(SCOTUS Term): Municipal gadflies on a busy day at SCOTUS

SCOTUS resolved five cases on Monday. This included the partisan-gerrymandering cases (about which, more later), while leaving unresolved many critical doctrinal questions.

Monday's haul included Lozman v. Riviera Beach, a victory of sorts for a local gadfly. Lozman was arrested (on later-dropped charges) in November 2006 while attempting to speak at the public-comment portion of a City Council meeting. The case was briefed and argued on the proper standard for First Amendment retaliatory arrest claims: Whether probable cause to arrest on some charge defeats the claim or whether courts must consider whether the officer would have arrested the plaintiff even absent his speech.

An 8-Justice majority resolved the case on different terms, as an unusual and narrow retaliation case. Lozman had not sued the arresting officer and he did not claim a First Amendment violation from the officer stopping him from speaking at the November 2006 meeting. Lozman sued the city, alleging that council members (one in particular) enacted a policy to retaliate against him for his pre-November 2006 expressive activity, including critical public statements and filing a state open-records action; the arrest effected that policy. That made this case unique and uniquely problematic. Retaliatory policies, as opposed to ill-motivated officers making ad hoc decisions, are a "particularly troubling and potent form of retaliation" for which a First Amendment claim is the only remedy (whereas a plaintiff could have an individual disciplined or fired--although neither happens). Probable cause plays no role in such a case, because the arresting officer's immediate concerns at the time of arrest are unrelated to the policy targeting past speech. Finally, the policy targeting high-value petition activity.

Lozman's road remains difficult, as he must show that the Council members established a policy, that the policy was retaliatory (that it would not have been established but-for his expression), and that the arrest was pursuant to that policy--all issues on which courts are notoriously stingy. The road for similarly situated future plaintiffs to take advantage of this decision remains more difficult. Lozman had the advantage of a transcript of a closed-door Council meeting at which members spoke in retaliatory terms; most plaintiffs will not be so fortunate. In essence, the court traded a difficult-to-prove issues on the effect of probable cause on individual retaliation for a different set of difficult-to-prove issues surrounding the establishment of municipal liability.