Lozman v. Riviera Beach , 201 L. Ed. 2d 342 ( 2018 )

(Slip Opinion) OCTOBER TERM, 2017 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LOZMAN v. CITY OF RIVIERA BEACH, FLORIDA
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 17–21. Argued February 27, 2018—Decided June 18, 2018
After petitioner Lozman towed his floating home into a slip in a marina
owned by the city of Riviera Beach, he became an outspoken critic of
the City’s plan to use its eminent domain power to seize waterfront
homes for private development and often made critical comments
about officials during the public-comment period of city council meet-
ings. He also filed a lawsuit alleging that the City Council’s approval
of an agreement with developers violated Florida’s open-meetings
laws. In June 2006 the Council held a closed-door session, in part to
discuss Lozman’s lawsuit. He alleges that the meeting’s transcript
shows that councilmembers devised an official plan to intimidate
him, and that many of his subsequent disputes with city officials and
employees were part of the City’s retaliation plan. Five months after
the closed-door meeting, the Council held a public meeting. During
the public-comment session, Lozman began to speak about the ar-
rests of officials from other jurisdictions. When he refused a coun-
cilmember’s request to stop making his remarks, the councilmember
told the police officer in attendance to “carry him out.” The officer
handcuffed Lozman and ushered him out of the meeting. The City
contends that he was arrested for violating the City Council’s rules of
procedure by discussing issues unrelated to the City and then refus-
ing to leave the podium. Lozman claims that his arrest was to retali-
ate for his lawsuit and his prior public criticisms of city officials. The
State’s attorney determined that there was probable cause for his ar-
rest, but decided to dismiss the charges.
Lozman then filed suit under 42 U.S. C. §1983, alleging a number
of incidents that, under his theory, showed the City’s purpose was to
harass him, including by initiating an admiralty lawsuit against his
floating home, see Lozman v. Riviera Beach, 568 U.S. 115. The jury
2 LOZMAN v. RIVIERA BEACH
Syllabus
returned a verdict for the City on all of the claims. The District
Court instructed the jury that, for Lozman to prevail on his claim of a
retaliatory arrest at the city council meeting, he had to prove that the
arresting officer was motivated by impermissible animus against
Lozman’s protected speech and that the officer lacked probable cause
to make the arrest. The Eleventh Circuit affirmed, concluding that
any error the District Court made when it instructed the jury to con-
sider the officer’s retaliatory animus was harmless because the jury
necessarily determined that the arrest was supported by probable
cause when it found for the City on Lozman’s other claims. The ex-
istence of probable cause, the court ruled, defeated a First Amend-
ment claim for retaliatory arrest.
Held: The existence of probable cause does not bar Lozman’s First
Amendment retaliation claim under the circumstances of this case.
Pp. 5–13.
(a) The issue here is narrow. Lozman concedes that there was
probable cause for his arrest. Nonetheless, he claims, the arrest vio-
lated the First Amendment because it was ordered in retaliation for
his earlier, protected speech: his open-meetings lawsuit and his prior
public criticisms of city officials. Pp. 5–6.
(b) In a §1983 case, a city or other local governmental entity cannot
be subject to liability unless the harm was caused in the implementa-
tion of “official municipal policy.” Monell v. New York City Dept. of
Social Servs., 436 U.S. 658, 691. The Court assumes that Lozman’s
arrest was taken pursuant to an official city policy.
Two major precedents bear on the issue whether the conceded ex-
istence of probable cause for the arrest bars recovery regardless of
any intent or purpose to retaliate for past speech. Lozman argues
that the controlling rule is found in Mt. Healthy City Bd. of Ed. v.
Doyle, 429 U.S. 274, a civil case in which a city board of education
decided not to rehire an untenured teacher after a series of incidents,
including a telephone call to a local radio station. The phone call was
protected speech, but, the Court held, there was no liability unless
the alleged constitutional violation was a but-for cause of the em-
ployment termination. Id., at 285287. The City counters that the
applicable precedent is Hartman v. Moore, 547 U.S. 250, where the
Court held that a plaintiff alleging a retaliatory prosecution must
show the absence of probable cause for the underlying criminal
charge, id., at 265266. If there was probable cause, the case ends.
If the plaintiff proves the absence of probable cause, then the Mt.
Healthy test governs. Pp. 6–10.
