Woman’s arrest after political dispute sparks lively debate in Supreme Court

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By journalsofus.com

Sylvia Gonzalez, a 72-year-old city councilwoman from Castle Hill, Texas, was arrested in 2019 for misplacing a piece of paper after criticizing the city manager.

The charges were soon dropped. Ms. González resigned and sued city officials, accusing them of retaliation for exercising her First Amendment rights.

But his case ran afoul of the Supreme Court’s general rule that people cannot sue for a retaliatory arrest, regardless of the arresting officer’s motive, as long as the officer had sufficient evidence of a crime to support the claim. arrest.

An appeals court dismissed his case. The judges said the only thing that mattered was that Ms. Gonzalez had admitted there was probable cause for her arrest for violating a Texas law that makes it a crime to conceal government records.

Ms. González argued that this was a free speech issue and that she would never have been arrested if she had not spoken out against the city manager. The appeals court rejected that argument, saying it could not prove that she had been treated differently than other people arrested for the same crime.

On Wednesday, a lawyer for González urged the Supreme Court to allow him to try to show that other people who had done what he was accused of would not have been arrested.

Justice Neil M. Gorsuch seemed receptive to the argument, saying the general rule was too rigid and allowed for politically motivated arrests like the one Gonzalez said he experienced. He said it was easy to find a crime for which to arrest a political opponent.

“How many statutes exist today, many of which are almost never enforced?” she asked. “Last time I read, there were over 300,000 federal crimes, counting statutes and regulations.”

“Everyone can sit there unused,” he added, “except for one person who alleges that I was the only person in the United States who has been prosecuted for this because I dared to express an opinion protected by the First Amendment.”

In the court’s last encounter with the issue, in Nieves vs. Bartlett In 2019, Chief Justice John G. Roberts Jr.’s majority opinion recognized a limited exception, using the example of jaywalking. “At many intersections, jaywalking is endemic, but it rarely results in an arrest,” he wrote, adding that there may be circumstances in which someone arrested for that offense could file a retaliation lawsuit.

“If an individual who has openly complained about police conduct is arrested for jaywalking,” he wrote, “it would appear not to sufficiently protect First Amendment rights to dismiss the individual’s retaliatory arrest claim on the basis that there was undoubted probable cause. for arrest. .”

How do you know when this exception applies? The plaintiff must present, the chief justice wrote, “objective evidence that he was arrested when similarly situated people who did not engage in the same type of protected speech had not been.”

Wednesday’s case, González v. Treviño, No. 22-1025, tested the limits of that exception.

Ms. González’s arrest occurred shortly after she won a surprise victory and became the city’s first Hispanic councilwoman.

His first official act was to help collect signatures for a petition calling for the removal of the city manager.

At the end of a council meeting, Ms. González gathered the papers in front of her and stuffed them into a folder. The request was between them.

He wasn’t there long. The mayor asked for it and Mrs. González found it in her folder. As she remembers it, the mayor told her that “she had probably taken it by mistake.”

But a two-month investigation followed. At the conclusion, Ms. González was arrested for concealing a government document, a misdemeanor.

The district attorney dropped the charges, but Ms. González, saying she had found the episode traumatic, resigned from her position.

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. Her lawyers had reviewed a decade of data in her county, they wrote, and it was “clear that the tampering statute had never been used to charge someone with the common and uneventful crime 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 was not enough. “González offers no evidence of other similarly situated individuals who mishandled a government request but were not prosecuted,” Judge Kurt D. Engelhardt. wrote for the majority.

Several judges seemed uncomfortable with such a strict rule. After all, it’s one thing to prove that no one else had been arrested for what Ms. Gonzalez did. Another is to prove that others had lost pieces of paper and had not been arrested.

The questioning suggested that the court could rule strictly in favor of Ms. González, sending the case back to the Fifth Circuit for reconsideration under a more relaxed standard.

“You should be able to say that no one has ever been charged with this type of crime before,” Justice Elena Kagan said, “and I don’t have to go looking for a person who has engaged in the same conduct.”

But Chief Justice Roberts said Nieves’ decision should be limited. “The court’s opinion in that case went out of its way to emphasize the narrowness of the exception,” he said.

Anya A. Bidwell, Gonzalez’s attorney, said a strict reading of the exception would lead to troubling results.

“If the mayor in this case stood in front of television cameras and announced that he was going to arrest Ms. González because she defied his authority,” Ms. Bidwell said, “the existence of probable cause would make this evidence legally irrelevant.” . “

Lisa S. Blatt, an attorney for the defendants, urged the court to maintain the status quo, warning that the alternative would create a flood of litigation.

“Throughout history,” he said, “probable cause has prevented retaliatory arrest claims. Nieves created a small exception for warrantless arrest, where officers typically look the other way or give warnings or tickets. “This court should not blow up that exception.”

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