Page:Lozman v. City of Riviera Beach (2018).pdf/17

Rh No. 17-21

FANE LOZMAN, PETITIONER v. THE CITY OF RIVIERA BEACH, FLORIDA

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

[June 18, 2018]

, dissenting.

We granted certiorari to decide “whether the existence of probable cause defeats a First Amendment claim for retaliatory arrest under .” Ante, at 5. Instead of resolving that question, the Court decides that probable cause should not defeat a “unique class of retaliatory arrest claims.” Ante, at 12. To fall within this unique class, a claim must involve objective evidence, of an official municipal policy of retaliation, formed well before the arrest, in response to highly protected speech, that has little relation to the offense of arrest. See ante, at 11–12. No one briefed, argued, or even hinted at the rule that the Court announces today. Instead of dreaming up our own rule, I would have answered the question presented and held that plaintiffs must plead and prove a lack of probable cause as an element of a First Amendment retaliatory-arrest claim. I respectfully dissent.

I The petition for certiorari asked us to resolve whether “the existence of probable cause defeat[s] a First Amendment retaliatory-arrest claim as a matter of law.” Pet. for Cert. i. That question has divided the federal courts for decades. See id., at 10–13. We granted certiorari to consider it six years ago in Reichle v. Howards, 566 U.S. 658,