Court hears Texas city council members retaliatory arrest claim

The Supreme Court heard oral arguments on Wednesday in the case of a Texas city council member who contends that she was arrested in retaliation for her criticism of the citys manager. During just under 90 minutes of oral argument, the justices struggled to determine what kind of evidence plaintiffs in such cases need to show for their cases to go forward.

The former city council member, Sylvia Gonzalez, was the first Hispanic woman elected to the city council in Castle Hills, Tex. In 2019, after a long meeting, Gonzalez placed a petition that she had been initiated, criticizing the citys manager, in her binder at the end of a long meeting.

Gonzalez claims that she picked up the petition accidentally. But two months later she was charged with violating a state law that prohibits tampering with government records. Gonzalez, then 72 years old, was arrested and spent a day in jail, although prosecutors declined to pursue the charges against her.

Gonzalez then filed a federal civil rights claim against the mayor, police chief, and lawyer who had investigated her, alleging that she had been arrested in retaliation for her criticism of the citys manager. In her complaint, she contended that she was the only person charged under the state law in the past 10 years for temporarily misplacing a document.

Under the Supreme Courts 2019 decision in Nieves v. Bartlett, a plaintiff can normally only bring a federal civil rights claim alleging that she was arrested in retaliation for exercising her First Amendment rights if she can show that there was no probable cause to arrest her. But the court in Nieves also carved out an exemption from that general requirement for plaintiffs who can show that others who were not engaged in the same kind of protected speech were not arrested.

A federal district court in San Antonio allowed Gonzalezs case to go forward. But a divided U.S. Court of Appeals for the 5th Circuit reversed. Under Nieves, it ruled, Gonzalez must show that someone else who had misplaced a government document but had not engaged in protected speech was not arrested.

Anya Bidwell represented Gonzalez at the court on Wednesday. She told the justices that the city officials argument extends Nieves beyond its moorings. If the mayor in this case got in front of TV cameras and announced that he was going to have Ms. Gonzalez arrested because she challenged his authority, the existence of probable cause would make this evidence legally irrelevant. Their argument, she continued, would also toss out of court a critic arrested for jaywalking on a remote country road, even if his town had never arrested anyone for jaywalking before, simply because he couldnt find a non-critic who jaywalked on the same spot.

Lisa Blatt who represented the city officials told the justices that Gonzalezs argument would open the door to allow virtually any defendant to bring a retaliatory arrest claim. If you accept Gonzalezs gamesmanship, Blatt suggested, those arrested for domestic violence will claim the victim just slipped, those arrested for threats will claim they were just joking, and those arrested for embezzlement will claim they just accidentally misplaced the funds.

The justices spent relatively little time on the first question presented in the case: Whether the courts holding in Nieves, requiring a plaintiff bringing a retaliatory arrest claim to generally plead and prove that there was not probable cause to make the arrest, is limited to on-the-spot arrests.

Bidwell insisted that it was so limited. She told the justices that Nieves was dealing with the vast bulk of retaliatory arrest cases, involving on-the-spot arrests, which involve a very particular causal complexity not found in cases like Gonzalezs, in which two months lapsed between the conduct that led to Gonzalezs arrest and the arrest itself.

But Justice Samuel Alito pushed back against that suggestion. I dont see a reference to split-second arrests in the courts holding in that case, he insisted. Instead, Alito stressed, the court held that because there was probable cause for the arrest in that case, there was no grounds for a retaliatory arrest claim.

Justice Sonia Sotomayor echoed Alitos skepticism. She acknowledged to Bidwell that she had dissented in Nieves, so on a clean slate I would likely agree with you, but what do I do, she asked, with the line in Nieves that says that [a] plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest?

Chief Justice John Roberts observed that he didnt dissent in Nieves. And the Courts opinion in that case went out of its way to emphasize the narrowness of the exception to the general rule that a plaintiff in a retaliatory arrest case must show that there was no probable cause for the arrest suggesting that he too did not regard Nieves as limited to on-the-spot arrests.

