Amicus Curiae Brief — Sylvia Gonzalez, Petitioner v. Edward Trevino, II, et al.

No. 22-1025

IN THE

Supreme Court of the United States

SYLVIA GONZALEZ,

Petitioner,

v.

EDWARD TREVINO, II, MAYOR OF CASTLE HILLS,

SUED IN HIS INDIVIDUAL CAPACITY; JOHN SIEMENS,

CHIEF OF THE CASTLE HILLS POLICE DEPARTMENT,

SUED IN HIS INDIVIDUAL CAPACITY; ALEXANDER WRIGHT,

SUED IN HIS INDIVIDUAL CAPACITY,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF THE LAW ENFORCEMENT ACTION

PARTNERSHIP AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

APRATIM VIDYARTHI

GIBSON, DUNN & CRUTCHER LLP

200 Park Ave.

New York City, NY 10166

DAVID DEBOLD

Counsel of Record

JEFF LIU

ANDREW EBRAHEM*

TIMOFEY VELENCHUK

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 955-8500

DDebold@gibsondunn.com

Counsel for Amicus Curiae

* Admitted only in Virginia; practicing under the supervision of

members of the District of Columbia Bar under D.C. App. R. 49.

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ......................................................... 2

ARGUMENT ............................................................... 5

I.

PROBABLE CAUSE DOES NOT BAR FIRST

AMENDMENT CHALLENGES TO PREMEDITATED

RETALIATORY ARRESTS. ......................................... 5

A. The First Amendment Prohibits

Deliberate, Calculated Retaliatory

Arrests Regardless Of Probable Cause. ......... 6

B. Applying Nieves To Calculated

Retaliatory Arrests Leads To Startling

And Unjustified Consequences. ................... 10

C. First Principles Confirm That The Nieves

Rule Does Not Apply To Premeditated

Arrests. ......................................................... 16

II. THE FIFTH CIRCUIT’S RULE WOULD HAVE

SIGNIFICANT NEGATIVE RAMIFICATIONS FOR

LAW ENFORCEMENT AND THE PUBLIC. ................ 22

A. Civil Liability For Plainly Premeditated

Arrests Is A Key Deterrent Against The

Growing Threat Of Retaliatory Arrests. ..... 23

B. Permitting Probable Cause To Bar

Liability For Plainly Retaliatory And

Premeditated Arrests Would Undermine

Trust In The Police And Interfere With

Public Safety. ................................................ 26

ii

C. Failing To Prohibit Premeditated

Retaliatory Arrests Would Chill First

Amendment-Protected Activity. .................. 28

CONCLUSION .......................................................... 30

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Cole v. Carson,

935 F.3d 444 (5th Cir. 2019) .................................. 9

Crawford-El v. Britton,

523 U.S. 574 (1998) ................................................ 7

Crouse v. Town of Moncks Corner,

848 F.3d 576 (4th Cir. 2017) .......................... 26, 27

Docter v. Riedel,

71 N.W. 119 (Wis. 1897) ...................................... 18

Duncan v. Becerra,

970 F.3d 1133 (9th Cir. 2020) .............................. 27

Flores v. State,

367 S.W.3d 697 (Tex. Ct. App. 2012)................... 14

Gallegos v. State,

971 S.W.2d 626 (Tex. Ct. App. 1998)................... 13

Gilbert v. Homar,

520 U.S. 924 (1997) .............................................. 26

Grainger v. Hill,

4 Bing. N.C. 212 (1838) ........................................ 17

Harlow v. Fitzgerald,

457 U.S. 800 (1982) .............................................. 25

Harris v. Pittman,

927 F.3d 266 (4th Cir. 2019) .......................... 25, 27

Hartman v. Moore,

547 U.S. 250 (2006) ............................................ 6, 7

iv

Hoggard v. Rhodes,

141 S. Ct. 2421 (2021) ............................................ 9

Lacey v. Maricopa County,

693 F.3d 896 (9th Cir. 2012) ................................ 29

Lozman v. City of Riviera Beach,

138 S. Ct. 1945 (2018) ............................ 3, 8, 10, 27

Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy,

141 S. Ct. 2038 (2021) .......................................... 24

Mayer v. Walter,

64 Pa. 283 (1870) .................................................. 18

N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) .............................................. 25

Nieves v. Bartlett,

139 S. Ct. 1715 (2019) ................... 2, 3, 4, 6, 7, 8, 9,

10, 16, 17, 19, 24

Novak v. City of Parma,

932 F.3d 421 (6th Cir. 2019) .................................. 4

Pearson v. Callahan,

555 U.S. 223 (2009) .............................................. 25

Perry v. Sindermann,

408 U.S. 593 (1972) .............................................. 29

Phoenix Mut. Life Ins. Co. v. Arbuckle,

52 Ill. App. 33 (1893)............................................ 16

Pierson v. Ray,

386 U.S. 547 (1967) .............................................. 19

Plumhoff v. Rickard,

572 U.S. 765 (2014) ................................................ 9

Reichle v. Howards,

566 U.S. 658 (2012) ................................................ 7

v

Reynolds v. City of Chicago,

296 F.3d 524 (7th Cir. 2002) ................................ 27

Rodriguez v. State,

2018 WL 4225018 (Tex. Ct. App.

Sept. 6, 2018) ........................................................ 13

Rogers v. Brewster,

5 Johns. 125 (N.Y. Sup. Ct. 1809) ....................... 18

Samantar v. Yousuf,

560 U.S. 305 (2010) .............................................. 20

St. Louis, Iron Mountain & S. Ry. Co. v. Taylor,

210 U.S. 281 (1908) .............................................. 20

State v. Drummond,

501 S.W.3d 78 (Tex. Crim. App. 2016) ................ 13

Stromberg v. California,

283 U.S. 359 (1931) .............................................. 29

Tenney v. Brandhove,

341 U.S. 367 (1951) .............................................. 19

U.S. Nat’l Bank of Or. v.

Indep. Ins. Agents of Am., Inc.,

508 U.S. 439 (1993) .............................................. 22

Wearry v. Foster,

52 F.4th 258 (5th Cir. 2022) .............................. 8, 9

Wheaton v. Peters,

33 U.S. (8 Pet.) 591 (1834) ................................... 20

White v. Cotzhausen,

129 U.S. 329 (1889) .............................................. 20

Wilkie v. Robbins,

551 U.S. 537 (2007) ................................................ 5

vi

Wolf v. Colorado,

338 U.S. 25 (1949) ................................................ 17

Statute

Civil Rights Act of 1871, ch. 22, 17 Stat. 13 ............. 21

Regulation

37 Tex. Admin. Code § 1.113..................................... 12

Other Authorities

Abene Clayton, Distrust of Police Is Major

Driver of U.S. Gun Violence, Report

Warns, Guardian (Jan. 21, 2020),

bit.ly/41CFwAV .................................................... 28

Alexander A. Reinert, Qualified Immunity’s

Flawed Foundation,

111 Calif. L. Rev. 201 (2023) ................... 19, 20, 22

Am. Bar Ass’n, Criminal Justice Standards:

