by Sam Rutherford

In a short, per curiam opinion, the Supreme Court of the United States clarified the scope of the exception set out in Nieves v. Bartlett, 587 U.S. 391 (2019), to the requirement that First Amendment retaliatory-­arrest claims may only proceed if the plaintiff establishes a lack of probable cause for the arrest, which holds that the presence of probable cause does not defeat a claim if the plaintiff produces “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Nieves. The Court held that evidence proving that no one had ever been arrested under the criminal statute in question for conduct similar to the plaintiff’s is a sufficient type of evidence to warrant application of the Nieves exception, even if probable cause existed to arrest the plaintiff under the statute.

Background

In 2019, Sylvia Gonzalez ran for a seat on the city council of Castle Hills, Texas. During her campaign, Gonzalez received many complaints concerning the City Manager, Ryan Rapelye. Gonzalez was elected, and as her first official act, she began collecting signatures for a petition to remove Rapelye from office. Eventually, over 300 residents signed the petition, and Gonzalez presented it at her first city council meeting. The petition evoked strong opposition from numerous residents in attendance at the council meeting, which took place over the course of two days.

At the conclusion of the second day as Gonzalez was packing up her belongings to leave, Castle Hills Mayor Edward Trevino II asked her for the petition. Gonzalez stated that she had given it to him, which he denied. She ultimately located it in her official binder mixed in with some of her other papers and stated that it was an oversight. She gave the petition to Trevino before leaving the meeting room.

Trevino brought the incident to the attention of the local police chief, who retained a private attorney to open an investigation. The private attorney subsequently concluded that Gonzalez had violated a Texas anti-­tampering statute that, among other things, prohibits a person from intentionally “remov[ing] … a governmental record.” Tex. Penal Code Ann. §§37.10(a)(3), (c)(l). The private attorney obtained an arrest warrant for Gonzalez, and she surrender herself to police. Although she spent the night in jail, the District Attorney later dismissed the charge. Gonzalez, however, resigned from the city council and abandoned her political career because of the arrest.

After her resignation, Gonzalez sued Trevino, the police chief, and private attorney in federal court under 42 U.S.C. § 1983, claiming the three violated her civil rights by arresting her in retaliation for her role in organizing the petition to remove Rapelye. She presented 10 years of misdemeanor and felony data for criminal charges in Bexar County, where Castle Hills is located. Her data revealed 215 indictments under the anti-­tampering statute, all of which were related to making fake government identification documents, cheating on government exams, fake checks, or concealing evidence in a murder investigation.

Importantly, no one had ever been arrested under the anti-­tampering statute for what Gonzalez described as “trying to steal a nonbinding or expressive document.” Gonzalez pointed to this evidence as proof that the defendants in her federal lawsuit brought a “sham charge” against her in retaliation for preparing the removal petition, which is considered core protected speech under the First Amendment.

The defendants moved to dismiss Gonzalez’s lawsuit, arguing that because her arrest was supported by probable cause, she could not make out a retaliatory-­arrest claim against them. Gonzalez responded that because she had presented evidence that no one had ever been prosecuted under the Texas anti-­tampering statute in circumstances similar to her case, it did not matter whether her arrest was supported by probable cause.

The U.S. District Court for the Western District of Texas agreed with Gonzalez and denied the motion to dismiss. The Fifth Circuit Court of Appeals, however, reversed and remanded with instructions to dismiss the case. It reasoned that Gonzalez was required to present “comparative evidence” of “otherwise similarly situated individuals who engaged in the same criminal conduct but were not arrested,” specific comparator evidence. Because Gonzalez failed to present such evidence, her claim failed. The Supreme Court granted certiorari review and reversed.

Analysis

The Court agreed with Gonzalez that the Fifth Circuit took an overly narrow view of Nieves, believing that Gonzalez was required to present “very specific comparator evidence—that is, examples of identifiable people who ‘mishandled a government petition’ in the same way Gonzalez did but were not arrested.” The Court instructed that “the demand for virtually identical and identifiable comparators goes too far.”

The Court explained that the Nieves exception covers situations in which police have “probable cause to make arrests, but typically exercise their discretion not to do so.” Nieves. To qualify for the exception, the Court further explained that the plaintiff must provide evidence to establish his arrest occurred under circumstance where police typically do not make an arrest, despite having probable cause to do so. The evidence for establishing the Nieves exception applies must be “objective” to avoid “the significant problems that would arise from reviewing police conduct under a purely subject standard.” Id.

Turning to the present case, the Court concluded that Gonzalez provided the necessary type of evidence to qualify for the Nieves exception. Her 10-­year survey of arrests under the statute in question showing that no one has ever been arrested for conduct similar to hers—“especially when the criminal prohibition is longstanding and the conduct at issue is not novel”—means that it’s likely that police have declined to arrest someone for engaging in conduct similar to the conduct for which she was arrested, the Court reasoned.

Conclusion

Accordingly, the Court vacated the Fifth Circuit’s judgment and remanded the case for the lower courts to determine whether Gonzalez’s evidence satisfies the Nieves exception. See: Gonzalez v. Trevino, 2024 U.S. LEXIS 2708 (2024) (per curiam).

Writer’s note: As noted above, the Court’s decision in this case is a short, per curiam opinion that assumes the reader understands many constitutional principles that may not be common knowledge to CLN’s readers. Thus, understanding the importance of the Court’s opinion requires a brief examination of the law generally applicable to First Amendment retaliatory-­arrest claims.

As a general matter of constitutional law, government officials may not retaliate against citizens for engaging in protected speech. Hartman v. Moore, 547 U. S. 250 (2006). If a government official retaliates against a citizen for engaging in such conduct and the citizen can show that non-­retaliatory reasons were insufficient to merit the government official’s adverse action, the citizen may bring a First Amendment claim in federal court against the official. Hartman. To prevail, the plaintiff-­citizen must show that the defendant-­official’s retaliatory motive was the “but for” cause of the plaintiff’s injury. In other words, the plaintiff must show that the injury would not have occurred absent the defendant’s retaliation. Hartman.

In Nieves, the Supreme Court held that plaintiffs bringing retaliatory-­arrest claims must typically show that they were arrested without probable cause. However, the Nieves Court also carved out a narrow exception to this general rule if the plaintiff produces “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Nieves. It justified this exception with the following example: “[A]t many intersections, jaywalking is endemic but rarely results in arrest. 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.” Nieves.

See Justice Alito’s concurring opinion in Gonzalez for a far more thorough and instructive discussion of this topic than the Court’s per curiam opinion.   

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