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13 Charleston L. Rev. 49 (2018-2019)
From City Council to the Streets: Protesting Police Misconduct after Lozman v. City of Riviera Beach

handle is hein.journals/charlwrev13 and id is 57 raw text is: FROM CITY COUNCIL TO THE STREETS: PROTESTING POLICE MISCONDUCT AFTER L OZMAN V CITY OF RIVIERA BEACH Arielle W. Tolman and David M. Shapiro * ABSTRACT In June 2018, in Lozman v. City of Riviera Beach, the Supreme Court held 8-1 that the existence of probable cause for arrest does not categorically bar a First Amendment claim for damages. At issue in the case was the City of Riviera Beach's arrest of resident Fane Lozman as he spoke against public corruption during a city council meeting. In this Article, we contend that Lozman is a victory-but not an unqualified one-for protesters, like those affiliated with the Black Lives Matter movement, who criticize the police and face a danger of retaliatory arrest. After Lozman, we argue that Monell suits against high-level police department officials who cause retaliatory arrests against protesters are more likely to be successful. Suits of this nature are critical to law enforcement accountability and the freedom of speech. At the same time, we recognize the narrowness of the Court's Lozman holding and the obstacles it may impose on protester-plaintiffs' First Amendment claims against individual police officers and against police departments for arrests made contemporaneously to speech. We conclude by examining the Court's grant of certiorari in a *Arielle W. Tolman-Northwestern University Law and Science Fellow. J.D., Northwestern Pritzker School of Law, expected 2021; Ph.D., Northwestern University Department of Sociology, expected 2021; M.A. Sociology, Northwestern University; B.A., Sociology and Neuroscience, Wesleyan University. David M. Shapiro-Clinical Associate Professor of Law, Northwestern Pritzker School of Law; Director of Appellate Litigation, Roderick and Solange MacArthur Justice Center; J.D., Yale Law School; A.B. History and Literature, Harvard College. Part I of this Article draws substantially from an amicus brief by one of the authors, David M. Shapiro, and submitted to the Supreme Court in support of Petitioner Fane Lozman on behalf of the Roderick and Solange MacArthur Justice Center. See Brief of the Roderick and Solange MacArthur Justice Center, Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018) (No. 17-21) (filed Dec. 27, 2017). 49

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