Prosecution Function (4th ed. 2017),

bit.ly/3oE0UqZ ..................................................... 14

Amanda D’Souza et al., Federal

Investigations of Police Misconduct:

A Multi-City Comparison,

71 Crime, L., & Soc. Change 461 (2019) ............. 23

Andrew Goldsmith, Police Reform and the

Problem of Trust,

9 Theoretical Criminology 443 (2005) ................. 28

Anthony A. Braga et al., Nat’l Inst. of Just.,

Moving the Work of Criminal

Investigators Towards Crime Control

(2011), bit.ly/3NmwP9w ...................................... 11

Antonin Scalia & Bryan A. Garner,

Reading Law (2012) ............................................. 19

vii

Caleb Nelson, What Is Textualism?,

91 Va. L. Rev. 347 (2005) ..................................... 21

David S. Kirk et. al., The Paradox of Law

Enforcement in Immigrant Communities:

Does Tough Immigration Enforcement

Undermine Public Safety?,

641 Annals of Am. Acad. of Pol. & Soc.

Sci. 79 (2012) ........................................................ 28

Ellen S. Podgor, The Dichotomy Between

Overcriminalization and

Underregulation,

70 Am. Univ. L. Rev. 1061 (2021) ....................... 24

GianCarlo Canaparo et al., Heritage Found.,

Count the Code: Quantifying

Federalization of Criminal Statutes

(2022), bit.ly/3Lcpve2 ........................................... 23

James R. Copland & Rafael A. Mangual,

Manhattan Inst., Overcriminalizing

America (2018), bit.ly/41CLNfT .......................... 23

Jeffrey M. Jones, Gallup, In U.S., Black

Confidence in Police Recovers from 2020

Low (July 14, 2021), bit.ly/3V9qb8H ................... 26

Joanna C. Schwartz, After Qualified

Immunity, 120 Colum. L. Rev. 309 (2020) .......... 25

Joanna C. Schwartz, What Police Learn from

Lawsuits, 33 Cardozo L. Rev. 841 (2012) ...... 25, 26

Martin L. Newell, A Treatise on the Law of

Malicious Prosecution, False

Imprisonment, and the Abuse of Legal

Process (1892) ................................................. 16, 17

viii

Nat’l Dist. Att’ys Ass’n, National Prosecution

Standards (3d ed. 2009), bit.ly/3AsBgIv ............. 14

Susan E. Dudley, Milestones in the Evolution

of the Administrative State,

150 Daedalus 33 (2021) ....................................... 24

Tex. Mun. League, 2022 Handbook for

Mayors and Councilmembers (2022),

bit.ly/3Lbnmzv ..................................................... 12

Theodore Sedgwick, A Treatise on the Rules

Which Govern the Interpretation and

Construction of Statutory and

Constitutional Law (2d ed. 1874) ........................ 19

Thomas M. Cooley, A Treatise on the Law

of Torts (1879) ...................................................... 16

U.S. Dep't of Just., Building Trust Between

the Police and the Citizens They Serve

(2009), bit.ly/3LwqCGS ........................................ 27

William Benjamin Hale, Handbook on the

Law of Torts (1896) .................................. 16, 17, 18

1

INTEREST OF AMICUS CURIAE 1

The Law Enforcement Action Partnership

(“LEAP”) is a nonprofit organization whose members

include police, prosecutors, judges, corrections officials, and other law enforcement officials advocating

for criminal justice and drug policy reforms that will

make our communities safer and more just. Founded

by five police officers in 2002 with a sole focus on drug

policy, today LEAP’s speakers bureau numbers more

than 300 criminal justice professionals advising on police-community relations, incarceration, harm reduction, drug policy, and global issues. Through speaking

engagements, media appearances, testimony, and

support of allied efforts, LEAP reaches audiences

across a wide spectrum of affiliations and beliefs, calling for more practical and ethical policies from a public safety perspective.

This case presents an important opportunity to

ensure that those who abuse their official power to orchestrate premeditated retaliatory arrests are held

accountable. That accountability is essential to maintaining the integrity of law enforcement, building

trust in the police, and ultimately keeping the public

safe. LEAP and its members thus have an interest in

ensuring that the courts leave open avenues to provide relief to victims of official misconduct and that

courts protect such victims against retaliation for exercising their constitutional rights.

1

Pursuant to Supreme Court Rule 37.6, no counsel for a party

authored this brief in whole or in part, and no person or entity

other than Amicus or its counsel made a monetary contribution

to this brief ’s preparation.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Sylvia Gonzalez was a dedicated city councilwoman who made the wrong enemies: her city’s mayor

and its police chief. She tried to root out government

corruption and cronyism; they tried to punish her for

it. Together, the mayor and police chief devised a plan

to arrest her and send her to jail on a ginned-up misdemeanor charge of tampering with records. Even

though the retaliatory intent behind their actions was

apparent, the Fifth Circuit held that Gonzalez could

not establish a First Amendment retaliation claim because there was probable cause to arrest her. Nothing

in this Court’s precedents compels that erroneous result, which would allow corrupt officials to use the

power of arrest to punish constitutionally protected

speech and conduct with impunity.

In Nieves v. Bartlett, this Court held that a First

Amendment retaliatory-arrest claim may not lie

against a police officer who has probable cause to

make an arrest under circumstances that require

“split-second judgments.” 139 S. Ct. 1715, 1724

(2019) (citation omitted). Under those limited circumstances, “the content and manner of a suspect’s speech

may convey vital information—for example, if he is

‘ready to cooperate’ or rather ‘present[s] a continuing

threat,’” and an officer’s reliance on that information

can confound a court’s ability to determine whether

the arrest was made in retaliation against First

Amendment activity.2 Ibid. (citation omitted).

2

Nieves recognized a “narrow qualification” to its requirement

that a retaliatory-arrest plaintiff show the absence of probable

cause “for circumstances where officers have probable cause to

3

But this Court has never held that probable cause

defeats a First Amendment retaliation claim when,

far from making split-second judgments, government

officials act under a plainly “premeditated plan to intimidate [a plaintiff] in retaliation for [her] criticisms

of city officials.” Lozman v. City of Riviera Beach, 138

S. Ct. 1945, 1954 (2018). To the contrary, this Court

made clear in Lozman that such “retaliatory-arrest

plaintiffs can prevail even when their arrests are supported by probable cause.” Pet. App. 63a (Oldham, J.,

dissenting).

Here, despite a months-long campaign by respondents to gin up an excuse to arrest Gonzalez and

send her to jail in response to her efforts to remove a

poorly performing city manager, the Fifth Circuit held

that Gonzalez’s First Amendment retaliation claim

could not proceed because she could not show the absence of probable cause for her arrest. See Pet. App.

21a. That conclusion is supported neither by this

Court’s precedents nor by the doctrinal and practical

considerations underpinning the Nieves no-probablecause rule. Outside of the context of split-second arrests made by police officers in the face of potential

danger, the ordinary rule applies: “[I]f the First

Amendment clearly establishes anything, it’s that the

government cannot arrest a citizen for her petition”—

or for any other activity protected by the First Amendment. Id. at 61a (Oldham, J., dissenting). Here, at

make arrests, but typically exercise their discretion not to do so.”