(c) Whether Hartman or Mt. Healthy governs here is a determina-
tion that must await a different case. For Lozman’s claim is far
afield from the typical retaliatory arrest claim, and the difficulties
Cite as: 585 U. S. ____ (2018) 3
Syllabus
that might arise if Mt. Healthy is applied to the mine run of arrests
made by police officers are not present here. Lozman alleges that the
City itself retaliated against him pursuant to an “official municipal
policy” of intimidation. Monell, supra, at 691. The fact that he must
prove the existence and enforcement of an official policy motivated by
retaliation separates his claim from the typical retaliatory arrest
claim. An official retaliatory policy can be long term and pervasive,
unlike an ad hoc, on-the-spot decision by an individual officer. And it
can be difficult to dislodge. A citizen can seek to have an individual
officer disciplined or removed from service, but there may be little
practical recourse when the government itself orchestrates the retali-
ation. Lozman’s allegations, if proved, also alleviate the problems
that the City says will result from applying Mt. Healthy in retaliatory
arrest cases, for it is unlikely that the connection between the alleged
animus and injury in a case like this will be “weakened . . . by [an of-
ficial’s] legitimate consideration of speech,” Reichle v. Howards, 566
U.S. 658, 668, and there is little risk of a flood of retaliatory arrest
suits against high-level policymakers. Because Lozman alleges that
the City deprived him of the right to petition, “ ‘one of the most pre-
cious of the liberties safeguarded by the Bill of Rights,’ ” BE&K Con-
str. Co. v. NLRB, 536 U.S. 516, 524, his speech is high in the hierar-
chy of First Amendment values. On these facts, Mt. Healthy provides
the correct standard for assessing a retaliatory arrest claim. On re-
mand, the Eleventh Circuit may consider any arguments in support
of the District Court’s judgment that have been preserved by the
City, including whether a reasonable juror could find that the City
formed a retaliatory policy to intimidate Lozman during its closed-
door session, whether a reasonable juror could find that the arrest
constituted an official act by the City, and whether, under Mt.
Healthy, the City has proved that it would have arrested Lozman re-
gardless of any retaliatory animus. Pp. 10–13.
681 Fed. Appx. 746, vacated and remanded.
KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and GINSBURG, BREYER, ALITO, SOTOMAYOR, KAGAN, and GORSUCH,
JJ., joined. THOMAS, J., filed a dissenting opinion.
Cite as: 585 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–21
_________________
FANE LOZMAN, PETITIONER v. CITY OF RIVIERA
BEACH, FLORIDA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 18, 2018]
JUSTICE KENNEDY delivered the opinion of the Court.
This case requires the Court to address the intersection
of principles that define when arrests are lawful and
principles that prohibit the government from retaliating
against a person for having exercised the right to free
speech. An arrest deprives a person of essential liberties,
but if there is probable cause to believe the person has
committed a criminal offense there is often no recourse for
the deprivation. See, e.g., Devenpeck v. Alford, 543 U.S.
146, 153 (2004). At the same time, the First Amendment
prohibits government officials from retaliating against
individuals for engaging in protected speech. Crawford-El
v. Britton, 523 U.S. 574, 592 (1998).
The petitioner in this case alleges that high-level city
policymakers adopted a plan to retaliate against him for
protected speech and then ordered his arrest when he
attempted to make remarks during the public-comment
portion of a city council meeting. The petitioner now
concedes there was probable cause for the arrest. The
question is whether the presence of probable cause
bars petitioner’s retaliatory arrest claim under these
2 LOZMAN v. RIVIERA BEACH
Opinion of the Court
circumstances.
I
The city of Riviera Beach is on the Atlantic coast of
Florida, about 75 miles north of Miami. The petitioner
here is Fane Lozman. In 2006 Lozman towed his floating
home into a slip in the City-owned marina, where he
became a resident. Thus began his contentious relation-
ship with the City’s elected officials.
Soon after his arrival Lozman became an outspoken
critic of the City’s plan to use its eminent domain power to
seize homes along the waterfront for private development.
Lozman often spoke during the public-comment period at
city council meetings and criticized councilmembers, the
mayor, and other public employees. He also filed a lawsuit
alleging that the Council’s approval of an agreement with
developers violated Florida’s open-meetings laws.
In June 2006 the Council held a closed-door session, in
part to discuss the open-meetings lawsuit that Lozman
recently had filed. According to the transcript of the
meeting, Councilmember Elizabeth Wade suggested that
the City use its resources to “intimidate” Lozman and
others who had filed lawsuits against the City. App. 176.
Later in the meeting a different councilmember asked
whether there was “a consensus of what Ms. Wade is
saying,” and others responded in the affirmative. Id., at
181182. Lozman alleges that these remarks formed an
official plan to intimidate him. The City, on the other
hand, maintains that the only consensus reached during
the meeting was to invest the money and resources neces-
sary to prevail in the litigation against it.
In all events, Lozman became embroiled in a number of
disputes with city officials and employees over the ensuing
years, many of which Lozman says were part of the City’s
plan of retaliation. The dispute that led to this litigation
took place in 2006. In November of that year, five months
Cite as: 585 U. S. ____ (2018) 3
Opinion of the Court
after the closed-door meeting where the “intimidate” com-
ment was made, the City Council held a public meeting.
