Gonzalez v. Trevino: Fifth Circuit too narrowly applied “Nieves exception” to bar retaliatory arrest claim
By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender
The Fifth Circuit too narrowly applied the “Nieves exception” to bar a retaliatory-arrest claim where the plaintiff was able to show objective evidence that similarly situated people were not arrested, even though her arrest was supported by probable cause, the U.S. Supreme Court held June 20 in Gonzalez v. Trevino.
In 2019, in Nieves v. Bartlett, the Court held that plaintiffs bringing retaliatory arrest claims generally must plead and prove the absence of probable cause for their arrest.
But Nieves also recognized an exception where the existence of probable cause will not defeat plaintiffs’ claims if they can produce “objective evidence” they were arrested when similarly situated people were not.
Facts
Sylvia Gonzalez was a city council member in Castle Hills, Texas. She circulated an apparently controversial petition seeking to remove the city manager.
The city council held a hearing on the petition. At the end of the hearing, Mayor Edward Trevino asked her for the petition.
Gonzalez said Trevino had it, but he denied it.
Gonzalez then found the petition in her binder. She said she did not intentionally put it there, and she was surprised to find it there.
Trevino contacted police about Gonzalez’s conduct, and soon, a private attorney was appointed to investigate her.
At the private attorney’s request, a magistrate issued an arrest warrant for Gonzalez, charging her under Texas’s anti-tampering statute for removing a government record.
When Gonzalez heard about the arrest warrant, she turned herself in and spent one night in jail.
The district attorney ultimately dismissed the charge.
Gonzalez then sued the mayor, police and private attorney under Section 1983 for retaliatory arrest.
She conceded her arrest was supported by probable cause, but claimed she could proceed under the “Nieves exception.”
She produced evidence that, for decades, the only people charged under the tampering statute were people who made fake identification documents, such as fake social security numbers, driver’s licenses or green cards.
The district court denied the defendants’ motion to dismiss.
But the Fifth Circuit reversed. It ruled a plaintiff’s claim could fall within the “Nieves exception” only if the plaintiff produced evidence of similarly situated people “who engaged in the same criminal conduct but were not arrested.”
Holding
The Supreme Court, in a per curiam opinion, held the Fifth Circuit applied the “Nieves exception” too narrowly.
“We agree with Gonzalez that the Fifth Circuit took an overly cramped view of Nieves”, the Court said. “Although the Nieves exception is slim, the demand for virtually identical and identifiable comparators goes too far.”
To fall within the exception, a plaintiff must produce objective evidence to show situations where police “have probable cause to make arrests, but typically exercise their discretion not to do so”, the Court said.
Objective evidence is required in order to avoid the “significant problems” that would arise from reviewing police conduct under a subjective standard, the Court said.
Gonzalez produced permissible objective evidence, the Court said.
“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 concluded.
The Court vacated the judgment and remanded the case for lower courts to determine if Gonzalez’s evidence satisfies the “Nieves exception.”
Other opinions
Justice Jackson, joined by Justice Sotomayor, concurred, and suggested other types of evidence that could be produced to satisfy the “Nieves exception.”
Objective evidence could “include officers’ employment of an unusual, irregular, or unnecessarily onerous arrest procedure” as well as the “time of and events leading up to a plaintiff’s arrest”, Jackson said.
“[I]f officers falsely document the arrest, or include other indicia of retaliatory motive in arrest-related documents, that too might suggest meaningfully differential treatment”, she said.
Justice Alito concurred, but noted the Court had also granted cert. on whether the general rule that plaintiffs bringing retaliatory arrest claims must plead and prove the absence of probable cause for their arrest applies beyond “split-second arrests.”
Although the Court did not decide that issue, Alito believed “Nieves already answered this question in the affirmative”.
Justice Kavanaugh concurred because the per curiam opinion “does not seem to say anything that is harmful to the law,” but he believed this was not a “Nieves exception” case at all.
The “Nieves exception” is a “conduct-based” exception of whether a person’s conduct does not typically trigger an arrest, Kavanaugh said.
“Gonzalez’s argument turns not on her conduct (taking government records) but rather on her mens rea”, Kavanaugh said. “She essentially argues that an objectively reasonable officer would have known Gonzalez accidently rather than intentionally took the government record.”
But when Gonzalez conceded that police had probable cause, she necessarily conceded she “intentionally” took the document, Kavanaugh said.
“That may have been an unwise concession”, Kavanaugh said. “But it should have foreclosed Gonzalez’s attempt to contest her mens rea for purposes of her Section 1983 retailiatory arrest claim.”
Justice Thomas dissented. He believed a plaintiff should always have to plead and prove lack of probable cause, and that the “Nieves exception” should not be recognized.