139 S. Ct. at 1727. Amicus agrees with Gonzalez that a plaintiff

may meet this exception by adducing any relevant objective evidence, not merely comparator evidence of other similarly situated individuals who were not arrested while engaging in similar

conduct but not the same sort of protected speech. But amicus

focuses on the second, equally important question presented

here: whether Nieves applies to this case at all.

4

every step of the way, respondents flouted norms and

abused legal loopholes to ensure that Gonzalez would

pay the price for exercising her First Amendment

rights. Because this case presents none of the “thorny

causation issue[s]” that justify the Nieves rule, “probable cause alone” should not have barred Gonzalez’s

claim. Novak v. City of Parma, 932 F.3d 421, 431 (6th

Cir. 2019) (Thapar, J.).

First principles confirm that the Fifth Circuit improperly extended the Nieves rule. This Court has

construed 42 U.S.C. § 1983, which supplies Gonzalez’s

cause of action, in light of prevailing common law

principles at the time of § 1983’s enactment in 1871.

The closest common-law analogy to Gonzalez’s retaliatory arrest claim is abuse of process. And at common

law, the presence of probable cause was no defense to

the tort of abuse of process. The same result follows

from § 1983’s plain text, which contains “no reference

to the presence or absence of probable cause as a precondition or defense to any suit.” Nieves, 139 S. Ct. at

1730 (Gorsuch, J., concurring in part and dissenting

in part).

Finally, the implications of the Fifth Circuit’s decision are stark. An ever-growing list of local, state,

and federal offenses gives officials a sizeable menu of

pretextual options for ordering the arrest of a person

engaged in speech, petition, or worship whom they

dislike. That arresting discretion can be particularly

dangerous to disfavored speakers and members of minority communities, who are especially likely to face

official retaliation. Many victims of such retaliation

will lack a civil remedy if they are forced to prove the

absence of probable cause, depriving them of a valuable tool to hold bad actors accountable. That, in turn,

5

will fray public trust in law enforcement, undercutting police-community relationships and harming

public safety in the process. And it will chill First

Amendment activity, as individuals will hesitate to

freely exercise their rights out of fear that they will be

hauled off to jail.

These dangers make it all the more important to

be “vigilant” in making sure that government officials

and employees cannot “concoc[t] legal theories to arrest citizens” for First Amendment activity. Pet.

App. 4a (Ho, J., dissenting from denial of rehearing en

banc). This Court should reverse.

ARGUMENT

I.

PROBABLE CAUSE DOES NOT BAR FIRST

AMENDMENT CHALLENGES TO PREMEDITATED

RETALIATORY ARRESTS.

Viewing itself as constrained by “Supreme Court

precedent,” the Fifth Circuit held that probable cause

defeats a First Amendment retaliatory-arrest claim

even when the claim is based on a calculated, premeditated decision to arrest the plaintiff for constitutionally protected behavior. Pet. App. 33a. But nothing

in this Court’s precedents compels that result. The

Nieves rule—requiring a showing of no probable cause

for an allegedly retaliatory arrest—applies only to

cases involving split-second arrests made by police officers on the spot, which present uniquely challenging

questions regarding causation. Outside of that context, Nieves did not disturb the Supreme Court’s

“longstanding recognition that the Government may

not retaliate for exercising First Amendment speech

rights.” Wilkie v. Robbins, 551 U.S. 537, 555 (2007).

What Gonzalez experienced here was no split-second decision, and certainly no response to imminent

6

danger. Respondents are not on-the-ground police officers. They are the city’s mayor, its police chief, and

a private attorney deputized as a “Special Detective,”

who collectively engaged—far removed from the scene

of Gonzalez’s alleged offense—in a months-long campaign to concoct grounds that would justify arresting

her and sending her to jail as punishment for challenging cronyism and potential corruption. They ultimately succeeded—and so humiliated her that she

gave up public office altogether. Given respondents’

clearly retaliatory design, Gonzalez’s § 1983 claim

should proceed, notwithstanding her persecutors’ successful effort to conjure probable cause to arrest her

under a rarely enforced statute.

A. The First Amendment Prohibits

Deliberate, Calculated Retaliatory

Arrests Regardless Of Probable Cause.

As Judge Oldham correctly explained, Pet. App.

54a, Nieves recognized a limited exception to the normal rule that the First Amendment prohibits government actors from retaliating against individuals for

engaging in protected speech and activity. Nieves reasoned that officers may legitimately rely on protected

speech to determine whether to make an on-the-spot

arrest in the face of danger, blurring the causal connection between animus and arrest. But neither precedent nor principle justifies the Fifth Circuit’s extension of Nieves to deliberate and premeditated retaliatory arrests.

“[T]he law is settled that as a general matter the

First Amendment prohibits government officials from

subjecting an individual to retaliatory actions” for

“engaging in protected” speech or activity. Nieves, 139

S. Ct. at 1722; Hartman v. Moore, 547 U.S. 250, 256

7

(2006). That foundational protection against “[o]fficial reprisal for protected speech” reflects the principle that retaliation “‘offends the Constitution [because] it threatens to inhibit exercise of the protected

right.’” Hartman, 547 U.S. at 256 (quoting CrawfordEl v. Britton, 523 U.S. 574, 588 n.10 (1998)) (second

alteration in original).

Determining whether government action is retaliatory turns on whether the official acted “based on

. . . a retaliatory motive”—whether “retaliatory animus” “cause[d] the injury.” Nieves, 139 S. Ct. at 1722

(citation and emphasis omitted). That analysis typically requires a standard but-for causation inquiry.

Ibid.

In the context of certain allegedly retaliatory arrests, however, this Court has recognized that the

causal chain can be hard to untangle, because an arrest could be motivated either by “animus toward the

content of a suspect’s speech” or by “wholly legitimate

consideration of speech”—like when the speech “suggests a potential threat.” Reichle v. Howards, 566

U.S. 658, 668 (2012). In such cases, the Court has

adopted a proxy for a causal link to retaliatory animus: the absence of probable cause for the arrest. If

an officer had probable cause, the arrest was likely legitimate, but if he did not, that is “weighty evidence

that [his] animus caused the arrest.” Nieves, 139

S. Ct. at 1723–24.

The Court’s holding in Nieves marked only a narrow departure from the usual rule that retaliation

against First Amendment-protected activity is categorically unlawful. In particular, the requirement

that a plaintiff show the absence of probable cause

was crafted “to accommodate the necessities of splitsecond decisions to arrest.” Pet. App. 54a (Oldham,

8

J., dissenting). Because officers “frequently must

make split-second judgments when deciding whether

to arrest,” the Court observed, it can be difficult to determine if an arrest was made to punish protected

speech, or because the speech showed that the suspect

“present[ed] a continuing threat.” Nieves, 139 S. Ct.

at 1724 (cleaned up); see also id. at 1725 (noting that

the task of conducting an arrest “requires making

quick decisions” and so should be reviewed objectively).

