Wednesday, March 20, 2024

Court Hears Arguments in First Amendment Retaliatory Arrest Case

The Supreme Court hears oral arguments today in a case testing whether a local public official was arrested in retaliation for her free speech. Here's my argument preview, from the ABA Preview of United States Supreme Court cases, with permission:


In 2019, Sylvia Gonzalez was elected to the five-member city council for Castle Hills, Texas. (Castle Hills is a small town, with fewer than 5,000 residents, in Bexar County.) After she was sworn in, on May 14, 2019, Gonzalez, fulfilling a campaign promise, organized a nonbinding citizens’ petition that called for the removal of the city manager. More than 300 Castle Hills residents ultimately signed the petition.

At Gonzalez’s first city council meeting, on May 21, 2019, a resident submitted the petition to Mayor Edward Trevino, who sat next to Gonzalez at the meeting. A two-day “prolonged and tense discussion” ensued over the city manager’s job performance, including a number of residents who testified against the petition. One resident testified that Gonzalez “asked her to sign the petition ‘under false pretenses.’”

When the meeting ended, on May 22, Gonzalez collected her papers, placed them in her binder, and stepped away. While Gonzalez was away, Trevino peeked at her binder and waved for Castle Hills Police Captain Steve Zuniga, who was on duty at the meeting. Trevino asked Zuniga to summon Gonzalez back to the council table. Trevino then asked Gonzalez, “Where’s the petition?” Gonzalez responded, “Don’t you have it? It was turned in to you yesterday.” Trevino said he did not have the petition, and he asked Gonzalez to look in her binder. To her surprise, she found the petition in her binder, and she handed it to Trevino. Trevino said that Gonzalez “probably picked it up by mistake.”

A few days after the meeting, Trevino filed a criminal complaint alleging that Gonzalez tried to steal city records. Chief of Police John Siemens assigned the investigation to Alexander Wright, a private attorney. After a month-long investigation, Wright obtained an arrest warrant for Gonzalez for tampering with a government record, a misdemeanor. In his affidavit supporting his request for the warrant, Wright identified a possible motive: Gonzalez hoped to prevent consideration of the claim that she asked a resident to sign under false pretenses.

Upon learning of the warrant, Gonzalez turned herself in and spent a day in jail. (Gonzalez contends that Trevino, Siemens, and Wright followed a course that would ensure that she spent some time in jail, as opposed to being released pending further proceedings.)

The district attorney ultimately dismissed the charges. But burned by her experience, Gonzalez resigned from the city council and said that she will never run again for political office or organize a petition.

Gonzalez sued Trevino, Siemens, and Wright, alleging that they unlawfully arrested her in retaliation for exercising her First Amendment rights, including her right to organize the petition drive. She also alleged that prior tampering charges in the county involved situations very different from hers.

The district court denied the defendants’ motion to dismiss, but the Fifth Circuit reversed. This appeal followed.


The Court ruled in 2019 that a plaintiff who alleges that officers arrested them in retaliation for protected First Amendment speech must plead and prove that the officers lacked probable cause. Nieves v. Bartlett, 139 S. Ct. 1715 (2019). Drawing on earlier cases involving retaliatory prosecutions, the Court said that this no-probable-cause rule would help courts determine when an officer arrested a plaintiff based on animus, as opposed to “the plaintiff’s potentially criminal conduct.” The Court said that this was important when officers had to decide to arrest, because those decisions involve “‘split-second judgements’ . . . and the content and manner of a suspect’s speech may convey vital information—for example, if he is ‘ready to cooperate’ or rather ‘present[s] a continuing threat.’”

But the Nieves Court left open one exception to this general no-probable-cause rule: “where officers have probable cause to make arrests, but typically exercise their discretion not to do so,” such as “jaywalking at . . . an intersection.” The Court said that in such a case “probable cause does little to prove or disprove the causal connection between animus and injury.” As a result, the Court held that a plaintiff need not plead and prove probable cause if they “present[] objective evidence that [they] were arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”

Gonzalez argues first that a different test should apply. She says that the burden-shifting framework for retaliatory claims is more appropriate. Under that framework, a plaintiff must first demonstrate that their protected speech substantially motivated the government’s action against them. Then the government official carries the burden to show that they would have taken the adverse action “even in the absence of protected conduct.” Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977). (Gonzalez says that Nieves and an earlier case are the Court’s only two “departures” from the Mt. Healthy framework.) Gonzalez contends that Mt. Healthy fits her case better, because the Nieves rule is specifically designed for cases when an officer made on-the-spot, time-pressured decisions, and where there is therefore “little evidence of retaliatory motive other than allegations of the officer’s state of mind.” Her case is different, she says, because the officials had time to reflect before acting. As a result, probable cause “is not any more apt to disprove causation than other probative evidence of the sort courts routinely consider under Mt. Healthy.”

Gonzalez argues next that the Fifth Circuit wrongly limited the “objective evidence” that she could use to show that she fell within Nieves’s exception to the no-probable-cause rule. She says that the Fifth Circuit only considered “evidence of non-arrests of non-critics engaging in similar allegedly arrestable behavior.” But she contends that this approach doesn’t fit her case, where the defendants “adopted an extraordinary and unprecedented interpretation of the law and applied it for the first and only time to a prominent critic.” (In other words, the traditional type of evidence that a plaintiff could use for the Nieves exception—comparisons to how officers treated similarly situated people—simply isn’t available here, because Gonzalez’s treatment was so unique.) Instead, she claims that she should “only have to produce objective evidence that the speech was the reason for the arrest,” which she did.

