WASHINGTON (CN) — A retired Texas city councilwoman prevailed at the Supreme Court on Thursday, getting a green light from the justices to sue a city police chief for what she claims was a politically motivated arrest.
In a per curium opinion, the justices held that a plaintiff’s retaliatory arrest claim cannot be defeated by probable cause for an arrest if the plaintiff can provide evidence that similarly situated people who didn't engage in the “same sort of protected speech” were not arrested.
Sylvia Gonzalez was elected to Castle Hill’s city council in 2019 and organized a petition to remove a city manager, but during debate, she misplaced the petition in her binder. The mayor accused her of trying to steal city records.
She sued, arguing that she was being retaliated against for organizing the petition and that her First Amendment rights were violated.
Gonzalez said she reviewed the county’s prosecution data and found the anti-tampering statue under which she was charged had never before been used to charge someone for “trying to steal a nonbonding or expressive document.”
A federal judge sided with Gonzalez, but the Fifth Circuit Court of Appeals reversed course, finding that under an exception created in the 2019 Supreme Court case Nieves v. Bartlett, she needed to provide “comparative evidence” of people who had engaged in the same conduct but were not arrested.
Gonzalez would have to prove the officers lacked probable cause and arrested her in retaliation for organizing the petition.
The Supreme Court found that the Fifth Circuit took an “overly cramped view of Nieves” in believing that Gonzalez had to provide very specific evidence of other people who had “mishandled a government petition” in the same way she was accused of doing.
“Although the Nieves exception is slim, the demand for virtually identical and identifiable comparators goes too far,” the justices wrote.
The purpose of the exception, they explained, was to account for cases where officers have probable cause to make an arrest but usually do not exercise that discretion — like when witnessing jaywalking at an intersection. In order for a case to fall within the exception, a plaintiff must provide evidence that their arrest occurred under such circumstances.
The only limit the court placed on that evidence was that is needed to be objective.
“Here, Gonzalez provided that sort of evidence,” the court wrote. “Gonzalez’s survey is a permissible type of evidence because the fact that no one has ever been arrested for engaging in a certain kind of conduct — especially when the criminal prohibition is long-standing and the conduct at issue is not novel — makes it more likely that an officer has declined to arrest someone for engaging in such conduct in the past.”
The court vacated the Fifth Circuit’s decision and remanded the case for lower courts to determine whether Gonzalez’s evidence is enough to meet the Nieves exception.
In an emailed statement, Gonzalez applauded the decision.
“This has been a nightmare for the last five years,” Gonzalez said. “It has kept me up at night, but finally I can sleep knowing that the nightmare I’ve gone through will protect critics from retaliation in the future.”
While the high court issued a per curiam opinion, justices Samuel Alito, Brett Kavanaugh and Ketanji Brown Jackson — on which Sonia Sotomayor joined — issued concurring opinions. Justice Clarence Thomas issued a dissent.
Alito, who was not present during Thursday’s proceedings — due to sickness according to court staff — wrote that he agreed with the court’s opinion but wanted to provide more of the details in Gonzalez’s case.
“I provide a fuller account of the events leading up to her arrest because they may typify the messy quarrels that courts will have to sift through if we accept Gonzalez’s reading of our case law,” Alito wrote.
He drew scrutiny over Gonzalez’s signature-gathering for her removal petition, highlighting certain residents' accounts of being misled or “cajoled” into signing. He also cited security camera footage that seemed to show Gonzalez intentionally took the petition from Trevino’s dais and placed it in her binder.
Alito warned that Gonzalez’s argument, which the court did not address in its opinion — that the Nieves no-probable-cause rule should be limited to “split-second arrests” — would create vast practical difficulties for officers and even incentivize them to make quick arrests rather than deliberative ones.
“Under her approach, the defendants would have been better off if they had arrested her immediately,” Alito wrote.
In his dissent, Thomas took aim at the Nieves exception and expressed concern that the court was expanding its use to plaintiffs who can present evidence of any objective fact that an officer declined to arrest someone for similar conduct.
“There is ‘no basis in either the common law of our First Amendment precedents’ for the exception created in Nieves and expanded upon today,” the George H.W. Bush appointee wrote, citing his concurrence in that case. “I would adhere to the only rule grounded in history: Probable cause defeats a retaliatory-arrest claim.”
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