Those same concerns do not arise, however, outside the context of split-second decisions made quickly

by officers on the ground to respond to threats to life

or limb. This Court has thus underscored that a claim

based on a “premeditated plan to intimidate [the

plaintiff] in retaliation for his criticisms of city officials” is “far afield from the typical retaliatory arrest

claim.” Lozman, 138 S. Ct. at 1954. In such circumstances, the causal “difficulties that might arise” in

“the mine run of arrests”—which involve “ad hoc, onthe-spot decision[s] by . . . individual officer[s]”—“are

not present.” Ibid.

This distinction between spur-of-the-moment and

planned-out arrests makes sense. Determining the

cause of an arrest that is made as part of a deliberate

premeditated effort to interfere with constitutionally

protected activity—such as speech, petition, worship,

or newsgathering—is a far more straightforward task

than untangling the motivations behind an officer’s

instantaneous reaction to potential or actual danger.

After all, “[w]hen public officials are forced to make

split-second, life-and-death decisions in a good-faith

effort to save innocent lives, they deserve some measure of deference.” Wearry v. Foster, 52 F.4th 258, 259

9

(5th Cir. 2022) (Ho, J., concurring in denial of rehearing en banc). Because they must make those “splitsecond judgments” in “circumstances that are tense,

uncertain, and rapidly evolving,” it is inappropriate to

scrutinize their motivations “with the 20/20 vision of

hindsight.” Plumhoff v. Rickard, 572 U.S. 765, 774–

75 (2014) (citation omitted).

By contrast, “when public officials make the deliberate and considered decision to trample on a citizen’s

constitutional rights,” the causal link between animus

and injury is often clear. Wearry, 52 F.4th at 259 (Ho,

J., concurring in denial of rehearing en banc); see also

Cole v. Carson, 935 F.3d 444, 472 (5th Cir. 2019) (Willett, J., dissenting) (similar). Officials who “have time

to make calculated choices” about infringing on constitutional rights should not “receive the same protection as a police officer who makes a split-second decision” to initiate an arrest to forestall danger. Hoggard

v. Rhodes, 141 S. Ct. 2421, 2422 (2021) (Thomas, J.,

respecting denial of certiorari).

The Fifth Circuit failed to recognize this vital distinction, instead holding that Nieves applies across

the board regardless of whether an arrest occurred in

the heat of the moment or as part of a premeditated

scheme. Pet. App. 27a–29a. But “[t]he Nieves Court

framed the entirety of [its] rule” around the causal

challenges presented by split-second arresting decisions. Id. at 54a (Oldham, J., dissenting) (citing 139

S. Ct. at 1724–25). There is thus no reason to apply

its absence-of-probable-cause requirement—which

the Court “designed for split-second warrantless arrests”—to a “deliberative, premedi[t]ated, weeks-long

conspiracy.” Ibid.

Instead, the governing rule in cases involving calculated retaliatory arrests is dictated by Lozman’s

10

recognition that “premeditated plan[s]” to arrest individuals for their constitutionally protected activity do

not present the same challenges in determining

whether retaliatory animus caused an arrest. 138

S. Ct. at 1954. For planned-out arrests, there is no

probable-cause exception to the First Amendment’s

prohibition on government officials “retaliating

against individuals for engaging in protected speech.”

Id. at 1949.

The Fifth Circuit recognized the “forceful case” for

that conclusion, which Judge Oldham persuasively

laid out in dissent. Pet. App. 33a. But the majority

believed itself “bound” by its misguided reading of

Nieves. Ibid. This Court should correct that error.

B. Applying Nieves To Calculated

Retaliatory Arrests Leads To Startling

And Unjustified Consequences.

This lawsuit exemplifies how determining

whether an arrest was caused by retaliatory animus

is far more “straightforward” outside the context of

split-second arrests. Nieves, 139 S. Ct. at 1722. And

the startling result in this case only underscores the

Fifth Circuit’s erroneous understanding of Nieves.

Gonzalez’s arrest for exercising her First Amendment rights to free speech and petition presents none

of the “causal complexities” that may hinder the resolution of retaliation claims in the context of split-second arrest decisions. Nieves, 139 S. Ct. at 1723. From

start to end, respondents planned out ways to evade

protocol and common practice to retaliate against

Gonzalez for her First Amendment activity. Pet. App.

102a–103a. Respondents’ extensive misconduct made

clear that, regardless of the existence of probable

11

cause, the arrest was purely retaliatory and had no

legitimate law enforcement basis.

After Gonzalez was elected to the Castle Hills city

council, she helped organize a petition calling for the

removal of the city manager. Pet. App. 106a–107a. In

response, the city manager’s supporters—Mayor Edward Trevino, II, and Police Chief John Siemens—put

in motion a criminal investigation to find an excuse to

charge Gonzalez with a crime, all so that they could

remove her from office. Id. at 99a–100a.

The improper and retaliatory nature of the investigation is obvious through and through. The officer

initially assigned to the matter came up with nothing

after a month investigating Gonzalez. See Pet. App.

112a–114a. Chief Siemens refused to let a proper investigation get in his way, though. Instead, he

brought in a trusted friend to investigate anew: Alexander Wright, a private attorney whom he named

Special Detective. Id. at 113a.

Whatever the merits in other contexts of recruiting

outside help to investigate, the decision here was

driven by a desire to retaliate. Police departments

will turn to special detectives with expertise in areas

such as interviewing, maintaining relationships with

witnesses and suspects, and identifying sources of intelligence. See Anthony A. Braga et al., Nat’l Inst. of

Just., Moving the Work of Criminal Investigators Towards Crime Control 3 (2011), bit.ly/3NmwP9w.

“With their special knowledge and skill set, investigators can advise uniformed patrol officers on the nature

of local crime problems and supplement their crimecontrol efforts with their expertise.” Ibid.

Here, however, Chief Siemens did not select

Wright for any special expertise; there was nothing

uniquely challenging about the investigation that

12

warranted a call for outside help. Rather, he brought

on Wright precisely because of their close personal relationship. Pet. App. 113a–114a.

The move produced its intended result: Wright

recommended a misdemeanor charge for tampering

with a government record, based on Gonzalez’s supposed attempt to steal the very petition she participated in creating and organizing. Pet. App. 107a–

110a, 114a. Wright’s affidavit to support the warrant

application left no doubt about the role of Gonzalez’s

constitutionally protected activity in the decision to

arrest her: It explicitly cited Gonzalez’s public criticism of the city manager—i.e., her speech and petition—to justify it. Id. at 115a–116a.

The conspirators needed a criminal act with which

to charge Gonzalez. Mayor Trevino and Chief Siemens therefore sought to ensure that Gonzalez would

be caught with the petition in her possession, so they

could accuse her of unlawfully taking it from government offices. Pet. App. 107a–110a.

That close-knit scheming between the mayor and

the police department raised additional red flags. The

Texas Administrative Code emphasizes that a law enforcement officer “is never the arm of any political

party or clique” and should not act under the influence

of any special favors or allegiances. 37 Tex. Admin.

Code § 1.113(1), (9) (2023). A mayor likewise has a

number of law enforcement responsibilities—including an obligation to “actively ensure that the laws and

ordinances of the city are properly carried out.” Tex.

