Amicus Curiae Brief — Sylvia Gonzalez, Petitioner v. Edward Trevino, II, et al.
Supreme Court briefDec 18, 2023
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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, ET AL.,
Respondents.
On Writ of Certiorari to
the United States Court of Appeals for the
Fifth Circuit
BRIEF OF THE NATIONAL POLICE
ACCOUNTABILITY PROJECT
AS AMICUS CURIAE
IN SUPPORT OF PETITIONER
EUGENE R. FIDELL
CHARLES A. ROTHFELD
Yale Law School
Counsel of Record
Supreme Ct. Clinic
Mayer Brown LLP
127 Wall Street
1999 K Street, NW
New Haven, CT 06511 Washington, DC 20006
(202) 263-3000
crothfeld
@mayerbrown.com
Counsel for Amicus Curiae
(Additional counsel listed inside cover)
PAUL W. HUGHES
MICHAEL B. KIMBERLY
McDermott Will &
Emery LLP
500 N. Capital St., NW
Washington, DC 20001
LAUREN BONDS
KEISHA JAMES
National Police Accountability Project
2022 St. Bernard Ave.,
Suite 310
New Orleans, LA 70116
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................... iii
INTEREST OF THE AMICUS CURIAE ............. 1
INTRODUCTION AND SUMMARY OF
ARGUMENT ......................................................... 1
ARGUMENT ......................................................... 3
I.
Abuse of process represents the closest
nineteenth-century tort analog to Ms.
Gonzalez’s Section 1983 claim. ...................... 3
A. Nineteenth-century tort standards
provide guidance on the contours
of Section 1983 causes of action. ............ 4
B. A reasonable plaintiff in Ms.
Gonzalez’s shoes circa 1871 would
have brought an abuse-of-process
claim. ....................................................... 5
II. As applied in the nineteenth century,
the tort of malicious prosecution also
would support the claim in this case. .......... 13
A. Nineteenth-century courts relied
on a broad standard of
reasonableness to determine
whether probable cause existed. .......... 14
B. In establishing malice, nineteenthcentury courts looked to an
expansive array of both objective
and subjective evidence. ....................... 17
III. There is need for an effective cause of
action to challenge retaliatory arrests. ....... 20
ii
TABLE OF CONTENTS—continued
Page
A. Retaliatory arrests are a
significant problem. .............................. 21
B. Although retaliatory arrest claims
are rare, it is important that
remedies be available to address
this disturbing form of misconduct. ..... 24
CONCLUSION .................................................... 29
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Akindes v. City of Kenosha,
2021 WL 4482838 (E.D. Wis. Sept.
30, 2021) ......................................................... 25, 28
Allen v. Greenlee,
13 N.C. 370 (1830)................................................ 11
Balcom v. Figueroa,
2022 WL 1126051 (W.D. Pa. Feb. 28,
2022) ..................................................................... 25
Ballentine v. Tucker,
28 F.4th 54 (9th Cir. 2022) .................................. 25
Barron v. Mason,
31 Vt. 189 (1858) .......................... 15, 16, 18, 19, 20
Bartlett v. Christhilf,
14 A. 518 (Md. 1888) ........................................ 8, 12
Bledsoe v. Ferry Cnty., Washington,
499 F. Supp. 3d 856 (E.D. Wash.
2020) ..................................................................... 25
Bogan v. Scott-Harris,
523 U.S. 44 (1998) ................................................ 15
Bonney v. King,
66 N.E. 377 (Ill. 1903) ............................................ 6
iv
TABLE OF AUTHORITIES—continued
Page(s)
Breck v. Blanchard,
20 N.H. 323 (1850) ............................................... 11
Broad v. Ham,
5 Bing. (N.C.) 722 (1839) ..................................... 15
Carey v. Piphus,
435 U.S. 247 ........................................................... 4
Deis v. Mitchell,
2020 WL 7024696 (E.D. Mich. Nov.
30, 2020) ............................................................... 25
Dishaw v. Wadleigh,
44 N.Y.S. 207 (App. Div. 1897) .............................. 7
Docter v. Riedel,
71 N.W. 119 (Wis. 1897) .................................. 7, 12
Drake v. Chester,
2 Conn. 473 (1818) ............................................... 11
Emery v. Ginnan,
24 Ill. App. 65 (1887)............................................ 12
Enoch v. Hamilton Cnty. Sheriff,
2022 WL 2073292 (S.D. Ohio June 9,
2022) ..................................................................... 25
Faris v. Starke,
42 Ky. 4 (1842) ..................................................... 15
v
TABLE OF AUTHORITIES—continued
Page(s)
Glidewell v. Murray-Lacy & Co.,
98 S.E. 665 (Va. 1919) ............................................ 6
Gonzalez v. Trevino,
42 F.4th 487 (5th Cir. 2022) ................................ 16
Goodwin v. D.C.,
579 F. Supp. 3d 159 (D.D.C. 2022) ...................... 25
Grainger v. Hill,
4 Bing. N.C. 212 (Q.B. 1838) ................................. 8
Grigsby’s Ex’r v. Ratecan,
1872 WL 6428 (Ky. Dec. 29, 1872) ...................... 12
Hassan v. City of Atlanta,
2022 WL 1778211 (N.D. Ga. June 1,
2022) ..................................................................... 25
Haywood v. City of El Paso, Texas,
2021 WL 5072029 (W.D. Tex. Oct.
26, 2021) ............................................................... 25
Hazard v. Harding,
1882 WL 11435 (Sup. Ct. N.Y. Cnty.
Jan. 1, 1882) ......................................................... 12
Heck v. Humphrey,
512 U.S. 477 (1994) .............................. 4, 10, 11, 13
Henagan v. City of Lafayette,
2022 WL 4553055 (W.D. La. Aug. 16,
2022) ..................................................................... 25
vi
TABLE OF AUTHORITIES—continued
Page(s)
Imani v. City of Baton Rouge,
614 F. Supp. 3d 306 (M.D. La. 2022)................... 25
Imbler v. Pachtman,
424 U.S. 409 (1976) ................................................ 4
Jeffery v. Robbins,
73 Ill. App. 353 (1898) ........................................ 7, 9
Johnson v. Reed,
136 Mass. 421 (1884) ........................................... 10
Kennedy v. Barnett,
64 Pa. 141 (1870).................................................. 12
Kool v. Lee,
134 P. 906 (Utah 1913) .......................................... 6
Lail v. Caesar,
2022 WL 20581966 (E.D. Va. Dec. 9,
2022) ..................................................................... 25
Lull v. Cnty. of Sacramento,
2019 WL 6908046 (E.D. Cal. Dec. 19,
2019) ..................................................................... 25
Mayer v. Walter,
64 Pa. 283 (1870).................................................... 8
McClenny v. Inverarity,
103 P. 82 (Kan. 1909) ............................................. 6
vii
TABLE OF AUTHORITIES—continued
Page(s)
