Transcript - Gonzalez v. Trevino Oral Arguments Update
Today on legalese, we have my summary and analysis of the oral arguments in the first amendment retaliation case Gonzalez v Trevino.
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Facts Of The Case
With that said, let’s get to the topic for today. Which is Gonzalez v Trevino. Today we will be summarizing and analyzing the oral arguments that were heard back on Wednesday March 20th… and we will be discussing the possible outcomes of this case.
The Supreme Court heard oral arguments last week in the case of a Texas City council member who contends that she was arrested in retaliation for her criticism of the city manager. During just under 90 minutes of oral argument, the justices struggled to determine what kind of evidence plaintiffs in such cases need to show for their cases to go forward.
The former city council member, Sylvia Gonzalez, was elected to the city council in Castle Hills, Tex. In 2019, after a long meeting, Gonzalez placed a petition that she had initiated, criticizing the city’s manager, in her binder.
Gonzalez claims that she picked up the petition accidentally. But two months later she was charged with violating a state law that prohibits tampering with government records. Gonzalez, then 72 years old, was arrested and spent a day in jail, although prosecutors declined to pursue the charges against her.
Gonzalez then filed a federal civil rights claim under 42 USC §1983 against the mayor, police chief, and lawyer who had investigated her, alleging that she had been arrested in retaliation for her criticism of the city’s manager. In her complaint, she contended that she was the only person charged under the state law in the past 10 years for temporarily misplacing a document.
Under the Supreme Court’s 2019 decision in Nieves v. Bartlett:
[Normally] “plaintiffs must… prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause.”[1] …But the Court carved out a narrow exception “that the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”[2]
A federal district court in San Antonio allowed Gonzalez’s case to go forward. But a divided U.S. Court of Appeals for the 5th Circuit reversed.
Gonzalez cannot take advantage of the Nieves exception because she has failed to "present[ ] objective evidence that [s]he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been." 139 S. Ct. at 1727. Gonzalez does not offer evidence of other similarly situated individuals who mishandled a government petition but were not prosecuted under Texas Penal Code § 37.10(a)(3).
Rather, the evidence she offers is that virtually everyone prosecuted under § 37.10(a)(3) was prosecuted for conduct different from hers. The inference she asks us to draw is that because no one else has been prosecuted for similar conduct, her arrest must have been motivated by her speech. But the plain language of Nieves requires comparative evidence, because it required "objective evidence" of "otherwise similarly situated individuals" who engaged in the "same" criminal conduct but were not arrested. Id. The evidence Gonzalez provides here comes up short.
Gonzalez v. Trevino, 42 F.4th 487, 492 (5th Cir. 2022)
Anya Bidwell, an attorney with the Institute for Justice represented Gonzalez at court on Wednesday. She told the justices that the city officials’ argument
“[E]xtends Nieves beyond its moorings. If the mayor in this case got in front of TV cameras and announced that he was going to have Ms. Gonzalez arrested because she challenged his authority, the existence of probable cause would make this evidence legally irrelevant.” Their argument, she continued, “would also toss out of court a critic arrested for jaywalking on a remote country road, even if his town had never arrested anyone for jaywalking before, simply because he couldn’t find a non-critic who jaywalked on the same spot.”
Lisa Blatt – who represented the city officials – told the justices that Gonzalez’s argument would open the door to allow virtually any defendant to bring a retaliatory arrest claim.
If you accept Gonzalez’s “gamesmanship,” Blatt suggested, “those arrested for domestic violence will claim the victim just slipped, those arrested for threats will claim they were just joking, and those arrested for embezzlement will claim they just accidentally misplaced the funds.”
The Court would grant cert on two QP’s:
Whether the Nieves probable cause exception can be satisfied by objective evidence other than specific examples of arrests that never happened.
Whether the Nieves probable cause rule is limited to individual claims against arresting officers for split-second arrests.
The justices spent relatively little time on the second question presented, about limiting the Nieves exception to on-the-spot arrests
Gonzalez insisted that it was so limited. She told the justices that Nieves was dealing with the “vast bulk of retaliatory arrest cases,” involving on-the-spot arrests, which involve a “very particular causal complexity” not found in cases like Gonzalez’s, in which two months lapsed between the conduct that led to Gonzalez’s arrest and the arrest itself.
But Justice Samuel Alito pushed back against that suggestion. “I don’t see a reference to split-second arrests” in the court’s holding in that case. Though that exact phrase can be found on page 1724 of the Nieves opinion.[3] Instead, Alito stressed, the court held that because there was probable cause for the arrest in that case, there was no grounds for a retaliatory arrest claim.
Justice Sonia Sotomayor echoed Alito’s skepticism. She acknowledged to Bidwell that she had
“[D]issented in Nieves, so on a clean slate I would likely agree with [Gonzalez], but what do I do,” she asked, “with the line in Nieves that says that [a] ‘plaintiff pressing a retaliatory arrest claim must plead and prove the absence of probable cause for the arrest”?
