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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 2017

## Text

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?

il

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

iv

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

Vv

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

vi

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

ix

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.

2

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

3

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).

4

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).

5

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.

6

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).

7

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.

8

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

9

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).

10

“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

11

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.

12

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

13

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”

14

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

15

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

16

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.

17
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

18

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

19

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

20

“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-

21

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.

22
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

23

(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

24

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

25

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

26

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

27

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).

28

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,

29

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.

30

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

31

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,

32

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

33

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”

34

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

35

“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

‘© Publicly available statistical information can be helpful in
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)).

36

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

37

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.

38

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

39

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

40

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

41

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.

42
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

43

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.

44

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.”

45

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.

46

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

47

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

48

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...”).

49
CONCLUSION

For the foregoing reasons, the judgment of the
court of appeals should be reversed.

Respectfully submitted,

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

December 22, 2017

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0769%3A08. Public record. Not legal advice.