Mix v. West,
2023 WL 2654175 (W.D. Ky. Mar.
27, 2023) ............................................................... 25
Mudrock v. Killips,
28 N.W. 66 (Wis. 1886) ........................................ 12
Nieves v. Bartlett,
139 S. Ct. 1715 (2019)
.................................... 1-4, 13-16, 18, 21, 24-25, 28
Nigro v. City of New York,
2020 WL 5503539 (S.D.N.Y. Sept.
11, 2020) ............................................................... 25
Nilsson v. Baker Cnty., Oregon,
2022 WL 17156771 (D. Or. Nov. 21,
2022) ..................................................................... 25
Novak v. City of Parma,
932 F.3d 421 (6th Cir. 2019) ................................ 26
Page v. Cushing,
38 Me. 523 (1854) ......................... 11, 15, 16, 18, 19
Phoenix Mut. Life Ins. v. Arbuckle,
52 Ill. App. 33 (1893)........................................ 6, 10
Pierson v. Gale,
8 Vt. 509 (1836) .................................................... 11
viii
TABLE OF AUTHORITIES—continued
Page(s)
Pittsburg, J., E. & E.R. Co. v. Wakefield
Hardware Co.,
55 S.E. 422 (N.C. 1906) .......................................... 6
Rideout v. Shelby Twp.,
2023 WL 5917392 (E.D. Mich. Sept.
11, 2023) ......................................................... 25, 27
Sneeden v. Harris,
13 S.E. 920 (N.C. 1891) ........................................ 10
Tenney v. Brandhove,
341 U.S. 367 (1951) ................................................ 4
Villarreal v. City of Laredo, Texas,
44 F.4th 363 (5th Cir.) ......................................... 26
Waters v. Winn,
82 S.E. 537 (Ga. 1914) ........................................... 6
Wheeler v. Nesbitt,
65 U.S. 544 (1860) ................................................ 14
Wicker v. Hotchkiss,
62 Ill. 107 (1871) .................................................. 12
Wood v. Bailey,
11 N.E. 567 (Mass. 1887) ................................. 9, 12
Wyatt v. Cole,
504 U.S. 158 (1992) .............................................. 12
ix
TABLE OF AUTHORITIES—continued
Page(s)
Statutes and Rules
U.S. Const. amend. I ................................................. 26
42 U.S.C. § 1983 ................................1-5, 11-14, 17, 20
Corona, C.A., Municipal Code §
12.24.030, https://bit.ly/3v08W0t ........................ 21
Riverbank, C.A., Code of Ordinances §
130.07, https://bit.ly/3tk6SzW ............................. 21
Honolulu, Haw., Rev. Ordinances
§ 15024.23 (2017),
https://bit.ly/3H5qtY9 .......................................... 21
Port Allen, L.A., Code of Ordinances §
54-13, https://bit.ly/41ugzbF ................................ 21
Texas Penal Code § 37.10(a)(3) ................. 7, 10, 16, 26
Texas Penal Code § 37.10(c)(1) ................. 7, 10, 16, 26
Other Authorities
2 Charles Greenstreet Addison, The
Law of Torts (H.G. Wood, ed. 1878) ................ 8, 12
Joel Bishop, Commentaries on Noncontract Law (1889) ............................................. 18
x
TABLE OF AUTHORITIES—continued
Page(s)
Charles G. Bretz Jr., Abuse of Process—
A Misunderstood Concept,
20 Clev. St. L. Rev. 401 (1971) ............................ 12
2 John Bouvier, Institutes of American
Law (2d ed. 1854) ................................................. 18
GianCarlo Canaparo et al., Count the
Code: Quantifying Federalization of
Criminal Statutes, The Heritage
Foundation (Jan. 7, 2022),
https://herit.ag/48lQfTc........................................ 22
John S. Clayton, Policing the Press:
Retaliatory Arrests of Newsgatherers
after Nieves v. Bartlett, 120 Colum.
L. Rev. 2275 (2020) .............................................. 28
Thomas Cooley, A Treatise On The Law
of Torts, or The Wrongs
Which Arise Independent of Contract
(1879) ..........................................6, 14-15, 17-18, 20
Thomas Cooley, A Treatise on the Law
of Torts, or The Wrongs Which Arise
Independent of Contract (3d ed.
1906) ....................................................................... 6
2 Simon Greenleaf, A Treatise on the
Law of Evidence (9th ed. 1863)...................... 18, 19
xi
TABLE OF AUTHORITIES—continued
Page(s)
William B. Hale, Handbook on the Law
of Torts (1896) ...................................................... 12
John Inazu, Unlawful Assembly as
Social Control, 64 UCLA L. Rev. 2
(2017) .................................................................... 22
International Center for Not-for-Profit
Law, U.S. Protest Law Tracker (Oct.
26, 2023), https://bit.ly/482cvlu ........................... 22
1 Edward A. Jaggard, Handbook on the
Law of Torts (1895) .............................................. 12
Scott A. Keller, Qualified and Absolute
Immunity at Common Law, 73 Stan.
L. Rev. 13374 (2021) ............................................ 15
Rachel Moran, Doing Away with
Disorderly Conduct, 63 B.C. L. Rev.
65 (2022) ............................................................... 22
Restatement (Second) of Torts § 682 ...................... 7, 8
U.S. Press Freedom Tracker, Incident
Database, https://bit.ly/47UE5RA
(last visited Dec. 16, 2023)................................... 27
United States Department of Justice,
Investigation of the Baltimore City
Police Department (2016),
https://bit.ly/3GIb7Zk........................................... 23
xii
TABLE OF AUTHORITIES—continued
Page(s)
United States Department of Justice,
Investigation of the Ferguson Police
Department (2015),
https://bit.ly/3RM9ct8 .......................................... 23
United States Department of Justice,
Investigation of the Louisville Metro
Police Department (2023),
https://bit.ly/3TocILp ........................................... 23
INTEREST OF THE AMICUS CURIAE1
The National Police Accountability Project
(NPAP) was founded in 1999 to address allegations of
misconduct by law-enforcement and detention-facility
officials. NPAP’s approximately six hundred attorney
members practice in every region of the United States.
It provides training and support for these attorneys
and other legal workers, public education and information on issues related to law-enforcement and detention-facility misconduct and accountability, and resources for nonprofit organizations and community
groups involved with victims of such misconduct.
NPAP supports legislative efforts aimed at increasing
law-enforcement and detention-facility accountability, and appears regularly as amicus curiae in cases
such as this presenting issues of particular importance for its member lawyers and their clients.
This case involves the standard that governs actions brought under 42 U.S.C. § 1983 to challenge retaliatory arrest. Because such suits invariably involve
allegations of serious police misconduct, and because
the standard applied by the Fifth Circuit often will
leave no effective remedy, amicus submits this brief to
assist the Court in the resolution of this case.
INTRODUCTION AND
SUMMARY OF ARGUMENT
In Nieves v. Bartlett, 139 S. Ct. 1715 (2019), the
Court recognized the right to challenge retaliatory arrests under Section 1983, while also seeking to establish rules that would preserve leeway for legitimate
Pursuant to this Court’s Rule 37.6, amicus states that no counsel for a party authored this brief in whole or in part and that no
person other than amicus or its counsel made a monetary contribution to its preparation or submission.
1
2
law enforcement activity. The decision below, however, offers a reading of the Nieves rule that is irrationally rigid and restrictive. That holding is inconsistent with instructive nineteenth-century commonlaw standards and is not necessary to preserve modern law-enforcement flexibility.
A. In determining the availability of a right of action under Section 1983, the Court has looked to the
contours of analogous common-law tort actions at the
time of Section 1983’s enactment. Here, the appropriate analogy is provided by the tort of abuse of process.
