Supreme Court debates whether Texas councilwoman who says her arrest was politically motivated can sue the mayor

By John Fritze, CNN

(CNN) — Several members of the Supreme Court on Wednesday appeared to be searching for a way to allow a retired Texas councilwoman sue the mayor after she was arrested for removing a public document.

But after nearly 90 minutes of oral argument, it wasn’t fully clear how the court would rule in the case, which could have consequences that sweep far wider than the small-city political dispute at the center of the case.

Sylvia Gonzalez was elected to serve on the council of Castle Hills, Texas, but she only made it as far as her second meeting when a police officer tapped her on the shoulder in what she viewed as “a negative way.”

Gonzalez, then 72, would eventually be arrested for stealing a government document at the meeting – a charge that stemmed from what she said was an inadvertent shuffling of papers and what city officials said may have been motivated by a cover-up.

The case presented an important First Amendment question for the Supreme Court: When may people sue government officials for First Amendment retaliation claims – and when are those suits barred by a legal doctrine known as qualified immunity that shields those officials from certain suits?

Normally, a person alleging retaliatory arrest must demonstrate police had not proven probable cause. But there is an exception: Police are not shielded from such lawsuits if officers often exercise discretion not to arrest – say, for petty crimes like jaywalking.

But unlike jaywalking, taking government documents during a city council meeting is a rare occurrence. Gonzalez’s attorneys said there is no way to demonstrate that police had let slide similar infractions involving others – since there were none.

Several members of the Supreme Court – including liberals and conservative Justice Neil Gorsuch – seemed inclined to allow Gonzalez to submit additional evidence she says would document why the arrest was retaliatory. One of the questions is whether a defendant could present evidence that the crime had never been charged before.

“How many statutes on the books these days, many of which are hardly ever enforced,” Gorsuch asked. “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?”

Lisa Blatt, the attorney representing JR Trevino, the mayor of Castle Hills, Texas, quipped that she would try to convince Gorsuch that was the case.

“Good luck,” Gorsuch shot back.

The court’s decision, according to Gonzalez’s attorney, could have startling consequences if it gives city officials more latitude to arrest critics. But Blatt countered that a ruling the other way might allow people charged with crimes to allege their arrest was retaliation in violation of some First Amendment speech.

“I really would advise every criminal to put a political bumper sticker on their car,” Blatt said, prompting laughter in the courtroom.

Gonzalez, who wound up spending a day in jail, ran for the council in part on a promise to organize a campaign against the incumbent city manager, her lawyers say. Soon after being sworn in, she organized a citizens’ petition urging the official’s removal. It was that petition Gonzalez says she mistakenly put in her binder during the meeting.

“I had a clean record. I didn’t even have a parking ticket,” Gonzalez said as she recalled being handcuffed. “I was shocked there was a warrant for my arrest.”

But attorneys for Trevino said Gonzalez did so after residents at the meeting accused her of misleading them about the nature of the petition. One resident accused Gonzalez of urging him to forge his parents’ signatures, according to court records.

Police found probable cause to believe Gonzalez violated the law, Trevino’s lawyers told the Supreme Court, and that she was “apparently motivated by a desire to avoid residents’ accusations that she misleadingly solicited petition signatures.”

Prosecutors ultimately dropped the charges against Gonzalez. She sued in federal court, alleging retaliation in violation of the First Amendment, saying that city officials engineered a plan to arrest her and remove her from office.

A district court denied qualified immunity to the officers, allowing the case to continue, but Gonzalez lost at the 5th US Circuit Court of Appeals, which held that there was probable cause to arrest her and that it “necessarily defeated” her retaliatory arrest claim.

If that standard is embraced by the high court, her attorneys say, it would greenlight government officials to arrest their critics under suspect circumstances.

Trevino’s attorney stressed police obtained a warrant that was reviewed by a judge who “found probable cause based on a warrant application that detailed witness statements and security footage capturing the theft.” But Gonzalez’s attorney countered that what she framed as the mayor’s retaliator efforts heavily influenced that review process.

“Political retaliation is dangerous. The First Amendment has to mean something,” said Anya Bidwell, an attorney at the Institute for Justice who argued on behalf of Gonzalez. “Mayors should not be allowed to launder animus through warrants.”

This story and headline have been updated with additional developments.

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