When someone claims to have been arrested in retaliation for constitutionally protected speech, what sort of evidence is necessary to make that case? Five years ago in Nieves v. Bartlett, the Supreme Court held that an arrest can violate the First Amendment even if it was based on probable cause, provided the claimant can present "objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been." Today in Gonzalez v. Trevino, the Court said that showing does not require "very specific comparator evidence" indicating that "identifiable people" engaged in very similar conduct but were not arrested.
"This is a great day for the First Amendment and Sylvia Gonzalez, who has courageously fought against retaliatory actions by government officials," says Anya Bidwell, a senior attorney at the Institute for Justice, which represents Gonzalez, a former Castle Hills, Texas, city council member who says her political opponents engineered her arrest on a trumped-up charge of tampering with a government document. The document in question was a petition that Gonzalez herself had spearheaded, calling for the replacement of City Manager Ryan Rapelye. Gonzalez had run for office on a promise to seek Rapelye's removal, and she claimed his allies were determined to punish her for that position.
During a May 2019 city council meeting that addressed complaints about Rapelye's performance, Gonzalez picked up the petition, which had been presented to the council, and placed it in her personal folder. She says she did that accidentally. But Mayor Edward Trevino, Police Chief John Siemens, and Alexander Wright, a "special detective" assigned to investigate Gonzalez, accused her of deliberately removing the document to avoid scrutiny of alleged improprieties in collecting signatures for the petition.
As a result, Gonzalez was briefly jailed and suffered the attendant damage to her reputation. Bexar County District Attorney Joe Gonzales, according to Gonzalez's Supreme Court petition, "dropped the charges as soon as he learned about them." Trevino et al. nevertheless achieved what Gonzalez says was their goal all along. "Gonzalez was so hurt by the experience and so embarrassed by the media coverage of her arrest," the petition says, that "she gave up her council seat and swore off organizing petitions or criticizing her government."
In July 2022, the U.S. Court of Appeals for the 5th Circuit rejected Gonzalez's First Amendment claim against Trevino, Siemens, and Wright, saying it was doomed by her failure to cite other cases in which people had not been arrested for conduct like hers. "Were we writing on a blank slate," Judge Kurt D. Engelhardt wrote in the majority opinion, "we may well agree" that "the Constitution ought to provide a claim here, particularly given that Gonzalez's arrest was allegedly in response to her exercise of her right to petition." But "Nieves requires comparative evidence," he said, "because it required 'objective evidence' of 'otherwise similarly situated individuals' who engaged in the 'same' criminal conduct but were not arrested. The evidence Gonzalez provides here comes up short."
The standard applied by the 5th Circuit was excessively demanding, the Supreme Court concludes in a per curiam opinion joined by all but one justice. "We agree with Gonzalez that the Fifth Circuit took an overly cramped view of Nieves," the opinion says. "That court thought Gonzalez had to provide very specific comparator evidence—that is, examples of identifiable people who 'mishandled a government petition' in the same way Gonzalez did but were not arrested. Although the Nieves exception [to the general rule that probable cause defeats a retaliatory-arrest claim] is slim, the demand for virtually identical and identifiable comparators goes too far."
The Nieves exception, the justices note, is designed to account for "circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so." Writing for the majority in that case, Chief Justice John Roberts cited jaywalking as an example.
"At many intersections, jaywalking is endemic but rarely results in arrest," Roberts wrote. "If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual's retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest."
Under the 5th Circuit's reading of Nieves, that jaywalker would have to cite specific cases in which less vocal pedestrians illegally crossed a street without being arrested. That interpretation is wrong, the Supreme Court says: "To fall within the exception, a plaintiff must produce evidence to prove that his arrest occurred in such circumstances. The only express limit we placed on the sort of evidence a plaintiff may present for that purpose is that it must be objective in order to avoid 'the significant problems that would arise from reviewing police conduct under a purely subjective standard.'"
As the Court notes, Gonzalez "alleged that she had reviewed the past decade's misdemeanor and felony data for Bexar County (where Castle Hills is located) and that her review had found that the Texas anti-tampering statute had never been used in the county 'to criminally charge someone for trying to steal a nonbinding or expressive document.'" She "turned up 215 felony indictments, and she characterized the typical
indictment as involving 'accusations of either using or making fake government identification documents.'" Other felony cases involved "fake checks, hiding murder evidence, or cheating on government exams." The misdemeanor cases all involved
"fake social security numbers, driver's licenses, [or] green cards." Gonzalez cited that research as "evidence that the defendants had engaged in a political vendetta by
bringing a 'sham charge' against her."
