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Argument analysis: Justices weigh threats to free speech against constraints on local policing

About midway through Tuesday’s oral argument in Lozman v. City of Riviera Beach, Justice Elena Kagan provoked audience laughter with a remark to Shay Dvorertzky, the attorney for the city. She observed that Pamela Karlan, who represents plaintiff Fane Lozman, had had “some difficulty with hypotheticals” during her argument. “But you,” she told Dvoretzky,” might have some difficulty with the facts of your case.”

More than just a laugh line, Kagan’s comment encapsulated two points around which several of the justices appeared to coalesce. First, it would be very troubling if jurisdictions could evade trial for colorable claims of retaliatory arrest for First-Amendment-protected-activity by doing what Riviera Beach did in this case: pointing to some probable cause for arrest years after the fact, after proffering and withdrawing several other possible bases for arrest. In other words, several of the justices appeared to agree that Lozman’s case marked a troubling application of the “probable-cause bar” — the rule, embraced by the U.S. Court of Appeals for the 11th Circuit and several other jurisdictions, that the presence of probable cause necessarily defeats a claim of retaliatory arrest for First-Amendment-protected expression. Second, several justices also evinced the view that the Supreme Court should strive to craft a holding that would prevent such strained uses of the probable-cause bar, while leaving law-enforcement officers with ample leeway to make arrests without undue fear of frivolous lawsuits.

Pamela S. Karlan for petitioner (Art Lien)

To understand the events that troubled the justices, it is helpful briefly to revisit the facts. Before his arrest in 2006, Lozman had filed a lawsuit to invalidate the city’s new redevelopment plan on the basis that the meeting in which the plan had been approved did not meet the requirements of Florida’s Sunshine Act. Subsequently, the city council held a closed-door meeting to discuss the lawsuit. A transcript of the meeting reflects the councilmembers’ frustrations with Lozman. At one point, councilmember Elizabeth Wade proposed that the members “intimidate” Lozman. Several months after that meeting – and following other charged interactions between Lozman and the city, including the city’s unsuccessful efforts to evict Lozman from the municipal marina slip where he lived in a floating home, culminating in a 2013 case before the U.S. Supreme Court involving admiralty law – Lozman attended the November 2006 city council meeting that would be the scene of his arrest.

During the November meeting’s public comment period, Lozman began to speak about “corrupt local politican[s].” Within less than a minute, Wade, who was presiding, cut Lozman off and demanded that he cease that line of discussion. When Lozman refused to comply, Wade called out “Officer,” at which point Officer Francesco Aguirre arrested and handcuffed Lozman, and escorted him from the meeting. Shortly after his arrest, Lozman received a “notice to appear” listing two charges: “disorderly conduct” and “resisting arrest without violence.” Both charges soon were dismissed by the state’s attorney, who found “no reasonable likelihood” that they could be prosecuted with success.

Lozman subsequently sued the city under Section 1983, alleging that his arrest constituted retaliation for his protected speech, including his criticisms of the city and his Sunshine Act lawsuit. At trial, the question resurfaced as to whether Riviera Beach had had probable cause to arrest Lozman. The trial judge concluded that there had been no probable cause to arrest him for either of the offenses with which he was initially charged. The city then “identified two new candidates” for provisions that Lozman might have violated: a prohibition on “‘trespass after warning’” and a law against “‘willfully interrupt[ing] or disturb[ing] any school or any assembly of people met for the worship of God or for any lawful purpose.’” After initially leaning toward the trespass provision, the district court settled on the willful-disturbance law as the one “at play here.” Ultimately, the latter offense was the only one “as to which the jury was asked to assess probable cause.”

During the oral argument, several justices expressed discomfort with the circumstances surrounding Lozman’s arrest. Chief Justice John Roberts called the video of the arrest “pretty chilling. I mean, the fellow is up there for about 15 seconds, and the next thing he knows, he’s being led off in – in handcuffs, speaking in a very calm voice the whole time.” Justice Anthony Kennedy expressed similar concerns. “[T]here is evidence,” he observed, “that there was a pre-determined plan to arrest somebody on account of his political speech in a political forum. And it seems to me that this is a very serious First Amendment problem.” To Kagan, the city’s troubling behavior portends broader risks of the probable-cause bar. “[I]n a local government,” she observed, “there are people who become real sorts of pains to local officials, and – and local officials want to retaliate against them … . And just the nature of our lives and the nature of our criminal statute books, there’s a lot to be arrested for… . So that’s a pretty big problem, it seems to me, and it’s right here in kind of the facts of this case.”

At the same time, the justices also seemed troubled by the notion that, without a probable-cause bar, cities might be barraged with lawsuits for arrests reasonably made in difficult and fast-moving situations. Kennedy posed a hypothetical, for example, in which “[y]ou have people that are fighting in a bar and the – the policeman has to get some order and the – one of the more difficult suspects says something bad to the policeman, and he arrests him.” Justice Stephen Breyer similarly cited the possibility of “a real riot” in which participants engage in violence while also “insulting the police.”