Justice Elena Kagan, on the other hand, was more convinced that the split-second arrest seems to be a key part of the Courts reasoning in Nieves maybe not all of the Courts reasoning, she observed, but some critical part of it. However, she questioned whether it might be difficult to draw such a distinction in practice, noting that there would be a lot of stuff in the middle.

Bidwell appeared to make more headway with her argument that the court of appeals was wrong to require Gonzalez to show that someone else who had misplaced a government document but had not engaged in protected speech was not arrested. Sotomayor noted that Edward Trevino, the mayor, had also violated the government-records law by taking the petition home and keeping it overnight. Why wouldnt that, she asked, be sufficient evidence that Gonzalez was singled out for arrest?

Justice Amy Coney Barrett pressed Bidwell on the limits of her rule. What if Gonzalez had the same kind of long-running disputes, but she was arrested for a more substantial crime?

Bidwell maintained that her position would still be the same. Its not an offense-by-offense standard, she said. Its a standard of what did she do versus what kind of evidence she can provide and whether probable cause, given that context, tends to show that the arrest would not have happened had it not been for speech.

Representing the United States, Assistant to the U.S. Solicitor General Nicole Reaves told the justices that they should resolve the case by holding that the court of appeals applied the wrong standard when it effectively required Gonzalez to show direct evidence of comparators or empirical statistics to satisfy the Nieves exception.

When asked by Justice Clarence Thomas to explain what kind of evidence plaintiffs could use to show that they had been singled out, Reaves posited that it could be a variety of different types of evidence in different situations. But the ultimate inference the evidence needs to support is that there would have been similarly situated people who were not, in fact, arrested.

Roberts was skeptical, returning to the courts characterization of the Nieves exception as a narrow one. The federal governments long list of the type of evidence that should come in to defeat the retaliation claim, Roberts said, seems to me to be inconsistent with the notion of a very strong general rule that had been well-established and a very narrow exception.

Other justices also appeared more swayed by Bidwells argument. Justice Neil Gorsuch observed that there were over 300,000 federal crimes, and that he couldnt imagine how many there are at the state and local levels. And youre saying, he said to Blatt, they can all sit there unused, except for one person who alleges that I was the only person in America whos ever been prosecuted for this because I dared express a view protected by the First Amendment and thats not actionable?

Kagan told Blatt that the court of appeals had understood Nieves to say you have to show a person within this jurisdiction who has engaged in this conduct before and was not arrested. And I think what Justice Gorsuch is saying, Kagan continued, is that that has got to be wrong. Whatever else you want to put into this bucket, Kagan said, you should be able to say theyve never charged somebody with this kind of crime before and I dont have to go find a person who has engaged in the same conduct.

Justice Ketanji Brown Jackson pressed Blatt on this point as well. So for you, Jackson queried, its not enough to say no one has ever been arrested for doing this kind of thing before?

Blatt stressed that it was not, under the city officials rule, because its so much easier to say.

Barrett seemed unconvinced by Blatts argument that a ruling in Gonzalezs favor would open the floodgates for anyone who was arrested to bring a retaliatory arrest claim. If you put aside the no probable cause requirement, Barrett told Blatt, Gonzalez has all of this evidence for retaliation. Not everyones whos arrested is going to have the kind of evidence she has on that score.

In her rebuttal, Bidwell urged the justices to look at the interaction between the two issues before the court. If Nieves only covers on-the-spot arrests, she suggests, then the narrower view of the kind of evidence that will satisfy its exception makes sense because plaintiffs are more likely to be able to show that someone else who was engaged in the same conduct was not arrested. But if Nieves applies more broadly, she continued, then the exemption should consider broader kinds of evidence.

Well know by summer whether a majority of the justices agree.

This article was originally published at Howe on the Court.