four decisions.

when it is not clearly established that arresting some-

one under particular circumstances constitutes

forbidden retaliation.

4. Neither of the Eleventh Circuit’s cases giving

rise to its absolute bar rule provided any basis for

abandoning the Mt. Healthy framework either. Dah!

v. Holley, 312 F.3d 1228 (11th Cir. 2002), the sole case

on which the Eleventh Circuit relied in its decision

here, Pet. App. 7a, 1la, devoted only a single sentence

to the question. See 312 F.3d at 1236. And Dahl

involved an arrest and full prosecution on a felony

charge of bribing a witness. See id. at 1231-32. The

sole Eleventh Circuit decision Dahl cited in turn—

Redd v. City of Enterprise, 140 F.3d 1378 (11th Cir.

1998)—involved an arrest for disorderly conduct that

was “content-neutral; nothing in the record indicate[d]

that the plaintiffs were selectively arrested for

engaging in religious speech while non-religious

speakers went unmolested.” Id. at 1383. Both of these

cases would fail under the Mt. Healthy standard, for

reasons petitioner has already explained.

5. Since its inception, the Mt. Healthy framework

has applied both to First Amendment cases alleging

retaliation and to Fourteenth Amendment cases alleg-

ing purposeful racial discrimination. See Village of

Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S.

252, 270 n.21 (1977); Texas v. Lesage, 528 U.S. 18, 21

(1999) (per curiam). Thus federal courts have

uniformly applied the framework to claims involving

racially discriminatory arrests. And they have done so

without regard to whether those arrests violate the

Fourth Amendment as well. See supra at 30. As a

matter of doctrinal consistency, this Court should

therefore hold that the Mt. Healthy framework applies

to First Amendment-based cases challenging arrests

as well as to Fourteenth Amendment-based ones. The

framework takes probable cause into account as one

piece of potentially probative evidence, but imposes no

absolute bar against challenging arrests supported by

probable cause.

IV. Hartman v. Moore provides no basis for an

absolute bar rule in cases involving arrests.

The Eleventh Circuit’s absolute bar rule gives

governments and government officials a blueprint for

retaliating against citizens who exercise their First

Amendment rights. If the government actor retaliates

by terminating a contract or denying a zoning variance

to someone who has exercised his Petition Clause

right, it faces damages liability under Section 1983.

See Bd. of Cty. Comm'rs v. Umbehr, 518 U.S. 668

(1996); Village of Willowbrook v. Olech, 528 U.S. 562

(2000). But if a government actor uses its arrest power

to retaliate against him, the actor gets off scot free, so

long as its lawyer can later identify some obscure, mi-

nor offense for which there might be probable cause.

See Pet. App. 7a.

In Hartman v. Moore, 547 U.S. 250 (2006), this

Court created an exception to the Mt. Healthy frame-

work: “[A] plaintiff in a retaliatory-prosecution action

must plead and show the absence of probable cause for

pressing the underlying criminal charges.” Id. at 257.

The City has argued that Hartman should be extended

to suits in which the form of retaliation is an arrest.

BIO 14-16. But a careful reading of Hartman shows

why its rule cannot be extended to the context of

arrests. As petitioner has already explained, see supra

at 22-31, a rule that precludes suits challenging retal-

iatory arrests unless plaintiffs can prove a lack of

probable cause—as both the Eleventh Circuit’s abso-

lute bar rule and an extension of Hartman would do—

seriously erodes First Amendment protections. And it

does so for no reason: The questicns of causation that

motivated Hartman do not apply to cases involving

arrests. Nor would the Hartman rule be workable or

fair in arrest-related cases.

A. Absolute prosecutorial immunity makes

“retaliatory prosecution” claims unique.

1. This Court’s decision in Hartman rested on the

need to reconcile First Amendment retaliation doc-

trine with the unique concerns that make exercise of

prosecutorial power immune from review in civil

cases.