Mun. League, 2022 Handbook for Mayors and Councilmembers 18 (2022), bit.ly/3Lbnmzv.

Rather than heed their duties, Mayor Trevino and

his collaborators weaponized the police department to

advance their crusade against Gonzalez. The mayor

13

coordinated with a police captain to question Gonzalez

about her petition and catch her with the document in

her possession. Pet. App. 108a–112a. And Chief Siemens abused his authority by acting as an extension

of the mayor and giving the mayor special consideration at Gonzalez’s expense.

The conspirators also took multiple unorthodox

steps to ensure that they could arrest Gonzalez and

send her to jail to punish her for her anti-corruption

campaign. For instance, Wright opted to secure a

bench warrant for Gonzalez’s arrest to ensure that she

would go to jail. Pet. App. 114a–116a. In Texas, warrants are usually reserved for apprehending violent

offenders. See, e.g., Rodriguez v. State, 2018 WL

4225018, at *3 (Tex. Ct. App. Sept. 6, 2018) (arrest

warrant issued for suspected capital murder). People

suspected of nonviolent crimes, meanwhile, typically

receive a summons instead, which “serve[s] the same

purpose” as an arrest warrant but “spar[es] the defendant embarrassment” by allowing her to avoid a

jail trip and “save[s] the State time, effort, and expense.” Gallegos v. State, 971 S.W.2d 626, 628 (Tex.

Ct. App. 1998). Gonzalez’s alleged crime was obviously nonviolent, but Wright flouted law enforcement

norms to guarantee that she would spend time in a

jail cell.

To ensure they would get a bench warrant and not

a summons, Wright and his collaborators left the district attorney’s office out of the loop when seeking the

warrant—“even though [involving prosecutors is] the

normal procedure.” Pet. App. 39a (Oldham, J., dissenting); cf., e.g., State v. Drummond, 501 S.W.3d 78,

80 (Tex. Crim. App. 2016) (assistant district attorney

presenting probable cause affidavit to magistrate to

14

obtain an arrest warrant for the offense of official oppression). They instead relied on a procedure “typically reserved for violent felonies or emergency situations” and went straight to a magistrate judge with

their warrant application. Pet. App. 39a (Oldham, J.,

dissenting). But see, e.g., Flores v. State, 367 S.W.3d

697, 698 (Tex. Ct. App. 2012) (even in murder case,

assistant district attorney involved in arrest warrant

process).

This maneuver allowed the police chief and his

conspirators to evade the independent-minded scrutiny of a prosecutor and pull off the arrest and incarceration without interference. “[T]here can be little

doubt that the DA [district attorney] would’ve stopped

[the scheme] if given the chance: After all, when the

DA’s office finally learned of the charges and reviewed

them, it immediately dismissed them.” Pet. App. 39a

(Oldham, J., dissenting).

The conspirators’ failure to consult with the district attorney’s office was highly unorthodox and further evidence of improper motives. District attorneys

play a key part in the investigatory process; because

the decision to charge is the prosecutor’s, national

guidelines recommend that they be intimately involved with investigations even before charges are

filed. See Nat’l Dist. Att’ys Ass’n, National Prosecution Standards § 2-5.6 (3d ed. 2009), bit.ly/3AsBgIv

(prosecutors “should serve in . . . an advisory capacity”

during “the investigation of criminal cases” “to promote lawful investigatory methods that will withstand later judicial inquiry”). And even when officers

can initiate criminal proceedings directly, they

“should be required to present the complaint for prior

review by the prosecutor.” Am. Bar Ass’n, Criminal

Justice Standards: Prosecution Function § 3-4.2 (4th

15

ed. 2017), bit.ly/3oE0UqZ. All those norms went out

the window here.

Bypassing the district attorney advanced respondents’ scheme to put Gonzalez in jail in more ways than

one. It also prevented Gonzalez from invoking the satellite booking function, which enables those with outstanding warrants for nonviolent offenses to be processed without going to jail. Pet. App. 39a (Oldham,

J., dissenting); id. at 115a.

This carefully devised scheme guaranteed that the

72-year-old Gonzalez would spend time behind bars.

Even though all charges were eventually dropped,

Gonzalez came away humiliated, and her physical and

mental health suffered. See Pet. App. 125a, 129a. She

then withdrew from public participation, giving up

her council seat—and dropping her engagement in her

community’s civic life. Id. at 123a–125a. Just as respondents hoped all along.

The allegations here leave no doubt that this arrest was indeed retaliatory. Respondents collaborated

to ensure that Gonzalez would be caught with the petition in her possession; they relied on a “special detective” who was a friend of the police chief to manufacture a sham criminal charge; and they circumvented the district attorney and ordinary rules of the

road to maintain their plot and ensure Gonzalez

landed in a jail cell. On the pleadings, it is difficult to

imagine a stronger claim of retaliatory animus. Yet

the Fifth Circuit’s strained reading of Nieves rendered

that claim a nonstarter on the ground that the arrest

was supported by probable cause. Reversing the Fifth

Circuit’s decision is essential to preventing future arrests like this one from suppressing First Amendment

activity.

16

C. First Principles Confirm That The

Nieves Rule Does Not Apply To

Premeditated Arrests.

The common-law backdrop that prevailed at the

time of § 1983’s enactment and § 1983’s plain text also

confirm that the Nieves rule has only a narrow ambit.

1. Common law. “When defining the contours of

a claim under § 1983,” this Court “look[s] to commonlaw principles that were well settled at the time of its

enactment.” Nieves, 139 S. Ct. at 1726 (internal quotation marks omitted). Because there was no common-law tort for retaliatory arrest when § 1983 was

enacted in 1871, the Court “turn[s] to the common law

torts that provide the closest analogy to retaliatory arrest claims.” Ibid. (internal quotation marks omitted).

Here, that tort is abuse of process.

At common law, a person was liable for damages

to another if he abused legal process to force another

to do something which he could not lawfully be compelled to do. William Benjamin Hale, Handbook on

the Law of Torts 361 (1896); see Phoenix Mut. Life Ins.

Co. v. Arbuckle, 52 Ill. App. 33, 38 (1893) (a plaintiff

must show that “process was willfully abused to accomplish some unlawful purpose”); Thomas M. Cooley, A Treatise on the Law of Torts 189–90 (1879) (similar). As one treatise explained, “[p]rocess, when in

due form . . . will protect the officer in the due and legal execution thereof, but it does not protect the officer

in any abuse of the person . . . against whom such process is issued.” Martin L. Newell, A Treatise on the

Law of Malicious Prosecution, False Imprisonment,

and the Abuse of Legal Process 68 (1892). A plaintiff

could bring a claim for abuse of process “even if such

process has been issued for a just cause, and is valid

in form, and the proceeding thereon was justified and

17

proper in its inception.” Hale, Handbook, supra, at

361. The tort, in other words, was not about “maliciously putting the process in force, but [about] maliciously abusing it.” Ibid.

Abuse of process is the closest common law analogy here. Respondents orchestrated a premeditated

warrant-based arrest to retaliate against Gonzalez.

