In a spirited argument at the Supreme Court on Wednesday, the justices returned to a thorny question that has preoccupied them at least three times: When can people sue over arrests they say were motivated by retaliation for criticizing the government?
As a general rule, the existence of probable cause for the arrest is sufficient to bar claims of retaliation in violation of the First Amendment.
Judge Neil M. Gorsuch said this was a recipe for abuse and enabled politically motivated arrests. “How many laws are there on the books today, many of which are hardly ever enforced?” he asked. “Last time I read, there were over 300,000 federal crimes, including laws and regulations.”
“They can all sit there unused,” he added, “except for one person who claims I was the only person in America ever prosecuted for daring to express an opinion protected by the First Amendment to express.”
The last time the Court addressed the issue, in Nieves v. Bartlett in 2019, Chief Justice John G. Roberts Jr.’s majority opinion recognized a narrow exception using jaywalking as an example. “At many intersections, jaywalking is common but rarely results in an arrest,” he wrote, adding that there could be circumstances in which someone arrested for this crime could seek retaliation.
“When a person who has loudly complained about police conduct is arrested for jaywalking,” he wrote, “it would appear that the person’s claim of retaliation is not sufficient to protect the First Amendment rights to dismiss that there was undoubtedly probable cause for the arrest.”
How do you know when this exception applies? The plaintiff, the chief justice wrote, “must provide objective evidence that he was arrested when otherwise similarly situated individuals who were not engaging in the same type of protected speech had not been arrested.”
Wednesday’s case, Gonzalez v. Trevino, No. 22-1025, tested the limits of that exception. It was about Sylvia Gonzalez, a 72-year-old city councilwoman in Texas who was arrested in 2019 for misplacing a piece of paper after criticizing the city manager.
It came not long after Ms. Gonzalez won a surprise victory, becoming the city’s first Hispanic city councilwoman. Her first order of business was to help collect 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. In the end, Ms. Gonzalez was arrested for concealing a government document, which was a misdemeanor.
The district attorney dropped the charges, but Ms. Gonzalez resigned because she found the episode traumatic. She sued, saying the arrest was in retaliation for her 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’ opinion required. Their attorneys had reviewed a decade’s worth of data in their county, they wrote, and it was “clear that the tampering statute was never used to charge anyone with a common and uneventful offense of putting a piece of paper in the wrong pile.” “
A divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit said that wasn’t enough. “Gonzalez presents no evidence of other similarly situated individuals who mishandled a government petition but were not prosecuted,” Justice Kurt D. Engelhardt wrote for the majority.
Several justices seemed uncomfortable with such a strict standard. After all, it’s one thing to show that no one else was arrested for what Ms. Gonzalez did. It is further evidence that others had misplaced notes and were not arrested.
The questioning suggested the court might narrowly rule in Ms. Gonzalez’s favor and send the case back to the Fifth Circuit for reconsideration under a looser 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 have to look for a person who has engaged in the same conduct.”
But Chief Justice Roberts said the Nieves decision was limited. “The court’s opinion in this case went out of its way to highlight the narrowness of the exception,” he said.
Anya A. Bidwell, a lawyer for Ms. Gonzalez, said a narrow interpretation of the exception would lead to troubling results.
“If the mayor in this case were to step in front of television cameras and announce that he would have Ms. Gonzalez arrested because she questioned his authority,” Ms. Bidwell said, “the existence of probable cause would render that evidence legally irrelevant.”
Lisa S. Blatt, an attorney for the defendants, urged the court to maintain the status quo, warning that the alternative would lead to a flood of litigation.
“Throughout history,” she said, “there have been retaliatory enforcement actions based on probable cause.” Nieves created a narrow exception for warrantless arrests, where officers typically look the other way or issue warnings or tickets. This court should not blow up that exception.”
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2024-03-21 01:39:35
www.nytimes.com