§ 1983 lawsuit filed against Riviera Beach by Fane Lozman, who had been arrested while criticizing local politicians during the public comments section of a City Council meeting.

Healthy test was appropriate "on facts like these",[1] based on the alleged "official municipal policy"[2] of retaliation and the importance of the right to petition.

A year later, the court considered the matter again in Nieves v. Bartlett, that time finding that probable cause generally bars a claim of retaliatory arrest.

Healthy City School District Board of Education v. Doyle,[3] the Supreme Court established a standard of but-for causation for claims of official retaliation against speech.

[6] The Supreme Court considered Hartman's applicability to retaliatory arrest first in Reichle v. Howards (2012), but decided the case on grounds of qualified immunity instead.

[16] Hurley allowed the city to argue that there had been probable cause to arrest Lozman for the offense of disturbing a lawful assembly,[14] and instructed the jury to consider that question.

[18] Having already successfully taken the city to the Supreme Court in Lozman v. City of Riviera Beach, 568 U.S. 115 (2013),[19] represented by Jeffrey L. Fisher of the Stanford Law School Supreme Court Litigation Clinic, Lozman again obtained representation from Fisher and the clinic, this time with Pamela S. Karlan as lead counsel.

The majority held that the existence of probable cause did not categorically bar a claim of retaliatory arrest, but limited the decision's holding to Lozman's case and to others with "facts like these".

"[31] The court vacated the judgment below and remanded the case back to the Eleventh Circuit, but concluded by noting three arguments under which Lozman might be denied relief.

[33] Justice Clarence Thomas, in a solo dissent, wrote that plaintiffs should categorically have to "plead and prove a lack of probable cause as an element of a First Amendment retaliatory-arrest claim".

[36] He further argued that "the presence of probable cause will tend to disprove that the arrest was done out of retaliation for the plaintiff’s speech, and the absence of probable cause will tend to prove the opposite" and raised concerns about plaintiffs using the courts to harass police officers under the majority's holding, as "police officers almost always exchange words with suspects before arresting them".

[30] Heidi Kitrosser of SCOTUSblog compared its limited scope to the Onion headline "Supreme Court Issues Landmark 'It Depends' Ruling".

[38] Writing in The Atlantic, Garrett Epps characterized the "narrow, and perhaps temporary, win for Fane Lozman" as part of a trend of the Supreme Court "keeping its head down", referencing also its decisions that term in Gill v. Whitford [39] and Benisek v.

[40][33] Lozman's narrow victory was noted for the extreme rarity of someone taking the same opponent to the Supreme Court in two different cases and winning both times.

[42][44] In November 2018, the Supreme Court heard oral arguments in Nieves v. Bartlett,[45] which again posed the question of whether a plaintiff in a retaliatory arrest suit must show a lack of probable cause.

[46] Lozman and the First Amendment Foundation filed a brief amicus curiae[47] supporting Russell Bartlett, who alleged that his arrest by an Alaska state trooper had been retaliatory.

[46] In Nieves, the court decided that probable cause does generally defeat a claim of retaliatory arrest,[48] citing Thomas's dissent in Lozman.

[50] The Nieves decision nonetheless allowed that retaliatory arrest claims may be brought despite the presence of probable cause if the law in question was inconsistently enforced on the basis of protected speech.