By Lisa Soronen
If probable cause exists to arrest someone, should that arrestee be barred from bringing a First Amendment retaliatory lawsuit?
The State and Local Legal Center (SLLC) argues in an amicus brief in Lozman v. City of Riviera Beach says "No."
Fane Lozman lived in a floating house in the Riviera Beach Marina. The city proposed to redevelop the marina using eminent domain and Lozman became “an outspoken critic” regularly criticizing the mayor and city council at council meetings. At a city council meeting, Lozman offered comments about former county commissioners who had served in other communities being arrested. A councilperson had Lozman arrested for refusing to stop talking. Lozman was not ultimately charged with disorderly conduct or resisting arrest.
He sued the city, claiming they arrested him in violation of his First Amendment free speech rights for opposing the city’s redevelopment plan. The city argued Lozman was arrested for violating the city’s rule that comments during the public comment period must relate to city business.
A jury ruled against Lozman. The Eleventh Circuit held that the jury’s finding of probable cause to arrest him for disturbing a lawful assembly wasn’t against the great weight of the evidence. The Eleventh Circuit then concluded because the arrest was supported by probable cause Lozman’s First Amendment retaliatory arrest claim failed.
Before the Supreme Court Lozman argues that even if probable cause existed to arrest him he should still be able to bring a First Amendment retaliatory arrest claim.
The SLLC amicus brief argues that the Supreme Court should hold that arrestees must prove the absence of probable cause to bring a First Amendment retaliatory arrest claim.
If probable cause is present and officers can still be sued states and local governments will have more difficulty maintaining order and safety at local government meetings, public protests and demonstrations, and political rallies. The 50 state constitutions also protect free speech. State courts may interpret state constitutions more broadly than the federal constitution. And internal disciplinary measures within state and local police departments offer “meaningful remedies for true victims of retaliation.”
Sean Gallagher, Bennett Cohen, and Britton St. Onge of Polsinelli wrote the SLLC amicus brief which the following organizations joined: the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, and the International Municipal Lawyers Association.
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor on judicial issues to the NCSL Blog.