In Gozalez v. Trevino, published June 20, 2024, a divided per curiam opinion, the U.S. Supreme Court reversed a circuit court decision holding a 1st Amendment retaliatory arrest claim should be dismissed because there was probable cause for the arrest. The plaintiff, a city council member, helped gather signatures for a petition seeking removal of the city manager. The petition was introduced at a council meeting. Discussion over the petition continued into a second day. At the end of the second day, the plaintiff was packing up her belongings when the mayor asked her for the petition. She denied having it. The mayor asked her to check her binder, where she found the petition. She denies having placed it there. The mayor brought the incident to the city police's attention. A private attorney tasked with leading an investigation concluded the city council member had likely violated a state anti-tampering statute that barred intentionally removing a governmental record. On the attorney's request, a magistrate granted a warrant for the councilmember's arrest. The councilmember turned herself in and spent an evening in jail. The district attorney ultimately dismissed the charges. The plaintiff sued the mayor, police chief, and private attorney under 42 U.S.C. section 1983, alleging she was arrested in retaliation for her role in organizing the petition, in violation of her 1st Amendment rights. To bolster her claim, she alleged she had reviewed the past decade's misdemeanor and felony data for the county, and found that the statute had never been used in the county to criminally charge someone for trying to steal a nonbinding or expressive document. The defendants moved to dismiss the complaint. The district court denied the motion after finding it fell within the exception to the no-probable-cause rule under Nieves v. Bartlett (2019) 587 U. S. 391. The circuit court reversed the decision, on the ground that the Nieves exception applied only the plaintiff proffered comparative evidence of otherwise similarly situated individuals who engaged in the same criminal conduct but were not arrested.
The Supreme Court held that the circuit court took an overly cramped view of Nieves. Although the Nieves exception is slim, the demand for virtually identical and identifiable comparators goes too far. To fall within the Nieves exception, a plaintiff must produce evidence to prove that his arrest occurred in circumstances where officers have probable cause to make arrest, but typically exercise their discretion not to do so. The only limit the Supreme Court has placed on the sort of evidence the plaintiff may present for that purpose is that it must be objective. The survey the plaintiff presented here 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 vacated the judgment and remanded the matter to the lower courts to assess whether the plaintiff's evidence satisfies the Nieves standard.
One justice wrote a separate concurrence emphasizing the narrowness of the Nieves exception, that courts must evaluate the Nieves evidence at the appropriate level of generality to avoid expanding the exception, and that the exception does not only apply to split-second arrests. Another justice wrote a concurring opinion that the Nieves exception only applies if the conduct does not usually trigger an arrest under any statute. Two other justices separately concurred, opining that other evidence about anomalous procedures used for her arrest, and statements in the arresting officer's warrant affidavit suggesting a retaliatory motive can support a Nieves exception, disagreeing with another concurrence. Another justice dissented, opining that probable cause should defeat any retaliatory arrest claim.
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