Karlan attempted to reassure the justices that multiple safeguards already protect cities from the types of lawsuits that the justices had in mind. She pointed to several such safeguards, including the heightened pleading standards of Ashcroft v. Iqbal and Bell Atlantic v. Twombly; the availability of qualified immunity for officers who do not violate “clearly established” rights; and the “Mount Healthy standard,” which provides that speech-based retaliation can be established only when the defendants would not have taken the relevant action but for their retaliatory motive.

Karlan also suggested ways in which the Supreme Court might itself draw lines between situations like those in this case and other scenarios, such as the riots and bar brawls cited by Breyer and Kennedy. She was receptive to suggestions by Breyer and Kagan that the court might treat arrests involving serious crimes, such as murder and rape, differently than arrests for lesser crimes. Karlan also noted, however, that cases involving serious crimes are unlikely to go to juries in any event, “[b]ecause it would not be plausible to say unless you had extraordinary evidence of animus, that a police officer would not arrest somebody for rape or burglary or murder” without a retaliatory motive. Karlan also was open to Justice Neil Gorsuch’s idea that municipalities might be allowed to assert probable cause only for the crimes that they cited at or around the time of the arrest.

Shay Dvoretzky for respondent (Art Lien)

For his part, Dvoretzky argued that the probable-cause bar is essential to protect municipalities and to prevent law-enforcement officers from being stymied in their ability to preserve public safety. He deemed it “critical to understand that police officers must concededly take account of speech when deciding to arrest in many situations,” and that it is “virtually impossible for police officers … to disaggregate their own thought processes” and determine the precise role played by arrestees’ speech in arrest decisions made in the midst of violence and chaos. A similar problem, Dvoretzky posited, led the Supreme Court to impose a probable-cause bar in retaliatory prosecution cases in Hartman. In the prosecution context, you have “complex causation problems … because you  have multiple actors. You had the police officer who allegedly induced the prosecutor to act.” In retaliatory arrest cases too, “you have at least as significant a causation problem because of the ways in which police officers concededly must account for speech in an arrest. And police officers should not be deterred from making legitimate arrests … out of fear that later on there will be an allegation that perhaps the real reason for the arrest was the Black Lives Matter shirt.”

Dvoretzky also emphasized law-enforcement officers’ thought processes in rejecting Gorsuch’s suggestion that cities might be limited to imposing a probable-cause bar only for crimes cited at the time of or shortly after arrest. He explained that police officers are not lawyers; “they are not trained and they are not required to specifically identify at the time of arrest precisely what section of the code was violated.” Dvoretzky similarly dismissed the suggestion that the Supreme Court might draw a distinction between arrests for minor and major crimes. “[P]olice officers,” he argued, “can’t have a taxonomy in mind of what’s a significant enough crime to arrest for and what’s not.”

Fane Lozman watching arguments (Art Lien)

Finally, both parties’ attorneys, as well as the deputy United States solicitor general, Jeffrey Wall, who appeared as an amicus curiae on behalf of the city, weighed in on the prevalence of the respective threats against which each party warned. Wall acknowledged that “the facts here are troubling,” but called it a “one-in-a-thousand” case around which a rule ought not to be built. Dvoretzky disputed that that the city had acted badly, but emphasized, “more importantly,” that the court “should not make a general rule for the facts of this case.” The real threat, according to both Wall and Dvoretzky, is that posed to municipalities by the absence of a probable-cause bar. Dvoretzky pointed to a number of U.S. Court of Appeals for the 9th Circuit cases cited by the city and by the state of Alaska in the latter’s amicus curiae brief. The 9th Circuit is one of two jurisdictions without a probable cause bar. The cited cases, argued Dvoretzky, show that scenarios like the fights and riots invoked by Breyer and Kennedy “go to trial” when there is no probable-cause bar, although eventually “those cases are found in favor of the … police officer.”

Karlan disputed Dvoretzky’s characterization of the 9th Circuit cases, observing that “not a single one of those cases involves the kind of hypothetical” that troubled the justices. Justice Sonia Sotomayor backed Karlan up on this point. She told Dvoretzky that she had reviewed all of the cited cases and that the ones that went to trial proceeded only because “there was other evidence of things that … made [these] triable cases. Many of them involved excessive force claims, which can often be reflective of animus.” Sotomayor also pointed out, as had Karlan, that 12 of the 26 cases cited by Alaska were “dismissed at the motion to dismiss stage.”

Overall, Karlan argued that the real danger is the one that the probable-cause bar poses to free speech. She framed the threat as one to the integrity of the very First Amendment framework that the Supreme Court has built in other cases. Should the court impose a probable-cause bar, Karlan told the justices, it would really be saying that “all of the [First Amendment] protections that this Court is giving don’t mean very much on the ground when you’re dealing with local governments.”

Recommended Citation: Heidi Kitrosser, Argument analysis: Justices weigh threats to free speech against constraints on local policing, SCOTUSblog (Feb. 28, 2018, 5:28 PM),