The agenda included a public-comment session in which
citizens could address the Council for a few minutes. As
he had done on earlier occasions and would do more than
200 times over the coming years, see Tr. in No. 9:08–cv–
80134 (SD Fla.), Doc. 785, p. 61, Lozman stepped up to the
podium to give remarks. He began to discuss the recent
arrest of a former county official. Councilmember Wade
interrupted Lozman, directing him to stop making those
remarks. Lozman continued speaking, this time about the
arrest of a former official from the city of West Palm
Beach. Wade then called for the assistance of the police
officer in attendance. The officer approached Lozman and
asked him to leave the podium. Lozman refused. So
Wade told the officer to “carry him out.” The officer hand-
cuffed Lozman and ushered him out of the meeting. The
incident was recorded on video. See Record, Def. Exh. 505,
Doc. 687, available at https://www.supremecourt.gov/media/
video/mp4files/Lozman_v_RivieraBeach.mp4. According to
the City, Lozman was arrested because he violated the
City Council’s rules of procedure by discussing issues
unrelated to the City and then refused to leave the po-
dium. According to Lozman, the arrest was to retaliate for
his open-meetings lawsuit against the City and his prior
public criticisms of city officials.
Under arrest, Lozman was escorted to police headquar-
ters. He was charged with disorderly conduct and resist-
ing arrest without violence and then released. Later, the
State’s attorney determined there was probable cause to
arrest Lozman for those offenses but decided to dismiss
the charges.
Lozman filed this lawsuit under Rev. Stat. §1979, 42
U.S. C. §1983. The complaint described a number of
alleged incidents that, under Lozman’s theory, showed the
City’s purpose to harass him in different ways. These
4 LOZMAN v. RIVIERA BEACH
Opinion of the Court
ranged from a city employee telling Lozman that his dog
needed a muzzle to the City’s initiation of an admiralty
lawsuit against Lozman’s floating home—the latter result-
ing in an earlier decision by this Court. See Lozman v.
Riviera Beach, 568 U.S. 115 (2013). The evidence and
arguments presented by both parties with respect to all
the matters alleged in Lozman’s suit consumed 19 days of
trial before a jury. The jury returned a verdict for the City
on all of the claims.
Before this Court, Lozman seeks a reversal only as to
the City’s alleged retaliatory arrest at the November 2006
city council meeting. The District Court instructed the
jury that, for Lozman to prevail on this claim, he had to
prove that the arresting officer was himself motivated by
impermissible animus against Lozman’s protected speech
and that the officer lacked probable cause to make the
arrest. The District Court determined that the evidence
was insufficient as a matter of law to support probable
cause for the offenses charged at the time of the arrest
(disorderly conduct and resisting arrest without violence).
But the District Court concluded that there may have
been probable cause to arrest Lozman for violating a
Florida statute that prohibits interruptions or disturb-
ances in schools, churches, or other public assemblies.
Fla. Stat. §871.01 (2017). (The City had brought this
statute to the District Court’s attention during the course
of the litigation.) The District Court allowed the jury to
decide whether there was probable cause to arrest for the
public-disturbance offense.
Judgment having been entered for the City after the
jury’s verdict, Lozman appealed. The Court of Appeals for
the Eleventh Circuit affirmed. 681 Fed. Appx. 746 (2017).
As relevant here, the Court of Appeals assumed that the
District Court erred when it instructed the jury that the
officer, rather than the City, must have harbored the
retaliatory animus. But the Court of Appeals held that
Cite as: 585 U. S. ____ (2018) 5
Opinion of the Court
any error was harmless because the jury necessarily de-
termined that the arrest was supported by probable cause
when it found for the City on some of Lozman’s other
claims—specifically, his claims that the arrest violated the
Fourth Amendment and state law. Id., at 751752. And,
under precedents which the Court of Appeals deemed
controlling, the existence of probable cause defeated a
First Amendment claim for retaliatory arrest. See id., at
752 (citing Dahl v. Holley, 312 F.3d 1228, 1236 (CA11
2002)).
This Court granted certiorari, 583 U. S. ___ (2017), on
the issue whether the existence of probable cause defeats a
First Amendment claim for retaliatory arrest under §1983.
The Court considered this issue once before, see Reichle v.
Howards, 566 U.S. 658, 663 (2012), but resolved the case
on different grounds.
II
The issue before the Court is a narrow one. In this
Court Lozman does not challenge the constitutionality of
Florida’s statute criminalizing disturbances at public
assemblies. He does not argue that the statute is overly
broad, e.g., Terminiello v. Chicago, 337 U.S. 1 (1949);
Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of
Stratton, 536 U.S. 150 (2002); or that it impermissibly
targets speech based on its content or viewpoint, e.g.,
Texas v. Johnson, 491 U.S. 397 (1989); Cohen v. Califor-
nia, 403 U.S. 15 (1971); or that it was enforced in a way
that curtailed Lozman’s right to peaceful assembly, e.g.,
Brown v. Louisiana, 383 U.S. 131 (1966). Lozman, fur-
thermore, does not challenge the validity of the City Coun-
cil’s asserted limitations on the subjects speakers may
discuss during the public-comment portion of city council
meetings (although he continues to dispute whether those
limitations in fact existed).
Instead Lozman challenges only the lawfulness of his
6 LOZMAN v. RIVIERA BEACH
Opinion of the Court
arrest, and even that challenge is a limited one. There is
no contention that the City ordered Lozman’s arrest to
discriminate against him based on protected classifica-
tions, or that the City denied Lozman his equal protection
rights by placing him in a “class of one.” See Village of
Willowbrook v. Olech, 528 U.S. 562 (2000) (per curiam).
