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The U.S. Supreme Court on Wednesday heard arguments in a Texas case in which a former council member sued the city of Castle Hills, arguing that she was arrested in retaliation for criticizing the city manager.
The question at the center of the case is whether people who criticize the government can sue local officials over retaliatory arrests. When the case came before the U.S. 5th Circuit Court of Appeals, the court said that the plaintiff, to prove retaliation, needed to point to an identical situation to hers that didn’t result in an arrest. Several Supreme Court justices on Wednesday asked whether the appeals court had too narrowly interpreted previous case law concerning the question.
In 2019, the council member, Sylvia Gonzalez, was arrested and charged with tampering with a government document. Gonzalez said she had mistakenly placed a paper copy of a petition — urging the city to remove the city manager — in her binder before she realized the mistake.
Weeks later she was charged with tampering with government documents, a misdemeanor, and held in Bexar County Jail. The charges against Gonzalez, who was the city’s first Latina council member, were later dropped.
Humiliated, Gonzalez resigned from the council and sued Castle Hills, a city that lies within the northern sprawl of San Antonio, and several of its officials. She accused Mayor JR Treviño and the police chief of arresting her in retaliation for exercising her First Amendment rights — accusing the city manager of failing to do his job, through the petition she was accused of stealing.
The Supreme Court previously considered the question at the heart of Gonzalez’s case in Nieves v. Bartlett. In that 2019 case, the court found that plaintiffs are barred from making claims of retaliatory arrest when officers have probable cause to take them into custody.
Gonzalez’s legal team maintained that the council member’s case met the exception in Nieves. They argued that the tampering statute was normally reserved for making fake green cards or Social Security cards — not for briefly misplacing a document. The flimsiness of the charge, Gonzalez’s lawyer argued, was evidence of retaliation.
When the 5th Circuit considered Gonzalez’s case, it found that Gonzalez had failed to meet the exception outlined in the Nieves ruling. The New Orleans-based court said Gonzalez did not provide comparative evidence, in the form of someone else who had not been arrested for the same crime, to qualify for the exception.
Lisa Blatt, the lawyer for Castle Hills, argued that the appellate court judged the case correctly. She said Gonzalez had failed to prove that similarly situated plaintiffs, who had also tampered with government documents, did not get arrested.
Justice Neil Gorsuch expressed skepticism toward Blatt’s argument. He asked about the many statutes on the books that are never enforced.
“You're saying 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?” Gorsuch said.
“I'm going to try to convince you otherwise,” Blatt replied.
Justice Elena Kagan agreed with Gorsuch in asking whether the 5th Circuit went too far in interpreting what evidence is necessary to meet the Nieves exception.
“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,’” Kagan said.
Chief Justice John Roberts Jr., who wrote the majority opinion in the Nieves case, was hesitant to expand the exception outlined in that decision.
The example of jaywalking, which many people do but are rarely arrested for, was cited as an exception in Nieves.
“If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual’s retaliatory-arrest claim on the ground that there was undoubted probable cause for the arrest,” Roberts wrote in the 2019 Nieves decision.
Gonzalez’s lawyer, Anya Bidwell, said Nieves’ probable-cause rule should be applied to on-the-spot arrests — when an officer is on patrol and has to make decisions in dangerous circumstances — but not cases like Gonzalez’s, in which there was an arrest warrant.
Justice Samuel Alito questioned that logic.
“Are you making this argument because you have bigger fish to fry or because you think this is the argument that's most likely to succeed in this case and serve the interests of your client?” Alito said.
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