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retaliatory prosecution must show the absence of the retaliation. For these reasons, when retaliation
probable cause for the underlying criminal against protected speech is elevated to the level of
charge. f there was probable cause, the case ends. official policy, there is a compelling need for
If the plaintiff proves the absence of probable adequate avenues of redress.
cause, then the Mt. Healthy test governs: The
plaintiff must show that the retaliation was a In addition, Lozman’s allegations, if proved,
substantial or motivating factor behind the alleviate the problems that the City says will result
prosecution, and, if that showing is made, the from applying Mt. Healthy in retaliatory arrest
defendant can prevail only by showing that the cases. The causation problem in arrest cases is not
prosecution would have been initiated without of the same difficulty where, as is alleged here, the
respect to retaliation. official policy is retaliation for prior, protected
speech bearing little relation to the criminal
The parties’ arguments raise difficult questions offense for which the arrest is made. In
about the scope of First Amendment protections determining whether there was probable cause to
when speech is made in connection with, or arrest Lozman for disrupting a public assembly, it
contemporaneously to, criminal activity. But is difficult to see why a city official could have
whether in a retaliatory arrest case legitimately considered that Lozman had, months
the Hartman approach should apply, thus barring earlier, criticized city officials or filed a lawsuit
a suit where probable cause exists, or, on the other against the City. So in a case like this one it is
hand, the inquiry should be governed only by Mt. unlikely that the connection between the alleged
Healthy is a determination that must await a animus and injury will be “weakened . . . by [an
different case. official’s] legitimate consideration of speech.”
For these reasons, Lozman need not prove the
Here Lozman does not sue the officer who made absence of probable cause to maintain a claim of
the arrest. Indeed, Lozman likely could not have retaliatory arrest against the City. On facts like
maintained a retaliation claim against the arresting these, Mt. Healthy provides the correct standard
officer in these circumstances, because the officer for assessing a retaliatory arrest claim. The Court
appears to have acted in good faith, and there is no need not, and does not, address the elements
showing that the officer had any knowledge of required to prove a retaliatory arrest claim in other
Lozman’s prior speech or any motive to arrest him contexts.
for his earlier expressive activities.
Lozman v. City of Riviera Beach. USSC No. 17-
The fact that Lozman must prove the existence 21, June 18, 2018.
and enforcement of an official policy motivated by ****************************************
retaliation separates Lozman’s claim from the ********************
typical retaliatory arrest claim. An official
retaliatory policy is a particularly troubling and
potent form of retaliation, for a policy can be long
term and pervasive, unlike an ad hoc, on-the-spot
decision by an individual officer. An official
policy also can be difficult to dislodge. A citizen
who suffers retaliation by an individual officer can
seek to have the officer disciplined or removed
from service, but there may be little practical
recourse when the government itself orchestrates

Sept./Oct. 2018 www.texaspoliceassociation.com • 866-997-8282 27