In the late nineteenth century, that tort was available
when the defendant (1) brought to bear some form of
legal process, criminal or civil, upon the plaintiff;
(2) with an ulterior or collateral motive; and (3) misused the process for an objective outside the regular
and lawful bounds of such legal mechanisms. An absence of probable cause was not necessary to bring an
abuse-of-process claim. Here, Ms. Gonzalez satisfies
each of these elements and could have brought such a
claim in 1871—which strongly supports her entitlement to sue under Section 1983.
B. In addition, a plaintiff in Ms. Gonzalez’s position also could have brought a tort claim for malicious
prosecution in 1871. Although a malicious prosecution
plaintiff was required to show lack of probable cause,
nineteenth-century courts used a searching standard
of reasonableness to determine whether probable
cause existed, such that “a man of ordinary caution
and prudence [would] believe and entertain an honest
and strong suspicion that the person is guilty.” Under
that standard, a court in 1871 likely would have found
no probable cause in Ms. Gonzalez’s case. Moreover,
there is no doubt that malice exists in this case under
3
nineteenth-century standards: courts resolving malicious prosecution claims looked to an expansive array
of both objective and subjective evidence of malice, including not only want of probable cause, but also all
the circumstances surrounding the prosecution. Even
if the malicious-prosecution tort could not have been
established on facts like those here, courts’ willingness to consider subjective evidence of intent at the
time of Section 1983’s enactment suggests that the
Fifth Circuit’s rigid and categorical approach in this
case is inconsistent with nineteenth-century practice.
C. The current reality of policing shows that recognition of a Section 1983 action like the nineteenth-century abuse-of-process tort is necessary. Retaliatory arrests that do not involve on-the-spot law-enforcement
decisions—or that otherwise present objective suggestions of improper motive—occur with sufficient frequency to make the need for an effective remedy compelling. At the same time, the course of retaliatoryarrest litigation also indicates that the availability of
such a remedy would not threaten the ability of law
enforcement officers to operate effectively.
ARGUMENT
I.
Abuse of process represents the closest nineteenth-century tort analog to Ms. Gonzalez’s
Section 1983 claim.
In determining whether a plaintiff has stated a
claim under Section 1983, the Court has placed substantial weight on whether the common law provided
a right of action for analogous claims at the time of the
statute’s enactment. In Nieves, the Court suggested
that the relevant analogy for Section 1983 retaliatory
arrest claims is provided by the torts of malicious
4
prosecution or false imprisonment. 139 S. Ct. at 1726.
On examination, however, at least in a case such as
this one, the proper nineteenth-century common-law
analogy actually is the tort of abuse of process—and
that tort would have provided a right of action to a
plaintiff in Ms. Gonzales’s circumstances. She therefore should be permitted to proceed under Section
1983.
A. Nineteenth-century tort standards provide guidance on the contours of Section
1983 causes of action.
Enacted as part of the 1871 Ku Klux Klan Act,
Section 1983 provides a general cause of action to redress constitutional violations. Rather than delineate
all violations that might fall under the statute, Congress drafted broad language—with gaps that this
Court fills using common-law tort principles.
In one of its first twentieth-century Section 1983
cases, Tenney v. Brandhove, 341 U.S. 367 (1951), the
Court indicated that the statute preserves nineteenth-century common-law traditions that are “well
grounded in history.” Id. at 376. Tenney spoke of common-law immunities, but the Court has repeatedly reaffirmed that the common law of torts “provide[s] the
appropriate starting point for * * * inquir[ies] under
§ 1983” more broadly. Carey v. Piphus, 435 U.S. 247,
257-58 & 258 n.13 (1978); see Imbler v. Pachtman, 424
U.S. 409, 418 (1976); Heck v. Humphrey, 512 U.S. 477,
484 (1994). Most recently, the Court took that approach in Nieves, “turn[ing] to the common law torts
that provide the ‘closest analogy’ to retaliatory arrest
claims.” 139 S. Ct. at 1726 (quoting Heck, 512 U.S. at
484).
5
Under this doctrine, nineteenth-century commonlaw torts are a “starting point,” not the be-all and endall of Section 1983 analysis. Nevertheless, satisfaction
of nineteenth-century tort standards can provide persuasive evidence that a Section 1983 claim is valid.
Here, Ms. Gonzalez’s claim comports with all the elements of a successful prima facie abuse-of-process
cause of action under nineteenth-century standards.
B. A reasonable plaintiff in Ms. Gonzalez’s
shoes circa 1871 would have brought an
abuse-of-process claim.
Selecting a tort analog requires assessing whether
a reasonable plaintiff would have brought such a tort
claim in 1871. A rational nineteenth-century plaintiff
would assess the facts of their case and find the tort
with criteria that most closely match those facts.
Therefore, the proper tort analog for Section 1983 purposes is one in which, viewing the facts most favorably
to the plaintiff, the plaintiff would have a chance at
prevailing on the merits. If a litigant cannot meet the
basic threshold standards for a particular tort, that
tort is an inappropriate analog. Of course, if there
were no tort that would have provided a cause of action, that conclusion would militate against recognition of a Section 1983 claim. But here, there was such
a tort: abuse of process.
1.
Ms. Gonzalez’s case satisfies the three
principal criteria for a nineteenth-century
abuse-of-process action.
Abuse of process in the nineteenth century (and
still today) required a showing that a defendant
(1) brought to bear some form of legal process, criminal or civil, upon the plaintiff; (2) possessed an
6
ulterior or collateral motive for bringing such process;
and (3) misused the process for an objective outside
the regular and lawful bounds of such legal mechanisms. See Bonney v. King, 66 N.E. 377, 378 (Ill. 1903)
(describing the second and third elements, and implying the first); Pittsburg, J., E. & E.R. Co. v. Wakefield
Hardware Co., 55 S.E. 422, 424 (N.C. 1906); McClenny
v. Inverarity, 103 P. 82, 83 (Kan. 1909); Kool v. Lee,
134 P. 906, 909 (Utah 1913); Glidewell v. Murray-Lacy
& Co., 98 S.E. 665, 668 (Va. 1919); see also, Thomas
Cooley, A Treatise on the Law of Torts, or The Wrongs
Which Arise Independent of Contract 354-356 (3d ed.
1906) (quoting Bonney verbatim). Although malice
was not necessary to make out a prima facie case of
abuse of process (see, e.g., Thomas Cooley, A Treatise
On The Law of Torts, or The Wrongs Which Arise Independent of Contract 189 (1879) (hereinafter “Cooley”) (“In these cases, proof of actual malice is not important, except as it may tend to aggravate damages.”)), evidence probative of malice could help satisfy the ulterior-motive criterion discussed below.
The first criterion, that defendants brought to
bear some form of legal process upon the plaintiff, was
an oft unspoken, easy-to-satisfy requirement. By definition, an arrest warrant constitutes legal process.
Ms. Gonzalez therefore satisfies this threshold element.
Second, an ulterior motive must exist (see Phoenix
Mut. Life Ins. v. Arbuckle, 52 Ill. App. 33, 38 (1893);
see also Waters v. Winn, 82 S.E. 537, 538 (Ga. 1914)
(rejecting a frivolous abuse-of-process complaint
where the plaintiff did not allege an ulterior motive)),
and must be one not justified on the face of the process. Legal process, including warrants, are intended
7
for specific purposes authorized by statute or by the
issuing court. Any deviation in purpose from that original intention represents an ulterior motivation. See
Docter v. Riedel, 71 N.W. 119, 120 (Wis. 1897) (“The
capias was a valid writ, regularly issued upon a good
cause of action, but it was used to effect an ulterior
and illegitimate purpose; and for that use there was
held to be a remedy in tort * * *.”); Dishaw v.