Lozman, moreover, now concedes that there was probable
cause for the arrest. Although Lozman does not indicate
what facts he believes support this concession, it appears
that the existence of probable cause must be based on the
assumption that Lozman failed to depart the podium after
receiving a lawful order to leave.
Lozman’s claim is that, notwithstanding the presence of
probable cause, his arrest at the city council meeting
violated the First Amendment because the arrest was
ordered in retaliation for his earlier, protected speech: his
open-meetings lawsuit and his prior public criticisms of
city officials. The question this Court is asked to consider
is whether the existence of probable cause bars that First
Amendment retaliation claim.
III
It is well established that in a §1983 case a city or other
local governmental entity cannot be subject to liability at
all unless the harm was caused in the implementation of
“official municipal policy.” Monell v. New York City Dept.
of Social Servs., 436 U.S. 658, 691 (1978); see Los Angeles
County v. Humphries, 562 U.S. 29, 36 (2010). Lozman’s
§1983 damages claim is against only the City itself, based
on the acts of its officers and employees—here, the mem-
bers of the City Council. Lozman says that the City,
through its city councilmembers, formed an official policy
to retaliate against him and ordered his arrest. The Court
assumes in the discussion to follow that the arrest was
taken pursuant to an official city policy, but whether there
was such a policy and what its content may have been are
Cite as: 585 U. S. ____ (2018) 7
Opinion of the Court
issues not decided here.
This brings the discussion to the issue the parties deem
central to the case: whether the conceded existence of
probable cause for the arrest bars recovery regardless of
any intent or purpose to retaliate for past speech. Two
major precedents could bear on this point, and the parties
disagree on which should be applicable here. The first is
this Court’s decision in Mt. Healthy City Bd. of Ed. v.
Doyle, 429 U.S. 274 (1977). See also Board of Comm’rs,
Wabaunsee Cty. v. Umbehr, 518 U.S. 668 (1996). Lozman
urges that the rule of Mt. Healthy should control and that
under it he is entitled to recover. The second is this
Court’s decision in Hartman v. Moore, 547 U.S. 250
(2006), which the City cites for the proposition that once
there is probable cause there can be no further claim that
the arrest was retaliation for protected speech.
Mt. Healthy arose in a civil, not criminal, context. A city
board of education decided not to rehire an untenured
school teacher after a series of incidents indicating unpro-
fessional demeanor. 429 U.S., at 281283. One of the
incidents was a telephone call the teacher made to a local
radio station to report on a new school policy. Id., at 282.
Because the board of education did not suggest that the
teacher violated any established policy in making the call,
this Court accepted a finding by the District Court that
the call was protected speech. Id., at 284. The Court went
on to hold, however, that since the other incidents, stand-
ing alone, would have justified the dismissal, relief could
not be granted if the board could show that the discharge
would have been ordered even without reference to the
protected speech. Id., at 285287. In terms of precepts in
the law of torts, the Court held that even if retaliation
might have been a substantial motive for the board’s
action, still there was no liability unless the alleged consti-
tutional violation was a but-for cause of the employment
termination. Ibid.; see also Umbehr, supra, at 675.
8 LOZMAN v. RIVIERA BEACH
Opinion of the Court
The City resists the applicability of the Mt. Healthy test
as the sole determinant here. It contends that, where
there was probable cause for the arrest, the applicable
precedent is Hartman—a case that was in the criminal
sphere and that turned on the existence of probable cause.
The background in Hartman was that a company and its
chief executive, William Moore, had engaged in an exten-
sive lobbying and governmental relations campaign oppos-
ing a particular postal service policy. 547 U.S., at
252253. Moore and the company were later prosecuted
for violating federal statutes in the course of that lobbying.
Id., at 253254. After being acquitted, Moore filed suit
against five postal inspectors, alleging that they had
violated his First Amendment rights when they instigated
his prosecution in retaliation for his criticisms of the
Postal Service. Id., at 254. This Court held that a plain-
tiff alleging a retaliatory prosecution must show the ab-
sence of probable cause for the underlying criminal
charge. Id., at 265266. If there was probable cause, the
case ends. If the plaintiff proves the absence of probable
cause, then the Mt. Healthy test governs: The plaintiff
must show that the retaliation was a substantial or moti-
vating factor behind the prosecution, and, if that showing
is made, the defendant can prevail only by showing that
the prosecution would have been initiated without respect
to retaliation. See 547 U.S., at 265–266.
The Court in Hartman deemed it necessary to inquire as
to the existence of probable cause because proving the link
between the defendant’s retaliatory animus and the plain-
tiff ’s injury in retaliatory prosecution cases “is usually
more complex than it is in other retaliation cases.” Id., at
261. An action for retaliatory prosecution “will not be
brought against the prosecutor, who is absolutely immune
from liability for the decision to prosecute.” Id., at
261262. Instead, the plaintiff must sue some other gov-
ernment official and prove that the official “induced the
Cite as: 585 U. S. ____ (2018) 9
Opinion of the Court
prosecutor to bring charges that would not have been
initiated without his urging.” Id., at 262. Noting that
inquiries with respect to probable cause are commonplace
in criminal cases, the Court determined that requiring
plaintiffs in retaliatory prosecution cases to prove the lack
of probable cause would help “bridge the gap between the
nonprosecuting government agent’s motive and the prose-
cutor’s action.” Id., at 263.
