A Texas grandmother and former city council member who was arrested after criticizing a city manager should be able to sue for retaliation, according to the petitioners in a case in which the Supreme Court heard oral arguments on March 20.

Edward Trevino II, the lead respondent in Gonzalez v. Trevino, is being sued in his official capacity as the mayor of Castle Hills, Texas.

The case deals with qualified immunity, a rule created by the courts that shields government officials from individual liability unless the wrongdoer violated a clearly established right. The case may have ramifications for how government officials can be held accountable in courts of law.

Civil libertarians have become increasingly critical of the qualified immunity legal doctrine in recent years, which they say allows government officials to get away with sometimes egregious wrongdoing. City officials, on the other hand, say that if the appeal succeeds, qualified immunity could be jeopardized as a judicial policy.

The case goes back to 2019, when the petitioner, Sylvia Gonzalez, won an election and became a councilwoman in Castle Hills. She spearheaded a nonbinding petition among citizens demanding that the city manager be ousted for several reasons, among them that he failed to address residents’ concerns, such as fixing the streets.

According to the Institute for Justice (IJ), a public interest law firm representing Ms. Gonzalez, city officials targeted her in a campaign of retaliation.

The city argued that she wasn’t properly sworn in and replaced her on the city council with the candidate she defeated in the election. Later, a judge reinstated Ms. Gonzalez. A group of residents aligned with the mayor sued, claiming that Ms. Gonzalez was incompetent. She prevailed in that lawsuit, too.

But officials “engineered Sylvia’s arrest for misplacing a document in her binder at a council meeting,” which “happened to be the same petition to remove the city manager that Sylvia had championed.”

“City officials argued Sylvia had stolen her own petition from the mayor as she was gathering her papers at the end of a council meeting,” the IJ stated.

State Charges

Ms. Gonzalez was charged under a rarely invoked Texas law that forbids destroying or tampering with government documents.

Federal Judge David Alan Ezra said, “Instead of issuing a summons for the nonviolent misdemeanor, [the city] obtained a warrant to arrest the 72-year-old, which ensured that she would spend time in jail rather than remaining free and appearing before a judge.”

Ms. Gonzalez spent a day behind bars, and her mugshot appeared in local media reports. The local district attorney soon withdrew the charges, but Ms. Gonzalez assumed the effort to intimidate her would continue and resigned from the city council.

“I didn’t think this could happen in America,” Ms. Gonzalez said after the Supreme Court agreed in October of 2023 to accept her case.

Ms. Gonzalez sued the city, its mayor, and its chief of police. The federal district court sided with her, denying qualified immunity to the officials, but the U.S. Court of Appeals for the Fifth Circuit reversed the decision. The appeals court found that she couldn’t bring a First Amendment claim because the officials demonstrated probable cause sufficient to justify arresting her.

The Fifth Circuit invoked Nieves v. Bartlett, a 2019 Supreme Court ruling that held that when a plaintiff argues retaliatory arrest for constitutionally protected speech, that plaintiff must show that the authorities lacked probable cause to justify arrest. But the court made an exception for cases in which the plaintiff could demonstrate that he or she was arrested while others who didn’t engage in protected speech hadn’t been.

The circuit court found in Ms. Gonzalez’s case that the evidence she presented was insufficient to qualify for the Nieves carve-out. That court found that she needed to produce examples of people who “mishandled a government petition but were not prosecuted under” the Texas law.

Critical Justices

During oral arguments on March 20, several justices seemed to think that Ms. Gonzalez should be allowed to sue.

Justice Elena Kagan told Trevino attorney Lisa Blatt, “The point of Nieves was, if you have solid objective evidence that you’re in a world in which you were arrested for something that somebody who hadn’t engaged in your speech activities would not be arrested for, that you should be able to present that evidence to get over the probable cause bar.”

Ms. Blatt replied that there was “absolutely nothing in the complaint that suggests” that the police “had any reason to even know who this woman was or her speech.”

Justice Neil Gorsuch said Ms. Blatt was “fighting the facts.”

Justice Kagan concurred with her colleague and said a minute later, “It’s obvious on its face that this is treating Ms. Gonzalez differently.”

Justice Kagan noted that there was “pretty clear, objective evidence” that “Ms. Gonzalez was picked on because she was doing what the First Amendment allows her to do.”

Ms. Blatt said, “What scares me representing police officers … [is that they] are trying to work to get the community to trust them and do their job, and don’t … have [to face] … smear campaigns every time they’re sued.”

Justice Gorsuch suggested that the failure to prosecute other people could be evidence that the authorities had a retaliatory motive.

He told the lawyer that there are many statutes on the books that “are hardly ever enforced.”

“Last I read, there were over 300,000 federal crimes counting statutes and regulations. I can’t imagine how many there are at the state and local level,” Justice Gorsuch said.

“And you’re saying they can all sit there unused, except for one person who alleges that ‘I was the only person in America who’s ever been prosecuted for this because … I dared express a view protected by the First Amendment,’ and that’s not actionable?

“I have to turn a blind eye to that?”

Ms. Gonzalez’s lawyer, IJ attorney Anya Bidwell, argued that individuals should be able to sue regardless of probable cause under the First Amendment for retaliatory arrests not arising from on-the-spot decisions by police officers.

Justice Brett Kavanaugh suggested to Ms. Bidwell that the police did have cause to act against her client.

“If you intentionally stole a government document at a government proceeding—that’s not nothing,” the justice said.

Justice Samuel Alito seemed to say that Ms. Bidwell’s argument that the Nieves precedent didn’t apply to the case might be aimed at undermining the qualified immunity doctrine.

“Are you making this argument because you have bigger fish to fry or because you think this is the argument that’s most likely to succeed in this case and serve the interests of your client?” the justice said.

Ms. Bidwell replied, “We’re making this argument because Ms. Gonzalez’s case clearly is not the kind of case that the court was concerned with in Nieves.”

The lawyer later noted, “Political retaliation is dangerous.

“The First Amendment has to mean something. Mayors should not be allowed to launder animus through warrants.”

The Supreme Court is expected to rule in Gonzalez v. Trevino by the end of June.

This article by Matthew Vadum appeared March 20, 2024, in The Epoch Times. It was updated March 21, 2024.