Wadleigh, 44 N.Y.S. 207, 210 (App. Div. 1897) (“If process is willfully made for a purpose not justified by the
law, this is an abuse for which an action will lie.”).
This ulterior-purpose threshold also was easy to satisfy.
Here, respondents’ only facially legitimate motive
would be a genuine desire to enforce Texas Penal Code
§§ 37.10(a)(3) and (c)(1). But in Ms. Gonzalez’s case,
respondents had three potential (and likely) ulterior
purposes: to (1) silence her dissent and potentially
quash her petition, (2) have her removed from office,
and (3) punish her dissent by subjecting her to indignities and reputational harm. That defendants never
explicitly acknowledged these goals has no bearing on
the case. Motive need not be explicit in an abuse-ofprocess claim: In the nineteenth century, plaintiffs
and courts could infer motive from the types of misuse
of process observed. See Jeffery v. Robbins, 73 Ill. App.
353, 361 (1898).
Moreover, it would not matter even if (improbably) respondents had been motivated in part by an actual interest to enforce Texas’s criminal law. Although
“[a] spite motive will not be enough for abuse of process when the process is used immediately only for the
purpose for which it was designed and intended” (Restatement (Second) of Torts § 682 reporter’s note (Am.
8
L. Inst. 1977)), it is plain that respondents here did
not use process only for that immediate purpose. To
the contrary, there is no real doubt that respondents’
principal objective was stifling protected speech and
ensuring that Ms. Gonzalez would not serve as a councilwoman. And “[o]ne who uses a legal process,
whether criminal or civil, against another primarily to
accomplish a purpose for which it is not designed, is
subject to liability to the other for harm caused by the
abuse of process.” Id. § 682 (emphasis added).
Third, defendants must misuse the process to
achieve an objective “not lawfully or properly attainable under it.” Bartlett v. Christhilf, 14 A. 518, 521 (Md.
1888). “An abuse is where the party employs it for
some unlawful object, not the purpose which it is intended by the law to effect; in other words, a perversion of it.” Mayer v. Walter, 64 Pa. 283, 285-86 (1870);
see Restatement (Second) of Torts § 682. Although
this principle has existed for centuries, common-law
courts in the United States and England typically
trace its elaboration to Grainger v. Hill, 4 Bing. N.C.
212 (Q.B. 1838). In that case, the defendants arrested
a ship captain under a writ of capias for failure to pay
certain mortgage payments. But they used the arrest
as leverage to coerce the captain into relinquishing
the ship’s register, an item not within the terms of the
mortgage security or the writ and that he had previously refused to surrender. The Court of Queen’s
Bench determined that using the writ in this fashion
constituted an abuse of process tantamount to using
lawful procedures to carry out theft and conversion.
Id. at 216. Under this understanding, defendants may
not “prostitute[] [process] to an illegal purpose.”
2 Charles Greenstreet Addison, The Law of Torts
§ 868 (H.G. Wood, ed. 1878).
9
Common misuses of arrest warrants in the nineteenth century included arresting individuals in order
to secure their presence within the jurisdiction of a
state for the purposes of personal service, coercing
debt payments, seizing property, and ensuring that
plaintiffs would miss other legal proceedings. See
sources cited infra at 19-20. But common-law misuses
encompassed even broader categories of behavior. The
Supreme Judicial Court of Massachusetts outlined
many such abuses, including those related to arrests,
such as when a plaintiff is “subjected to unwarrantable insult and indignities, is treated with cruelty, is
deprived of proper food, or is otherwise treated with
oppression and undue hardship.” Wood v. Bailey, 11
N.E. 567, 576 (Mass. 1887) (emphasis added). “Perhaps the most frequent form of such abuse,” the court
elaborated, “is by working upon the fears of the person
under arrest, for the purpose of extorting money or
other property, or of compelling him to sign some paper, to give up some claim, or to do some other
act * * * .” Ibid. Even securing a mere promise, which
a defendant has no power to effect, may constitute
possible grounds for an abuse-of-process claim. Jeffery, 73 Ill. App. at 362. These illegitimate endpoints,
particularly those of (1) coercing retreat from a claim,
(2) compelling another to act, or (3) subjection to “unwarrantable insult and indignities,” encompass a
wide spectrum of behavior that is not facially unlawful. Instead, the purpose of abuse of process was not
to penalize criminal behavior, but rather to ensure
that individuals do not derive more private, collateral
benefit from legal process than such process expressly
grants.
In this case. respondents used legal process in
multiple ways that nineteenth-century courts plainly
10
would have regarded as abusive. For one, they circumvented standard procedures in a variety of ways. See
Pet. Br. 9-14. For another, even had respondents followed proper procedure, nineteenth-century courts
assessed “misuse” by looking at the defendants’ ultimate goal. Here, that endpoint was (1) punishing and
stifling dissent, (2) removal from office, and (3) damage to Ms. Gonzales’s reputation. These are all goals
that lay outside the proper use of legal process, involving “use of process for the purpose of compelling the
defendant to do some collateral thing which he could
not lawfully be compelled to do.” Johnson v. Reed, 136
Mass. 421, 423 (1884).
Respondents cannot escape liability under nineteenth-century standards merely by securing a legitimate end while simultaneously pursuing an ulterior
purpose. Nineteenth-century courts were alert to this
danger. They assumed that when defendants obtain
an “unlawful collateral end,” the “legal use of [process]” was but “ostensible, while the real design was
to pervert its force and efficiency to the success of the
unlawful collateral design.” Phoenix Mut. Life Ins., 52
Ill. App. at 38; see Sneeden v. Harris, 13 S.E. 920, 923
(N.C. 1891) (““The law is just and good,” and “[cannot] * * * be made the tool of trickery and cunning.”).
Consequently, Texas Penal Code §§ 37.10(a)(3) and
(c)(1) provide respondents no safe harbor under traditional tort standards, even if Ms. Gonzales is thought
to have committed some technical violation.
2.
The harms for which Ms. Gonzalez seeks
remediation could be redressed through
an abuse-of-process claim.
In Heck, the Court suggested that, when determining a tort analog, it will consider whether the
11
injuries alleged are the type that a court could traditionally remedy under the proposed analog. 512 U.S.
at 486 n.5. There, the Court explained that it did not
regard abuse of process as the best analogy because
the tort would not afford the plaintiff the ability to remediate harms stemming from “conviction or confinement,” as were there at issue. Id. at 486.
But Ms. Gonzalez does not assert injuries arising
from “conviction or confinement.” Rather, the harms
she alleges in her complaint are directly related to the
“perversion of the lawfully initiated process”: (1) [t]he
harm to [her] reputation,” (2) “to her future opportunities,” (3) “to her pocketbook,” (4) “to her faith in the
criminal justice system,” and (5) “to her physical
health * * * brought on by the worry about her criminal prosecution.” Complaint and Jury Demand at
¶ 136, Gonzalez v. City of Castle Hills, No. 20-cv-1151
(W.D. Tex. Sept. 29, 2020), ECF No. 1. All of those are
harms that can be remedied through an abuse-of-process claim.
