CASE PREVIEW

Texas city council member argues retaliatory arrest

The Supreme Court will hear oral arguments on Wednesday in the case of a 76-year-old Texas woman, Sylvia Gonzalez, who was arrested on charges that she had violated a state law that prohibits tampering with government records. The charges against her were dropped, but Gonzalez brought a federal civil rights claim against three city officials, contending that she had been arrested in retaliation for her criticism of the city’s manager. A federal appeals court ruled that Gonzalez’s case could not go forward because she had not provided examples of others who had engaged in the same kind of conduct but had not engaged in protected speech and had not been arrested.

Gonzales urges the Supreme Court to reverse that ruling, telling the justices that it “provides a loophole for unaccountable retaliation: As long as an official can find a crime to fit a critic, he can avoid accountability.” She compares her arrest with those of government critics in Russia, Iran, and China, writing that “arresting critics is corrosive to the very foundation of a free society.”

But the defendants in the case counter that Gonzalez’s approach would “wreak havoc on law enforcement.” “No matter how clear the probable cause” to arrest someone, they suggest, “anyone could second-guess any arrest that did not lead to prosecution by claiming that the plaintiff’s outspoken political, religious, or social views — or unorthodox social-media posts or bumper stickers —” prompted that arrest.

The dispute began in 2019, not long after Gonzalez became the first Hispanic woman elected to the city council in Castle Hills, Tex. Gonzalez, who had been a prominent critic of the city’s government, had – accidentally, she claims – placed a petition that she had initiated, criticizing the city manager, in her binder at the end of a long meeting.

Two months later, Gonzalez was charged with violating a state law that prohibits intentionally destroying, concealing, removing, or otherwise impairing government records. She spent a day in jail, wearing an orange prison shirt and handcuffed to a metal bench, before being released.

The district attorney ultimately declined to pursue the charges against Gonzalez. But the experience left such a sour taste in her mouth that Gonzalez later left the council and swore off politics.

Gonzalez filed a federal civil rights claim in Sept. 2020, alleging an elaborate scheme to retaliate against her for her criticism of the city’s manager by three individuals: Edward Trevino, the mayor; John Siemens, then the city’s police chief; and Alex Wright, a lawyer whom Siemens had appointed as a special detective to investigate Gonzalez.

In 2019, in Nieves v. Bartlett, the Supreme Court held that a plaintiff can generally 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 at the same time, the court carved out an exception to that requirement if the plaintiff can show that others who were not engaged in the same kind of protected speech were not arrested.  

In her complaint, Gonzalez noted that she was the only person charged in the past 10 years under the state’s government records law for temporarily misplacing a document. The vast majority of the 215 felony indictments under the law, she explained, involved either the use or the creation of fake government identifications.

A federal district court in San Antonio denied the city officials’ motion to dismiss Gonzalez’ claims on immunity grounds. Senior U.S. District Judge David Ezra ruled that Gonzalez did not need to show that law enforcement officials lacked probable cause to arrest her because she had included data from the local county indicating that she had been arrested when others not engaged in speech had not.

A divided U.S. Court of Appeals for the 5th Circuit reversed and ruled that Gonzalez’s First Amendment retaliation claim could not go forward. Under Nieves, the court of appeals reasoned, Gonzalez would have had to show that someone else who had misplaced a government document but had not engaged in protected speech was not arrested.

By a vote of 10-6, the full 5th Circuit declined to rehear the case. Gonzalez came to the Supreme Court, which agreed last fall to weigh in.

In her brief on the merits, Gonzalez contends that instead of Nieves, the court of appeals should have applied the court’s 1977 decision in Mount Healthy City School District Board of Education v. Doyle. In that case, the justices held that if a plaintiff can show that the government’s retaliation was substantially motivated by her protected speech, the burden then shifts to the government to show that it would have taken the same action even without the protected speech.