Chief Justice John Roberts observed that he “didn’t dissent in Nieves.”
The reason people find this funny is because it was Chief Justice Roberts who actually authored the majority opinion in the Nieves case… so of course he didn’t dissent. The Chief goes on to make a point about the narrowness of the Nieves exception.
“And the Court’s opinion in that case went out of its way to emphasize the narrowness of the exception”
To the general rule that a plaintiff in a retaliatory arrest case must show that there was no probable cause for the arrest – suggesting that he too did not regard Nieves as limited to on-the-spot arrests.
Justice Elena Kagan, on the other hand, was more convinced
“That the split-second arrest seems to be a key part of the Court’s reasoning in Nieves – maybe not all of the Court’s reasoning, but some critical part of it.”
However, she questioned whether it might be difficult to draw such a distinction in practice, noting that there would be “a lot of stuff in the middle.”
Bidwell appeared to make more headway with her argument that the court of appeals was wrong to require Gonzalez to show that someone else who had misplaced a government document but had not engaged in protected speech was not arrested. Sotomayor noted that Edward Trevino, the mayor, had also violated the government-records law “by taking the petition home and keeping it overnight.” “Why wouldn’t that,” she asked, “be sufficient evidence that Gonzalez was singled out for arrest?”
I found this point to be incredibly interesting because I think it is by far the strongest evidence the petitioner has in demonstrating retaliatory arrest. Yet, this fact was mentioned rather nonchalantly in the brief Gonzalez filed and she failed to even mention it during her opening arguments. In fact, they didn’t bring it up at all until asked about it, at which point she gives an answer that does absolutely nothing to convey the strength of that evidence, despite the fact Justice Sotomayor softballs a question to her practically inviting her to make that very point when she says: Why wouldn't that be sufficient comparative evidence that someone else took this by mistake for overnight and kept it?
I struggle to understand why Gonzalez would not have pressed this point with a stronger answer along the lines of “We agree. We believe that evidence in and of itself is sufficient comparative evidence to demonstrate retaliatory arrest, and the fifth circuit’s ruling is wrong… not, as Anya said, “problematic” but flat out wrong.
I Realize this point may sound like a trivial matter, after all, what reasonable person would fail to infer that problematic is virtually interchangeable with wrong. And in conversational English that’s a logical conclusion anyone could reach a priori. However, in legalese its not uncommon for judges to simply not consider any postulation they are not expressly asked to take judicial notice of.
If you have read my article or watched my video on
The Constitutional Revolution of 1937 you may recall that during the New Deal Court, there had been a great effort by the Roosevelt Administration to get the Court to overturn Adkins v. Children's Hospital, 261 U.S. 525 (1923). A case which prohibited the creation of a federal minimum wage law for women on the grounds that it violated the liberty of contract, protected under the 14th Amendment’s due process clause.
In 1936, the New Dealers would attempt, but fail to get around Adkins in Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936). The New Dealers lost in a slim 5-4 vote that upheld Adkins.
According to the Morehead holding:
“The Act, as construed by the state court, is in conflict with the due process clause of the Fourteenth Amendment. Adkins v. Children's Hospital, 261 U.S. 525. P. 609 et seq. 3.”
~Morehead v. N.Y. ex Rel. Tipaldo, 298 U.S. 587, (1936)
One year later, they would attempt and succeed to get the Court to uphold a state minimum wage law for women in West Coast Hotel v Parrish. Despite there being no change in the Justices on the Supreme Court between Morehead and Parrish. Yet in Parrish, the Court would uphold the minimum wage law for women:
…[Because] “The State has a special interest in protecting women against employment contracts”
West Coast Hotel Co. v. Parrish, 300 U.S. 379, (1937)
In Parrish, we saw the Court divide along the same lines for the same reasons as with Morehead and Tipaldo, except for Justice Owen Roberts, the only one to contradict his own vote in Morehead.
There were some wild conspiracy theories that were adopted back then to explain this switch, many of which still continue to be believed today. However the logic behind this was there all along. In Morehead, a concurring opinion was penned by Justice Roberts where he addressed his reason for not overturning Adkins:
“This Court, in certiorari cases, confines itself to the ground upon which the writ was asked for and granted.”
Morehead v. N.Y. ex Rel. Tipaldo, 298 U.S. 587, 604 (1936)
After the Parrish decision, when asked about his swing vote from one year to the next, his answer was perfectly mundane and reasonable. The petitioners in Morehead never asked the Court to overturn Adkins. The Court can only address questions that are properly raised to allow them to take judicial notice of them.