The linchpin of this Court’s analysis in Hartman

is a simple fact: prosecutors are “absolutely immune

from liability for the decision to prosecute.” 547 U.S.

at 262. This means that a plaintiff claiming he was

prosecuted in retaliation for exercising First Amend-

ment rights cannot sue the official who actually con-

ducted the prosecution against him. Even in a case

where a prosecutor decides to press charges for purely

retaliatory reasons, Section 1983 provides no cause of

action against him. Instead, the available remedies

with respect to the prosecutor are dismissal of crim-

inal charges on the basis of a defense of selective

prosecution and discipline against the prosecutor as

an “officer of the court,” Imbler v. Pachtman, 424 U.S.

409, 431 n.33 (1976).

So the category “retaliatory prosecution case” is

actually a misnomer. As this Court explained, the

defendant in such cases is a “nonprosecuting official”

who is sued not “strictly for retaliatory prosecution,

but [rather] for successful retaliatory inducement to

prosecute.” Hartman, 547 U.S. at 262. Liability for

inducement falls comfortably within the scope of

Section 1983, which provides a cause of action against

a government actor that either “subjects, or causes to

be subjected” any person to a deprivation of his consti-

tutional rights. 42 U.S.C. § 1983.

Showing that someone has engaged in retaliatory

inducement of a prosecution has two elements. First,

as with any retaliation case, the defendant’s actions

must be based on animus against the plaintiffs pro-

tected expression. Second, the defendant’s actions

must actually have induced the prosecution—that is,

the plaintiff has to show that absent the

“ Absolute prosecutorial immunity protects the

prosecutorial function, not the prosecutor as a person. If a

prosecutor violates an individual's constitutional rights while

“perform|ing) the investigative functions normally performed by

a detective or a police officer,” he faces damages liability. Buckley

v. Fitzsimmons, 509 U.S. 259, 273 (1993). It is “neither

appropriate nor justifiable” to confer absolute immunity in these

circumstances. Id. (quoting Hampton v. Chicago, 484 F.2d 602,

608 (7th Cir. 1973)).

Furthermore, under the logic of this Court's decision in

Forrester v. White, 484 U.S. 219 (1988), “a district attorney who

hires and fires assistant district attorneys” is acting in his

“administrative capacity” and is thus amenable to suit under

Section 1983 if he engages in First Amendment retaliation while

“making such employment decisions.” Id. at 229.

nonprosecuting official’s having acted on his animus,

there would have been no prosecution.

It is at this second point that a “chain of causa-

tion” problem comes into play. See Hartman, 547 U.S.

at 262-63. Prosecutors are expected to act with “inde-

pendence.” Imbler, 424 U.S. at 423 (quoting Pearson v.

Reed, 44 P.2d 592, 597 (Cal. Dist. Ct. App. 1935)). This

entails their making their own judgment as to whether

prosecution is warranted, rather than relying on the

decisions of complainants or law-enforcement officials.

Prosecutorial immunity rests on a “presumption of

regularity” that attaches “so long as the prosecutor has

probable cause to believe that the accused committed

an offense defined by statute.” United States v.

Armstrong, 517 U.S. 456, 464 (1996) (quoting United

States v. Chem. Found., Inc., 272 U.S. 1, 14(1926), and

Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978)).

When there is probable cause for a prosecution,

allowing a retaliation suit to proceed would undermine

prosecutorial independence. The plaintiff in such a

suit could prove inducement only by persuading the

court that the probable cause was not the real reason

the prosecutor decided to proceed. To do that would re-

quire looking into the prosecutors motives and

decisionmaking—precisely the inquiry absolute prose-

cutorial immunity forestalls. Thus, in order to protect

prosecutorial independence, courts must accept that

the explanation for a prosecution for which there is

probable cause is that a prosecutor made an independ-

ent judgment that the prosecution was warranted.

That is what this Court meant in Hartman when it

referred to the “presumption of regularity.” 547 U.S.

at 263. The “intervening decision of the third-party

prosecutor widens the causal gap between the defend-

ant’s animus and the plaintiffs injury.” Reichle, 566

U.S. at 668.

By contrast, when there is no probable cause for a

prosecution, by definition courts know that something

in the prosecutorial decisionmaking process has failed.