The City’s argument here is that, just as probable cause
is a bar in retaliatory prosecution cases, so too should it be
a bar in this case, involving a retaliatory arrest. There is
undoubted force in the City’s position. Reichle, 566 U.S.,
at 667–668. There are on average about 29,000 arrests
per day in this country. Dept. of Justice–FBI, Uniform
Crime Report, Crime in the United States, 2016 (Fall
2017). In deciding whether to arrest, police officers often
make split-second judgments. The content of the suspect’s
speech might be a consideration in circumstances where
the officer must decide whether the suspect is ready to
cooperate, or, on the other hand, whether he may present
a continuing threat to interests that the law must protect.
See, e.g., District of Columbia v. Wesby, 583 U. S. ___, ___
(2018) (slip op., at 10) (“suspect’s untruthful and evasive
answers to police questioning could support probable
cause” (internal quotation marks omitted)).
For these reasons retaliatory arrest claims, much like
retaliatory prosecution claims, can “present a tenuous
causal connection between the defendant’s alleged animus
and the plaintiff ’s injury.” Reichle, 566 U.S., at 668.
That means it can be difficult to discern whether an arrest
was caused by the officer’s legitimate or illegitimate con-
sideration of speech. Ibid. And the complexity of proving
(or disproving) causation in these cases creates a risk that
the courts will be flooded with dubious retaliatory arrest
suits. See Brief for District of Columbia et al. as Amici
Curiae 511.
10 LOZMAN v. RIVIERA BEACH
Opinion of the Court
At the same time, there are substantial arguments that
Hartman’s framework is inapt in retaliatory arrest cases,
and that Mt. Healthy should apply without a threshold
inquiry into probable cause. For one thing, the causation
problem in retaliatory arrest cases is not the same as the
problem identified in Hartman. Hartman relied in part on
the fact that, in retaliatory prosecution cases, the causal
connection between the defendant’s animus and the prose-
cutor’s decision to prosecute is weakened by the “presump-
tion of regularity accorded to prosecutorial decisionmak-
ing.” 547 U.S., at 263. That presumption does not apply
in this context. See Reichle, supra, at 669. In addition,
there is a risk that some police officers may exploit the
arrest power as a means of suppressing speech. See Brief
for Institute for Free Speech as Amicus Curiae.
IV
The parties’ arguments raise difficult questions about
the scope of First Amendment protections when speech is
made in connection with, or contemporaneously to, crimi-
nal activity. But whether in a retaliatory arrest case the
Hartman approach should apply, thus barring a suit
where probable cause exists, or, on the other hand, the
inquiry should be governed only by Mt. Healthy is a de-
termination that must await a different case. For Loz-
man’s claim is far afield from the typical retaliatory arrest
claim, and the difficulties that might arise if Mt. Healthy
is applied to the mine run of arrests made by police offi-
cers are not present here.
Here Lozman does not sue the officer who made the
arrest. Indeed, Lozman likely could not have maintained
a retaliation claim against the arresting officer in these
circumstances, because the officer appears to have acted in
good faith, and there is no showing that the officer had
any knowledge of Lozman’s prior speech or any motive to
arrest him for his earlier expressive activities.
Cite as: 585 U. S. ____ (2018) 11
Opinion of the Court
Instead Lozman alleges more governmental action than
simply an arrest. His claim is that the City itself retali-
ated against him pursuant to an “official municipal policy” of
intimidation. Monell, 436 U.S., at 691. In particular, he
alleges that the City, through its legislators, formed a
premeditated plan to intimidate him in retaliation for his
criticisms of city officials and his open-meetings lawsuit.
And he asserts that the City itself, through the same high
officers, executed that plan by ordering his arrest at the
November 2006 city council meeting.
The fact that Lozman must prove the existence and
enforcement of an official policy motivated by retaliation
separates Lozman’s claim from the typical retaliatory
arrest claim. An official retaliatory policy is a particularly
troubling and potent form of retaliation, for a policy can be
long term and pervasive, unlike an ad hoc, on-the-spot
decision by an individual officer. An official policy also can
be difficult to dislodge. A citizen who suffers retaliation by
an individual officer can seek to have the officer disci-
plined or removed from service, but there may be little
practical recourse when the government itself orchestrates
the retaliation. For these reasons, when retaliation
against protected speech is elevated to the level of official
policy, there is a compelling need for adequate avenues of
redress.
In addition, Lozman’s allegations, if proved, alleviate
the problems that the City says will result from applying
Mt. Healthy in retaliatory arrest cases. The causation
problem in arrest cases is not of the same difficulty where,
as is alleged here, the official policy is retaliation for prior,
protected speech bearing little relation to the criminal
offense for which the arrest is made. In determining
whether there was probable cause to arrest Lozman for
disrupting a public assembly, it is difficult to see why a
city official could have legitimately considered that Loz-
man had, months earlier, criticized city officials or filed a
12 LOZMAN v. RIVIERA BEACH
Opinion of the Court
lawsuit against the City. So in a case like this one it is
unlikely that the connection between the alleged animus
and injury will be “weakened . . . by [an official’s] legiti-
mate consideration of speech.” Reichle, 566 U.S., at 668.