3.
Unlike malicious prosecution and false
imprisonment, abuse of process does not
require a showing of want of probable
cause.
Finally, abuse of process did not require a threshold showing that defendants lacked probable cause. At
least Connecticut, Illinois, Kentucky, Maine, Maryland, Massachusetts, New Hampshire, New York,
North Carolina, Pennsylvania, Vermont, and Wisconsin took this view in the years before and shortly after
Section 1983’s enactment. See, e.g., Drake v. Chester,
2 Conn. 473, 476 (1818); Allen v. Greenlee, 13 N.C.
370, 371 (1830); Pierson v. Gale, 8 Vt. 509, 512 (1836);
Breck v. Blanchard, 20 N.H. 323, 328 (1850); Page v.
12
Cushing, 38 Me. 523, 527 (1854); Kennedy v. Barnett,
64 Pa. 141, 143-44 (1870); Wicker v. Hotchkiss, 62 Ill.
107, 110 (1871); Grigsby’s Ex’r v. Ratecan, 1872 WL
6428, at *1 (Ky. Dec. 29, 1872); Hazard v. Harding,
1882 WL 11435 (Sup. Ct. N.Y. Cnty. Jan. 1, 1882);
Emery v. Ginnan, 24 Ill. App. 65, 68 (1887); Mudrock
v. Killips, 28 N.W. 66, 68 (Wis. 1886); Wood, 11 N.E.
at 576; Bartlett, 14 A. at 521; Docter, 71 N.W. at 120;
see also 2 Addison, at § 868; 1 Edward A. Jaggard,
Handbook on the Law of Torts § 203 (1895); William
B. Hale, Handbook on the Law of Torts § 185 (1896).
***
Against this background, abuse of process is the
proper tort analog here, and one that is satisfied on
the facts of this case. Indeed, the Court previously recognized that abuse of process may represent a reasonable tort analog under Section 1983. Wyatt v. Cole,
504 U.S. 158, 164 (1992).2 The goals of Section 1983
and the abuse-of-process tort are parallel: the protection of “private defendants [from] unjustified harm
arising out of the misuse of governmental processes.”
Ibid. Justice Souter, joined by Justices Blackmun,
Stevens, and O’Connor, recognized this similarity in
2 Wyatt, however, appears to have misstated the elements of the
abuse-of-process tort. 504 U.S. at 165 (“defendants could defeat
a malicious prosecution or abuse of process action if they acted
without malice and with probable cause”). This confusion is not
unique to Wyatt. See Charles G. Bretz Jr., Abuse of Process—A
Misunderstood Concept, 20 Clev. St. L. Rev. 401, 401-02 (1971).
Despite their strong overlap in subject matter, the torts of abuse
of process and malicious prosecution are distinct. Malicious prosecution is the cause of action for initiating legal process wrongly,
while abuse of process presupposes lawful process. See infra, at
14-21.
13
Heck: “If * * * the common law were the master of statutory analysis, not the servant * * * we would find ourselves with two masters to contend with here, for we
would be subject not only to the tort of malicious prosecution but to the tort of abuse of process as well,
Heck, 512 U.S. at 494-95 (opinion of Souter, J.).
Although Nieves did not invoke abuse of process,
that likely was because neither the parties nor the
amici in that case raised the point in their briefs or at
argument; and because the challenged conduct at issue was a split-second arrest, making it unlikely that
a premeditated ulterior motive existed. Nieves’s choice
of tort analog therefore should not be thought to resolve the question for this case.
II. As applied in the nineteenth century, the
tort of malicious prosecution also would
support the claim in this case.
Although the abuse-of-process analogy is sufficient to establish the propriety of Ms. Gonzalez’s
claim, that is not the only way in which nineteenthcentury common law could bear on the question here:
the Court also could consider the tort of malicious
prosecution. That tort is relevant in two respects.
First, properly understood, the malicious-prosecution
tort likewise provides an available and analogous
nineteenth-century right of action for conduct like
that at issue in this case. And second, even if the malicious-prosecution tort were thought to have been unavailable on facts like those here, it is apparent that
courts at the time of Section 1983’s enactment deemed
broad and subjective inquiries into the existence of
malice both proper and manageable. The Fifth Circuit’s extremely rigid approach to determining
14
retaliatory intent therefore cannot be reconciled with
practice at the time of Section 1983’s enactment.
A. Nineteenth-century courts relied on a
broad standard of reasonableness to determine whether probable cause existed.
In the nineteenth century, three elements were
required for bringing a malicious-prosecution claim:
(1) “[a] suit or proceeding has been instituted without
any probable cause therefor”; (2) “[t]he motive in instituting it was malicious”; and (3) “[t]he prosecution
has terminated in acquittal or discharge of the accused.” Cooley, supra, at 181. See Wheeler v. Nesbitt,
65 U.S. 544, 549-550 (1860). In Nieves’ consideration
of malicious prosecution, the Court highlighted the requirement that probable cause for arrest be absent,
suggesting that such a tort would be hard to establish.
139 S. Ct. at 1726.3
But the standard of probable cause that treatise
writers and jurists recognized in the nineteenth century was one with sharper teeth than that applied today. Cooley noted that “a mere belief * * * that cause
exists is insufficient.” Cooley, supra, at 182. Instead,
it was understood that “there must be grounds on belief as would influence the mind of a reasonable person, and nothing short of this could justify a serious
and formal charge against another.” Ibid. All the cases
to which Cooley cited emphasize that this inquiry—
unlike that into malice—was an objective one: “Probable cause is such a state of facts in the mind of the
prosecutor as would lead a man of ordinary caution
and prudence to believe, or entertain an honest and
3 No party contests that the third element is satisfied here. The
malice prong is addressed below.
15
strong suspicion that the person arrested is guilty.”
Ibid. (quoting Bacon v. Towne, 58 Mass. 217, 238-39
(1849)). See also Faris v. Starke, 42 Ky. 4, 6 (1842)
(holding that probable cause exists if the officer has
“such ground as would induce a man of ordinary prudence and discretion to believe in the guilt and to expect the conviction of the person suspected, and if he
acts in good faith on such belief and expectation”);
Broad v. Ham, 5 Bing. (N.C.) 722, 725 (1839) (holding
that “there must be probable cause, such as would operate on the mind of a reasonable man”).
Some of the cases to which Cooley cited articulate
an even stronger standard of probable cause.4 In Page,
38 Me. at 526, the Supreme Judicial Court of Maine
held that “there can be no such thing as probable
cause for a prosecution to accomplish a purpose,
known to the prosecutor to be unlawful.” And in Barron v. Mason, 31 Vt. 189 (1858), the Vermont Supreme
Court held that public officers can establish probable
cause only when they “have information with such directness and certainty, as to gain credit with prudent
men, of the existence and susceptibility of proof of
such facts as show guilt.” Id. at 195. “It is not enough
to show that [proof of probable cause] appeared sufficient to this particular party, but it must be sufficient
to induce a sober, sensible and discreet person to act
4 The Court has paid particular attention to Cooley’s treatise.
See, e.g., Bogan v. Scott-Harris, 523 U.S. 44, 51 (1998) (describing Cooley’s treatise as “influential”); Scott A. Keller, Qualified
and Absolute Immunity at Common Law, 73 Stan. L. Rev. 1337,
1344 (2021) (of nineteenth-century treatises, “the Supreme Court
has relied on former Michigan Supreme Court Justice Cooley’s
treatise the most”). Decisions cited by Cooley therefore can be
thought to set forth a national standard for tort law.
