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CIVIL CASE: EVEN A VALID ARREST assistance of the police officer in attendance. The
MIGHT BE RETALIATION. officer approached Lozman and asked him to
leave the podium. Lozman refused. So Wade told
Justice Kennedy delivered the opinion of the the officer to “carry him out.” The officer
Court. handcuffed Lozman and ushered him out of the
meeting.
This case requires the Court to address the
intersection of principles that define when arrests This Court granted certiorari on the issue whether
are lawful and principles that prohibit the the existence of probable cause defeats a First
government from retaliating against a person for Amendment claim for retaliatory arrest under
having exercised the right to free speech. An arrest §1983.
deprives a person of essential liberties, but if there
is probable cause to believe the person has Two major precedents could bear on this point,
committed a criminal offense there is often no and the parties disagree on which should be
recourse for the deprivation. At the same time, applicable here. The first is this Court’s decision
the First Amendment prohibits government in Mt. Healthy City Bd. of Ed. v. Doyle. Lozman
officials from retaliating against individuals for urges that the rule of Mt. Healthy should control
engaging in protected speech. and that under it he is entitled to recover. The
second is this Court’s decision
The petitioner in this case alleges that high-level in Hartman v. Moore, which the City cites for the
city policymakers adopted a plan to retaliate proposition that once there is probable cause there
against him for protected speech and then ordered can be no further claim that the arrest was
his arrest when he attempted to make remarks retaliation for protected speech.
during the public-comment portion of a city
council meeting. The petitioner now concedes Mt. Healthy arose in a civil, not criminal, context.
there was probable cause for the arrest. The A city board of education decided not to rehire an
question is whether the presence of probable cause untenured school teacher after a series of incidents
bars petitioner’s retaliatory arrest claim under indicating unprofessional demeanor. the Court
these circumstances. held that even if retaliation might have been a
… substantial motive for the board’s action, still there
Lozman became embroiled in a number of was no liability unless the alleged constitutional
disputes with city officials and employees over the violation was a but-for cause of the employment
… years, many of which Lozman says were part termination. the Court held that even if retaliation
of the City’s plan of retaliation. might have been a substantial motive for the
… board’s action, still there was no liability unless
[t]he City Council held a public meeting. The the alleged constitutional violation was a but-for
agenda included a public-comment session in cause of the employment termination.
which citizens could address the Council for a few
minutes. … Lozman stepped up to the podium to the Court held that even if retaliation might have
give remarks. He began to discuss the recent arrest been a substantial motive for the board’s action,
of a former county official. Councilmember Wade still there was no liability unless the alleged
interrupted Lozman, directing him to stop making constitutional violation was a but-for cause of the
those remarks. Lozman continued speaking, this employment termination.
time about the arrest of a former official from the
city of West Palm Beach. Wade then called for the This Court held that a plaintiff alleging a

26 www.texaspoliceassociation.com • 866-997-8282 Texas Police Journal