In Lozman v. City of Riviera Beach the U.S. Supreme Court claimed to be establishing a "narrow" rule on a civil suit for retaliatory arrest even when the arrest is supported probable cause. I have my doubts. We have seen "narrow" rules grow like cancer before.
Plaintiff Fane Lozman had some ongoing disagreements with the city. He may have been right; it doesn't matter. At the public comment portion of a city council meeting he starts going off about the arrest of an official in another jurisdiction with no apparent connection to the meeting. When he won't shut up and won't leave, the council has him arrested. The Court has the video on its web site. He claims the arrest was retaliation for his outspoken criticism and not just for his conduct on this occasion.
Generally speaking, the Supreme Court says a seizure supported by probable cause is legal and does not permit going behind the cause for an ulterior motive. Whren v. United States, 517 U.S. 806 (1996) rejected a claim that a traffic stop violated the Fourth Amendment because the real motive was to investigate possible drug trafficking. In the First Amendment context, the law is not so clear.
Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), which arose in a civil employment context, allowed going behind a justifiable employment decision for retaliatory motive on a showing that the improper motive was the "but-for cause" of the decision. Hartman v. Moore, 547 U. S. 250 (2006), a retaliatory prosecution claim, would seem to be more closely on point. It held that a finding that the prosecution was supported by probable cause ended the case. Which rule applies here?
Justice Kennedy's opinion for the Court does demonstrate an awareness of the danger of extending retaliatory arrest claims to police officers in the ordinary course of their work:
There are on average about 29,000 arrests per day in this country. Dept. of Justice-FBI, Uniform Crime Report, Crime in the United States, 2016 (Fall 2017). In deciding whether to arrest, police officers often make split-second judgments. The content of the suspect's speech might be a consideration in circumstances where the officer must decide whether the suspect is ready to cooperate, or, on the other hand, whether he may present a continuing threat to interests that the law must protect.* * *For these reasons retaliatory arrest claims, much like retaliatory prosecution claims, can "present a tenuous causal connection between the defendant's alleged animus and the plaintiff 's injury." Reichle, 566 U. S., at 668. That means it can be difficult to discern whether an arrest was caused by the officer's legitimate or illegitimate consideration of speech. Ibid. And the complexity of proving (or disproving) causation in these cases creates a risk that the courts will be flooded with dubious retaliatory arrest suits.
Not only would the courts be flooded, but the prospect of getting sued may cause police officers to hold back in cases where they really should make an arrest. There is too much of that already, and public safety suffers as a result.
In the present case, Lozman may have a very good claim that the council was out to get him.
In June 2006 the Council held a closed-door session, in part to discuss the open-meetings lawsuit that Lozman recently had filed. According to the transcript of the meeting, Councilmember Elizabeth Wade suggested that the City use its resources to "intimidate" Lozman and others who had filed lawsuits against the City. App. 176. Later in the meeting a different council member asked whether there was "a consensus of what Ms. Wade is saying," and others responded in the affirmative. Id., at 181-182. Lozman alleges that these remarks formed an official plan to intimidate him. The City, on the other hand, maintains that the only consensus reached during the meeting was to invest the money and resources necessary to prevail in the litigation against it.
The Court decides that Lozman's case can go forward despite probable cause to arrest. Is this a case of "hard cases make bad law"? Should Lozman have some other remedy against the city and particularly the council member who explicitly stated an intent to intimidate him?
Back on the alleged narrowness of today's decision, the Court says,
But whether in a retaliatory arrest case the Hartman approach should apply, thus barring a suit where probable cause exists, or, on the other hand, the inquiry should be governed only by Mt. Healthy is a determination that must await a different case. For Lozman's claim is far afield from the typical retaliatory arrest claim, and the difficulties that might arise if Mt. Healthy is applied to the mine run of arrests made by police officers are not present here.
Okay, but you can bet your bottom dollar that some courts will allow such suits in "the mine run of arrests made by police officers." Let's hope that when they do the Supreme Court takes those cases up promptly and really does keep the rule in today's case narrow.
Should the police get to engage in viewpoint discrimination when it comes to the "who should get arrested" question? The answer is clearly no, but is the cure worse than the disease?
Abuse of power happens. Should the courts' doors be closed off? Tough questions. We have some expressions in the US that involve a fair amount of sardonic wit, "Home cooking." and "You can beat the rap, but you can't beat the ride"--since they are expressions, they do reflect some reality.
Police officers have arrested people for taking videos of their activity and seized cellphones and deleted images. Unless there are going to be prosecutions for armed robbery (which that is), perhaps we need to allow a bit more on the civil side.
I don't pretend to have all the answers, but there has been some pretty abysmal cop behavior that has gone unremedied. While it may be just the way it has to be in order that we don't have cops sued every which way, we cannot lose sight of the injustices.
I share your concerns about what has been a good objective bright line rule.
To me, in a perfect world, the solution would lie in the removal of a public official(s) who discuss “intimidating” their constituents or of the city attorney who did not intercede to caution about the dangers of abuse of power.