20 Jun Supreme Court Decides First Amendment Retaliatory Arrest Case
Today, in a short per curiam (unauthored) opinion the Supreme Court decided Gonzalez v. Trevino, offering guidance as to how a plaintiff may prove a retaliatory arrest claim even where probable cause existed for the arrest. The decision follows the Court’s 2019 decision in Nieves v. Bartlett where the Court held that although a plaintiff must generally plead and prove the absence or probable cause to bring a First Amendment retaliation claim, that rule was subject to a “narrow qualification” for the situation where an officer has probable cause to arrest but where officers “typically exercise their discretion not to do so.” The Court in Nieves indicated that if a plaintiff can demonstrate “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been” then the plaintiff can proceed with a retaliatory arrest claim even if the officer had probable cause to arrest. Gonzalez answered one of the questions left open by Nieves – i.e., what type of evidence a plaintiff may utilize to meet the “narrow” exception.
In this case, Sylvia Gonzalez was elected to a seat on the city council for Castle Hills, Texas, a town with fewer than 5,000 residents. As her first act in office, she called for the removal of the city manager by organizing a nonbinding petition. During her first city council meeting, a resident submitted the petition to remove the city manager to council. The council meeting grew contentious and included allegations by at least two residents that Gonzalez had gotten them to sign the petition under false pretenses. The proceeding continued until the next day.
During that next meeting, Mayor Trevino, who was supposed to have the petitions in his possession, was unable to locate them. At first, he assumed that the city clerk had taken the petitions, but when she later asked for them, he realized they were missing. At this point, Mayor Trevino suspected Gonzalez had taken the petitions as he had seen a similar stack of documents in her belongings that were fastened with a large black binder clip. He then asked an officer to have her check her possessions for the petitions. She at first denied having them and slowly flipped through her belongings, claiming all the while that she did not have them. When both the Mayor and the officer pointed to the stack of documents with the black binder clip, she took them out and claimed to be surprised that they were in her possession. Video showed that Gonzalez took the petitions from Mayor Trevino’s possessions on the dais.
The Mayor informed the police two days later that he wished to file a criminal complaint against Gonzalez for taking the petition without consent. The police officer investigating the allegation determined that Gonzalez violated Texas Penal Code §§37.10(a)(3) and (c)(1), which provide that “[a] person commits an offense if he … intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.” The investigation took over a month, which included reviewing the videos, interviewing witnesses who had indicated Gonzalez got them to sign the petition under false pretenses, and seeking to interview Gonzalez herself (who refused to be interviewed).
The officer secured a warrant and instead of issuing a summons for a nonviolent crime, booked her into the jail, where she spent the day. (This process was legal but unusual for a nonviolent offense). The prosecutor later dropped the charges.
Gonzalez sued under Section 1983, claiming that she was arrested in retaliation for her protected speech in organizing the petition to oust the city manager. Gonzalez conceded that there was probable cause to arrest her, but argued her arrest fits into the Nieves exception. In seeking to prove the “narrow qualification”, Gonazlez claimed that this criminal statute has not been used in the county to criminally charge someone trying to steal a nonbinding or expressive document in the last decade. She conducted a survey of the types of offenses that were charged under this statute and argued that while there were 215 felony grand jury indictments under the statute, none remotely resembled the facts of this case. And all the misdemeanor cases, according to Gonzalez, involved “fake social security numbers, driver’s licenses, [or] green cards” and were thus not similar to what she had been charged with.
The Fifth Circuit held that this case does not fall within the Nieves exception because Gonzalez did not present “objective evidence that she was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” The court reasoned that Nieves required comparator evidence.
The Supreme Court granted certiorari on two issues: (1) Whether the probable-cause exception in Nieves v. Barlett can be satisfied by objective evidence other than specific examples of arrests that never happened; and (2) whether Nieves is limited to individual claims against arresting officers for split-second arrests.
In a short per curiam opinion the Supreme Court answered only the first question presented and reversed the Fifth Circuit’s decision, concluding a plaintiff may show other types of objective evidence beyond the Fifth Circuit’s “overly cramped” requirement of comparator evidence. The Court reasoned that “[a]lthough the Nieves exception is slim, the demand for virtually identical and identifiable comparators goes too far.” The only express limit on the type of evidence a plaintiff can present is that it must be objective and the survey that Gonzalez made of the types of crimes charged under the statute satisfied the requirement.
The Court declined to reach the second question presented – whether the general requirement that a plaintiff show an absence of probable cause from Nieves only applies to split-second arrests. So that question is left open.
Justice Alito concurred in the decision and wrote separately to provide additional factual context and guidance regarding the decision. In Justice Alito’s opinion, the exception is most easily satisfied by the type of comparator evidence that the Fifth Circuit would have required, but the type of evidence Gonzalez sought to introduce also satisfies the exception, though the case may not be as strong. Justice Alito emphasized that the exception is narrow and that the Mt Healthy burden shifting analysis does not come into play unless and until the plaintiff can satisfy the narrow Nieves exception and that courts should not conflate the two analyses. Additionally, Justice Alito would have answered the second question presented and in his opinion, believes that Nieves applies to all arrests and does not hinge on the split-second nature of the arrest.
To read the decision, click here.
To read the amicus brief, click here.