Execution of an arrest warrant is legal process for purposes of the tort. See, e.g., Grainger v. Hill, 4 Bing.

N.C. 212 (1838) (holding that sheriff abused legal process in executing an arrest warrant); see also Wolf v.

Colorado, 338 U.S. 25, 30–31 n.1 (1949) (explaining

that at common law there was action for damages

against abuse of search warrants), overruled on other

grounds by Mapp v. Ohio, 367 U.S. 643 (1961); Hale,

Handbook, supra, at 361 (“[a] warrant valid on its face

is no defense”). And respondents abused that process

by effectuating the arrest for the purpose of “leading

the person arrested to do some collateral thing, which

[s]he could not lawfully be compelled to do”—to compel Gonzalez to stop engaging in protected petitioning

activity. Hale, Handbook, supra, at 361.3

Importantly, to show abuse of process, “[i]t is not

necessary to prove that the action in which the process

issued has been determined or to aver that it was sued

out without probable cause.” Newell, Treatise, supra,

3

Although the Court in Nieves suggested that the closest common-law analogues to the retaliatory arrest claim there were

false imprisonment and malicious prosecution, that view

stemmed solely from the way the case was litigated. See 139

S. Ct. at 1726 (noting that “[t]he parties dispute whether the better analog is false imprisonment or malicious prosecution,” but

sidestepping the dispute as academic). This case materially differs from Nieves because Gonzalez’s arrest was premeditated and

made pursuant to an arrest warrant, which constitutes “legal

process” for abuse-of-process purposes.

18

at 68; see Mayer v. Walter, 64 Pa. 283, 286 (1870). “It

is evident that when such a wrong has been perpetrated, it is entirely immaterial whether the proceeding itself was baseless or otherwise.” Mayer, 64 Pa. at

286. Indeed, the defining feature that distinguishes

abuse of process from malicious prosecution is that

“want of probable cause is not an essential element.”

Hale, Handbook, supra, at 361.

In one leading case, for instance, the Supreme

Court of New York held that a sheriff had maliciously

abused legal process where he “executed [a] warrant

in an unreasonable and oppressive manner, and with

the avowed and malicious design to vex and oppress

the plaintiff.” Rogers v. Brewster, 5 Johns. 125, 126

(N.Y. Sup. Ct. 1809) (per curiam); see Docter v. Riedel,

71 N.W. 119, 121 (Wis. 1897) (Marshall, J., dissenting)

(explaining that Rogers “will be found cited by all

standard text writers” on the abuse of process tort).

In Rogers, the sheriff had ample opportunity to execute a warrant by taking property that would not interfere with the debtor’s business. 5 Johns. at 127.

Instead, he seized and sold the debtor’s horse without

“any just cause” for doing so. Ibid. Even though the

writ he was enforcing was proper, his actions were

“causeless and malicious . . . [and] against the duty of

his office.” Ibid. As a result, the court held, the plaintiff could recover damages. Ibid.

Thus, at common law, government officials could

be held liable for damages where, as here, they abuse

legal process to an unlawful end—regardless of the existence of probable cause.

2. Alternative to the common law approach. In

the alternative, the Court could focus on the plain text

of § 1983, which does not contain a no-probable-cause

defense.

19

Section 1983’s text is silent when it comes to defenses—“look at that statute as long as you like and

you will find no reference to the presence or absence

of probable cause as a precondition or defense to any

suit.” Nieves, 139 S. Ct. at 1730 (Gorsuch, J., concurring in part and dissenting in part). Instead, the statute grants plaintiffs broad relief, imposing “liability

on anyone who, under color of state law, subjects another person ‘to the deprivation of any rights, privileges, or immunities secured by the Constitution.’”

Ibid.

In crafting exceptions to this broadly worded statute, the Court has relied primarily on the “Derogation

Canon.” See Alexander A. Reinert, Qualified Immunity’s Flawed Foundation, 111 Calif. L. Rev. 201, 216–

17 (2023). The Derogation Canon provides that “statutes in derogation of the common law are to be strictly

construed.” Antonin Scalia & Bryan A. Garner, Reading Law 318 (2012). The Court first relied on this

canon in interpreting § 1983 in Tenney v. Brandhove,

which held that state legislators were immune from

suit under § 1983 because Congress would not “impinge on a [common law] tradition” of legislative immunity through “the general language” in § 1983. 341

U.S. 367, 376 (1951). The Court then extended this

principle to judicial immunity and qualified immunity. See Pierson v. Ray, 386 U.S. 547, 554 (1967).

But the Derogation Canon has always stood on

shaky footing. It is “a relic of the courts’ historical

hostility to the emergence of statutory law.” Scalia &

Garner, supra, at 318. As far back as 1874, Theodore

Sedgwick stated that the canon was a creature of the

judicial belief that common law was “the perfection of

human wisdom” to be guarded against legislative intrusion. Theodore Sedgwick, A Treatise on the Rules

20

Which Govern the Interpretation and Construction of

Statutory and Constitutional Law 270 (2d ed. 1874).

Other commentators have similarly criticized the

canon. See Reinert, Qualified Immunity, supra, at

218–21 (collecting sources).

As a general matter, this Court has understood

the canon to apply only where a statute “clearly covers

a field formerly governed by the common law.” Samantar v. Yousuf, 560 U.S. 305, 320 (2010). Thus,

“the Derogation Canon has rarely worked to limit the

reach of statutory causes of action, other than in the

context of Section 1983.” Reinert, Qualified Immunity, supra, at 228. During the early part of the nineteenth century, “the Court never even hinted, let

alone held, that common law defenses are incorporated into statutory causes of action absent express

legislative direction to the contrary.” Id. at 224. The

Court’s refusal to read a statute as abrogating the

common law extended only to claims or rights that existed at common law, not defenses. Id. at 225 (citing

Wheaton v. Peters, 33 U.S. (8 Pet.) 591, 692 (1834)).

Later in the nineteenth century, during and after

Reconstruction, the Court generally construed statutes creating remedies and rights of action liberally.

Reinert, Qualified Immunity, supra, at 225–28; see

White v. Cotzhausen, 129 U.S. 329, 341–42 (1889) (explaining the “rule [that] though it may be in derogation of the common law . . . everything is to be done in

advancement of the remedy that can be done consistently with any fair construction that can be put upon

it” (citation omitted)). This understanding of the Derogation Canon has survived through the twentieth

century and into the present, with § 1983 being the

principal exception. Reinert, Qualified Immunity, supra, at 228–34 (collecting cases); see also St. Louis,

21

Iron Mountain & S. Ry. Co. v. Taylor, 210 U.S. 281,

294 (1908) (refusing to entertain defenses based on

“the common-law duty of the employer to use reasonable care” because the statute makes no mention of

these limitations).

The Congress that passed the Civil Rights Act of

1871, which included § 1983, would not have understood it to incorporate common law defenses in its

broad remedial statute. And that Congress would not

have understood the Derogation Canon to apply to

such a statute. See supra 19–20. Because canons of

interpretation should be applied in light of the “likely

intent of the enacting legislature,” Caleb Nelson,

What Is Textualism?, 91 Va. L. Rev. 347, 386 (2005),

the Derogation Canon does not apply to § 1983. The

upshot is straightforward: The Court should not incorporate atextual common law defenses into § 1983,

so it should not extend the Nieves rule any further.

