Page:Lozman v. City of Riviera Beach (2018).pdf/3

Rh that might arise if Mt. Healthy is applied to the mine run of arrests made by police officers are not present here. Lozman alleges that the City itself retaliated against him pursuant to an “official municipal policy” of intimidation. Monell, supra, at 691. The fact that he must prove the existence and enforcement of an official policy motivated by retaliation separates his claim from the typical retaliatory arrest claim. An official retaliatory policy can be long term and pervasive, unlike an ad hoc, on-the-spot decision by an individual officer. And it can be difficult to dislodge. A citizen can seek to have an individual officer disciplined or removed from service, but there may be little practical recourse when the government itself orchestrates the retaliation. Lozman’s allegations, if proved, also alleviate the problems that the City says will result from applying Mt. Healthy in retaliatory arrest cases, for it is unlikely that the connection between the alleged animus and injury in a case like this will be “weakened ... by [an official’s] legitimate consideration of speech,” Reichle v. Howards,, 668, and there is little risk of a flood of retaliatory arrest suits against high-level policymakers. Because Lozman alleges that the City deprived him of the right to petition, one of the most precious of the liberties safeguarded by the Bill of Rights, ''BE&K Constr. Co. v. NLRB'',, 524, his speech is high in the hierarchy of First Amendment values. On these facts, Mt. Healthy provides the correct standard for assessing a retaliatory arrest claim. On remand, the Eleventh Circuit may consider any arguments in support of the District Court’s judgment that have been preserved by the City, including whether a reasonable juror could find that the City formed a retaliatory policy to intimidate Lozman during its closed-door session, whether a reasonable juror could find that the arrest constituted an official act by the City, and whether, under Mt. Healthy, the City has proved that it would have arrested Lozman regardless of any retaliatory animus. Pp. 10–13.

, vacated and remanded.

, J., delivered the opinion of the Court, in which, , and , , , , , and , JJ., joined. , J., filed a dissenting opinion.