Sylvia Gonzalez, a former Castle Hills, Texas, city council member, plausibly alleges that she was driven from public life by a trumped-up, politically motivated arrest aimed at punishing her for engaging in advocacy protected by the First Amendment. On Wednesday, the U.S. Supreme Court considered what sort of "objective evidence" she needs to prove that claim.
The case, Gonzalez v. Trevino, hinges on how to read the Court's 2019 decision in Nieves v. Bartlett, which added "a narrow qualification" to the general rule that the existence of probable cause is enough to defeat a retaliatory arrest claim. In "circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so," Chief Justice John Roberts wrote for the majority in Nieves, "an unyielding requirement to show the absence of probable cause could pose 'a risk that some police officers may exploit the arrest power as a means of suppressing speech.'"
Roberts cited jaywalking as an example. "At many intersections, jaywalking is endemic but rarely results in arrest," he 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."
In such a case, Roberts noted, "probable cause does little to prove or disprove the causal connection between animus and injury." The Court therefore allowed a plaintiff who claims he was arrested in retaliation for constitutionally protected speech to present "objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been."
That is what Gonzalez, who is represented by the Institute for Justice, says happened to her. In 2019, Gonzalez, then a 72-year-old retiree, won an upset victory in a city council election after campaigning on a promise to seek City Manager Ryan Rapelye's replacement. Toward that end, she organized a petition that a resident presented to Mayor Edward Trevino on May 21, 2019, at the first city council meeting that Gonzalez attended.
The ensuing debate about Rapelye's performance continued at a meeting the next day, during which Gonzalez sat next to Trevino, who as mayor presides over city council meetings. After that meeting, according to Gonzalez's Supreme Court petition, she "picked up the papers strewn around her sitting area and put them in her binder," which she left on the table as she crossed the room to converse with a constituent.
"A few minutes later," the petition says, "a police officer in charge of safety at the meeting tapped Gonzalez on her shoulder and explained that the mayor wanted to talk to her. The police officer escorted Gonzalez to the mayor," who "was still at his seat next to Gonzalez's." Trevino "then asked Gonzalez, 'Where's the petition?' Gonzalez responded, 'Don't you have it? It was turned in to you yesterday.' At the mayor's prompting, Gonzalez looked for the petition in her binder and to her surprise found it there. Gonzalez then handed the petition to the mayor," who "volunteered to Gonzalez that she 'probably picked it up by mistake.'"
That was not the end of the matter. Trevino and Police Chief John Siemens, Rapelye's allies, used the briefly missing petition as the basis for a criminal investigation that took nearly two months. "Three weeks into the unfruitful investigation," Gonzalez's petition says, Siemens "deputized an attorney and his friend," Alexander Wright, "to take over as a 'special detective.'" A month later, Wright filed an arrest affidavit that charged Gonzalez with violating Section 37.10(a)(3) of the Texas Penal Code, which applies to someone who "intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record."
Contrary to Gonzalez's claim that she accidentally picked up the petition, Wright alleged that she deliberately moved it. He implied that she was worried about complaints that she had collected signatures "under false pretenses." His affidavit cited Gonzalez's agitation against Rapelye as evidence of her offense. "From her very first meeting in May of 2019," it said, Gonzalez "has been openly antagonistic to the city manager, Ryan Rapelye, wanting desperately to get him fired." That plan, Wright explained, "involved collecting signatures on several petitions." He complained that Gonzalez had visited a resident's house to "get her signature on one of the petitions under false pretenses" by "misleading her" and "telling her several fabrications regarding Ryan Rapelye."
Instead of seeking a summons, the usual approach in Bexar County for nonviolent misdemeanors, Wright sought an arrest warrant. And instead of referring the matter to the district attorney's office, Wright presented his affidavit directly to a judge—a procedure that Gonzalez's petition says is generally "reserved for emergencies or violent felonies." That meant the warrant "wasn't in the satellite booking system, so Gonzalez could not be booked, processed, and released without jailtime." That is why Gonzalez, who "turned herself in as soon as she learned about the warrant," ended up behind bars for a day, "handcuffed, on a cold metal bench, wearing an orange jail shirt, and avoiding the restroom, which had no doors."
Bexar County District Attorney Joe Gonzales, according to Gonzalez's 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 a September 2020 complaint that she filed in the U.S. District Court for the Western District of Texas, Gonzalez said Trevino, Siemens, and Wright had violated her First Amendment rights by orchestrating her arrest in retaliation for her opposition to Rapelye. She noted that "the statute has never been used to arrest a person in an analogous situation."
Based on Nieves, U.S. District Judge David Alan Ezra ruled in March 2021 that Gonzalez could proceed with her lawsuit. A divided panel of the U.S. Court of Appeals for the 5th Circuit disagreed, ruling in July 2022 that Gonzalez's lawsuit was doomed by her failure to cite other cases in which people had not been arrested for conduct similar to 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."
Speaking for Gonzalez during Wednesday's oral arguments, Institute for Justice attorney Anya Bidwell said the 5th Circuit's understanding of "objective evidence" was too narrow. "Nieves does not blind courts to all but one type of objective evidence of causation," she said. Under the 5th Circuit's reading, she added, Trevino could have gone on TV and "announced that he was going to have Ms. Gonzalez arrested because she challenged his authority," and "the existence of probable cause would make this evidence legally irrelevant." Bidwell argued that courts should be allowed to consider "evidence of causation" such as "the fact that two police officers looked into Ms. Gonzalez and thought there was nothing warranting an arrest, that a prosecutor dismissed the charges, [and] that a special detective walked a warrant under an emergency procedure designed for fleeing suspects to put away a lady in her 70s."
