SCOTUS Clarifies Standard for Retaliatory Arrest Claims

In Gonzalez v. Trevino, 602 U.S. ___ (2024), the U.S. Supreme Court held that plaintiffs are not required to produce specific comparator evidence to demonstrate that they fall within the Nieves exception in retaliatory arrest cases.

In Nieves v. Bartlett, 587 U.S. 391(2019), the Court established the general rule that a plaintiff bringing a retaliatory-arrest claim “must plead and prove the absence of probable cause for the arrest.” At the same time, it also recognized a narrow exception to that rule, under which the existence of probable cause does not defeat a plaintiff ’s claim if he produces “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”

Facts of the Case

In 2019, Sylvia Gonzalez ran for a seat on the city council of Castle Hills, a small town in southern Texas. While she was on the campaign trail, Gonzalez heard multiple complaints about the city manager, Ryan Rapelye. Following her election, Gonzalez helped gather signatures for a petition seeking Rapelye’s removal. The petition was introduced at the next city council meeting, where discussions grew heated.

When Gonzalez was packing up her belongings at the meeting, the mayor, Edward Trevino, II, asked her for the petition. Gonzalez indicated that the petition was in Trevino’s possession, which he denied. He then asked Gonzalez to check her binder, where she found the petition. Gonzalez claims that she “did not intentionally put the petition in her binder,” and that she was “surprise[d]” to find it there.

Trevino brought this incident to the city police’s attention, and an investigation into these events soon began. A private attorney tasked with leading the investigation concluded that Gonzalez had likely violated a Texas anti-tampering statute that, among other things, prohibits a person from intentionally “remov[ing] ... a governmental record” and sought her arrest. While the district attorney ultimately dismissed the charges, Gonzalez claims that this episode has convinced her to step away from political life.

Gonzalez brought suit under 42 U.S.C. §1983 against Trevino along with the police chief and the private attorney in their individual capacities. She alleged that she was arrested in retaliation for her role in organizing the petition for Rapelye’s removal and that the defendants therefore violated her First Amendment rights. To bolster her claim, Gonzalez alleged that the Texas anti-tampering statute had never been used in the county “to criminally charge someone for trying to steal a nonbinding or expressive document” and pointed to this research as evidence that the defendants had engaged in a political vendetta by bringing a “sham charge” against her.

The defendants moved to dismiss the complaint, arguing that the presence of probable cause defeated Gonzalez’s retaliatory-arrest claims. The District Court denied the defendants’ motion. Although Gonzalez conceded that probable cause supported her arrest, the court allowed her claim to advance after finding that it fell within an exception to the no-probable-cause rule recognized inNieves.The Fifth Circuit reversed, concluding that a plaintiff’s claim could fall within theNievesexception only if the plaintiff proffered “comparative evidence” of “otherwise similarly situated individuals who engaged in the same criminal conduct but were not arrested.” Gonzalez’s claim failed because she did not provide such evidence.

Supreme Court’s Decision

The Supreme Court vacated the lower court judgment. In its per curium opinion, the Court rejected the Fifth Circuit rule that plaintiffs must use specific comparator evidence to demonstrate that they fall within the Nieves exception. As the Court explained:

We agree with Gonzalez that the Fifth Circuit took an overly cramped view of Nieves. That court thought Gonzalez had to provide very specific comparator evidence—that is, examples of identifiable people who “mishandled a government petition” in the same way Gonzalez did but were not arrested. Although the Nieves exception is slim, the demand for virtually identical and identifiable comparators goes too far.

According to the justices, to fall within the exception, a plaintiff must produce evidence to prove that his arrest occurred circumstances where officers have probable cause to make arrests, but typically don’t. The only express limit the Court placed on the sort of evidence a plaintiff may present for that purpose is that it must be objective in order to avoid “the significant problems that would arise from reviewing police conduct under a purely subjective standard.”

In this case, the Court found that Gonzalez’s survey is a permissible type of evidence because the fact that no one has ever been arrested for engaging in a certain kind of conduct—especially when the criminal prohibition is longstanding and the conduct at issue is not novel—makes it more likely that an officer has declined to arrest someone for engaging in such conduct in the past.

The Court remanded the case back to the lower courts to assess whether Gonzalez’s evidence suffices to satisfy the Nieves exception.