Supreme Court Takes Up Case on Free Speech and Retaliatory Arrest

If you follow this blog you are probably concerned about growing ignorance of, or contempt for, the First Amendment, as well as an increasing appetite for weaponizing the law to punish disfavored speech. A case out of Castle Hills, Texas, is illustrative of this weaponization.
 
While some underlying motives are in dispute, the facts – per the Fifth Circuit Court of Appeals – are stark. Sylvia Gonzalez was elected to a seat on the Castle Hills city council in 2019. After learning that many of her constituents were unhappy with the performance of the city manager, Gonzalez helped organize a petition for that official’s removal. During her first city council meeting, a resident of Castle Hills submitted the petition, which somehow wound up in Gonzalez’s personal binder of documents. After being asked for it by the mayor, Gonzalez found the petition among her effects and handed it over during that same meeting.
 
The mayor initiated an investigation of Gonzalez under a Texas Penal Code statute that provides that “[a] person commits an offense if he […] intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record.” A warrant was subsequently served against Gonzalez, who was taken to jail and later resigned from her post.
 
Why Gonzalez would want to hide a petition she helped organize is far from clear. Gonzalez argues it was an honest mistake. The warrant affidavit speculates that Gonzalez hid it because a resident claimed she convinced them to sign it under false pretenses.
 
What is not disputable is that Gonzalez was arrested, handcuffed, and detained for the purported crime of placing a document in her folder during a meeting. The 72-year-old Gonzalez claims her arrest was retaliatory, stemming from her support for removing the city manager.
 
Sylvia Gonzalez brought suit in U.S. district court, alleging two counts of retaliation. The city respondents, in turn, filed a motion to dismiss based on qualified immunity, a legal doctrine that generally protects government officials from lawsuits unless it can be shown they violated a “clearly established” statutory or constitutional right. The city officials argued that the existence of probable cause rendered Gonzalez’s claims moot.
 
The district court, for its part, denied the government’s motion to dismiss based on a 2019 Supreme Court opinion in Nieves v. Bartlett. The court held that retaliatory arrest claims may proceed where probable cause exists (as it technically did with Gonzalez), but in cases in which officers “typically exercise their discretion not to do so.”
 
This is what is more commonly known as the “jaywalking exception,” and it guards against law enforcement arresting people for petty crimes for less than noble purposes. As Justice Sonia Sotomayor admitted in her memoir, “I jaywalk with the best of them.” Everyone jaywalks, but very few are actually arrested for it. It is an infraction, however, that could be used as pretext to arrest someone.
 
In such circumstances, the U.S. Supreme Court held, a plaintiff must present “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”
 
Gonzalez, attempting to satisfy the Nieves exception, presented evidence that not one of 215 grand jury felony indictments in Bexar County under a tampering statute over the preceding decade involved an allegation remotely similar to the one levied against her. The district court found this “objective evidence” sufficient.
 
In the appeal, the Fifth Circuit held that Nieves requires comparative evidence of individuals who engaged in the “same” criminal conduct but were not arrested. In other words, going by the Fifth Circuit’s interpretation, Gonzalez would have to find specific instances of people who misplaced government documents but were not arrested.
 
If the Fifth Circuit’s decision is left in place, it would make it easier for law enforcement or other government officials to punish critics for expressing protected speech based on novel applications of relatively minor criminal laws. It also sets the evidentiary bar so high that few could ever hope to prove their case in a court of law.
 
Gonzalez’s conduct was so benign that the only inference one can reasonably draw is that she was indeed the target of retaliation. That reasonable inference standard is what is required to overcome a qualified immunity defense. But varying interpretations of Nieves stand in Sylvia Gonzalez’s way.
 
A brief supporting cert from the Cato Institute, American Civil Liberties Union, and the Foundation for Individual Rights and Expression seems to have enticed the U.S. Supreme Court to hear this case. The Court has a historic opportunity to bring clarity to qualified immunity and resolve a circuit split. The Seventh and Ninth Circuits have interpreted Nieves to allow more flexibility in the type of evidence plaintiffs must show in making a retaliation claim. The Fifth Circuit, unfortunately, has not.
 
The Fifth Circuit’s standard would all but enfranchise the most egregious abuses. At a time when liberals and conservatives worry about the weaponization of the law, a reasonable standard to hold officials to account for abuses is needed now more than ever.