Arrests motivated by politics face Supreme Court review

In her memoir, Judge Sonia Sotomayor confessed that she does not always follow the letter of the law. “I’m a New Yorker,” she wrote, “and I run with the best of them.”

Of course, almost no one gets arrested for jaywalking. But, as Justice Elena Kagan noted in an argument from 2018It’s the kind of crime a police officer might use as a pretext for retaliation.

“You can think of it,” she said, “as a case where an individual police officer, you know, decides to arrest someone for jaywalking who is wearing a Black Lives Matter T-shirt or, alternatively, a Make America Great Again cap.’

The crime was real. “The person did a jaywalk,” she said. But what should judges do when a police officer, who normally looks the other way, doesn’t?

The Supreme Court has long struggled to figure out when to allow trials for such retaliatory arrests. In 2019, it left the door open a crack – with the example of jaywalking.

“Jaywalking is endemic at many intersections, but it rarely results in arrests,” Chief Justice John G. Roberts Jr. said. wrote for the majorityadding that there may be circumstances in which someone arrested for that crime could sue for retaliation.

Last month, the court agreed to hear the case of a 72-year-old Texas city councilwoman who was arrested for losing a piece of paper after criticizing the city manager. The case, to be argued next year, will test who can squeeze through the door the chief justice has left ajar – or whether, in practice, this will be limited to jaywalking.

The general rule is that if a police officer has probable cause for an arrest, there is no claim for retaliation, regardless of the officer’s actual motives.

However, in his 2019 opinion, the chief justice said there was “a limited qualification” to the usual rule that the presence of probable cause destroys a claim for retaliatory arrest.

“If an individual who has complained vociferously about police conduct is arrested for jaywalking,” he wrote, “it appears to be insufficient protection of First Amendment rights to dismiss the charge of retaliation to arrest the individual for on the grounds that there was undoubtedly probable cause for the arrest. .”

How do I know when this exception applies? The prosecutor must, the chief justice wrote, “present objective evidence that he was arrested when similarly situated persons who did not engage in the same types of protected speech had not been.”

That sentence, which becomes less clear the longer you stare at it, is the crux of the new case: Gonzalez vs. TrevinoNo. 22-1025.

It concerns Sylvia Gonzalez, who says she was arrested in 2019 for a trivial offense in retaliation for her criticism of the city manager of Castle Hills, Texas.

It happened not long after Ms. Gonzalez won a surprise victory to become the city’s first Spanish-speaking council member. Her first official act was to help gather signatures for a petition calling for the city manager’s removal. During its first council meeting, a resident submitted the petition.

At the end of the session, Ms. Gonzalez picked up the papers in front of her and placed them in a folder. The petition was among them.

It wasn’t there long. The mayor asked for it, and Ms. Gonzalez found it in her folder. When she remembered, the mayor told her she “probably picked it up by accident.”

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

“She spent a day in jail, handcuffed, on a cold metal bench, wearing an orange prison shirt and avoiding the restroom, which had no doors,” her lawyers wrote in her message. request for review by the Supreme Court.

The district attorney dropped the charges, but Ms. Gonzalez, who said she found the episode traumatic, resigned from her position. She sued, saying the arrest was in retaliation for exercising her First Amendment rights.

Ms. Gonzalez, represented by the Institute for Justice, said she had the kind of objective evidence of retaliation that Chief Justice Roberts needed. Her attorneys had reviewed a decade of data from her county, they wrote, and it was “clear that the tampering statute has never been used to charge someone with a common and boring offense of putting a piece of paper in the wrong stack.”

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

That’s a high bar. It’s one thing to show that no one else was arrested for what she did. It is another thing to prove that others lost pieces of paper and were not arrested.

When the case it was argued Before the Fifth Circuit, a lawyer for the city officials, Ms. Gonzalez, had filed suit, saying that the exception the chief judge had identified was limited in principle to jaywalking.

The 2019 case “was specifically about jaywalking and places where jaywalking is endemic,” said attorney Scott M. Tschirhart. “What she would have to show is that the theft of government documents was endemic, and that has never been proven.”