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 argued that her claims were 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 explained 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 explained 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 argued, 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 argued 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.

In July 2022, a divided Fifth Circuit panel held that Gonzalez’s claims cannot proceed because they do not fall within the Nieves exception. Taking an extremely narrow view of that exception, the majority held that in order to pursue her claims, Gonzalez needed to supply “evidence of other similarly situated individuals who mishandled a government petition but were not prosecuted.” It is not enough, the court said, to show “that virtually everyone prosecuted under [the law she was charged with breaking] was prosecuted for conduct different from hers.”

This flawed reasoning makes the Nieves exception all but impossible to satisfy, creating a virtually complete barrier to retaliatory arrest claims. It also facilitates abuse. As our brief explained, this reading of Nieves allows government officials “to lodge all sorts of creative and exotic criminal accusations as a pretext to arrest people whose speech they want to suppress.” After all, “the more unprecedented the accusation, the less likely that any documented record will exist of people having engaged in the conduct in question.” For instance, “if city council members have never been criminally charged for anything like moving a citizen petition from one part of the council table to another part,” as Gonzalez was, “then there is unlikely to be any documented record of people taking such actions.” In dissent, Judge Oldham similarly explained that when Nieves is read “fairly and holistically,” it is clear that plaintiffs like Gonzalez need only present “objective evidence of retaliatory animus,” not the type of side-by-side comparative evidence required by the majority.

In September 2022, Gonzalez petitioned the Fifth Circuit to vacate the panel decision and rehear her case en banc. CAC filed an amici brief in support of Gonzalez’s petition, together with the Institute for Constitutional Advocacy and Protection. Our brief explained that the general rule of Nieves, which requires plaintiffs to show a lack of probable cause for their arrest, applies only in cases where plaintiffs sue police officers over warrantless arrests, not in cases like Gonzalez’s. The brief further explained that even where this general rule applies, qualifying for the exception to this general rule does not require the type of comparative evidence that the panel decision wrongly demanded. Because the panel got both points wrong and the issues at stake are critically important, the Fifth Circuit should have reheard the case.

In February 2023, the Fifth Circuit denied en banc rehearing of the case. In dissent, Judge Ho argued that Gonzalez met the Nieves threshold because she showed objective evidence that “county officials decided to arrest her, even though they usually exercise their discretion not to make such arrests.”

In May 2023, Gonzalez petitioned the Supreme Court for a writ of certiorari. CAC and ICAP filed a brief in support of the petition.

The Supreme Court agreed to hear the case, and in December 2023, CAC and ICAP filed a brief in support of Gonzalez at the merits stage.

Our brief again shows that Nieves’s probable-cause rule applies only when police officers are sued over their warrantless arrests, and that the exception to this rule simply requires objective evidence of retaliation. We also show that the Fifth Circuit’s narrow interpretation of the Nieves exception is at odds with the text and history of Section 1983: the court’s ruling undermines the First Amendment right at issue, contradicts the common-law standards in place when Section 1983 was enacted, and facilitates the very type of speech retaliation that Section 1983 was meant to eliminate.