Because the justices decided the 5th Circuit was wrong to deem such evidence insufficient on its face, they vacated the appeals court's decision and remanded the case for further consideration. But Gonzalez still has to prove that she was a victim of "a political vendetta."
That will be difficult, Justice Samuel Alito suggests in a concurring opinion. Alito cites evidence that Gonzalez deliberately removed the petition, including surveillance camera video suggesting she knew what the document was and her inconsistent statements about how it ended up in her folder.
In addition to questioning the strength of Gonzalez's case, Alito faults his colleagues for declining to address another question raised by her petition: whether the general rule that probable cause for an arrest blocks a First Amendment claim should be limited to cases involving "split-second arrests, rather than deliberative ones." In this case, the investigation that resulted in Gonzalez's arrest took nearly two months.
"Three weeks into the unfruitful investigation," Gonzalez's petition says, Siemens deputized Wright, "an attorney and his friend," to "take over as a 'special detective.'" A month later, Wright filed an arrest affidavit that, among other things, cited Gonzalez's constitutionally protected agitation against Rapelye as evidence that she had committed a crime. Gonzalez argued that the probable-cause rule should not apply in such situations, where police have ample time to consider the ramifications of their decisions. Alito thinks the Court should have taken this opportunity to reject that argument.
In another concurring opinion, Justice Brett Kavanaugh notes that Gonzalez conceded, perhaps "unwise[ly]," that there was probable cause to arrest her, meaning there was evidence that she had "intentionally…remove[d]" a "governmental record." As Kavanaugh sees it, her argument that she was arrested for an honest mistake "is not a Nieves-exception claim at all," because it hinges on her state of mind rather than her conduct.
In any event, "we are where we are," Kavanaugh writes. "I concur in the per curiam because the per curiam does not seem to say anything that is harmful to the law, even
though the per curiam (in my view) does not really have anything to do with Gonzalez's case."
Justice Ketanji Brown Jackson wrote a concurring opinion, joined by Justice Sonia Sotomayor, that was notably more sympathetic to Gonzalez, as you might have expected based on the questions that both justices posed during oral arguments in the case last March. In addition to the survey of document tampering cases, Jackson notes, Gonzalez "pointed to, among other things, details about the anomalous procedures used for her arrest and statements in the arresting officer's warrant affidavit suggesting a retaliatory motive." That sort of evidence, Jackson says, also "can support the conclusion that Gonzalez 'was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.'"
The lone dissenter was Justice Clarence Thomas, who also dissented from part of the decision in Nieves. "I continue to believe that 'plaintiffs bringing a First Amendment retaliatory-arrest claim…should have to plead and prove a lack of probable cause,'" he writes.
Whether or not Gonzalez is ultimately successful in proving her case, today's decision will make it easier for victims of retaliatory arrests to get their day in court. Laredo, Texas, journalist Priscilla Villarreal, for example, was arrested under a dubious interpretation of an obscure state law that makes it a felony to seek nonpublic information with the intent to "obtain a benefit." Her crime, according to local police and prosecutors, was asking a cop questions about a public suicide and a fatal car accident. Villarreal, who is seeking Supreme Court review of a 5th Circuit ruling against her, says her real offense was irking law enforcement officials.
The "objective evidence" supporting Villarreal's retaliatory-arrest claim seems even stronger than the evidence presented by Gonzalez. As half a dozen journalists (including me) note in a brief supporting her Supreme Court petition, the legal theory deployed against Villarreal would make a felon out of anyone who asks a government agency for information that is deemed exempt from mandatory disclosure under the Texas Public Information Act. That happens thousands of times every year, as documented by the opinions that the state attorney general's office issues in such cases. Yet those unsuccessful information seekers have never been arrested or prosecuted for the crime Villarreal was accused of committing.
Based on the Supreme Court's clarification of the Nieves exception, that surely should count as "objective evidence" of a retaliatory motive. It therefore seems possible that the Court will remand Villarreal's case for reconsideration in light of Gonzalez.
"The Supreme Court's revision of its First Amendment retaliation doctrine ensures that Americans can seek justice when they have evidence of a retaliatory arrest," Bidwell says. "Retaliatory arrests undermine the very foundation of our democracy, and this ruling helps safeguard the rights of all Americans to speak out without fear of retribution. We are proud to have been part of this crucial victory for free speech."
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