DECEMBER 29, 2017

The Supreme Court will specifically consider the “no probable cause” case of a Florida man, Fane Lozman. Police arrested Lozman for disorderly conduct at a Riviera Beach city council meeting. He says it was in retaliation for loud opposition to a municipal redevelopment plan and his accusations of corruption on the council.

In an amicus brief filed today, the ACLU and the First Amendment Foundation have urged the court to allow his claim. If the court endorses the “no probable cause” rule, it will immunize governmental officials from liability even when they engage in clear-cut retaliation.

‘no probable cause’ is unconstitutional and bad policy

There are several good reasons why this rule is both unconstitutional and bad policy. First, it allows law enforcement to use an “arrest now, justify later” strategy. This lets the arresting officer use a probable cause theory that was not even on the officer’s mind or communicated to the plaintiff at the time of arrest.

another political protester is beaten by cops

Police Officers arresting a protester.

This rule will bar retaliatory arrest lawsuits even when there is overwhelming evidence of a retaliatory motive. The enormity of the criminal code, and the ease of mistakenly violating it, practically guarantees this result.

Are you carrying a sign attached to a stick thicker than 3/4 inch during a protest? You may have committed a crime, which the police could use against you in defending against a lawsuit for retaliatory arrest. And in most cases they will use it against you because that is their job.

That’s true even if a police officer told racial justice protesters that the reason for their arrest was his disdain for Black Lives Matter. If the “no probable cause” rule stands, this evidence would be useless in a lawsuit against the officer. If he says he had probable cause to arrest the protesters for any crimes, he could use this rule. Even a crime that he thought of after making the arrest.

‘no probable cause’ will silence political speech

If the “no probable cause” rule becomes law we are headed for trouble. Retaliatory arrest lawsuits — a primary tool for deterring police misconduct — will become almost impossible to win. Police officers will be emboldened to silence political speech and ignore First Amendment rights.

And then we are one more step towards a totalitarian system.

source: By Jacob J. Hutt, William J. Brennan Fellow, ACLU’s Speech, Privacy, and Technology Project