SCOTUSBlog: Opinion analysis: With facts like these … Lozman v. City of Riviera Beach by Heidi Kitrosser:
One of my first thoughts upon reading yesterday’s decision in Lozman v. City of Riviera Beach was of an old headline from “The Onion”: “Supreme Court Issues Landmark ‘It Depends’ Ruling.” Indeed, the majority opinion in Lozman, written by Justice Anthony Kennedy and joined by seven other justices, explicitly limits its holding to “facts like these.” And although the court granted certiorari in Lozman to decide the validity of the “probable cause bar” – that is, whether “the existence of probable cause defeat[s] a First Amendment retaliatory-arrest claim as a matter of law” — the majority concluded that it “need not, and does not, address the elements required to prove a retaliatory arrest claim” in settings unlike the one in this case.
Still, Kennedy’s opinion is hardly insignificant. It is true that the majority declined to decide whether the existence of probable cause could ever defeat a First Amendment retaliatory arrest claim, and, if so, under what circumstances. The majority opinion does, however, make clear that probable cause does not invariably defeat such claims. At minimum, the Lozman court concluded that under circumstances like those before it, a city cannot defeat a Section 1983 claim of retaliatory arrest for protected speech simply by pointing to some additional basis on which it could have arrested the plaintiff.