In Narrow Ruling, Supreme Court Revives Lawsuit Challenging Speech-Related Retaliatory Arrest

WASHINGTON – The Supreme Court issued a narrow ruling today in Gonzalez v. Trevino, rejecting a court of appeals’ overly restrictive rule for what individuals must show to sue for an arrest in retaliation for their First Amendment-protected speech. The Supreme Court affirmed its ruling from Nieves v. Bartlett, which held that even when police officers have probable cause to arrest someone, the arrested person can sue as long as there is evidence of retaliation. The court clarified that the only limitation is that such evidence must be objective. The Supreme Court rejected the Fifth Circuit’s “overly cramped” reading of Nieves, which would have required “virtually identical and identifiable comparators,” and has now sent the case back to the lower court.

“When police abuse their discretion to arrest those with whom they disagree, they cause serious harm to those arrested individuals and send the message that they shouldn’t speak out,” said Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy, & Technology Project. “Today the court made clear that if you are subjected to a retaliatory arrest, you can sue the government, as long as there is objective evidence of the retaliation.”

The petitioner in this case was Sylvia Gonzalez, a 72-year-old first-time city council member in Castle Hills, Texas, who alleges that she was arrested in 2019 because government officials didn’t like that she was advocating for the removal of the city manager, a police ally. Since police couldn’t constitutionally arrest someone simply because they find what they’re saying offensive, Castle Hills officers used an arcane section of the Texas Penal Code related to the handling of government documents to arrest Gonzalez for accidentally placing a citizen petition she had introduced at her first city council meeting into her personal binder.

Gonzalez sued, alleging that the police violated the First Amendment by arresting her in retaliation for her speech about the city manager. To establish that the arrest was retaliatory, she argued that the law used to arrest her had never been used to go after similar conduct. She even provided a survey of misdemeanor and felony data to show that the law at issue had never been used to arrest someone for misplacing a nonbinding, expressive document, and that city officials bypassed ordinary procedures to ensure she would have to spend time in jail. The Fifth Circuit dismissed her case, holding that to prove retaliation, she would have had to prove that other people who did exactly what she did (accidentally put a petition in their personal binder) but expressed different views (support for the city manager) were not also arrested. The court did not explain how she could possibly have offered such evidence.

The American Civil Liberties Union, the ACLU of Texas, the Foundation for Individual Rights and Expression (FIRE), and the National Association of Criminal Defense Lawyers (NACDL) filed a friend-of-the-court brief urging the Supreme Court to protect our right to engage in constitutionally-protected speech, free from the threat of retaliatory arrest. More specifically, the brief asked the court to hold that its 2019 decision in Nieves v. Bartlett does not apply outside of the context of on-the-spot arrests by individual officers. It also asked the court to clarify that, even if it does apply, a person arrested in retaliation for what they said need not identify someone else who engaged in the same illegal conduct, but said something different, and was not arrested to bring a First Amendment claim.

The Supreme Court ruled on only the second argument, holding that Gonzalez could not be required to — as the Fifth Circuit suggested — provide examples of people who had also mishandled a petition but were not arrested in order to claim that law enforcement retaliated against her. Such a requirement, the court held, would “go […] too far.” The court did not address the argument about whether Nieves’ rule applies outside of the context of on-the-spot arrests, because its ruling on the first argument was sufficient to reverse the lower court.

Gonzalez v. Trevino is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket.