By: Ashley Ann Bryan, Articles Editor, J.D. Candidate, May 2019, St. Thomas University School of Law.

Though usually the centerpiece and deciding factor in many cases, “Probable Cause” does not necessarily apply all the time, even without an exception. Sometimes, it just does not matter. One such situation is that of retaliatory arrests. This concept was thoroughly considered after recently going all the way up to the Supreme Court in 2018.

 In 2006, Palm Beach County government critic, Fane Lozman, was arrested for speaking during a Rivera Beach Council Meeting. Mr. Lozman was notorious for his vocal demeanor regarding the City’s intentions to use “its eminent domain power to seize homes along the waterfront for private development.” However, during this 2006 meeting, while speaking out, Mr. Lozman was told to stop speaking – to which he refused. This refusal led to his arrest. Subsequently, Mr. Lozman sued the city under 42 U.S.C. § 1983 for retaliatory arrest. The district court eventually instructed the Jury that Mr. Lozman would prevail only if he were to prove “the arresting officer was motivated by impermissible animus against Lozman’s protected speech and that the officer lacked probable cause to make the arrest.”  This standard, therefore, relies heavily on the presence, or lack thereof, of probable cause for the arrest.

The lower courts made their decision in favor for the city finding that the police officer had probable cause for the arrest of Mr. Lozman who did not comply to the demand of the council member to stop speaking out. However, on June 18, 2018, the Supreme Court held that “[t]he existence of probable cause for Fane Lozman’s arrest for disrupting a city council meeting does not bar his First Amendment retaliatory arrest claim under the circumstances of this case.” Specifically, the Supreme Court’s rationale rested on the premise that the plaintiff was not required to prove probable cause for a claim of retaliatory arrest. On the contrary, a plaintiff need only show “(1) that the retaliation was a substantial or motivating factor behind the arrest, and (2) that the arrest would have occurred even without respect to retaliatory animus—i.e., the retaliatory animus was a but-for cause of the arrest.” The case was eventually remanded by whopping 8-1 decision. In this case, probable cause just did not matter.