retaliatory arrest

Lozman v. City of Riviera Beach, Florida

Issues

Does the existence of probable cause prevent a plaintiff from pursuing a retaliatory arrest claim against the government?

The Supreme Court will decide whether an individual can pursue a retaliatory arrest claim against the government for violating his First Amendment free speech rights, even though his arrest was supported by probable cause. Petitioner Fane Lozman argues that if a plaintiff who asserts a retaliatory arrest claim can establish a causal connection between his protected speech and the subsequent government action, the burden should then shift to the government to prove that it would have made the same decision even without the alleged animus. Lozman admits that the existence of probable cause may be sufficient for the government to meet its burden in some cases, but argues that a finding probable cause should not automatically defeat a retaliatory arrest claim. In contrast, Respondent City of Riviera Beach argues that probable cause should operate as an absolute bar to a retaliatory arrest claim. This case will clarify the government’s ability to arrest people suspected of committing a crime while engaged in protected speech and also the liability of government officials who allegedly encourage selectively arresting political dissidents for committing minor offenses.

Questions as Framed for the Court by the Parties

When a plaintiff claims that the government retaliated against his First Amendment-protected expression by arresting him, does the existence of probable cause operate as an absolute bar to his claim?

In March 2006, Fane Lozman moved his floating home to the Riviera Beach Marina. Lozman v. City of Riviera Beach, 681 F. App'x 746, 748 (11th Cir. 2017). Shortly after moving there, Lozman learned that the City of Riviera Beach (“Riviera Beach”) planned to redevelop the Marina.

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Reichle v. Howards

Issues

1. Whether one may make a First Amendment retaliatory arrest claim against one’s arresting officers if there was probable cause for one’s arrest.

2. Whether the court below erred by denying qualified and absolute immunity to Secret Service agents when the arrest they performed did not violate the Fourth Amendment.

 

Respondent Steven Howards criticized and touched Vice President Cheney while the Vice President was on a meet-and-greet at a local shopping center. Petitioners Virgil Reichle and Dan Doyle, two Secret Service Agents, confronted Howards, and subsequently arrested him for assault. However, the state prosecutor dropped the charges against Howards, who then brought a First Amendment retaliatory arrest claim against the Agents. The district court denied the Agents’ motion for summary judgment, ruling that the Agents could not benefit from qualified immunity under the circumstances. The Tenth Circuit affirmed. The Supreme Court must now resolve whether one may raise a First Amendment retaliatory arrest claim when there was probable cause for one’s arrest. A decision for Howards may deter law enforcement officers from making arrests for fear of retaliatory arrest claims, while a decision for the Agents may enable officers to more easily target and punish speech which they oppose.

Questions as Framed for the Court by the Parties

1. Whether, as the Tenth Circuit siding with the Ninth Circuit held here, the existence of probable cause to make an arrest does not bar a First Amendment retaliatory arrest claim; or whether, as the Second, Sixth, Eighth, and Eleventh Circuits have held, probable cause bars such a claim, including under Hartman v. Moore, 547 U.S. 250 (2006).

2. Whether the Tenth Circuit erred by denying qualified and absolute immunity to petitioners where probable cause existed for respondent’s arrest, the arrest comported with the Fourth Amendment, it was not (and is not) clearly established that Hartman does not apply to First Amendment retaliatory arrest claims, and the denial of immunity threatens to interfere with the split-second, life-or-death decisions of Secret Service agents protecting the President and Vice President.

In 2006, Respondent Steven Howards visited the Beaver Creek Mall in Beaver Creek, Colorado to bring his older son to a piano recital. See Howards v. McLaughlin, 634 F.3d 1131, 1135 (10th Cir.

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