Supreme Court Says Fifth Circuit Did Its Law-ing Wrong, Sends Back Free Speech Retaliation Case

A case about First Amendment retaliation reached the Fifth Circuit Appeals Court last March. It involved Sylvia Gonzalez, a recently elected city council member who was unhappy with her current representation — that being mainly city manager Ryan Rapelye.

Her first act as an elected official was to create a petition calling for Rapelye’s removal from office. This led to several contentious counsel meetings. Then, after some dispute over the disappearance and reappearance of the petition in question, Mayor Edward Trevino contacted law enforcement and filed a criminal complaint against Gonzalez. His complaint alleged a violation of an anti-tampering statute that criminalizes “removing a governmental record” — a charge whipped up by a private attorney employed by the city.

The cops said the mayor had no case. Undeterred, Mayor Trevino handed this back over to the private attorney. The attorney managed to talk a local judge into issuing an arrest warrant. Gonzalez was arrested after turning herself in and spent a night in jail. The charges were dropped as soon as the district attorney reviewed the case.

She then filed a civil rights lawsuit, claiming the criminal case filed against her was unconstitutional — something generated solely for the purpose of silencing her criticism of the city manager.

The Fifth Circuit saw no reason to disturb the lower court’s ruling finding in favor of the city. As it saw it, there was probable case for Gonzalez’s arrest, and that overrode her First Amendment concerns. This rejection came with a scathing dissent written by Judge James Ho, which pointed out just how stupid and dangerous blessing the lower court’s ruling was:

The First Amendment is supposed to stop public officials from punishing citizens for expressing unpopular views. In America, we don’t allow the police to arrest and jail our citizens for having the temerity to criticize or question the government.

But it falls on the judiciary to ensure that the First Amendment is not reduced to a parchment promise. Few officials will admit that they abuse the coercive powers of government to punish and silence their critics. They’re often able to invent some reason to justify their actions. So courts must be vigilant in preventing officers from concocting legal theories to arrest citizens for stating unpopular viewpoints.

Gonzalez appealed this decision to the highest court in the land. And the Supreme Court has again rejected a Fifth Circuit decision as demonstrably wrong — something it has had to do quite frequently in recent months.

The Supreme Court says there’s an arguable violation of rights here and the Fifth Circuit blew this call by reading precedent too narrowly. According to the Supreme Court decision [PDF], the Fifth Circuit’s interpretation is far too restrictive to be considered good law.

We agree with Gonzalez that the Fifth Circuit took an overly cramped view of Nieves. That court thought Gonzalez had to provide very specific comparator evidence—that is, examples of identifiable people who “mishandled a government petition” in the same way Gonzalez did but were not arrested. Although the Nieves exception is slim, the demand for virtually identical and identifiable comparators goes too far.

It’s an unsurprising ruling. The Fifth Circuit (following the lead of the Supreme Court) has done the same thing with qualified immunity decisions on multiple occasions. It has demanded almost identical cases be cited when challenging immunity, making it almost impossible for plaintiffs to succeed. This is more of the same, and the Supreme Court says it can’t stand.

In this case, the long history of non-enforcement of this statute weighs in favor of Gonzalez.

Gonzalez’s survey is a permissible type of evidence because the fact that no one has ever been arrested for engaging in a certain kind of conduct—especially when the criminal prohibition is longstanding and the conduct at issue is not novel—makes it more likely that an officer has declined to arrest someone for engaging in such conduct in the past.

That’s the key factor in a Nieves lawsuit: a history of nonexistent enforcement. The case is sent back down to the Fifth to further examine Gonzalez’s claims.

But there’s more to this decision than the relatively short opinion issued by the majority. There’s a much longer concurrence written by Justice Alito which provides more details on the case. And those details don’t do much for Gonzalez’s reputation, even if they may not do much to damage her lawsuit.

Here’s what apparently happened at the contentious city council meeting that ultimately culminated with the mayor seeking criminal charges against Gonzalez for “illegally removing” an official document.

At the next city council meeting, just over two weeks after Gonzalez’s election, one resident submitted a stack of documents representing the petition to remove Rapelye. As the presiding officer of the meeting, Mayor Edward Trevino assumed control of the petition. And as the Court’s opinion notes, the meeting grew contentious. Multiple residents spoke out in support of Rapelye. Martinez, for instance, accused Gonzalez of misleading residents into signing the petition based on false representations about Rapelye and the campaign for his removal. These allegations disturbed Trevino. The next morning, he arrived before the meeting resumed to see if the petition contained any anomalies. When he was finished, he fastened the documents together with a large black binder clip and placed the stack on top of his other papers on the dais.

What happened next was captured by surveillance videos. Shortly before the meeting began, Trevino was engaged in conversation with two constituents. While he turned away from his papers, Gonzalez approached the dais and took the petition from his pile. After quickly flipping through its pages, Gonzalez placed the petition inside her binder.

This was captured on video by the council’s security cameras. The rest of it (which ranges from the conversation the mayor had in his office to the private investigation to the filing of criminal charges) wasn’t, of course, so there are competing sets of allegations. But it’s undisputed that Gonzalez was arrested based on charges conceived by the city’s private attorney.

Some of this was captured on camera, though:

At this point, Trevino suspected that Gonzalez had taken the petition. He relayed those suspicions to Captain Esteban Zuniga, a police officer who was present at the meeting. Zuniga walked over to Gonzalez and asked her if she had taken the petition. After Gonzalez denied his accusation, Trevino suggested she check her binder.

This, too, was captured on tape. At Trevino’s prompting, Gonzalez slowly flipped through her binder. Before she reached the binder-clipped stack, however, she stopped and once again denied possessing the petition. Trevino and Zuniga simultaneously pointed to the visible black binder clip. Forced to produce the petition, Gonzalez told Zuniga that she thought it was an extra copy.

As Alito states, this suggests probable cause for the violation of the statute. And even Gonzalez has never argued the arrest was not supported by probable cause. Her arguments center on the retaliatory aspects of the investigation and arrest, which Alito agrees stand outside of the Nieves exception. But his recounting of these events suggests that Gonzalez has won this battle (getting the Fifth Decision overturned) but it won’t make much difference when it heads back to the original court.

Then again, this could have been handled without an arrest. And, indeed, if anything similar to it has happened in Texas, it has always been handled without an arrest. That’s the larger point. Even if Gonzalez was deceptive, the mayor had plenty of options that, while possibly retaliatory, would not have involved something as drastic as criminal charges and an arrest. So, Gonzalez may still end up securing a win here, even if her actions were more than a bit shady.

For now, her lawsuit survives. Hopefully, the lower courts will find in her favor — not because she’s the best person to be making this case but because doing otherwise basically tells government officials it’s OK to send cops after their critics.