In the nearly 50 years since the court’s decision in Mount Healthy, Gonzalez argues, the Supreme Court has only departed from that rule twice – in Hartman v. Moore, a case involving retaliatory prosecutions, and in Nieves, which Gonzales characterizes as a case “involving on-the-spot police arrests.” In those cases, Gonzales explains, the court “created a presumption that if a plaintiff can’t show the absence of probable cause, the adverse action would have happened even without a retaliatory motive. But neither of those situations apply here, Gonzalez stresses.

But even if Nieves did apply to her case, Gonzalez maintains, she has shown the kind of objective evidence needed to overcome probable cause and allow her lawsuit to go forward. The 5th Circuit’s requirement that a plaintiff provide evidence that someone who engaged in similar conduct but had not engaged in protected speech was not arrested would make the Nieves carve-out “effectively irrebuttable,” she insists. First, she suggests, it requires information that generally will not exist, because police don’t keep records of decisions not to make arrests. But even if that information did exist, she continues, it would be difficult for plaintiffs to obtain before filing their lawsuits and obtaining discovery.

There is no reason, Gonzalez writes, to limit the evidence that will satisfy the Nieves carve-out to “specific instances of non-arrests of people engaged in near-identical conduct,” because other evidence can also show that someone was singled out when a person who had not criticized the government would not have been. For example, she says, in this case she showed that in 10 years, no one else in Bezar County had been charged with misplacing a government record during a public meeting, which provides “direct evidence” that Gonzalez was singled out because of her criticism. What’s more, she notes, Gonzalez provided other evidence that she was targeted – for example, before she was arrested, officials attempted to oust her from the city council on a technicality that would also have applied to Trevino.

Gonzalez cautions that because there are so many criminal laws at the federal and state levels, and because so many crimes are open-ended, the opportunities for retaliatory arrests are “abundant.” And she warns that the effects of such arrests are “chilling” – both psychologically and because of the later difficulties that an arrest record can create for everything from employment to housing.

The Biden administration filed a brief that adopts a middle ground. It agrees with Gonzalez that the court of appeals was wrong to require her to provide specific examples of people who were engaged in the same kind of conduct but were not arrested. “While the type of evidence envisioned by the court of appeals is certainly one form of evidence that could satisfy the exception,” U.S. Solicitor General Elizabeth Prelogar stresses, “it is not the only one.” But the administration rejects Gonzalez’s suggestion that the general no-probable-cause rule in Nieves applies only to split-second arrests, rather than more broadly to arrests (like the one in this case) that result from more deliberation.

In their brief on the merits, the city officials counter that the court’s holding in Nieves that “probable cause should generally defeat a retaliatory arrest claim” should govern this case. As Gonzalez concedes, they write, there was clearly probable cause to arrest her for intentionally removing a government document: The warrant application on which the judge relied to issue the warrant for her arrest described witness statements and security footage.

In Nieves, they note, the court created “a limited exception for warrantless arrests for endemic infractions like jaywalking, where arrests are so abnormal that retaliation is the natural explanation.” Because law enforcement officials in this case obtained a warrant – which provides an additional layer of protection against mistakes or abuse – for the “non-trivial crime of government-document theft,” the Nieves exception does not apply.

Even if the Nieves exception did apply, the officials continue, Gonzalez could not meet its requirements. The requirement that plaintiffs provide examples of similarly situated individuals who were not arrested, they say, targets causation – specifically, plaintiffs must show that “their speech, not their offense, caused the arrest.”

But here, the officials argue, Gonzalez’s efforts to rely on other instances in which people were prosecuted for violating the state’s government records law demonstrates that “police do enforce this statute, regardless of how violated.” The officials caution that if “no plaintiff is similarly situated” for purposes of providing “objective evidence” “unless the facts match with Professor-Plum-in-the-study-with-the-candlestick specificity,” then plaintiffs in retaliatory-arrest cases will easily be able to circumvent the Nieves requirement.

And the city officials push back against Gonzalez’s suggestion that a ruling for the city officials will put the country on a path to tyranny. Anyone who is arrested without probable cause can still sue, they note. More broadly, they stress, “America endured centuries under a categorial probable-cause bar against retaliatory arrest-claims.”

This article was originally published at Howe on the Court.