16
upon it, or it must fail as a justification for the proceeding.” Id. at 197.
Under this standard, it is doubtful that probable
cause to arrest Ms. Gonzalez would have been thought
present in 1871. At a contentious city council meeting,
she appeared to have accidentally placed a petition
calling for the removal of the city manager in her
binder. Shortly thereafter, a police officer approached
her and directed her to the mayor, who asked her
where the petition was. When he told her to look for
the petition in her binder, Ms. Gonzalez found it there,
not having realized that she had placed it in the
binder. The misunderstanding was quickly resolved.
See Pet. Br. 8-9. But Ms. Gonzalez nevertheless was
arrested for “intentionally destroy[ing], conceal[ing],
remov[ing], or otherwise impair[ing] the verity, legibility, or availability of a governmental record.” Texas
Penal Code §§ 37.10(a)(3) & (c)(1). See Pet. Br. 10. As
Judge Oldham suggested in dissent, respondents’ assertion of probable cause in these circumstances borders on absurd. Gonzalez v. Trevino, 42 F.4th 487,
495-496 (5th Cir. 2022) (Oldham, J., dissenting).
Indeed, the circumstances here are reminiscent of
the malicious-prosecution claim in Page, where the
Maine court held that “there can be no such thing as
probable cause for a prosecution to accomplish a purpose, known to the prosecutor to be unlawful.” Page,
38 Me. at 526. Unlike in Nieves, where the Court
found the arresting officers to have had probable
cause to arrest based on “on a combination of the content and tone of [the plaintiff’s] speech, his combative
posture, and his apparent intoxication” (139 S. Ct. at
1724), no such evidence—either direct or
17
circumstantial—existed here to support probable
cause for an arrest.
Accordingly, there is every reason to believe that
a nineteenth-century court would have found probable
cause to be absent and a malicious-prosecution claim
to be available on the facts of this case. Although the
issue was not argued below, in light of this more thorough review of the nineteenth-century law of malicious prosecution, this point could be presented on remand or, in any event, in other cases involving similar
circumstances.
B. In establishing malice, nineteenth-century courts looked to an expansive array
of both objective and subjective evidence.
Moreover, nineteenth-century courts considered a
wide array of evidence—both objective and subjective—in determining whether the malice prong of the
malicious-prosecution tort had been established. Consequently, even if it is thought that an absence of
probable cause cannot be shown here and that the malicious-prosecution tort therefore is unavailable, the
Fifth Circuit’s highly blinkered approach to establishing improper intent cannot be squared with practice
at the time of Section 1983’s adoption.
Nineteenth-century treatise writers noted the
broad grounds on which plaintiffs could prove that a
prosecution had been initiated against them with malice. Cooley, for instance, wrote that malice required
merely a “showing that the proceeding was instituted
from any improper or wrongful motive”—it was not
even “essential that actual malevolence or corrupt design be shown.” Cooley, supra, at 185. Bishop’s 1889
18
treatise similarly defined malice broadly as “not necessarily, while it may be, ill will to the individual,
but * * * any evil or unlawful purpose, as distinguished from that of promoting the justice of the law.”
Joel Bishop, Commentaries on Non-contract Law
§ 232 (1889). Bishop further noted that, “being thus a
condition of the mind, an intent, and not an outward
act,” malice could most easily be proved as an “inference from other things”—including testimony from
“the party himself.” Id., at § 234. Establishing malice
was “never a question of law for the court, but * * *
always to be found by the jury.” Ibid. See also 2 Simon
Greenleaf, A Treatise on the Law of Evidence § 453
(9th ed. 1863); Page, 38 Me. at 526; Barron, 31 Vt. at
202.
Want of probable cause was one way to prove malice by inference. See 2 John Bouvier, Institutes of
American Law 520 (2d ed. 1854); Cooley, supra, at
185. The Court recognized this principle in Nieves:
“Demonstrating that there was no probable cause for
the underlying criminal charge will tend to reinforce
the retaliation evidence and show that retaliation was
the but-for basis for instigating the prosecution.” 139
S. Ct. at 1723 (citation omitted).
But other paths to proving malice were also available in the nineteenth century. Greenleaf noted that
“[m]alice may also be proved by evidence of the defendant’s conduct and declarations, and his forwardness and activity in exposing the plaintiff.” Greenleaf,
supra, at § 453 (1848). Cooley wrote simply that
“[s]ometimes the accompanying circumstances show
the bad motive very clearly,” such as when “an arrest
on an unfounded criminal charge was made use of to
compel” some unlawful outcome. Cooley, supra, at 185
19
(using “the surrender of securities to which both parties were equally entitled” as an example). Malice
based on bad motive was “sufficiently common to need
special attention.” Ibid. The Vermont Supreme Court
in Barron states that “whatever tends to prove or disprove [malice] is competent to be received.” 31 Vt. at
202.
In Page, the Maine Supreme Judicial Court
fleshed out this standard, holding that plaintiffs could
marshal both “malice in a popular and in a legal
sense” to prove their claim. 38 Me. at 526. Unlike popular malice (which stems from a bad motive), legal
malice could be found where unlawful acts are injurious to a plaintiff regardless of whether the subjective
motive was good or bad: “One may prosecute a laudable purpose with an honest intention, but in such a
manner, and in such disregard of the rights of others,
as to render his acts unlawful. Prosecutions may be
instituted and pursued with pure motives, to suppress
crimes, but so regardless of established forms of law,
and of judicial proceedings, as to render the transactions illegal and malicious.” Id. at 526. Ultimately,
what mattered for the purpose of establishing malice
was whether the defendants “conspired and confederated to accomplish a purpose which they knew to be
unlawful, and by their acts done in effecting such unlawful purpose, they occasioned damage to the plaintiffs.” Id. at 527.
In Barron, the Vermont Supreme Court further
defined legal malice as “nothing more than bad faith,
and, as applied to the subject of malicious prosecution,
the want of sincere belief of the plaintiff’s guilt of the
crime for which the prosecution was instituted.” 31 Vt.
at 198. Malice, the court explained, “regards the mind
20
and judgment of the defendant” (id. at 198), “is judged
of with reference to the party” (id. at 197), and can be
either “express or implied.” Id. at 198. The court held
that the grounds for establishing malice were unconstrained: “whatever fairly tends to show that [the defendant] acted with good faith, and without malice,
must be received.” Id. at 197
In Ms. Gonzalez’s case, the “accompanying circumstances show the bad motive very clearly.” Cooley,
supra, at 185. That is made clear beyond dispute by
the background recounted in Ms. Gonzalez’s brief to
this Court (at 7-16) and in Judge Oldham’s dissent below. The Fifth Circuit’s refusal to take account of any
of this evidence is inconsistent with nineteenth-century practice.
III. There is need for an effective cause of action
to challenge retaliatory arrests.
