Supreme Court hears case on politically motivated arrests

Sylvia Gonzalez, a 72-year-old city councilor in Castle Hill, Texas, was arrested in 2019 for misplacing a piece of paper after criticizing the city manager.

The charges were soon dropped. Ms. Gonzalez resigned and sued city officials, accusing them of retaliation for exercising her First Amendment rights.

But his case ran up against the Supreme Court's general rule that a person cannot sue for a retaliatory arrest regardless of the arresting officer's motive, as long as the arresting officer -there is sufficient evidence of a crime to warrant an arrest.

An appeals court threw out her case, saying all that mattered was that Ms. Gonzalez admitted there was probable cause for her arrest, for violating a Texas law making it a misdemeanor to conceal government records. .

Ms. Gonzalez argued that this was a free speech issue and that she never would have been arrested if she had not reported the city manager. The appeals court rejected that argument, saying it could not prove she was treated differently from others arrested for the same crime.

On Wednesday, a lawyer for Ms. Gonzalez asked the Supreme Court to let her try to prove that others who had done what she was accused of would not have been arrested.

Justice Neil M. Gorsuch seemed receptive to that argument, saying the general rule was too rigid, allowing politically motivated arrests like the one Ms. Gonzalez said she suffered. He said it was easy to find a crime for which to arrest a political opponent.

“How many laws are there today, many of which are almost never enforced? He asked. “The last time I read, there were over 300,000 federal crimes, counting laws and regulations.”

“They can all sit there, unused,” he added, “except for one person who claims I was the only person in America who was prosecuted for this because I dared to express an opinion protected by the First Amendment.”

When the court last met with the matter, in Nieves v. Barrett in 2019, Chief Justice John G. Roberts Jr.'s majority opinion recognized a narrow exception, using the example of jaywalking. “At many intersections, jaywalking is rampant but rarely results in arrest,” he wrote, adding that there may be circumstances in which a person arrested for this crime could pursue legal action in retaliation .

“If an individual who has vocally complained about police conduct is arrested for walking on the sidewalk,” he wrote, “it would seem insufficiently protective of First Amendment rights to deny the request for arrest in retaliation for the individual on the grounds that there was probable and indisputable reason for the arrest. .”

How do I know when this exception applies? The plaintiff must present, the chief justice wrote, “objective evidence that he was arrested when similarly situated individuals who were not engaging in the same type of protected speech had not been.”

Wednesday's case, Gonzalez v. Trevino, No. 22-1025, tested the limits of this exception.

Ms. Gonzalez's arrest came shortly after she won a surprise victory and became the city's first Hispanic councilwoman.

His first official act was to help collect signatures for a petition calling for the removal of the city manager.

At the end of a council session, Ms. Gonzalez gathered the papers in front of her and put them in a binder. Among them: a petition calling for the dismissal of the city manager.

He didn't stay there long. The mayor asked for it and Ms. Gonzalez found it in her binder. As she remembered, the mayor told her she “probably picked it up by mistake.”

But a two-month investigation followed. In the end, Ms. Gonzalez was arrested for concealing a government document, a misdemeanor.

The prosecutor dropped the charges, but Ms. Gonzalez, saying she found the episode traumatic, resigned from her post.

Ms. Gonzalez, represented by the Institute for Justice, a libertarian group, said she had the kind of objective evidence of retaliation that Chief Justice Roberts' opinion demanded. His lawyers reviewed a decade of data in his county, they wrote, and it was “clear that the tampering statute had never been used to charge anyone with a common, uneventful offense of putting a piece of paper in the wrong pile.”

A divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit said that was not enough. “Gonzalez provides no evidence of other similarly situated individuals who mishandled a government petition but were not prosecuted,” Judge Kurt D. Engelhardt. written for the majority.

Several judges seemed uncomfortable with such a strict standard. It's one thing, after all, to show that no one else was arrested for what Ms. Gonzalez did. It's another to prove that others misplaced pieces of paper and were not arrested.

The questioning suggested the court could rule narrowly in favor of Ms. Gonzalez, sending the case back to the Fifth Circuit for reconsideration under looser standards.

“You should be able to say they've never charged anyone with this kind of crime before,” Justice Elena Kagan said, “and I don't need to go find a person who has committed the same behavior.”

But Chief Justice Roberts said the Nieves decision was intended to be limited. “The court’s opinion in this case sought to emphasize the narrow nature of the exception,” he said.

Anya A. Bidwell, a lawyer for Ms. Gonzalez, said a narrow reading of the exception would lead to troubling results.

“If the mayor in this case went before the television cameras and announced that he was going to have Ms. Gonzalez arrested because she challenged his authority,” Ms. Bidwell said, “the existence of probable cause would make this legally irrelevant evidence.”

Lisa S. Blatt, an attorney for the defendants, urged the court to maintain the status quo, warning that the alternative would create a flood of litigation.

“Throughout history,” she said, “probable cause has prevented prosecutions in retaliation for arrests. Nieves created a narrow exception for warrantless arrests, where officers typically look the other way or give warnings or tickets. This court should not blow up this exception.

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