This is the reason people file amicus briefs today. Because the Court’s decisions have such wide consequences, amicus briefs allow people or groups who are not a party to the case, but could reasonably be effected by its outcome submit briefs to make points not made by the parties to the case, specifically so the Court can take judicial notice of them.
This is why I think Ms. Bidwell’s response to this question is insufficient to a problematic degree. Because, if she never says, we believe this was wrong, judicial restraint is reason enough to gloss over that argument entirely, even if they were inclined to agree with that point.
Justice Amy Coney Barrett pressed Bidwell on the limits of her rule. What if Gonzalez had the same kind of “long-running disputes,” but she was arrested for a “more substantial” crime? Bidwell maintained that her position would still be the same?
“It’s not an offense-by-offense standard, it’s a standard of what did she do … versus what kind of evidence she can provide and whether probable cause, given that context, tends to show that the arrest would not have happened had it not been for speech.”
Representing the United States, Assistant to the U.S. Solicitor General Nicole Reaves told the justices that they should resolve the case by holding that the court of appeals applied the wrong standard when it “effectively” required Gonzalez to “show direct evidence of comparators or empirical statistics” to satisfy the Nieves exception.
When asked by Justice Clarence Thomas to explain what kind of evidence plaintiffs could use to show that they had been singled out, Reaves posited that it could
“[B]e a variety of different types of evidence in different situations [but] the ultimate inference the evidence needs to support is that there would have been similarly situated people who were not, in fact, arrested.”
Roberts remained skeptical, returning to the court’s characterization of the Nieves exception “as a narrow one.” The federal government’s
“[L]ong list of the type of evidence that should come in to defeat the retaliation claim seems to me to be inconsistent with the notion of a very strong general rule that had been well-established and a very narrow exception.”
Other justices appeared more swayed by Gonzalez’s argument and highly skeptical of the government’s arguments. Justice Neil Gorsuch observed that there were “over 300,000 federal crimes,” Not to mention the innumerable state and local crimes. He asked about how can the government deny a claim such as Ms. Gonzalez could not be actionable, Given those laws can sit there, entirely unused, except for one person who alleges that they were the only person in America who’s ever been prosecuted under that law because they dared express a view protected by the First Amendment.
Justice Kagan would back up this argument being made by Justice Gorsuch when she expressed to Ms. Blatt that when the court of appeals had understood Nieves to say you have to show a person within this jurisdiction who has engaged in this conduct before and was not arrested, that that has got to be wrong. Kagan would say
“[Y]ou should be able to express your point that they’ve never charged somebody with this kind of crime before and therefore, I don’t have to go find a person who has engaged in the same conduct.”
Because that obviously negates the fact this clearly appears to be a targeted weaponization of the law.
Justice Ketanji Brown Jackson pressed Blatt on this point as well when asking her “So for you, it’s not enough to say no one has ever been arrested for doing this kind of thing before?” Blatt continued to insist that it was not.
Justice Barrett also seemed unconvinced by Blatt’s argument that a ruling in Gonzalez’s favor would open the floodgates for anyone who was arrested to bring a retaliatory arrest claim.
In her rebuttal, Anya Bidwell urged the justices to look at the interaction between the two issues before the court. If Nieves only covers on-the-spot arrests, she suggests, then the narrower view of the kind of evidence that will satisfy its exception makes sense because plaintiffs are more likely to be able to show that someone else who was engaged in the same conduct was not arrested. But if Nieves applies more broadly, she continued, then the exemption should consider broader kinds of evidence.
We’ll know by summer whether a majority of the justices agree. Most of the justices seem to be sympathetic to this idea that while on the spot decision-making by police officers should be protected it is a different type of a situation when you have a two month investigation when defendants are not arresting officers but desk bound bureaucrats who spent two months looking into this one incident. And despite no new evidence developing during those two months, circumvented the district attorney when they walked a warrant directly to a judge under a procedure reserved for violent criminals when standard practice for this type of minor charge is almost exclusively handled with a summons—all to teach this women on the city council a lesson about what happens when you interfere with their boys club.
Stepping back and looking at these oral arguments from a macroscopic view there seemed to be two distinct lines of arguments that the justices were interested in exploring. The first of these dealt with objective evidence. What kind of objective evidence should be allowed to overcome the presence of probable cause?
For example two regular police officers looked into the complaint filed by the Mayor about Ms. Gonzalez and concluded there wasn’t anything about this incident that would warrant arresting her. Plus a prosecutor looked into these charges and decided there was nothing there to pursue. Then they did an end run around that prosecutor by hiring their own “special investigator” who had the law enforcement powers of a cop and the prosecutorial power of a district attorney—who walked a warrant to the judge to ensure that she wasn’t simply issued a summons.
