When someone claims to have been arrested in retaliation for constitutionally protected speech, what sort of evidence is necessary to make that case? Five years ago in Nieves v. Bartlett, the Supreme Court held that an arrest can violate the First Amendment even if it was based on probable cause, provided the claimant can present “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Today in Gonzalez v. Trevino, the Court said that showing does not require “very specific comparator evidence” indicating that “identifiable people” engaged in very similar conduct but were not arrested.
“This is a great day for the First Amendment and Sylvia Gonzalez, who has courageously fought against retaliatory actions by government officials,” says Anya Bidwell, a senior attorney at the Institute for Justice, which represents Gonzalez, a former Castle Hills, Texas, city council member who says her political opponents engineered her arrest on a trumped-up charge of tampering with a government document. The document in question was a petition that Gonzalez herself had spearheaded, calling for the replacement of City Manager Ryan Rapelye. Gonzalez had run for office on a promise to seek Rapelye’s removal, and she claimed his allies were determined to punish her for that position.
During a May 2019 city council meeting that addressed complaints about Rapelye’s performance, Gonzalez picked up the petition, which had been presented to the council, and placed it in her personal folder. She says she did that accidentally. But Mayor Edward Trevino, Police Chief John Siemens, and Alexander Wright, a “special detective” assigned to investigate Gonzalez, accused her of deliberately removing the document to avoid scrutiny of alleged improprieties in collecting signatures for the petition.
As a result, Gonzalez was briefly jailed and suffered the attendant damage to her reputation. Bexar County District Attorney Joe Gonzales, according to Gonzalez’s Supreme Court petition, “dropped the charges as soon as he learned about them.” Trevino et al. nevertheless achieved what Gonzalez says was their goal all along. “Gonzalez was so hurt by the experience and so embarrassed by the media coverage of her arrest,” the petition says, that “she gave up her council seat and swore off organizing petitions or criticizing her government.”
In July 2022, the U.S. Court of Appeals for the 5th Circuit rejected Gonzalez’s First Amendment claim against Trevino, Siemens, and Wright, saying it was doomed by her failure to cite other cases in which people had not been arrested for conduct like hers. “Were we writing on a blank slate,” Judge Kurt D. Engelhardt wrote in the majority opinion, “we may well agree” that “the Constitution ought to provide a claim here, particularly given that Gonzalez’s arrest was allegedly in response to her exercise of her right to petition.” But “Nieves requires comparative evidence,” he said, “because it required ‘objective evidence’ of ‘otherwise similarly situated individuals’ who engaged in the ‘same’ criminal conduct but were not arrested. The evidence Gonzalez provides here comes up short.”
Hellbound and Down 
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