Gonzalez v. Trevino
Issues
Does the Nieves probable cause exception to retaliatory arrest claims apply to all First Amendment retaliatory claims, or is it limited to individual retaliation claims when conducting “split second” arrests; and, if Nieves does apply all First Amendment retaliatory claims, what kind of evidence is required to satisfy its probable cause exception?
This case asks the Supreme Court to determine whether the Mt. Healthy burden-shifting test about unconstitutional motives for government actions applies, or whether the Nieves bar to retaliatory arrest claims resulting from an arrest supported by probable cause applies in this case. Gonzalez maintains the Mt. Healthy holding covers all arrests except for retaliatory prosecutions and on-the-spot police arrests, while Trevino argues the Nieves exception applies to all First Amendment retaliatory arrest claims. Furthermore, in the event the Nieves bar does apply, the Supreme Court is asked to determine what kind of evidence is sufficient to rebut the probable cause presumption. Gonzalez maintains she is only required to show objective evidence, while Trevino maintains she needs to show “comparator evidence,” which is evidence of non-arrested people who engaged in similar conduct but not the same kind of protected speech. This case touches upon important questions of whether causes of action for retaliatory arrests deter police abuse or unfairly burden law enforcement, and how best to encourage First Amendment protected speech.
Questions as Framed for the Court by the Parties
(1) Whether the probable-cause exception in Nieves v. Bartlett can be satisfied by objective evidence other than specific examples of arrests that never happened; and (2) whether Nieves is limited to individual claims against arresting officers for split-second arrests.
In 2019, Petitioner Sylvia Gonzalez was elected to the Castle Hills, Texas, city council. Gonzalez v. Trevino, at 2. On May 21, she sat for her first city council meeting, where a town resident presented a petition that Gonzalez had helped create. Id. The petition “called for the removal of the city manager from office.” Id. The meeting stretched until May 22; once it ended, Gonzalez left her binder unattended to talk to a constituent.
The authors would like to thank Professor Brian Richardson for his guidance and insights into this case.
Additional Resources
- Adam Liptak, Arrests Motivated by Politics Face a Supreme Court Test, New York Times (November 6, 2023)
- Debra Cassens Weiss, SCOTUS will hear ‘backdoor censorship’ case of council member arrested for placing document in binder, American Bar Association (October 16, 2023)
- J. Justin Wilson, Supreme Court Accepts First Amendment Retaliation Case, Institute for Justice (October 13, 2023)