In any event, the Derogation Canon’s caution

against abrogation of the common law must yield

when the legislature’s command is explicit. And there

was an explicit command by the Reconstruction Congress to displace common law defenses. As it was

passed, the Civil Rights Act of 1871 included a

clause—the Notwithstanding Clause—which provided that “any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding.” Ch. 22, § 1, 17 Stat. 13, 13. Because

that text apparently did not make its way into the

United States Code, it was largely lost to history, and

the Court has never grappled with this text in its

22

§ 1983 jurisprudence.4 But the “implications are unambiguous”: background common law defenses have

“no place in Section 1983.” Reinert, Qualified Immunity, supra, at 236 (noting this point about state law

immunities).

*

*

*

Whether this Court understands Nieves in light of

the common-law principles that prevailed at the time

of § 1983’s enactment or in light of § 1983’s plain text

alone, the result is the same: The existence of probable cause is no defense to a premeditated, retaliatory

arrest made pursuant to an arrest warrant.

II. THE FIFTH CIRCUIT’S RULE WOULD HAVE

SIGNIFICANT NEGATIVE RAMIFICATIONS FOR

LAW ENFORCEMENT AND THE PUBLIC.

The dramatic expansion of criminal codes across

the country has made it easier than ever for government actors who wish to punish a person for engaging

in protected First Amendment activity to find probable cause for some criminal violation on which to base

an arrest. Civil lawsuits against those engaged in premeditated, retaliatory arrests serve as a critical check

on this kind of misconduct.

The Fifth Circuit’s decision insulates government

actors from accountability in many cases of deliberate

4

The legally effective language is the language contained in

the Act and not the United States Code. The discrepancy is not

a result of positive law but a decision of the first Revisers of Federal Statutes in 1874. See U.S. Nat’l Bank of Or. v. Indep. Ins.

Agents of Am., Inc., 508 U.S. 439, 448 (1993) (“Though the appearance of a provision in the current edition of the United

States Code is ‘prima facie’ evidence that the provision has the

force of law, it is the Statutes at Large that provides the legal

evidence of laws” (cleaned up)).

23

retaliation. Allowing that shield to stand would in

turn undermine public trust in law enforcement, making it harder for the vast majority of honest officers to

do their job and keep their communities safe. It would

also chill First Amendment-protected speech and activity, especially among those who hold views disfavored by government actors. These dangers confirm

that Nieves does not apply outside the context of splitsecond arrest decisions.

A. Civil Liability For Plainly

Premeditated Arrests Is A Key

Deterrent Against The Growing Threat

Of Retaliatory Arrests.

Retaliatory arrests have “never been more prevalent than today.” Pet. App. 4a (Ho, J., dissenting from

denial of rehearing en banc); see Amanda D’Souza et

al., Federal Investigations of Police Misconduct: A

Multi-City Comparison, 71 Crime, L., & Soc. Change

461, 474 (2019) (“[a] troublesome finding in all [federal investigations over the past two decades] was officers’ retaliatory actions against citizens”). This

trend is a byproduct of the ever-growing size of modern criminal codes. See GianCarlo Canaparo et al.,

Heritage Found., Count the Code: Quantifying Federalization of Criminal Statutes 3 (2022), bit.ly/3Lcpve2

(showing that the number of statutory provisions creating a federal crime increased by 36% between 1994

and 2019); James R. Copland & Rafael A. Mangual,

Manhattan Inst., Overcriminalizing America 4 (2018),

bit.ly/41CLNfT (“common problems in state criminal

law” include “[t]oo many crimes on the books”). Coupled with the growth of the administrative state—

which has made crimes out of all manner of regulatory

infractions—the number of crimes on the books that a

person might commit has steadily risen for decades.

24

See Susan E. Dudley, Milestones in the Evolution of

the Administrative State, 150 Daedalus 33, 45 (2021)

(“The modern administrative state, as measured by

the number of agencies . . . and the number of regulations they issue, has grown significantly over the last

hundred years.”).

A government actor who may be inclined to punish a disfavored speaker—or journalist, or petitioner,

or worshipper—can therefore readily find a minor offense they committed and use that to justify an arrest.

This Court has observed, for instance, that jaywalking

is “endemic but rarely results in arrest.” Nieves, 139

S. Ct. at 1727. But an officer seeking to punish “an

individual who has been vocally complaining about

police conduct” can exercise discretion and arrest that

person if she jaywalks. Ibid.

Broad arresting powers can be abused to burden

disfavored groups. As here, public officials acting in

bad faith can use law enforcement discretion “to arrest citizens for stating unpopular viewpoints”—even

though the expression of dissenting perspectives “is

essential to our form of self-government.” Pet. App.

4a (Ho, J., dissenting from denial of rehearing en

banc); Mahanoy Area Sch. Dist. v. B.L. ex rel. Levy,

141 S. Ct. 2038, 2049 (2021) (Alito, J., concurring).

And the ill effects of retaliatory arrests are especially

likely to fall on individuals in minority communities.

See Ellen S. Podgor, The Dichotomy Between Overcriminalization and Underregulation, 70 Am. Univ. L.

Rev. 1061, 1065 (2021) (observing that overcriminalization “provides increased choices to prosecutors,”

which “can result in disparities, especially to poor and

minority members of society”).

25

Civil lawsuits are a vital check against premeditated, retaliatory arrests. Indeed, this Court has repeatedly recognized that civil suits help “to hold public officials accountable when they exercise power irresponsibly.” Pearson v. Callahan, 555 U.S. 223, 231

(2009); accord Harlow v. Fitzgerald, 457 U.S. 800, 807

(1982) (acknowledging “the importance of a damages

remedy to protect the rights of citizens”). This element of accountability ensures that the “government

will respond to the will of the people.” N.Y. Times Co.

v. Sullivan, 376 U.S. 254, 301 (1964) (Goldberg, J.,

concurring in the result); cf. Harris v. Pittman, 927

F.3d 266, 282–83 (4th Cir. 2019) (Wilkinson, J., dissenting) (“Police officers do overreach. And when they

do, the law must hold them to account.”).

This Court should not close the courthouse doors

on the many deserving plaintiffs who are deliberately

punished for exercising their First Amendment rights

by actors who—despite finding probable cause for an

arrest—clearly acted on retaliatory animus. That outcome would only further contribute “to the deep deficit

in police accountability throughout our country.” Joanna C. Schwartz, After Qualified Immunity, 120

Colum. L. Rev. 309, 312 n.8, 313 (2020) (citation omitted). And the lack of accountability would harm police

departments, too: Exposure to civil liability provides

incentives to improve police performance and reduce

constitutional violations; allows them to gather information about misconduct and illegal uses of force; and

helps gather data that fills gaps in internal reporting

systems, such as unearthing more conclusive evidence

in excessive-force lawsuits. Joanna C. Schwartz,

What Police Learn from Lawsuits, 33 Cardozo L. Rev.

