Special to the Vanguard
Washington, DC – The American Civil Liberties Union and partners on Monday 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.
The brief was filed in Gonzalez v. Trevino, which asks 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 asks 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 First Amendment prohibits the government from retaliating against people for their protected speech, and that rule applies to arrests — a particularly potent form of retaliation,” said Vera Eidelman, staff attorney with the ACLU’s Speech, Privacy, & Technology Project.
Eidelman added, “Vague laws across the country give officials too many opportunities to 
arrest people with whom they disagree, and those opportunities only increase as time passes. Requiring the victims of premeditated arrests to satisfy a higher standard ignores this reality.”
The petitioner in this case, Sylvia Gonzalez, was a 72-year-old, first-time city council member in Castle Hills, Texas, and a vocal critic of the city manager, an ally of many public officials.
She was arrested for violating a law against tampering with government documents after she misplaced a petition to have the city manager removed from office.
The law was typically used to prosecute use of fraudulent documents and had never been used in comparable circumstances. Officials arrested Gonzalez after spending nearly two months investigating the incident, and she spent time in jail because they bypassed ordinary procedures to effectuate the arrest.
Gonzalez argued that the existence of probable cause to arrest her should not defeat her claim because her arrest was not the result of an ad-hoc decision by an individual officer, and therefore was not governed by the rule the Supreme Court outlined in Nieves v. Bartlett.
In that case, the Supreme Court held that, when it comes to on-the-spot arrests, retaliatory arrest plaintiffs are barred from bringing a case if a police officer had probable cause to arrest them, unless they could allege objective evidence of retaliatory treatment.
In addition, Gonzalez argued, and the district court held, that even if that rule did apply to her case, she had sufficiently alleged such objective evidence: the law at issue had never been used to arrest someone for misplacing a nonbinding, expressive document, and that the city officials bypassed ordinary procedures to ensure she would have to spend time in jail.
The Fifth Circuit held that Nieves should be applied in this case and, under an exceedingly restrictive reading of its “objective evidence” requirement, the Fifth Circuit held that Gonzalez’s case could not proceed because she had failed to allege that individuals who also mishandled a government petition, but held different views, were not prosecuted under the same law.
The Supreme Court must now decide if Nieves applies outside of the context of ad hoc, on-the-spot arrests and, if so, whether objective evidence other than direct comparators is enough to satisfy Nieves’ requirement to overcome the probable-cause bar.
The ACLU and its partners urge the Court to ensure that the First Amendment continues to provide meaningful protection to critics of the government like Gonzalez.
The brief argues that ordinary pleading rules—not the presumption against claims where an officer had probable cause to arrest, as outlined in Nieves—should apply to retaliatory arrest claims that do not arise from on-the-spot arrests.
When those rules are correctly applied, there is no presumption that the adverse government action, such as arrests, was proper.
The brief also argues that the Fifth Circuit’s restrictive reading of Nieves’ “objective evidence” requirement denies many individuals important First Amendment protections that the decision was designed to preserve.
Asking any retaliatory arrest plaintiff to show that someone else engaged in identical conduct, but expressed different views, and did not get arrested could make it impossible for people to bring their claim.
The brief is available online here.
