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Monday, June 18, 2018

(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.

Posted by Howard Wasserman on June 18, 2018 at 11:52 AM in 2018 End of Term, First Amendment, Howard Wasserman, Law and Politics | Permalink


Wasserman, you may find interest here I guess :


Posted by: El roam | Jun 18, 2018 5:06:54 PM

Thanks for that interesting ruling . There is no need in fact , to mix them both ( long term malicious policy , and ad hoc arrest ). For , the wording of 42 U.S. Code § 1983 is clear , here the relevant 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……

End of quotation :

That is to say , that what counts , is not indeed " the color " but rather the " under color " . The question is not whether the arrest has been made with probable cause , but , whether the whole or general frame work was that one of :

Official functioning , fulfilling duty , while on duty and official as such . If so , and the tort or wrongdoing proven , that is what counts .

Suppose a police officer , is arresting lawfully someone . He had a lawful warrant written by magistrate judge . It wouldn't matter , if while carrying his duty and arresting the person lawfully , he has stolen something from his house. The probable cause as such , wouldn't matter at all !! This is because , it has been done , prima facie so , while carrying his duty , and violating clearly established constitutional right .
As such ,applying it to this case , the issue is merely :

Whether the whole frame work was official ( and indeed , official meeting ) and :

Whether a clearly established constitutional right , has been violated , during such official event or occurrence .


Posted by: El roam | Jun 18, 2018 3:27:13 PM

I like what the court did here I just wish the had gone further. I've always seen probable cause as a red herring when it comes to retaliatory arrest claims. The question isn't whether or not there was probable cause, the question is whether the probable cause was actualized independent of the retaliation. The court seems to have taken the attitude in the past that in an on-the-spot ad-hoc decision to arrest separating out those two prongs of the inquiry was a morass better avoided.

I think the better view would be one of a rebuttable presumption. The ordinary presumption is that probable cause defeats a retaliatory arrest claim. But if the arrestee can point to specific facts that rebut that presumption the case can move forward. That's exactly what happened in Lozeman. An "official policy" certainly meets my test, I just don't think it should be required.

Posted by: James | Jun 18, 2018 12:21:09 PM

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