This unique class of retaliatory arrest claims, moreover,
will require objective evidence of a policy motivated by
retaliation to survive summary judgment. Lozman, for
instance, cites a transcript of a closed-door city council
meeting and a video recording of his arrest. There is thus
little risk of a flood of retaliatory arrest suits against high-
level policymakers.
As a final matter, it must be underscored that this
Court has recognized the “right to petition as one of the
most precious of the liberties safeguarded by the Bill of
Rights.” BE&K Constr. Co. v. NLRB, 536 U.S. 516, 524
(2002) (internal quotation marks omitted). Lozman alleges
the City deprived him of this liberty by retaliating against
him for his lawsuit against the City and his criticisms of
public officials. Thus, Lozman’s speech is high in the
hierarchy of First Amendment values. See Connick v.
Myers, 461 U.S. 138, 145 (1983).
For these reasons, Lozman need not prove the absence
of probable cause to maintain a claim of retaliatory arrest
against the City. On facts like these, Mt. Healthy provides
the correct standard for assessing a retaliatory arrest
claim. The Court need not, and does not, address the
elements required to prove a retaliatory arrest claim in
other contexts.
This is not to say, of course, that Lozman is ultimately
entitled to relief or even a new trial. On remand, the
Court of Appeals, applying Mt. Healthy and other relevant
precedents, may consider any arguments in support of the
District Court’s judgment that have been preserved by the
City. Among other matters, the Court of Appeals may
wish to consider (1) whether any reasonable juror could
find that the City actually formed a retaliatory policy to
Cite as: 585 U. S. ____ (2018) 13
Opinion of the Court
intimidate Lozman during its June 2006 closed-door ses-
sion; (2) whether any reasonable juror could find that the
November 2006 arrest constituted an official act by the
City; and (3) whether, under Mt. Healthy, the City has
proved that it would have arrested Lozman regardless of
any retaliatory animus—for example, if Lozman’s conduct
during prior city council meetings had also violated valid
rules as to proper subjects of discussion, thus explaining
his arrest here.
For these reasons, the judgment of the Court of Appeals
is vacated, and the case is remanded for further proceed-
ings consistent with this opinion.
It is so ordered.
Cite as: 585 U. S. ____ (2018) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–21
_________________
FANE LOZMAN, PETITIONER v. CITY OF RIVIERA
BEACH, FLORIDA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 18, 2018]
JUSTICE THOMAS, dissenting.
We granted certiorari to decide “whether the existence
of probable cause defeats a First Amendment claim for
retaliatory arrest under [42 U.S. C.] §1983.” Ante, at 5.
Instead of resolving that question, the Court decides that
probable cause should not defeat a “unique class of retalia-
tory arrest claims.” Ante, at 12. To fall within this unique
class, a claim must involve objective evidence, of an official
municipal policy of retaliation, formed well before the
arrest, in response to highly protected speech, that has
little relation to the offense of arrest. See ante, at 11–12.
No one briefed, argued, or even hinted at the rule that the
Court announces today. Instead of dreaming up our own
rule, I would have answered the question presented and
held that plaintiffs must plead and prove a lack of prob-
able cause as an element of a First Amendment retaliatory-
arrest claim. I respectfully dissent.
I
The petition for certiorari asked us to resolve whether
“the existence of probable cause defeat[s] a First Amend-
ment retaliatory-arrest claim as a matter of law.” Pet. for
Cert. i. That question has divided the federal courts for
decades. See id., at 10–13. We granted certiorari to con-
sider it six years ago in Reichle v. Howards, 566 U.S. 658,
2 LOZMAN v. RIVIERA BEACH
THOMAS, J., dissenting
663 (2012). But we did not resolve it then because the
petitioner’s second question presented—whether qualified
immunity applied—fully resolved the case. Ibid. Since
Reichle, the split in the federal courts has widened. See
Pet. for Cert. 12–13. In this case, we again granted certio-
rari, 538 U. S. ___ (2017), this time only on the question of
probable cause, see Pet. for Cert. i.
Yet the Court chooses not to resolve that question,
leaving in place the decades-long disagreement among the
federal courts. The parties concentrated all their argu-
ments on this question in their briefs and at oral argu-
ment. Neither party suggested that there was something
special about Fane Lozman’s claim that would justify a
narrower rule. See, e.g., Tr. of Oral Arg. 15–16 (refusing
to take the “fallback position” that this “is some special
kind of case”). Yet the Court does that work for them by
defining a “unique class of retaliatory arrest claims” that
do not require plaintiffs to plead and prove a lack of prob-
able cause. Ante, at 12.
By my count, the Court has identified five conditions
that are necessary to trigger its new rule. First, there
must be “an ‘official municipal policy’ of intimidation.”
