663 (2012). But we did not resolve it then because the petitioner’s second question presented—whether qualified immunity applied—fully resolved the case. Ibid. Since Reichle, the split in the federal courts has widened. See Pet. for Cert. 12–13. In this case, we again granted certiorari, 538 U.S. ___ (2017), this time only on the question of probable cause, see Pet. for Cert. i.
Yet the Court chooses not to resolve that question, leaving in place the decades-long disagreement among the federal courts. The parties concentrated all their arguments on this question in their briefs and at oral argument. Neither party suggested that there was something special about Fane Lozman’s claim that would justify a narrower rule. See, e.g., Tr. of Oral Arg. 15–16 (refusing to take the “fallback position” that this “is some special kind of case”). Yet the Court does that work for them by defining a “unique class of retaliatory arrest claims” that do not require plaintiffs to plead and prove a lack of probable cause. Ante, at 12.
By my count, the Court has identified five conditions that are necessary to trigger its new rule. First, there must be “an ‘official municipal policy’ of intimidation.” Ante, at 11 (quoting Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 691 (1978)). Second, the policy must be “premeditated” and formed well before the arrest—here, for example, the policy was formed “months earlier.” Ante, at 11.[1] Third, there must be “objective evidence” of such a policy. Ante, at 12. Fourth, there must be “little relation” between the “protected speech” that
prompted the retaliatory policy and “the criminal offense
- ↑ This requirement suggests that the Court’s rule does not apply when the “policy” that the plaintiff challenges is an on-the-spot decision by a single official with final policymaking authority, like the “policy” that this Court recognized in Pembaur v. Cincinnati, 475 U.S. 469 (1986). See id., at 484–485 (holding that a county prosecutor’s order to forcibly enter the plaintiff’s clinic was a “municipal policy”).