Gonzalez argues that the Fifth Circuit’s approach would “all but preclude First Amendment claims for retaliatory arrest.” Moreover, she says that the approach would “incentivize government officials to use inventive, pretextual arrests as their preferred means of suppressing criticism.” According to Gonzalez, this would give officers “endless opportunities . . . to use the criminal justice system to bludgeon dissenters into submission.”

The defendants counter that even under Nieves, “probable cause presumptively defeats retaliatory-arrest claims,” and that probable cause supported Gonzalez’s arrest here. The defendants point to the valid warrant that authorized Gonzalez’s arrest, and contend that the warrant “signal[s] even more strongly that suspected crime—not protected speech—prompted [the] arrest.”  They claim that limiting the general Nieves test to on-the-spot arrests makes no sense, and “would bizarrely incentivize police to arrest first and think later to avoid litigation.” And in any event, they say that “Gonzalez never connects the dots of how [the defendants’] alleged animus created her arrest given independent evidence establishing probable cause and Texas peace officers’ legal duty to report crimes.” The defendants argue that common law “confirms” these conclusions.

The defendants argue next that two exceptions do not apply here. They contend that the exception for “official municipal policies of retaliation” does not apply, because there was no “official policy” here, and because the defendants are individuals, not the municipality. They claim that the exception for “ubiquitous, minor offenses where police customarily exercise discretion not to arrest” (the Nieves exception) doesn’t apply, because even Gonzalez concedes that her arrest was based on “probable cause [of] a serious crime.” And “[i]f [the] exception applies even to serious crimes, that limited exception would obliterate the probable-cause bar, and officers would be exposed to easily pled retaliation claims for virtually any arrest whenever plaintiffs offer any objective evidence.” 

Next, the defendants argue that even if the Nieves exception applies “to arrests pursuant to warrants for non-endemic crimes,” Gonzalez did not satisfy it. For one, they claim that Gonzalez did not produce “comparator evidence”—“objective evidence that [the plaintiff] was arrested when otherwise similarly situated individuals” weren’t. They contend that the instances she did produce (other tampering-with-documents prosecutions under Texas law) were inapt, and “only underscore[] that officials do enforce Texas’s statute.” And they assert that Gonzalez’s broader evidence of animus (for example, the defendants’ actions designed to put her in jail) “have no bearing on whether alleged animus caused the arrest.”

Finally, the defendants argue that their approach does not “invite[] tyranny,” as Gonzalez contends. They say that “[p]laintiffs arrested without probable cause can sue,” and that “[o]ther remedies deter rogue arrests.” Despite the Court’s most recent “reject[ion] [of] any retaliation claims against federal officials, including for arrest with probable cause or without warrant” in Egbert v. Boule, 596 U.S. 482 (2022), and “[c]ontrary to Gonzalez’s rhetoric, freedom still reigns.”

The government weighs in to make three points. First, the government asserts that “the no-probable-cause requirement is an aspect of a constitutional damages tort—not the First Amendment itself.” Morever, “nothing in Nieves transforms the requirement into a limitation on First Amendment rights.” The government asks the Court to make this clear, so that “the Nieves rule does not apply to alternative mechanisms for enforcing constitutional rights under federal and state criminal and civil statutes, which contain their own separate limits.”

Next, the government argues that the lower court “misconstrued Nieve’s ‘narrow qualification’ to the ‘general[]’ no-probable-cause rule” with regard to the form of the evidence a plaintiff must proffer. The government says that plaintiffs can use evidence other than “that other similarly situated individuals engaged in identical (but nonexpressive) conduct but were not arrested,” and it provides examples. (This argument complements Gonzalez’s parallel argument.) The government contends that the Fifth Circuit’s narrower approach to evidence “would inappropriately leave plaintiffs without a [constitutional] remedy in otherwise-meritorious cases where the evidence to satisfy that requirement takes a different form.”

Finally, the government asserts that Nieves “applies just as much to deliberative arrests as to on-the-spot ones.” (This argument opposes Gonzalez’s first argument, that the Court should apply Mt. Healthy, not Nieves.)


This case tests whether and how Nieve’s exception to the no-probable-cause rule applies to an unusual arrest over a month after the protected speech. If the Court affirms the Fifth Circuit’s approach, as Gonzalez and the government argue, the ruling could effectively leave plaintiffs who have been arrested in unusual circumstances without a remedy for retaliation claims. That’s because, by definition, any plaintiff subject to an unusual arrest could not produce evidence of other, similar non-arrests to fit within the exception.

But on the other hand, if the Court rules that the no-probable-cause rule only applies to on-the-spot arrests, as the defendants argue, this could “bizarrely incentivize police to arrest first and think later to avoid litigation.” That’s because officers would move to arrest on the spot, in order to trigger the rule, even if they didn’t need to or shouldn’t have. If the Court rules that the Nieve’s exception to the no-probable-cause rule applies to serious crimes, this could effectively “obliterate the no-probable-cause bar.”

Cases and Case Materials, First Amendment, News, Speech | Permalink


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