Ante, at 11 (quoting Monell v. New York City Dept. of
Social Servs., 436 U.S. 658, 691 (1978)). Second, the
policy must be “premeditated” and formed well before the
arrest—here, for example, the policy was formed “months
earlier.” Ante, at 11.1 Third, there must be “objective
evidence” of such a policy. Ante, at 12. Fourth, there must
be “little relation” between the “protected speech” that
prompted the retaliatory policy and “the criminal offense
——————
1 This requirement suggests that the Court’s rule does not apply
when the “policy” that the plaintiff challenges is an on-the-spot decision
by a single official with final policymaking authority, like the “policy”
that this Court recognized in Pembaur v. Cincinnati, 475 U.S. 469
(1986). See id., at 484–485 (holding that a county prosecutor’s order to
forcibly enter the plaintiff’s clinic was a “municipal policy”).
Cite as: 585 U. S. ____ (2018) 3
THOMAS, J., dissenting
for which the arrest is made.” Ante, at 11. Finally, the
protected speech that provoked the retaliatory policy must
be “high in the hierarchy of First Amendment values.”
Ante, at 12. Where all these features are present, the
Court explains, there is not the same “causation problem”
that exists for other retaliatory-arrest claims. Ante, at 11.
I find it hard to believe that there will be many cases
where this rule will even arguably apply, and even harder
to believe that the plaintiffs in those cases will actually
prove all five requirements. Not even Lozman’s case is a
good fit, as the Court admits when it discusses the rele-
vant considerations for remand. See ante, at 12–13. In
my view, we should not have gone out of our way to fash-
ion a complicated rule with no apparent applicability to
this case or any other.
II
Turning to the question presented, I would hold that
plaintiffs bringing a First Amendment retaliatory-arrest
claim must plead and prove an absence of probable cause.2
This Court has “repeatedly noted that 42 U.S. C. §1983
creates ‘ “a species of tort liability.” ’ ” Memphis Commu-
nity School Dist. v. Stachura, 477 U.S. 299, 305 (1986)
(footnote omitted). Accordingly, we “defin[e] the contours
and prerequisites of a §1983 claim” by “look[ing] first to
the common law of torts.” Manuel v. Joliet, 580 U. S. ___,
___ (2017) (slip op., at 12); see, e.g., Heck v. Humphrey,
512 U.S. 477, 484 (1994) (analogizing to the “common-law
cause of action for malicious prosecution”); id., at 491
(THOMAS, J., concurring) (emphasizing that the decision
——————
2 I am skeptical that 42 U.S. C. §1983 recognizes a claim for retalia-
tory arrests under the First Amendment. I adhere to the view that “no
‘intent-based’ constitutional tort would have been actionable under the
§1983 that Congress enacted.” Crawford-El v. Britton, 523 U.S. 574,
612 (1998) (Scalia, J., dissenting). But because no party presses this
argument, I assume that such claims are actionable under §1983.
4 LOZMAN v. RIVIERA BEACH
THOMAS, J., dissenting
was “consistent . . . with the state of the common law at
the time §1983 was enacted”).
When §1983 was enacted, there was no common-law tort
for retaliatory arrest in violation of the freedom of speech.
See Hartman v. Moore, 547 U.S. 250, 259 (2006). I would
therefore look to the common-law torts that “provid[e] the
closest analogy” to this claim. Heck, supra, at 484. The
closest analogs here are the three arrest-based torts under
the common law: false imprisonment, malicious prosecu-
tion, and malicious arrest. In defining the elements of
these three torts, 19th-century courts emphasized the
importance of probable cause.
Consider first the tort of false imprisonment. Common-
law courts stressed the need to shape this tort with an
“indulgence” for peace officers, who are “specially charged
with a duty in the enforcement of the laws.” T. Cooley,
Law of Torts 175 (1880) (Cooley); see, e.g., Hogg v. Ward, 3
H. & N. 417, 423, 157 Eng. Rep. 533, 536 (Ex. 1858) (opin-
ion of Watson, B.) (stressing “the utmost importance that
the police throughout the country should be supported in
the execution of their duty”). Accordingly, private citizens
were always liable for false imprisonment if the arrestee
had not actually committed a felony, but constables were
“excused” if they had “made [the arrest] on reasonable
grounds of belief ”—i.e., probable cause. Cooley 175; ac-
cord, 2 C. Addison, Law of Torts §803, p. 18 (1876); 1 F.
Hilliard, The Law of Torts or Private Wrongs §18, pp. 207–
208, and n. (a) (1866). As Lord Mansfield explained, it
was “of great consequence to the police” that probable
cause shield officers from false-imprisonment claims, as “it
would be a terrible thing” if the threat of liability dissuaded
them from performing their official duties. Ledwith v.
Catchpole, 2 Cald. 291, 295 (K. B. 1783). This concern
outweighed “the mischief and inconvenience to the public”
from the reality that “[m]any an innocent man has and
may be taken up upon suspicion.” Ibid. Many State Su-
 Cite as: 585 U. S. ____ (2018) 5
THOMAS, J., dissenting
preme Courts agreed with Lord Mansfield’s reasoning.
