What's at Stake
This case is about what a plaintiff must demonstrate to sustain allegations that police arrested them in retaliation for First Amendment–protected expression. While retaliatory arrest plaintiffs generally must show that police lacked probable cause to arrest them, the petitioner in this case correctly argues that a recognized exception to that rule, for cases where police typically exercise discretion not to arrest people, must be robust to protect the free speech of government critics.
Sylvia Gonzalez, a 72-year-old first-time city council member, alleges that police in Castle Hills, Texas arrested her because they didn’t like that she was advocating for the removal of the city manager, an ally of the police. Gonzalez had spearheaded a nonbinding citizens’ petition to remove the city manager from office. After she briefly misplaced the petition, police officers charged Gonzalez under a broad Texas tampering law—usually invoked in cases involving the use of fake IDs.
Gonzalez argued, and the district court held, that the existence of probable cause to arrest her under the Texas law should not defeat her retaliatory arrest claim, because her case fits within the exception outlined in Nieves v. Bartlett. There, the Supreme Court held that, while retaliatory arrest plaintiffs generally must show that police lacked probable cause to arrest them, there is an exception for cases in which police have probable cause to arrest, but typically exercise their discretion not to do so.
Under an exceedingly restrictive reading of the Nieves exception, the Fifth Circuit held that the exception did not apply to Gonzalez, because she had not shown comparative evidence of similarly situated individuals who also mishandled a government petition, but held different views and were not prosecuted under the same law. The Fifth Circuit denied Gonzalez’s petition for rehearing en banc, and Gonzalez petitioned the Supreme Court for certiorari.
The ACLU and the ACLU of Texas, joined by the Cato Institute and the Foundation for Individual Rights and Expression, filed an amici curiae brief in support of Gonzalez’s petition for certiorari, urging the Supreme Court to take the case and ensure that the Nieves exception provides meaningful First Amendment protection to critics of the government like Sylvia Gonzalez. We argue that the Fifth Circuit’s decision denies many individuals important First Amendment protections that the Nieves decision was designed to preserve. Broadly-worded laws across the country give police officers vast discretion to arrest people with whom they disagree. Requiring the victims of such arrests to show that someone else engaged in identical conduct but expressed different views and did not get arrested could make it impossible for them to bring their claim. How would Gonzalez have evidence that other people put petitions in their binders and didn’t get arrested for it? How would someone arrested for a minor traffic infraction show that other drivers who committed the same infraction but didn’t “talk back” to the officer didn’t get arrested? It should be enough to show, as Gonzalez did, that a statute was used in a wholly novel way to target a government critic.