They also manipulated the process in such a way as to ensure she would actually have to be booked into jail. Even if arrest has been warranted, they could have done so through the Satellite system, which would have allowed her to be brought in, formally booked, finger-printed then released with a court date. Instead they used this procedure that is meant for people being charged with a violent felony or if there was some kind of emergency regarding the issuance of that warrant that required immediate attention. There’s no way to argue that a situation that occurred two months earlier suddenly required immediate attention, that is preposterous.
Ultimately following that line of reasoning, regarding objective evidence, to the final decision would entail deciding if the Court should only be able to look at positive evidence to such a degree of specificity that anything short of identical examples of city council members who accidentally moved a government petition, but who was never publicly critical of the mayor and the city manager, were subsequently never charged with tampering under §37.10(a)(3).
This “objective evidence” line of reasoning seemed to be the position Justices Kagan, Barrett and Jackson were especially interested in and sympathetic towards.
On the other hand the other line of reasoning that some of the other Justices seemed especially interested in exploring was the application of common law to the matter. This had to do with the common law remedies that existed at the time the statute Sylvia Gonzalez is seeking relief under came into existence. So at the time 42 USC §1983, came into existence as part of The Enforcement Act of 1871, which was passed to give teeth to the recently ratified fourteenth amendment’s equal protection clause that protected things like the right to vote, the right to hold public office, to serve on juries and to otherwise able to receive equal protection under the law… and which gave the federal government the power to intervene when States did not act to protect these rights.
At that time there was a cause of action at common law for what is known as “abuse of process”.
Abuse of process is a common law tort that involves the misuse of legal process(es) for an ulterior purpose. Abuse of process is one of several actionable offenses aimed at discouraging bad-faith litigation attempts. Indeed, courts hold the authority to sanction parties for bringing frivolous action [4]
Abuse of process has been described as misusing a "criminal or civil process against another party for a purpose different than the proceeding's intended purposes" and thereby causing the party damages (e.g., arrest, seizure of property, or economic injury).
Gonzalez argued that her case was a perfect example of someone obtaining a warrant for private purposes inconsistent with the exigencies of the writ. That the city was not concerned with a just enforcement of the tampering statute and instead were using it to punish her.
This line of reasoning was one that Justices Gorsuch and Thomas were very keen on exploring. Justice Gorsuch asked the federal solicitor general as well as the respondent’s attorney, Ms. Blatt a number of questions about common law. Justice Thomas would pose questions to all three parties about the relation of common law to this case (which was not surprising, this is a topic Clarence Thomas is especially interested just in general.) While his general interest in common law was to be expected, what was surprising to me was his willingness to resolve this case along those common law lines.
Justice Thomas has always been very skeptical about the notion of first amendment retaliation claims, especially those brought under §1983. Primarily because of the way he reads the phrase “under color of law”, which in his view doesn’t leave room for intentional torts. On the other hand he is, broadly speaking, always interested in exploring common law analogues of causes of actions that did exist at the time a law was enacted, if such an analog does exist.
So, the fact that Anya Bidwell was tuned in enough to those inclinations that Justice Thomas has regarding common law analogs consistent with the text, history and tradition standard—and that she was able to identify a common law cause of action from that time that fit so well with the case before the Court was a brilliant choice on her part and she presented that argument in such a way that Justice Thomas seemed to find compelling.
I am optimistic about the outcome of this case. I believe there are, for sure, at least 6 votes to reverse the Fifth Circuit. Specifically, I think we will see Gorsuch, Thomas, Barrett, Kagan, Sotomayor and Jackson finding in favor of Ms. Gonzalez. At the same time I get the impression that Chief Justice Roberts, as well as Justices Kavanaugh and Alito are likely in favor of affirming the fifth circuit.
Based on the totality of the oral arguments I think the most likely outcome for the Court will be to choose to reverse on the second question presented, without even addressing the first, since the Court prefers to decide merits cases on narrowly tailored grounds. As Chief Justice Roberts would spell out in Dobbs v. Jackson’s Whole Women’s Health
“If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.”
~Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 348 (2022)
(Roberts, C. J., concurring in judgment).
This would mean vacating and remanding the case back to the fifth circuit with instructions to reconsider based on a different framework to answer that second QP, which asked:
Whether the Nieves probable cause rule is limited to individual claims against arresting officers for split-second arrests.
Though the particulars of their judgement in the case and any subsequent instruction they will pass along as part of that judgement are not as easy to predict and we will just have to wait and see how that transpires whenever they hand down this decision in a couple of months.
Cartago Delenda Est
[1] Nieves v. Bartlett, 139 S. Ct. 1715, 1723 (2019)
[2] Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019)
[3] “Officers frequently must make "split-second judgments" when deciding whether to arrest, and the content and manner of a suspect's speech may convey vital information—for example, if he is "ready to cooperate" or rather "present[s] a continuing threat."” Nieves v. Bartlett, 139 S. Ct. 1715, 1724 (2019)
[4][4] https://www.law.cornell.edu/wex/abuse_of_process