Unsurprisingly, Justice Neil Gorsuch seemed inclined to agree with Bidwell. Gorsuch dissented in Nieves, saying it gave police officers too much leeway. "Criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something," he wrote. "If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age."
Gorsuch reiterated that point while questioning Lisa Blatt, the attorney representing Trevino. According to one estimate, he said, there are "over 300,000 federal crimes," and "I can't imagine how many there are at the state and local level. And you're saying they can all sit there unused, except for one person who alleges that I was the only person in America who's ever been prosecuted for this because I dared express a view protected by the First Amendment, and that's not actionable?"
Justice Elena Kagan echoed Gorsuch's concern. "The 5th Circuit understood this rule to say you have to show a person within this jurisdiction who has engaged in this conduct before and was not arrested," she said. "Justice Gorsuch is saying…that has got to be wrong. Whatever else you want to put into this bucket, you should be able to say they've never charged somebody with this kind of crime before" without having to "go find a person who has engaged in the same conduct." The point of Nieves, she said, is that if "you were arrested for something that somebody who hadn't engaged in your speech activities would not be arrested for," you can use "solid, objective evidence" of that to "get over the probable cause bar."
Kagan asked Blatt to imagine a video of a meeting in which Trevino et al. talk about "how they can get back at Ms. Gonzalez" by arresting her because she "moved this piece of paper." She asked Blatt if such a video, which "seems like pretty good objective evidence to get you over the probable cause bar," would count as "objective evidence" of retaliation. Blatt resisted answering the question, but ultimately her answer seemed to be no. "I worry where you're going," she said, because a judge might then be free to consider any evidence he thinks is "pretty relevant" to the question of whether "she was picked on."
Justice Sonia Sotomayor—who, like Gorsuch, dissented in Nieves—also was sympathetic to Bidwell's argument. Sotomayor noted that "the 5th Circuit is the only circuit that's demanding a specific kind of comparison-based evidence." And she suggested there was at least some evidence of that sort in this case, since Trevino "violated the same statute by taking the petition home and keeping it overnight."
Sotomayor noted that the 7th and 9th circuits have taken a broader view of "objective evidence" than the 5th Circuit, and she wondered if those rulings led to "an explosion of litigation." Not according to an analysis by the National Police Accountability Project, Bidwell said: Out of 178 cases, it found, only 17 survived motions to dismiss or motions for summary judgment.
Blatt argued that siding with Gonzalez would invite every arrestee to claim retaliation. "I really would advise every criminal to put a political bumper sticker on their car," she said, drawing laughter. Without the shield provided by probable cause, she said, retaliation claims would have a paralyzing effect on police officers, because they "literally could never arrest without worrying about getting sued."
Justice Ketanji Brown Jackson seemed skeptical, saying, "I thought that was the point of qualified immunity," which bars federal civil rights claims unless they allege violation of a "clearly established" right. Justice Amy Coney Barrett also seemed to think Blatt's warning was overblown. "I don't think it would be the case that anybody who was arrested could make this charge and then get on to discovery," she said, "because then you'd still have to survive a motion to dismiss." Gonzalez "has all of this evidence for retaliation," Barrett said. "Not everybody who's arrested is going to have the kind of evidence she has on that score."
When Blatt described Gonzalez's alleged offense as "theft," Sotomayor objected. "This wasn't charged as a theft," she noted. "The crime that was charged here was a crime of moving a document, and all it required was a general intent to move it. The defense was, 'I moved it accidentally.'…There are charges brought for stealing government documents, and there are charges that are brought for moving government documents. And [the latter has] never happened in a situation like this."
Speaking as "a former prosecutor," Sotomayor said "we probably wouldn't have brought the charges" in such a case "even if it was intentional…because 'no harm, no foul.'" In Gonzalez's case, she noted, "Two police officers wouldn't charge it; one public prosecutor didn't charge it. In the end, even with a warrant, the charges were dropped….When there's a dispute about things like this, people are not arrested in this way."
Bidwell also argued that the Nieves rule was "designed for a representative case of in-the-field law enforcement," not for decisions by mayors or situations where charges are filed after lengthy investigation and consideration. Under the 5th Circuit's reading, she said, the rule "insulates all government officials," including "the thin-skinned bureaucrat scouring for a crime to pin on his critics."
Kagan thought that distinction was relevant under Nieves. "I agree with you that the split-second arrest seems to be a key part of the Court's reasoning," she told Bidwell. But Kagan worried that "dividing the world into split-second arrest cases versus other cases is going to be a very difficult thing to do." Bidwell said Nieves would apply "as long as probable cause and arrest arise" within an "initial lawful encounter."
Four justices seemed decidedly less receptive to overturning the 5th Circuit. Roberts emphasized that Nieves affirmed "a very strong general rule that had been well-established" while drawing "a very narrow exception." Clarence Thomas, who disagreed even with that "very narrow exception" in Nieves, said he shared Blatt's concern about giving every suspect an excuse to challenge his arrest.
Samuel Alito said Nieves addressed "causal complexity" that could extend beyond "an on-the-spot arrest." Although "the fact pattern here" is "unusual," Brett Kavanaugh said, "the crime's prosecuted on occasion." He added that "the evidence suggests probable cause that someone intentionally stole a document…and did it with a motive because concerns [had] been raised about her role in getting the signatures on the petition."
Bidwell closed by emphasizing that "political retaliation is dangerous." The First Amendment "has to mean something," she said. "Mayors should not be allowed to launder animus through warrants."
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