Supreme Court hears case about arrests motivated by politics
In a lively Supreme Court Argument On Wednesday, the justices returned to a thorny issue that was certainly on their minds three other times: When can people sue over arrests they say were motivated by retaliation for criticism of the government?
The general rule is that the existence of probable cause for the arrest is sufficient to preclude lawsuits seeking retaliation in violation of the First Amendment.
Judge Neil M. Gorsuch said this was a recipe for abuse, allowing for politically motivated arrests. “How many statutes are on the books today, many of which are virtually never enforced?” he asked. “Last I read, there were over 300,000 federal crimes, counting statutes and regulations.”
“They can all sit there unused,” he added, “except for one person who claims that I was the only person in America ever prosecuted for this because I dared to express an opinion protected by the First Amendment.”
In the court’s last encounter with the question, in Nieves vs. Bartlett in 2019, Chief Justice John G. Roberts Jr.’s majority opinion recognized. a small exception, where he used the example of jaywalking. “At many intersections, jaywalking is endemic, but it rarely results in an arrest,” he wrote, adding that there may be circumstances in which someone arrested for that crime could be charged for retaliation.
“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.”
Wednesday’s case, Gonzalez v. Trevino, No. 22-1025, tested the limits of that exception. It involved Sylvia Gonzalez, a 72-year-old city council member in Texas who was arrested in 2019 for losing a piece of paper after criticizing the city manager.
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.
At the end of a council meeting, Ms. Gonzalez gathered the papers in front of her and put them in a folder. The petition was among them.
A two-month investigation followed. At the end, Ms. Gonzalez was arrested for concealing a government document, a misdemeanor.
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, a libertarian group, said she had the kind of objective evidence of retaliation that Chief Justice Roberts required. 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.
Several judges seemed uncomfortable with such a strict standard. After all, it’s one thing to show that no one else has been arrested for what Ms. Gonzalez did. It is another thing to prove that others lost pieces of paper and were not arrested.
The questioning suggested that the court might make a narrow ruling for Ms. Gonzalez, sending the case back to the Fifth Circuit for reconsideration under a more relaxed standard.
“You should be able to say that they have never charged anyone with this type of crime,” Judge Elena Kagan said, “and I don’t need to look for anyone who has engaged in the same behavior.”
But Chief Justice Roberts said Nieves’ decision was limited. “The court’s opinion in that case went out of its way to emphasize the narrowness of the exception,” he said.
Anya A. Bidwell, an attorney for Ms. Gonzalez, said a narrow interpretation of the exception would lead to troubling results.
“If the mayor in this case were to appear before TV cameras and announce that he was having Ms. Gonzalez arrested because she was questioning his authority,” Ms. Bidwell said, “the existence of probable cause would make this evidence legally irrelevant to make. ”
Lisa S. Blatt, an attorney for the defendants, urged the court to maintain the status quo and warned that the alternative would trigger a flood of lawsuits.
“Throughout history,” she said, “probable cause has precluded retaliation arrests. Nieves created one small exception for warrantless arrests, in which officers typically look away or issue warnings or tickets. This court should not blow up that exception.”