What happened to Sylvia? 

The petitioner in the case is Sylvia Gonzalez, a 76-year-old grandmother from Castle Hills, Texas.  Sylvia ran for the local city council on a non-partisan platform of fixing potholes and the like. She and many of her constituents believed that the mayor and city manager were ignoring their frustrations with the city. The mayor and other allies of the city manager didn’t take kindly to the criticism and concocted a plan to punish Sylvia for falling out of line. 

At Sylvia’s first council meeting, a resident submitted a petition that Sylvia had spearheaded to the city council, calling for the replacement of the city manager. The petition was submitted to the council via the mayor, during a contentious, two-day council meeting. When the meeting ended, Sylvia—who sat next to the mayor—gathered up her papers from the table and placed them in a binder. In doing so, she accidentally gathered up the petition along with them, an error that was discovered and corrected within minutes. The petition never even left the city council table.

Two months later, for having temporarily mislaid the petition, the mayor and police chief used bogus novel charges filed by a friend and local attorney dubbed a “special detective” under a broadly written law to have Sylvia arrested, booked, and thrown in jail—even though she had done nothing wrong. 

Sylvia had her mug shot taken and spent a day in a jail cell. But when the prosecutor found out what happened, the charges were dropped. Nevertheless, the damage was done. As part of a larger retaliatory campaign, the mayor and his allies dragged Sylvia’s reputation through the mud, silenced her speech, and sent a message to any other resident of Castle Hills who might dare speak against them. Sylvia eventually resigned.

What was she charged with?

Sylvia was arrested for “destroy[ing], conceal[ing], remov[ing], or otherwise impair[ing] the verity, legibility, or availability of a governmental record.” The mayor and his allies alleged that Sylvia’s temporary possession of her own petition fell within the broad reach of the statute. But an analysis of county criminal records showed that no one in the ten years prior to Sylvia’s arrest had been charged with that crime for doing something similar to what the mayor and his allies alleged against Sylvia. Still, they secured a warrant for Sylvia’s arrest, and, though she had never so much as received a speeding ticket in her life, the then-72-year-old was booked into jail, where she was forced to wear an orange jail shirt and sit tightly handcuffed on a cold metal bench.

What led the case to the Supreme Court?

In 2020, with help from the Institute for Justice, Sylvia filed a federal lawsuit against the officials who manufactured her arrest. In addition to the county data, Sylvia amply alleged facts showing that her arrest was retaliatory. For instance:

• That the mayor and police chief assigned a friend and local lawyer as a “special detective” to investigate Sylvia after two regular police officers had already looked into the situation and declined to charge her with a crime. 
• That the special detective went around the local prosecutor, who later dismissed the charges.
• That the special detective deviated from the normal process by seeking an arrest warrant and ensuring that Sylvia would be jailed.
• That the special detective’s affidavit supporting the warrant specifically identified Sylvia’s speech critical of the city manager.
• And that another ally of the mayor published an article in the city newsletter outlining how a city council member could be removed from office if convicted of a crime.

The mayor and his allies, in turn, filed a motion to dismiss claiming they were entitled to qualified immunity. Qualified immunity shields government officials from being held accountable in court for purely technical reasons—i.e., not because they did not violate an individual’s constitutional rights. While qualified immunity is usually a difficult hurdle to overcome, the district court denied the protection to the mayor and his allies, writing: 

The Court finds that, viewing the facts in the light most favorable to Plaintiff, the Individual Defendants violated Plaintiff’s constitutional rights. Plaintiff alleges that she was arrested because she organized a nonbinding citizens’ petition, not because she attempted to steal her own petition. She claims that the Individual Defendants acted with a retaliatory motive by alleging that they took several actions to attempt to take away her council seat. … 

These allegations support the existence of a retaliatory motive and causation. As described above, even if there were probable cause to arrest Plaintiff for the misdemeanor, the exception in Nievesapplies here because she has pled the existence of objective evidence that she was arrested when “otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” 

What is Nieves, and what is its exception?

Nieves v. Bartlett is a 2019 Supreme Court case. There, Russell Bartlett was arrested by Alaska state troopers Luis Nieves and Bryce Weight for disorderly conduct. He sued, claiming among other things, retaliatory arrest. The Supreme Court held that, if an officer has “probable cause” to arrest someone, retaliatory motive is irrelevant. A First Amendment claim is not available at all.

But the Court created an exception: 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,” the presence of probable cause is not a bar. Sylvia’s lawsuit argued that the city officials “charged Sylvia under a statute that has never before or since been used to arrest individuals similarly situated to Sylvia.”

The exception is sometimes called the “jaywalking exception,” because the court offered this analogy in its reasoning:

For example, at many intersections, jaywalking is endemic but rarely results in arrest. If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual’s retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest. In such a case, because probable cause does little to prove or disprove the causal connection between animus and injury … 

For those reasons, we conclude 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.

