June 22, 2018

U.S. Supreme Court

Lozman v. Riviera Beach

No. 17-21            6/18/18


Does the existence of probable cause for arrest bar all First Amendment retaliation claims relating to that arrest?


No. In most situations, probable cause for an arrest will bar a claim of retaliatory arrest. However, probable cause for the arrest does not bar a claim that the arrest was pursuant to an “official municipal policy” of intimidation in retaliation for earlier protected speech. In such a case, the plaintiff must prove the existence and enforcement of an official policy motivated by retaliation. This distinguishes the claim from a typical retaliatory arrest claim, so the existence of probable cause for the arrest does not bar a §1983 claim. Read opinion.

Dissent (Thomas, J.):

“[T]he Court decides that probable cause should not defeat a ‘unique class of retaliatory arrest claims.’ To fall within this unique class, a claim must involve objective evidence, of an official municipal policy of retaliation, formed well before the arrest, in response to highly protected speech, that has little relation to the offense of arrest. No one briefed, argued, or even hinted at the rule that the Court announces today. Instead of dreaming up our own rule, I would have answered the question presented and held that plaintiffs must plead and prove a lack of probable cause as an element of a First Amendment retaliatory arrest claim.” (Internal citations omitted) Read opinion.


The majority concedes that this is not the typical retaliatory arrest case. The defendant did not sue the officer who arrested him; instead, he sued the City for developing and enforcing an official policy against him in retaliation for the exercise of his First Amendment rights. The majority promises that its decision in this case will not lead to a flood of retaliatory arrest suits against cities because this unique type of case would require objective evidence of a city policy that was motivated by retaliation for the exercise of First Amendment rights. We will have to take the majority at its word. In any event, if a defendant makes a First Amendment challenge to his arrest and cites this decision, prosecutors should note to the court its very narrow scope. The last paragraph of the majority opinion also makes it clear that this defendant can still lose his case—such as if the City proves that it would have had the defendant arrested regardless of any retaliatory motives on its part. Do not let defense counsel exaggerate the scope of this very narrow decision.

Texas Courts of Appeals 

In re Hesse

No. 07-18-00226-CR       6/14/18


Is a defendant in a petty criminal contempt proceeding entitled to a jury trial?


No. The Texas Constitution guarantees the right to a jury trial to any person accused of a criminal offense, including “petty” offenses for a which a jury trial is not guaranteed by the United States Constitution. However, a contempt hearing is not a “trial” as contemplated by the Texas Constitution. A judge may find a person in direct contempt without any jury trial. A defendant has the statutory right only to request a de novo hearing before a different judge but no right to request a jury trial. Read opinion.


If you want a very short primer on the various different types of contempt, you should definitely read this decision. It will get you started. There is also a good discussion on when a defendant (contemnor) has a constitutional right to a jury trial. The court of appeals appears to have treated this as a criminal case, and you can—and probably should—expect the defendant to now “appeal” the appellate court’s decision by filing a mandamus action against the court of appeals in the Court of Criminal Appeals. So stay tuned.



CCA Crime Scene Investigation Symposium July 10-11 in Austin

This free symposium will be held July 10-11 at the Texas Capitol Auditorium. Those interested in attending should email [email protected] with their names and occupations no later than June 25. Attendance is limited, and you are not guaranteed a seat at the conference until your registration is confirmed. More information is available here.