841, 845–46 (2012).

26

Other consequences for rogue officers—such as internal discipline—are inadequate alone to stamp out

bad-faith, unconstitutional behavior. See Schwartz,

What Police Learn, at 862–74; Crouse v. Town of

Moncks Corner, 848 F.3d 576, 589 (4th Cir. 2017)

(Motz, J., concurring in the judgment) (“Serious allegations of misconduct sometimes go unanswered, and

officers who abuse their power sometimes go undisciplined.”). And those consequences are absent altogether when the offending party is a government official rather than a police officer. Failing to limit Nieves

to on-the-spot officer arrests would deprive many individuals of a crucial way to hold accountable government actors who retaliate against them for engaging

in constitutionally protected behavior.

B. Permitting Probable Cause To Bar

Liability For Plainly Retaliatory And

Premeditated Arrests Would

Undermine Trust In The Police And

Interfere With Public Safety.

Allowing those who carry out deliberate, premeditated retaliatory arrests to avoid liability would diminish the public’s trust in and cooperation with goodfaith law enforcement efforts. Trust in the police has

already been on the decline over the past two decades,

especially in minority communities. See Jeffrey M.

Jones, Gallup, In U.S., Black Confidence in Police Recovers from 2020 Low (July 14, 2021), bit.ly/3V9qb8H.

But police officers are supposed to “occupy positions of

great public trust and high public visibility.” Gilbert

v. Homar, 520 U.S. 924, 932 (1997). If those who violate that trust are not held responsible—a likely consequence of applying Nieves in this case—that will

only exacerbate existing tensions between law-abiding police officers and their communities. That, in

27

turn, would undermine law enforcement’s ability to

maintain public safety.

“Effective police work, including the detection and

apprehension of criminals, requires that the police

have the trust of [their] community” and that the public believe that police departments “will use [their]

powers responsibly and adequately discipline officers

who do not.” Reynolds v. City of Chicago, 296 F.3d

524, 530 (7th Cir. 2002); Crouse, 848 F.3d at 589

(Motz, J., concurring in the judgment). Members of

the public need to believe in the good faith of officers

so they feel comfortable calling on law enforcement to

help in emergencies and aiding police investigations.

See Duncan v. Becerra, 970 F.3d 1133, 1161 (9th Cir.

2020) (noting that “some people, especially in communities of color, do not trust law enforcement and are

less likely . . . to call 911 even during emergencies”),

overruled on other grounds, 142 S. Ct. 2895 (2022).

And police officers need to feel trusted by the people

they serve to do their jobs effectively. See Harris, 927

F.3d at 286–87 (Wilkinson, J., dissenting).

Those police-community relations fray, however—

and the public’s trust is diminished—when government actors misuse the arrest power without consequence. Even the bad acts of a few will hinder community trust in the police, the vast majority of whom

carry out their jobs with dignity and honor. U.S. Dep’t

of Just., Building Trust Between the Police and the

Citizens They Serve 17 (2009), bit.ly/3LwqCGS. The

Fifth Circuit’s rule, by shielding from liability those

who “exploit the arrest power as a means of suppressing speech,” Lozman, 138 S. Ct. at 1953, would further

undermine trust in the police and officers’ ability to

fulfill their duties to the public. That consequence is

all the more unwarranted when the few bad actors are

28

government officials, like a mayor or police chief, directing police officers to do their dirty work for them.

This loss of trust would have major downstream

effects. If people do not feel comfortable calling on the

police in a crisis, that will threaten public safety. Andrew Goldsmith, Police Reform and the Problem of

Trust, 9 Theoretical Criminology 443, 443 (2005)

(“Without public trust in police, ‘policing by consent’

is difficult or impossible and public safety suffers.”).

And if community members are less likely to cooperate in police investigations, police officers will find it

harder to conduct their duties in the future. See, e.g.,

David S. Kirk et al., The Paradox of Law Enforcement

in Immigrant Communities: Does Tough Immigration

Enforcement Undermine Public Safety?, 641 Annals of

Am. Acad. of Pol. & Soc. Sci. 79, 79 (2012) (lawless actions by officers “undermine[] individuals’ willingness

to cooperate with the police and engage in the collective actions necessary to socially control crime”).

These costs are likely to be significant: A lack of trust

in the police is correlated with an increase in gun violence in communities, which in turn fuels a cycle of

over-enforcement of minor misdemeanors, further

eroding trust in the police and fueling violence in communities. Abene Clayton, Guardian, Distrust of Police

Is Major Driver of U.S. Gun Violence, Report Warns

(Jan. 21, 2020), bit.ly/41CFwAV. A rule that promotes

accountability for the minority of bad-faith actors, by

contrast, promotes public confidence in the integrity

of the criminal justice system.

C. Failing To Prohibit Premeditated

Retaliatory Arrests Would Chill First

Amendment-Protected Activity.

The Fifth Circuit’s holding is also likely to chill

First Amendment activity. Individuals may choose to

29

abstain from speaking—or petitioning the government, or conducting newsgathering activities, or engaging in religious exercise—if they fear the government can punish them with impunity for exercising

their constitutional rights.

When the government takes adverse action based

on an individual’s First Amendment activity, their

“exercise of [protected] freedoms” is “in effect . . . penalized and inhibited.” Perry v. Sindermann, 408 U.S.

593, 597 (1972). And “to state that arresting someone

in retaliation for their exercise of free speech rights is

sufficient to chill speech is an understatement.” Lacey

v. Maricopa County, 693 F.3d 896, 917 (9th Cir. 2012)

(en banc) (cleaned up). This case exemplifies those effects: For Gonzalez, the experience of being arrested

for lawful speech and petitioning was so harrowing

that she abandoned her legislative efforts entirely and

withdrew from public service. Pet. App. 124a.

The free exchange of ideas will also be hampered

unless individuals know they can exercise their First

Amendment rights free from government penalty—

and that if they are punished, they will have legal recourse against it. Open and active discussion of matters of public import is “a fundamental principle of our

constitutional system,” Stromberg v. California, 283

U.S. 359, 369 (1931), but it cannot flourish if government actors can stomp out disfavored voices.

It therefore “falls on the judiciary” to “make certain that law enforcement officials exercise their significant coercive powers to combat crime—not to police political discourse.” Pet. App. 3a, 5a (Ho, J., dissenting from denial of rehearing en banc). The First

Amendment demands nothing less.

30

CONCLUSION

The Fifth Circuit’s decision should be reversed.

Respectfully submitted.

APRATIM VIDYARTHI

GIBSON, DUNN & CRUTCHER LLP

200 Park Ave.

New York City, NY 10166

DAVID DEBOLD

Counsel of Record

JEFF LIU

ANDREW EBRAHEM*

TIMOFEY VELENCHUK

GIBSON, DUNN & CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

(202) 955-8500

DDebold@gibsondunn.com

Counsel for Amicus Curiae

December 18, 2023

* Admitted only in Virginia; practicing under the supervision of

members of the District of Columbia Bar under D.C. App. R. 49.