WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Gonzalez v. Trevino, a case in which the Court is considering what threshold requirements individuals must satisfy to bring First Amendment claims against a state or local official for causing their arrest in retaliation for their speech, Constitutional Accountability Center’s Deputy Chief Counsel Brian Frazelle issued the following reaction:

Five years ago, the Supreme Court made police officers less accountable when they use their arrest authority to retaliate against people whose speech the officers dislike. But the Court tried to balance that ruling with an exception that would allow clear cases of retaliation to proceed in court.

The Justices are now assessing the scope of that ruling, in response to an extreme Fifth Circuit decision that essentially forecloses all retaliatory arrest suits and reaches beyond police officers to shield even high-level government officials who engineer warrants to target their political adversaries.

During this morning’s argument, the Justices grappled with difficult line-drawing problems, but there seemed to be little sympathy for the extremity of the Fifth Circuit’s ruling.

If the Justices follow the text and history of the law at issue here—a landmark statute passed after the Civil War that empowers individuals to vindicate their constitutional rights in federal court—they will reverse that flawed ruling.

Among other things, the Supreme Court has increasingly relied on nineteenth-century tort law to construe the law at issue, and as Justice Gorsuch emphasized during argument (echoing points made in our amicus brief), using that method here would ensure that high-level government officials cannot act with impunity when they target their political enemies for arrest.

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Resources:

Case page in Gonzalez v. Trevino: https://www.theusconstitution.org/litigation/gonzalez-v-trevino/

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Constitutional Accountability Center is a nonpartisan think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text, history, and values. Visit CAC’s website at www.theusconstitution.org.

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