Probable Cause Doesn't Excuse Retaliatory Arrest, Supreme Court Rules

from the you-can-be-technically-correct-but-still-completely-wrong dept

A very, very narrow ruling by the Supreme Court might provide a few more opportunities for citizens to seek redress for retaliatory acts by their government. This probably won’t do much for Fane Lozman, unfortunately. He may have won the big battle but it’s being remanded to the appeals court which has a lot of options on how to approach this and not many of them point to Lozman winning this lawsuit.

Lozman was no fan of the Riviera Beach (FL) city council. He attended many meetings to criticize council members and their plans to use eminent domain to seize waterfront homes. He also sued the city for violating open meetings law by approving an agreement with developers without allowing the issue to be publicly discussed first.

The city didn’t know what to do with a problem like Lozman. In a 2006 closed door session, it decided to do something it shouldn’t. From the decision [PDF]:

According to the transcript of the meeting, Councilmember Elizabeth Wade suggested that the City use its resources to “intimidate” Lozman and others who had filed lawsuits against the City. App. 176. Later in the meeting a different councilmember asked whether there was “a consensus of what Ms. Wade is saying,” and others responded in the affirmative.

Lozman said these comments should be taken at face value. The city argued that by “intimidation” it meant only to prevail in litigation by using available tax dollars against taxpayers like Lozman. Five months later, Lozman attended another council meeting and, again, complained about various city actions. Council members ordered him removed — an act performed by the officer on duty.

Lozman sued the city, alleging the arrest was retaliatory and an infringement on his First Amendment rights. The city defended itself by claiming the officer had probable cause to arrest Lozman because of his refusal to leave the meeting voluntarily. Lozman does not contest the arrest or question the probable cause determination. He does not challenge the constitutionality of the city ordinance used to effect his arrest. His issue is stripped down to one thing: the arrest stemmed directly from the council’s agreement to “intimidate” Lozman and other litigants.

This means the single narrow issue, as constructed in Lozman’s case, is worth examining further, rather than simply being overlooked in favor of the existence of probable cause. If left unaddressed (and the Supreme Court has punted on far broader cases than this), it would ostensibly allow governments to engage in retaliatory acts with little fear of punishment.

The fact that Lozman must prove the existence and enforcement of an official policy motivated by retaliation separates Lozman’s claim from the typical retaliatory arrest claim. An official retaliatory policy is a particularly troubling and potent form of retaliation, for a policy can be long term and pervasive, unlike an ad hoc, on-the-spot decision by an individual officer. An official policy also can be difficult to dislodge. A citizen who suffers retaliation by an individual officer can seek to have the officer disciplined or removed from service, but there may be little practical recourse when the government itself orchestrates the retaliation. For these reasons, when retaliation against protected speech is elevated to the level of official policy, there is a compelling need for adequate avenues of redress.

This doesn’t mean Lozman will prevail upon return to the lower court. It may decide to kick this all the way back to the district court level to let a jury weigh in on the “reasonable” interpretation of the council’s intimidation comments. But it does at least make one thing clear: the highest court says lawsuits alleging retaliation can be brought even if probable cause exists for arrests stemming from allegedly retaliatory actions/instructions. This is more than litigants used to have to work with to survive dismissal during the summary judgment round. Criticizing the government is what the First Amendment was put in place to protect above all else. Allowing government entities to sidestep this protection by arresting their critics doesn’t do anything to ensure these protections retain their value.

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Comments on “Probable Cause Doesn't Excuse Retaliatory Arrest, Supreme Court Rules”

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TKnarr (profile) says:

Re: Re:

What’d be even better is if the court ruled that since the government has no authority to retaliate in this manner and the councilmembers knew or should have known this, their actions cannot have been in the course of their duties and they are personally liable for the damages (and if they want the city to pay they’ll have to sue it themselves).

Anonymous Anonymous Coward (profile) says:

Re: Re: Re:

I agree, but that would mean that council members would need to know laws that police officers don’t, which would mean the Supreme Court would have to reverse itself, again.

They would have to make it that all government workers would have to know all laws. Not a terrible idea, legislatures would have to reduce the number of laws for their own protection. I kind of like it.

Anonymous Anonymous Coward (profile) says:


There is another covenant that the USSC should overturn, as it is not likely that the legislatures every will, too much money involved. That covenant is that eminent domain can be used to enrich developers, rather than solely for public benefit. Yes it might increase some tax base, and it might re-purpose some land/buildings that have fallen on hard times and might be seen as blight, but giving developers a go ahead without letting the market decide if a particular development should go ahead, even if there is just one holdout, does not seem to fit with what I think the true purpose of the law, as it was intended. IMHO!

sumgai (profile) says:


In 2005, the USSC determined in an eminent domain case (Kelo v. City of New London, 545 U.S. 469) that each state has a right to determine how eminent domain will work within that state. IOW, there is no federal statute that forecloses any state from writing the law as it wishes. This precluded the Court from ‘intruding upon the affairs of the state’, and let the lower courts’ rulings (in favor of the City) stand.

Sorry, I don’t like it either, but that’s the way the ball is currently bouncing.

R.H. (profile) says:

Re: Re:

That’s not a problem anymore, in fact, I’m surprised this wasn’t mentioned in the article. Fane Lozeman is the only man alive to have taken two cases to the Supreme Court as the plaintiff and not a lawyer and won. The first one was his original eminent domain case which started in 2006 and which he won (in a phyric victory given the fact that it had already been seized and destroyed) in 2013. In November 2006, while the first case was winding through the courts, is when this arrest occurred triggering this case which he has apparently also now (partially, at least) won.

That Anonymous Coward (profile) says:

Power causes a form of brain damage…
This is their fiefdom that they can rule however they want.
So what if we violate the law, we are the law.
Anyone speaking against us must be crushed!!

Then a larger power told them no & then it was when we said ‘OFF WITH HIS HEAD!!!!!’ we really meant to have him politely asked to remove his hat.

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