Nineteenth-century common law thus demonstrates that when Section 1983 was enacted, misconduct like retaliatory arrest was actionable in tort. And
the current reality of policing shows that recognition
of such a cause of action is necessary under Section
1983 in circumstances like those in this case. Retaliatory arrests that do not involve on-the-spot law enforcement decisions—or that otherwise present objective indicia of improper motive—occur with sufficient
frequency as to make the need for an effective remedy
compelling. At the same time, the relative rarity of retaliatory-arrest litigation also indicates that the availability of such a remedy would not threaten the ability
of law enforcement officers to perform their important
duties effectively.
21
A. Retaliatory arrests are a significant
problem.
1. At the outset, and recognizing that law enforcement officers generally act diligently and in good
faith, there is no doubt that retaliatory arrests do occur. “[C]riminal laws have grown so exuberantly and
come to cover so much previously innocent conduct
that almost anyone can be arrested for something.”
Nieves, 139 S. Ct. at 1730 (Gorsuch, J., concurring in
part and dissenting in part)). For example, municipalities have criminalized public spitting,5 picnicking,6
dressing not “neatly,”7 and crossing the street while
looking at a cell phone.8
Novel criminalization continues today. At the federal level, researchers estimate that the number of
sections of the U.S. Code creating a federal crime has
Riverbank, C.A., Code of Ordinances § 130.07,
https://bit.ly/3tk6SzW (“It is unlawful for any person to spit or
expectorate any secretion, saliva, or other substance in any place
open to the public . . .”).
5
Corona,
C.A.,
Municipal
Code
§
12.24.030,
https://bit.ly/3v08W0t (“No person shall perform any of the acts
hereafter specified in or upon any public street, alley, sidewalk,
parkway, public park, recreation building or facility, or other city
facility, except as otherwise provided herein. * * * Cook or prepare any meal, barbecue or picnic except in the areas designated
for such use * * *).
6
Port Allen, L.A., Code of Ordinances § 54-13,
https://bit.ly/41ugzbF (“It is the policy of the City of Port Allen
for all persons to be properly dressed whenever they appear in
public view on private or public property * * * in a manner that
is neat and appropriate for recreation, school or work.”).
7
Honolulu, Haw., Rev. Ordinances § 15024.23 (2017),
https://bit.ly/3H5qtY9 (“No pedestrian shall cross a street or
highway while viewing a mobile electronic device.”).
8
22
increased by 36% since 1994. GianCarlo Canaparo et
al., Count the Code: Quantifying Federalization of
Criminal Statutes, The Heritage Foundation (Jan. 7,
2022), https://herit.ag/48lQfTc. Forty-five states have
considered and forty-two have enacted laws that restrict the rights of protestors, often authorizing arrest
in a broader array of circumstances than previously
permitted. International Center for Not-for-Profit
Law, U.S. Protest Law Tracker (Oct. 26, 2023),
https://bit.ly/482cvlu. In addition to idiosyncratic municipal ordinances, broadly worded, run-of-the-mill
provisions—such as those prohibiting disorderly conduct, unlawful assembly, and unreasonable noise—increase opportunities for retaliatory arrest. See Rachel
Moran, Doing Away with Disorderly Conduct, 63 B.C.
L. Rev. 65, 88 (2022) (“[w]hen broadly worded statutes
intersect with minor misconduct, law enforcement
discretion is at its height.”). See also John Inazu, Unlawful Assembly as Social Control, 64 UCLA L. Rev.
2, 7 (2017).
2. Given the sweep of opportunities to arrest, it is
not surprising that retaliatory arrests have been welldocumented. For example, in pattern-or-practice investigations into municipal police departments, the
U.S. Department of Justice repeatedly has uncovered
systematic retaliatory practices:
In Ferguson, Missouri, the Justice Department found that the Police Department “interfere[s] with individuals’ rights to protest
and record police activities,” citing one instance where police abruptly arrived at a
peaceful protest, announced that everyone
would be arrested, and moved people with
cameras away with the threat of arrest for
23
failure to obey. United States Department
of Justice, Investigation of the Ferguson Police
Department
27-28
(2015),
https://bit.ly/3RM9ct8. The Police Department “retaliate[d] against individuals for
using language that, while disrespectful, is
protected by the Constitution.” Id. at 25.
In Baltimore, “[o]fficers frequently detain
and arrest members of the public for engaging in speech the officers perceive to be critical or disrespectful.” United States Department of Justice, Investigation of the Baltimore City Police Department 9 (2016),
https://bit.ly/3GIb7Zk. In one instance, an
officer pursued a man who used a profanity,
demanded identification, grabbed him, and
arrested him. Id. at 117. “The officer’s pursuit, detention, and eventual arrest was an
unlawful exercise of government power to
exact personal vengeance for a perceived
slight.” Ibid.
The Justice Department uncovered similar
practices in Louisville, finding that the
Louisville Metro Police Department
(LMPD) abridged the rights of citizens,
both during protests and in non-protest encounters, through retaliatory arrest.
United States Department of Justice, Investigation of the Louisville Metro Police
Department
54-57
(2023),
https://bit.ly/3TocILp. Further, LMPD officers engaged in content-based discrimination in their planned responses to various
protesting groups. Id. at 58.
24
B. Although retaliatory arrest claims are
rare, it is important that remedies be
available to address this disturbing form
of misconduct.
1. Against the background of such misconduct, the
Court in Nieves correctly recognized the “‘risk that
some police officers may exploit the arrest power as a
means of suppressing speech.’” 139 S. Ct. at 1725
(quoting Lozman v. Riviera Beach, 138 S. Ct. 1945,
1953-1954 (2018)). The Court nevertheless expressed
concern that use of an excessively broad or subjective
liability standard in retaliatory arrest cases could
“dampen the ardor of all but the most resolute, or the
most irresponsible, in the unflinching discharge of
their duties.” Id. at 1725. Experience in the years
since Nieves, however, demonstrates that retaliatory
arrest claims are made with relative infrequency and
are hard to establish, even under a standard broader
than that applied below in this case. The Court therefore need not fear that a ruling for Ms. Gonzalez will
lead to an avalanche of retaliatory-arrest claims that
would impede legitimate police activity.
To establish the universe of cases claiming retaliatory arrest since the decision in Nieves, we conducted
a search of Westlaw and found only approximately
1,100 published decisions nationwide citing Nieves for
any purpose in the more than four years between that
decision and December 6, 2023. To identify cases with
fact patterns that could be affected by the decision in
this case, we then isolated those that cited the portion
of Nieves recognizing entitlement to sue even in the
presence of probable cause to arrest, finding 200 decisions concerning 178 unique cases. And of these, only
seventeen cases survived past the motion-to-dismiss
25
and summary-judgment stages—including in jurisdictions, such as the Seventh and Ninth Circuits (see,
e.g., Ballentine v. Tucker, 28 F.4th 54 (9th Cir. 2022);
Nilsson v. Baker Cnty., Oregon, 2022 WL 17156771
(D. Or. Nov. 21, 2022)), that apply the standard advocated by Ms. Gonzalez here.9
9 The published decisions in fifteen of these cases were on mo-
tions to dismiss or summary judgment: Mix v. West, 2023 WL
2654175, at *1 (W.D. Ky. Mar. 27, 2023); Imani v. City of Baton
Rouge, 614 F. Supp. 3d 306, 357 (M.D. La. 2022); Nilsson v. Baker
Cnty., Oregon, 2022 WL 17156771, at *8 (D. Or. Nov. 21, 2022),
report and recommendation adopted, 2022 WL 17170713 (D. Or.