To allow a Section 1983 damages lawsuit against a

nonprosecuting official to proceed under these circum-

stances does not require courts to examine the prose-

cutor’s decisionmaking. The only question is whether

the nonprosecuting official who has been sued induced

the prosecution—that is, filed the initial complaint or

brought the case to the prosecutor’s attention—and

whether he did so to retaliate against the plaintiffs

protected expression. If he did, he should be held

liable.”*

2. A case in which a plaintiff challenges an arrest

on the grounds that it was the product of retaliatory

animus is altogether different.

In an arrest case, there is no question of absolute

immunity preventing an aggrieved person from suing

the actor who arrested him, or who “cause[d him] to be

subjected” to an arrest, 42 U.S.C. § 1983. In many

cases, the defendant will be the actual line-level officer

who took the plaintiff into custody. These officers are

not entitled to absolute immunity. Pierson v. Ray, 386

U.S. 547, 555 (1967). In these cases, the animus and

the injury are united entirely in a single actor.

'S Theoretically, there might be a case in which a malicious

nonprosecuting official could show that the prosecutor would

have gone forward without probable cause in any event. But it is

difficult to imagine this happening in practice.

And even when the defendant is a municipality or

a higher-level official instead of (or in addition to) the

arresting officer, there is no potentially responsible

actor whose decisions are beyond scrutiny. Whereas

every “retaliatory prosecution” suit must proceed

without the prosecutor—and without probing the

decision to prosecute—when arrests are challenged as

retaliatory, there is no issue of staging Hamlet without

the Prince. All responsible actors are subject to suit for

constitutional violations, and the causal chain is

straightforward. In contrast to a prosecutor, who is

presumed to act as a brake on any animus held by

actors further back in the causal chain, there is no

reason to assume that an arresting officer has acted as

an independent check on his supervisors or his

employer.

Petitioner's case illustrates the point. The district

court described the facts as supporting an inference

that “the officer, a young officer, present in a city coun-

cil meeting, hearing a councilwoman—and frankly, a

councilwoman like Ms. Wade, who is a very persuasive

person just simply followed her direction” to arrest

petitioner. Tr. 14 (12/12/2014), ECF No. 784. The City

Council’s official minutes stated that petitioner “was

escorted out to [sic] the meeting at the request of

Councilperson Wade.” City of Riviera Beach, Regular

City Council Meeting Minutes at 4 (Nov. 15, 2006),

https://tinyurl.com/RBMin1115. No one would expect

an officer in this situation to conduct an independent

assessment of probable cause and then tell the

presiding city councilmember, “No, I refuse to ‘carry

him out,’ because I am not sure whether I have

probable cause to do so.”

By contrast, prosecutors are never required to act

in the moment when they decide whether to prosecute.

And they frequently decline prosecutions. The inde-

pendent decisionmaking of prosecutors is a far cry

from the “competitive enterprise of ferreting out

crime” and arresting suspects. Giordenello v. United

States, 357 U.S. 480, 486 (1958) (quoting Johnson v.

United States, 333 U.S. 10, 14 (1948)).

Indeed, this case shows the stark difference

between prosecutors and other government actors.

Once the state’s attorney came into the picture, the

charges against petitioner were dismissed because

“there was ‘no reasonable likelihood of successful pros-

ecution,” Pet. App. 5a. Indeed, the district court

seconded that decision when it concluded that there

was no probable cause for either of the charges listed

on the notice to appear. See J.A. 105, 108. On the other

hand, petitioner was arrested without any government

official having the faintest idea what criminal law he

might have violated. There is no justification for giving

the City prosecutorial immunity from liability or

extending Hartman’s exception.

Courts regularly look behind the decisions of

police officers and municipalities to determine

whether or not they acted with a constitutionally for-

bidden motivation. Thus, the “legal obstacle” present

in Hartman does not exist in retaliation-by-arrest

cases. Hartman, 547 U.S. at 263. And because there is

no such obstacle, once a plaintiff carries his burden un-

der Mt. Healthy, the burden should shift to the

defendant to show that he would have made the arrest

regardless.

B. Litigating probable cause in retaliatory

arrest cases is entirely different from

litigating the issue _ in_ retaliatory

prosecution cases.

