Access to Justice

Gonzalez v. Trevino

In Gonzalez v. Trevino, the U.S. Court of Appeals for the Fifth Circuit is considering what threshold requirements individuals must satisfy to bring First Amendment claims against a state or local official for arresting them in retaliation for their speech.


Case Summary

Sylvia Gonzalez, the first Hispanic councilwoman elected in Castle Hill, Texas, alleges that city officials whose policies she criticized secured her arrest on a pretextual misdemeanor charge as part of a plan to intimidate her and silence her political advocacy. Gonzalez sued under 42 U.S.C. § 1983, alleging that these officials arrested her in retaliation for her speech in violation of the First Amendment.

A district court allowed Gonzalez’s case to proceed, but on appeal the defendants argue that her claims are foreclosed by the Supreme Court’s decision in Nieves v. Bartlett (2019). Nieves generally requires plaintiffs with retaliatory arrest claims to show a lack of probable cause for their arrest, but it provides an exception to this requirement where plaintiffs offer evidence that they were arrested “when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” CAC filed an amicus curiae brief urging the Fifth Circuit to affirm that Nieves does not require dismissal of Gonzalez’s suit.

Our brief first explains that Section 1983 was enacted during Reconstruction in part to combat political retaliation by state and local officials, who across the South were refusing to protect citizens with disfavored viewpoints from violent attacks, and were instead targeting such individuals for baseless prosecutions and arrests.

Next, our brief explains that the Nieves decision represents a balance between competing imperatives. To shield police officers from retaliation lawsuits arising out of discretionary arrests made in volatile situations, the Court imposed a general rule requiring plaintiffs to show that there was no probable cause for their arrest. But crucially, the Court recognized that without an exception to this requirement, officers could exploit the arrest power as a means of suppressing speech. The Nieves rule and its exception, we argue, must be applied sensibly in light of the competing values they seek to reconcile and the balance the Court sought to achieve.

Finally, our brief argues that Gonzalez has made the threshold showing required by Nieves, having provided objective evidence that the misdemeanor with which she was charged has never been used to arrest someone for conduct similar to hers. Nieves therefore does not foreclose her suit.

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