Lozman v. City of Riviera Beach, Fla.

This case considers whether a plaintiff is automatically barred from suing for retaliatory arrest if the arresting police officer had probable cause to arrest the plaintiff for any crime—including one the officer hadn’t thought of at the time of arrest. The plaintiff here, who was arrested at a Riviera Beach City Council meeting for disorderly conduct, put forth unambiguous evidence that city council members had explicitly discussed “intimidat[ing]” him shortly before his arrest, due to his vocal opposition to the city council. However, the Eleventh Circuit found that because the arresting officer had probable cause to arrest him—albeit for a different crime (disturbing a lawful assembly) from the ones with which he was charged (disorderly conduct and resisting arrest)—this served as an “absolute bar” to a claim for retaliatory arrest under the First Amendment. However, the Supreme Court has spoken clearly on this point: “[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out.” Deference to a police officer’s finding of probable cause need not extend to flatly disregarding any evidence of that officer’s retaliatory motive against the arrestee. Given the array of minor infractions which individuals inadvertently commit on a regular—if not daily—basis, such a rule would give officers a wide range of offenses to use as cover for retaliatory arrests, without giving an arrestee the chance to show the actual reason for the arrest.