Gonzalez v. Trevino

WHETHER THE NIEVES PROBABLE CAUSE BAR APPLIES

Gonzalez argues that the Supreme Court should apply the standard from Mt. Healthy City School District Board of Education v. Doyle to evaluate her First Amendment retaliation claim, despite the presence of probable cause for her arrest. Brief for Petitioner, Gonzalez at 22. Gonzalez submits that the Mt. Healthy test, as a burden-shifting test, first requires plaintiffs to show “that protected speech was a motivating factor” in their arrest before defendants get the opportunity to show that they still “would have reached the same decision even in the absence of the protected conduct.” Id. Gonzalez contends that the Court has used this test in a wide range of First Amendment retaliation cases, especially cases where longtime critics of local governments sued municipal officials following their arrests. Id. at 24–25. Gonzalez maintains that the presence of probable cause for a plaintiff’s arrest does not prevent Mt. Healthy from being applied. Id. at 25.

Furthermore, Gonzalez asserts that the Court has only declined to apply the Mt. Healthy test in two scenarios: (1) “retaliatory prosecutions” and (2) "on-the-spot police arrests.” Id. at 26. First, Gonzalez explains that the Court will not sustain a First Amendment retaliation claim against a prosecutor when they have probable cause to bring a charge. Id. That protection, Gonzalez maintains, is due to the legal presumption that prosecutors did their job lawfully. Id. at 25–26. Gonzalez contends those protections do not extend beyond cases where a plaintiff is suing a third party for inducing a prosecutor to press charges with retaliatory intent. Id. Second, Gonzalez outlines the Nieves v. Bartlett exception, which says that a plaintiff cannot sue for retaliation resulting from an arrest supported by probable cause unless “a plaintiff can point to objective evidence that non-critics would not have been arrested for a similar conduct.” Id. at 30. Gonzalez submits that the Court only intended for the probable cause bar announced in Nieves to apply to cases where plaintiffs sue police officers for “on-the-spot arrests.” Id. at 28. Gonzalez argues that this exception is warranted because of the unique duties and rules police officers work under and the difficulty of determining a police officer’s arresting intent in such a short period of time. Id. at 28–29. Therefore, police officers have a rebuttable presumption that they made the arrest due to probable cause. Id. Gonzalez concludes that because her suit does not include the arresting officer and there was a long delay between her conduct and arrest, Nieves does not apply. Id. at 34. Gonzales states that the Court should apply the Mt. Healthy test despite the presence of probable cause for her arrest. Id.

Trevino, et al. counter that the Court should apply the Nieves standard to Gonzalez’s case. Brief for Respondents, Trevino et al. at 19. Trevino asserts that the standard announced in Nieves is generally applicable to “First Amendment retaliatory arrest claims,” not just claims arising out of on-the-spot arrests. Id. Trevino argues that the probable cause bar is even more strongly supported in arrests stemming from warrants because officers are more likely to take their time and ensure they have probable cause when compared to a fast-paced, on-the-spot arrest. Id. at 21. Also, Trevino argues that the judge’s power to deny a warrant request places another check on any retaliatory motive from the requesting officer, while also making it more difficult to discern whether the arrest was ultimately conducted for legitimate or retaliatory reasons. Id. at 21–22. Furthermore, Trevino maintains that Nieves explicitly did not extend Mt. Healthy to cases involving retaliatory arrests. Id. at 26. Trevino adds that under the common law, probable cause was fatal to claims regarding the abuse of the legal system. Id. at 31–32.