In Hartman, this Court distinguished retaliatory

prosecution cases from “ordinary” retaliation cases by

noting that in the former, “there will always be a dis-

tinct body of highly valuable circumstantial evidence

available and apt to prove or disprove retaliatory

causation, namely evidence showing whether there

was or was not probable cause to bring the criminal

charge.” Hartman, 547 U.S. at 261. The Court also

reasoned that pleading and proving the absence of

probable cause would be “cost free” to both the plaintiff

and the court. Id. at 265. Petitioner’s case offers a text-

book example of why those assumptions do not carry

over to First Amendment retaliation cases involving

arrests.

1. Far from there being a “distinct body” of

evidence with respect to “the criminal charge,” peti-

tioner’s trial shows how First Amendment arrest cases

can produce a shifting morass of potential charges.

In retaliatory prosecution cases, the putative

plaintiff will have an indictment or charging instru-

ment that cabins the probable cause inquiry by identi-

fying a specific crime. The plaintiff need only plead

and prepare to prove a lack of probable cause for the

crimes actually charged. In Hartman itself, this meant

the seven counts in the indictment, which involved

mail and wire fraud, theft of property used by the

Postal Service, and receiving stolen property. See

Petrs’ Br. 7, Hartman v. Moore, 547 U.S. 250 (No. 04-

1495) (describing the counts in the indictment). Hart-

man was not required also to show that there would

have been no probable cause to prosecute him for, say,

RICO or violations of the federal bribery or false-

statement statutes.

But in retaliation cases involving arrests, the

“subjective reason for making the arrest need not be

the criminal offense as to which the known facts pro-

vide probable cause.” Devenpeck v. Alford, 543 U.S.

146, 153 (2004). Therefore, a plaintiff cannot know,

short of reading the entire criminal code, the range of

possible crimes for which he must establish an absence

of probable cause. Even if the plaintiff were to have an

arrest report or similar document alleging specific

crimes, that document would not cabin the probable

cause inquiry. So long as the facts known to the arrest-

ing official support probable cause for some crime—

however minor, and regardless whether the crime was

the actual reason for the arrest—the probable cause

standard is satisfied.

2. Petitioner’s case illustrates the problem the

Devenpeck rule creates in the context of a lawsuit

claiming an arrest in retaliation for First Amendment

activity. City officials did not need to think of a crime

for which there was probable cause to arrest peti-

tioner. They could confidently assume that the City’s

lawyers would be able to dig up some statute that

might retroactively provide probable cause. Years

after the arrest, and weeks into petitioner’s trial, the

Eleventh Circuit’s absolute-bar rule required peti-

tioner to respond to a shifting set of possible offenses

for which there might conceivably have been probable

cause. Surely, petitioner should not have been

required to plead the lack of probable cause to believe

he had “willfully interrupt{ed) or disturbled] any

school or any assembly of people met for the worship

of God or for any lawful purpose” in violation of Florida

Statutes Section 871.01(1), when he had never been

charged with violating that statute, or given notice

that it might apply to his conduct."*

And if petitioner was not required to plead the

absence of probable cause to arrest him pursuant to

Section 871.01(1), how can it be that he was required

to disprove probable cause under that provision when

it “popped up” midway through a multiweek civil trial,

Tr. 8 (12/12/2014), ECF No. 784, eight years after his

arrest? The mind reels at the sprawling mess such a

rule makes of the pleading, discovery, and trial pro-

cesses. Whatever else is true, this can hardly be the

“cost free” regime Hartman saw in retaliatory

prosecution cases, 547 U.S. at 465.

“ Cf John Jay Osborne, Jr., The Paper Chase xii (40th

anniversary ed. 2011) (quoting the fictitious case Rex v. Haddock,

Misl. Cas. C. Law at 31) (“[C]itizens who take it upon themselves

to do unusual actions which attract the attention of the police

should be careful to bring these actions into one of the recognized

categories of crimes and offenses for it is intolerable that the

police should be put to the pains of inventing reasons for finding

them undesirable...”).

CONCLUSION

For the foregoing reasons, the judgment of the

court of appeals should be reversed.

Respectfully submitted,