See, e.g., Burns v. Erben, 40 N.Y. 463, 469 (1869) (opinion
of Woodruff, J.) (quoting Ledwith); Brockway v. Crawford,
48 N. C. 433, 437 (1856) (“[The] exempt[ion] for responsi-
bility” for arrests based on probable cause “encourages . . .
a sharp look-out for the apprehension of felons”). As one
court put it, “How, in the great cities of this land, could
police power be exercised, if every peace officer is liable to
civil action for false imprisonment” whenever “persons
arrested upon probable cause shall afterwards be found
innocent?” Hawley v. Butler, 54 Barb. 490, 496 (N. Y. Sup.
1868).
Courts also stressed the importance of probable cause
when defining the torts of malicious prosecution and
malicious arrest. See, e.g., Ahern v. Collins, 39 Mo. 145,
150 (1866) (holding that “malice and want of probable
cause are necessary ingredients of both”). For the tort of
malicious prosecution, courts emphasized the “necessity”
of both the “allegation” and “proof ” of probable cause, in
light of the public interest “that criminals should be
brought to justice.” Hogg v. Pinckney, 16 S. C. 387, 393
(1882); see also Chrisman v. Carney, 33 Ark. 316, 326
(1878) (“The existence of probable cause is of itself alone a
complete defense . . . . The interest which society has in
the enforcement of the criminal laws requires this rule”).
Similarly, if the element of probable cause were not
“strictly guarded,” “ill consequences would ensue to the
public, for no one would willingly undertake to vindicate a
breach of the public law and discharge his duty to society,
with the prospect of an annoying suit staring him in the
face.” Ventress v. Rosser, 73 Ga. 534, 541 (1884); accord,
Cardival v. Smith, 109 Mass. 158 (1872). The element of
probable cause also played an evidentiary role for both
torts. Lack of probable cause provided “evidence of malice,
though inconclusive,” Herman v. Brookerhoff, 8 Watts 240,
241 (Pa. 1839), because “[m]alice may be inferred from a
6 LOZMAN v. RIVIERA BEACH
THOMAS, J., dissenting
total want of probable cause,” Ventress, supra, at 541;
accord, Ahern, supra, at 150.
In sum, when §1983 was enacted, the common law
recognized probable cause as an important element for
ensuring that arrest-based torts did not unduly interfere
with the objectives of law enforcement. Common-law
courts were wary of “throw[ing] down the bars which
protect public officers from suits for acts done within the
scope of their duty and authority, by recognizing the right
of every one who chooses to imagine or assert that he is
aggrieved by their doings, to make use of an allegation
that they were malicious in motive to harass them with
suits on that ground.” Chelsey v. King, 74 Me. 164, 175–
176 (1882).
Applying that principle here, it follows that plaintiffs
bringing a First Amendment retaliatory-arrest claim
under §1983 should have to plead and prove a lack of
probable cause. I see no justification for deviating from
the historical practice simply because an arrest claim is
framed in terms of the First Amendment. Even under a
First Amendment theory, “the significance of probable
cause or the lack of it looms large.” Hartman, 547 U.S., at
265. The presence of probable cause will tend to disprove
that the arrest was done out of retaliation for the plaintiff ’s
speech, and the absence of probable cause will tend to
prove the opposite. See id., at 261. Because “[p]robable
cause or its absence will be at least an evidentiary issue in
practically all such cases” and “[b]ecause showing [its]
absence . . . will have high probative force, and can be
made mandatory with little or no added cost,” the absence
of probable cause should be an “element” of the plaintiff ’s
case. Id., at 265–266; see also id., at 264, n. 10 (refusing
to carve out an exception for unusual cases).
Moreover, as with the traditional arrest-based torts,
police officers need the safe harbor of probable cause in
the First Amendment context to be able to do their jobs
Cite as: 585 U. S. ____ (2018) 7
THOMAS, J., dissenting
effectively. Police officers almost always exchange words
with suspects before arresting them. And often a suspect’s
“speech provides evidence of a crime or suggests a poten-
tial threat.” Reichle, 566 U.S., at 668. If probable cause
were not required, the threat of liability might deter an
officer from arresting a suspected criminal who, for exam-
ple, has a political bumper sticker on his car, cf. Kilpatrick
v. United States, 432 Fed. Appx. 937 (CA11 2011); is par-
ticipating in a politically tinged protest, Morse v. San
Francisco Bay Area Rapid Transit Dist., 2014 WL 572352
(ND Cal., Feb. 11, 2014); or confronts and criticizes the
officer during the arrest of a third party, Holland v. San
Francisco, 2013 WL 968295 (ND Cal., Mar. 12, 2013).
Allowing plaintiffs to bring a retaliatory-arrest claim in
such circumstances, without pleading and proving a lack
of probable cause, would permit plaintiffs to harass offi-
cers with the kind of suits that common-law courts deemed
intolerable.
* * *
Because we should have answered the question presented
and held that probable cause necessarily defeats First
Amendment retaliatory-arrest claims, I respectfully
dissent.