ARGUMENT ANALYSIS

Court hears Texas city council member’s 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 city’s 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 city’s 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 city’s 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 Court’s 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 Gonzalez’s 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 couldn’t find a non-critic who jaywalked on the same spot.”

Lisa Blatt – who represented the city officials – told the justices that Gonzalez’s argument would open the door to allow virtually any defendant to bring a retaliatory arrest claim. If you accept Gonzalez’s “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 court’s 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 Gonzalez’s, in which two months lapsed between the conduct that led to Gonzalez’s arrest and the arrest itself.

But Justice Samuel Alito pushed back against that suggestion. “I don’t see a reference to split-second arrests” in the court’s 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 Alito’s 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 “didn’t dissent in Nieves. And the Court’s 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 Court’s reasoning” in Nieves – “maybe not all of the Court’s 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 wouldn’t 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. “It’s not an offense-by-offense standard,” she said. “It’s 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 court’s characterization of the Nieves exception “as a narrow one.” The federal government’s “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 Bidwell’s argument. Justice Neil Gorsuch observed that there were “over 300,000 federal crimes,” and that he couldn’t “imagine how many there are at the state and local levels.” “And you’re 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 who’s ever been prosecuted for this because I dared express a view protected by the First Amendment and that’s 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 they’ve never charged somebody with this kind of crime before and I don’t 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, “it’s 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 it’s so much easier to say.”

Barrett seemed unconvinced by Blatt’s argument that a ruling in Gonzalez’s 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 everyone’s who’s 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.

We’ll know by summer whether a majority of the justices agree.

This article was originally published at Howe on the Court.