What happened when the city officials appealed?  

The mayor and his allies appealed the district court’s denial of immunity to the Fifth Circuit Court of Appeals, which reversed over a blistering dissent from Judge Oldham. The Fifth Circuit held:

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. 

Author Name

In effect, the Fifth Circuit held that in order to defeat the city officials’ motion to dismiss her lawsuit, Sylvia needed to supply specific evidence of another Castle Hills City Council member misplacing a citizens’ petition, not criticizing the city manager, and being permitted to walk free. Only that impossible evidence could prove that Sylvia’s arrest was retaliatory. Nothing less.

Sylvia petitioned the Supreme Court to hear her case, and the Court agreed this fall.

What is probable cause, and what is a warrant?

Probable cause is a legal standard that allows police to arrest a person if they have a reasonable basis to believe that the person has committed a crime. Probable cause does not require absolute certainty, proof beyond a reasonable doubt, or a preponderance of evidence that a crime has been committed, but it must be more than a mere suspicion or hunch. Still, probable cause is a very low bar, and innocent behavior frequently provides a basis for a finding of probable cause, which, in turn, is sufficient to permit an arrest under the Fourth Amendment.

In all 50 states, a police officer can make an arrest if they witness probable cause for a misdemeanor. But if he does not observe the actions generating probable cause, a police officer must first get a warrant from a judge before making an arrest. To do so, he submits a document swearing out the version of facts he believes support probable cause. Often, this process involves input from a local prosecutor. Then a judge reviews the one-sided statement and decides whether probable cause exists on those facts. If so, a judge can issue the warrant and its subject can be arrested.

In this case, the special detective did just that. But outside of the normal process, he went around the local prosecutor and walked his request for a warrant directly to the judge—a procedure normally reserved for dangerous or fleeing suspects in emergency situations. 

Because the warrant process revolves around an independent judge approving the existence of probable cause, courts typically treat a warrant as conclusive on that issue. But Sylvia did not challenge the existence of probable cause—which, again, is a very low bar—so the judicial approval of probable cause in this case says nothing about whether the mayor and his allies sought the warrant and used it for abusive purposes. Simply put, in issuing the warrant, the judge in no way considered whether it was intended to stifle Sylvia’s speech, punish her, or send a message to other local critics. The evidence Sylvia has put forward indicates that it was.

What questions are before the Supreme Court?

Although this case arises from a qualified immunity appeal, the issue of qualified immunity is not directly before the Supreme Court. Rather, the Court will decide whether and, if so, how a victim of retaliatory arrest can bring or prove a First Amendment claim and hold government officials accountable for their misconduct. 

Specifically, the Supreme Court will consider two questions:

1. “Whether the Nieves probable cause exception can be satisfied by objective evidence other than specific examples of arrests that never happened.”
   
   Sylvia argues that she “meets [Nieves’] criteria for overcoming the existence of probable cause. Nieves requires only that plaintiffs point to ‘objective evidence’ that they were treated differently from non-critics, which is exactly what Sylvia did here. Limiting the objective evidence to specific instances of non-arrests under the same statute, as the Fifth Circuit’s ruling does, imposes artificial rigidity to this very important carve-out, making it impossible to satisfy.” 
   
2. “Whether the Nieves probable cause rule is limited to individual claims against arresting officers for split-second arrests.”
   
   Sylvia’s case, which was filed against the city officials and not any arresting officer, argues that Nievesis limited to police officers forced to make time-pressured, on-the-spot decisions to arrest someone. In her case, the city officials considered her case for two months before making an arrest. She argues that the Fifth Circuit “erred in applying Nieves … to ‘deliberative, intentional, and premeditated conspiracies to punish people for protected First Amendment activity,’” because the Nieves no-probable-cause rule shields only arresting officers reacting to potential crimes unfolding before them and making on-the-spot decisions to arrest. 

What is at stake for Sylvia and other everyday Americans?

If Sylvia wins, then her lawsuit will return to the district court to proceed through discovery and potentially a trial. She’ll be given her “day in court,” an opportunity to be heard, and her evidence weighed (against whatever the mayor and his allies can provide on the other side). If she loses, her claims against the mayor and his allies will be dismissed.

More broadly, Sylvia’s case will determine whether local bureaucrats can easily punish their critics with retaliatory arrests. Today, state and federal criminal law books overflow with hundreds of thousands of potential crimes. If all that’s needed to punish a government critic is probable cause from any one of those innumerable offenses, the First Amendment will be greatly diminished. A mere pretextual crime will be all that’s needed. Fundamentally, Sylvia’s case answers a fundamental question that many in America take for granted: Can a person be arrested for criticizing the government?