Furthermore, Trevino contends that only two types of cases are exempt from the Nieves test: (1) “official municipal policies of retaliation” and (2) “endemic, low-level offenses where police customarily exercise discretion not to arrest.” Id. at 33. First, Trevino states that the Court has allowed an exception to the probable cause bar when a municipality pursues a policy of intimidation against First Amendment protected speech and the plaintiff produces objective evidence that the city pre-planned the retaliation. Id. Trevino argues that Gonzalez’s claim does not meet this standard because she is not suing Castle Hills itself, and she has not pointed to an official policy or practice of retaliation. Id. at 34–35. Second, Trevino asserts that the Court also created an exception for cases involving charges for minor crimes that typically go unenforced and are commonly violated by the public. Id. at 35. Specifically, Trevino points to oft-ignored crimes like jaywalking or littering as possible bases for this exception. Id. Trevino states that the Court has previously ruled that the bar for such “endemic” crimes is very high; for example, disorderly conduct at a music festival with alcohol did not qualify as minor and unenforced. Id. at 36–38. Trevino states that thefts are neither minor nor routinely ignored, so Gonzalez’s arrest does not fit into this exception. Id. at 36. Because Gonzalez’s case does not fit under either of the Court’s two exceptions, Trevino concludes that the Nieves probable cause bar applies and defeats her retaliation claim. Id.

EVIDENCE REQUIRED TO REBUT PROBABLE CAUSE UNDER NIEVES

Gonzalez argues that even if Nieves applies, she can rebut the probable cause presumption by presenting “objective evidence that [she] was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Brief for Petitioner at 35. Gonzalez emphasizes that this burden only requires showing any form of objective evidence. Id. at 36–37. Therefore, Gonzalez concludes that the Fifth Circuit erred in requiring her to produce evidence of another person who had not critiqued the Castle Hills city manager, committed a similar crime to Gonzalez, and subsequently was not arrested. Id. at 36–37. Gonzalez contends that the Fifth Circuit’s requirement of identifying individuals who had experienced the same exact circumstances, would essentially foreclose all retaliatory arrest claims with probable cause. Id. at 37. Gonzalez contends this would be a result the Nieves court never intended, as this standard would create an irrebuttable presumption. Id. A plaintiff would be unable to meet such a standard, Gonalez says, because police usually keep no records of non-arrests. Id. at 38. Gonzalez further claims that even if such evidence existed, plaintiffs could not access it before discovery, and supporting statistical evidence of non-critics would be difficult to find. Id. Gonzalez also points to other objective evidence that could show an arrest is retaliatory: statistical evidence of a novel use of a statute to charge defendants, evidence that shows how often a law is violated but unpunished, or evidence of “rough comparisons” to people who committed somewhat similar acts who went unpunished. Id. at 39. Gonzalez submits that she has produced enough evidence to meet the Nieves exception. Id. at 42. Specifically, Gonzalez emphasizes that the tampering statute has never been charged in this way and that Wright’s affidavit explicitly mentions her speech and criticisms, showing they led to her arrest. Id. at 42–43. Gonzalez further supports this evidence by claiming that there were previously planned efforts to have her removed, and that the defendants deviated from typical procedures in pursuing her arrest. Id. at 43–44. Gonzalez concludes that this evidence is sufficient to show that she was retaliatorily arrested despite probable cause. Id. at 44.

Trevino counters that “even if the Nieves exception applie[s],” Gonzalez has not produced sufficient evidence to meet the standard. Brief for Respondents at 39. Trevino agrees with the Fifth Circuit that Gonzalez needs to show “comparator evidence,” evidence of non-arrested people who engaged in similar conduct but not the same kind of protected speech. Id. Trevino argues that only comparator evidence is sufficient to establish that a plaintiff would not have been arrested regardless of their speech. Id. at 39–40. Trevino says that the Nieves court underscored this point by citing a Supreme Court case, U.S. v. Armstrong, which applies a similar standard to selective prosecution claims. Id. at 41. Trevino maintains that comparator evidence is relatively available; Gonzalez could rely on “anecdotal evidence” of non-speakers engaging in similar conduct and remaining un-arrested. Id. at 42. Trevino contends that Gonzalez’s non-comparator evidence might show the defendants’ motives, but it does not show the arrest’s “cause,” which is the relevant question under Nieves. Id. Trevino concludes that Gonzalez needed to provide some form of comparative evidence to win her retaliatory arrest claim under the Nieves exception. Id. at 39.