Gonzalez v. Trevino

Sylvia Gonzalez, a seventy-two-year-old grandmother, successfully ran for the Castle Hills, Texas city council.  As part of her reformist platform, she promised if elected to spearhead a petition calling for the firing of the city manager, a close ally of the chief of police and the mayor. Ms. Gonzalez was elected as the first Latinx councilwoman in the city’s history.

True to her word to her constituents, Ms. Gonzalez organized a nonbinding citizens’ petition advocating for the removal of the city manager. A resident submitted the petition at a council meeting. After the contentious meeting, while Ms. Gonzalez was gathering her belongings at the council table, the mayor asked her about the location of the petition, which she then found in her binder and handed to the mayor. In retaliation for her promotion of the petition, the mayor, police chief, and an attorney retaliated against her, investigating and ultimately bringing a charge against her for tampering with a government record for allegedly attempting to steal the petition.

Ms. Gonzalez, represented by attorneys at the Institute for Justice, sued for First Amendment retaliation, and the district court denied the defendants’ motion to dismiss, holding that Ms. Gonzalez had plausibly stated her claims and defendants were not entitled to qualified immunity.

When defendants appealed to the United States Court of Appeals for the Fifth Circuit, we supported her, authoring an amicus brief on behalf of MJC, the ACLU and the ACLU of Texas, and the National Police Accountability Project. 

Although those bringing retaliatory arrest claims—like Ms. Gonzalez—ordinarily must plead and prove the absence of probable cause for arrest, in Nieves v. Bartlett the Supreme Court articulated an important exception to that rule: where a plaintiff shows that the law in question is not routinely enforced against others, but was enforced against them, the person can proceed with their retaliatory arrest claim. That was just the case here.

Our amici brief served the critical function of situating the Nieves exception in the broader context of official action against protestors, and those who otherwise oppose government action. We explained that illegal arrest for disfavored speech is a serious and systemic problem, and provided concrete illustrations of this phenomenon. We also argued that the Nieves exception is critical to the viability of meritorious retaliatory arrest claims, because broad regulations make it all too easy to find probable cause to arrest people for disfavored speech.

We await a decision from the U.S. Court of Appeals for the Fifth Circuit.