Nov. 22, 2022); Balcom v. Figueroa, 2022 WL 1126051, at *7
(W.D. Pa. Feb. 28, 2022), report and recommendation adopted as
modified sub nom. Balcom v. City of Pittsburgh, 2022 WL 950039
(W.D. Pa. Mar. 30, 2022); Haywood v. City of El Paso, Texas,
2021 WL 5072029, at *13 (W.D. Tex. Oct. 26, 2021); Bledsoe v.
Ferry Cnty., Washington, 499 F. Supp. 3d 856, 878 (E.D. Wash.
2020); Lull v. Cnty. of Sacramento, 2019 WL 6908046, at *2 (E.D.
Cal. Dec. 19, 2019), report and recommendation adopted, 2020
WL 1139485 (E.D. Cal. Mar. 9, 2020); Goodwin v. D.C., 579 F.
Supp. 3d 159, 172-73 (D.D.C. 2022); Hassan v. City of Atlanta,
2022 WL 1778211, at *6 (N.D. Ga. June 1, 2022); Henagan v. City
of Lafayette, 2022 WL 4553055, at *13–14 (W.D. La. Aug. 16,
2022), 2022 WL 4546721 (W.D. La. Sept. 27, 2022); Lail v. Caesar, 2022 WL 20581966, at *10 (E.D. Va. Dec. 9, 2022); Akindes
v. City of Kenosha, 2021 WL 4482838, at *13 (E.D. Wis. Sept. 30,
2021); Rideout v. Shelby Twp., 2023 WL 5917392, at *4 (E.D.
Mich. Sept. 11, 2023); Deis v. Mitchell, 2020 WL 7024696, at *6
(E.D. Mich. Nov. 30, 2020); Enoch v. Hamilton Cnty. Sheriff,
2022 WL 2073292, at *3 (S.D. Ohio June 9, 2022), appeal dismissed sub nom. Enoch v. Hamilton Cnty., OH Sheriff’s Off.,
2023 WL 3476630 (6th Cir. Feb. 21, 2023). The plaintiff prevailed
at trial in one of the remaining cases, Ballantine v. Tucker, 28
F.4th 54 (9th Cir. 2022). In the other, Nieves had not yet been
decided at the time of the arrest at issue, so the officer prevailed
on qualified immunity grounds. Nigro v. City of New York, 2020
WL 5503539, at *4 (S.D.N.Y. Sept. 11, 2020).
26
2. Although most of these cases involved on-thespot arrests, it is important to recognize that Ms. Gonzalez’s circumstances are not unique: There are additional cases that also involved delayed or otherwise
aberrant arrests that were executed for improper purposes. It is crucial that retaliatory-arrest rules provide meaningful opportunities to challenge this type
of serious, premeditated misconduct.
In one such case, a journalist who routinely criticizes law enforcement was arrested six months after
she purportedly violated the Texas Penal Code by calling the City of Laredo Police Department to confirm
the identity of people involved in accidents. Villarreal
v. City of Laredo, Texas, 44 F.4th 363, 376 (5th Cir.)
(allowing First Amendment claim to proceed), reh’g en
banc granted, opinion vacated, 52 F.4th 265 (5th Cir.
2022). Because the journalist could not identify others
who had made similar calls to the police department
but escaped arrest, the claim would be precluded if the
Fifth Circuit applied the standard it did in this case.
Similar cases occur outside of the Fifth Circuit.
Anthony Novak was arrested for violating a law
against using a computer to disrupt or impair police
functions, spending four days in jail before he made
bond; he had run a parody Facebook page mocking the
Parma Police Department. Although the court resolved the case on qualified immunity grounds, it recognized that “this case strikes at the heart of a problem the Court has recognized in the recent retaliation
cases * * * that some police officers may exploit the
arrest power as a means of suppressing speech.” Novak v. City of Parma, 932 F.3d 421, 431 (6th Cir.
2019). But that case, too, would fail under the standard applied by Fifth Circuit in this case.
27
And in yet another case, Willie Rideout participated in protests, held on July 1 and July 15, 2020,
against a local sheriff who had made racist social media posts. Rideout, 2023 WL 5917392, at *1. On July
20, 2020, Rideout gave an interview to the local media,
calling for the sheriff’s resignation. He was later arrested for his conduct during the protests, even
though he had helped “control the crowd” and “assist[ed] the police officers,” at one point even being
“thanked by one of the police officers for that assistance.” Id., at *2. Here again, although the district
court allowed the claim to proceed, Rideout’s failure to
identify protest leaders who acted similarly but escaped arrest means that his claim likely would fail under the standard applied below.
3. Finally, apart from cases (like this one and
those described above) that do not concern on-the-spot
arrests, there are additional categories of cases involving retaliatory arrests that both are especially problematic and have objective indicia tending to show an
improper motive.
For one, arrests of members of the press, especially while they are reporting on protest activities,
are likely both to be motivated by an intent to suppress unfavorable publicity and to discourage constitutionally protected activity. Such arrests occur often
enough to be a cause for concern: It appears that there
have been 299 incidents of arrest or criminal charges
filed against members of the press since 2017. U.S.
Press Freedom Tracker, Incident Database,
https://bit.ly/47UE5RA (last visited Dec. 16, 2023).
Such retaliatory arrest of members of the press while
they are filming or reporting “poses a unique concern
* * * since the act of an arrest—regardless of whether
28
charges are filed—impedes newsgathering and dissemination, perhaps irreversibly so.” John S. Clayton,
Policing the Press: Retaliatory Arrests of Newsgatherers after Nieves v. Bartlett, 120 Colum. L. Rev. 2275,
2291 (2020).
Similarly, arrest of people engaged in peaceful
demonstrations, especially those against the police, is
an area where special scrutiny may be warranted. In
its investigation of the Louisville Metro Police Department, for example, the Justice Department uncovered
viewpoint discrimination against groups protesting
for police reform, as compared with protesters who
purported to support police. Investigation of the Louisville Metro Police Department 54-57. Similarly, in
Kenosha, Wisconsin, pro-reform protestors reported
differential treatment, including arrest for curfew violations, as compared to pro-police protestors.
Akindes, 2021 WL 4482838 at *2.
Although the Court need not resolve such claims
in the context of this case, they involve circumstances
that distinguish them from the typical on-the-spot arrest. Cf. Nieves, 139 S. Ct. at 1724-25 (noting 29,000
arrests made daily in the United States). The Court’s
resolution of this case should take care not to foreclose
meaningful remedies in such cases.
29
CONCLUSION
For the foregoing reasons, the judgment of the
court of appeals should be reversed.
Respectfully submitted.
EUGENE R. FIDELL
Yale Law School
Supreme Ct. Clinic
127 Wall Street
New Haven, CT 06511
CHARLES A. ROTHFELD
Counsel of Record
Mayer Brown LLP
1999 K Street, NW
Washington, DC 20006
(202) 263-3000
crothfeld
@mayerbrown.com
PAUL W. HUGHES
MICHAEL B. KIMBERLY
McDermott Will &
Emery LLP
500 N. Capital St., NW
Washington, DC 20001
LAUREN BONDS
KEISHA JAMES
National Police Accountability Project
2022 St. Bernard Ave.,
Suite 310
New Orleans, LA 70116
Counsel for Amicus Curiae
DECEMBER 2023
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