In her memoir, Justice Sonia Sotomayor confessed that she does not always observe the letter of the law. “I’m a New Yorker,” she wrote, “and I jaywalk with the best of them.”
Almost no one is arrested for jaywalking, of course. But, as Justice Elena Kagan pointed out in a 2018 argument, it is the sort of crime that a police officer could use as a pretext for retaliation.
“You can think of it,” she said, “as a case where an individual police officer, you know, decides to arrest for jaywalking somebody wearing a Black Lives Matter T-shirt or, alternatively, a Make America Great Again cap.”
The crime was real. “The person jaywalked,” she said. But what should judges do when a police officer, who would ordinarily look the other way, does not?
The Supreme Court has long struggled to figure out when to allow suits for such retaliatory arrests. In 2019, it left the door open just a crack — using the example of jaywalking.
“At many intersections, jaywalking is endemic but rarely results in arrest,” Chief Justice John G. Roberts Jr. wrote for the majority, adding that there may be circumstances in which someone arrested for that crime could sue for retaliation.
Last month, the court agreed to hear the case of a 72-year-old city councilwoman in Texas who was arrested for misplacing a piece of paper after criticizing the city manager. The case, to be argued next year, will test who can squeeze through the door the chief justice left ajar — or whether, as a practical matter, it is limited to jaywalking.
The general rule is that if a police officer had probable cause for an arrest, there can be no claim of retaliation, whatever the officer’s actual motives.
In his 2019 opinion, though, the chief justice said there was “a narrow qualification” to the usual rule that the presence of probable cause dooms a claim for retaliatory arrest.
“If an individual who has been vocally complaining about police conduct is arrested for jaywalking,” he wrote, “it would seem insufficiently protective of First Amendment rights to dismiss the individual’s retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest.”
How to tell when this exception applies? The plaintiff must present, the chief justice wrote, “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”
That phrase, which becomes less clear the longer you stare at it, is at the heart of the new case, Gonzalez v. Trevino, No. 22-1025.
It concerns Sylvia Gonzalez, who says she was arrested in 2019 for a trivial offense in retaliation for her criticism of the city manager of Castle Hills, Texas.
It happened not long after Ms. Gonzalez won a surprise victory and became the town’s first Hispanic councilwoman. Her first official act was to help collect signatures for a petition calling for the city manager’s removal. At her first council meeting, a resident submitted the petition.
At the end of the session, Ms. Gonzalez gathered the papers in front of her and put them in a binder. The petition was among them.
It was not there long. The mayor asked for it, and Ms. Gonzalez found it in her binder. As she recalled it, the mayor told her that she had “probably picked it up by mistake.”
A two-month investigation followed. At its conclusion, Ms. Gonzalez was arrested for concealing a government document, a misdemeanor.
“She spent a day in jail, handcuffed, on a cold metal bench, wearing an orange jail shirt and avoiding the restroom, which had no doors,” her lawyers wrote in her petition seeking Supreme Court review.
The district attorney dropped the charges, but Ms. Gonzalez, saying she had found the episode traumatic, resigned from her position. She sued, saying the arrest had been in retaliation for her exercising her First Amendment rights.
Ms. Gonzalez, represented by the Institute for Justice, said she had the sort of objective evidence of retaliation that Chief Justice Roberts required. Her lawyers had reviewed a decade of data in her county, they wrote, and it was “clear that the tampering statute had never been used to charge someone for a common and uneventful offense of putting a piece of paper in the wrong pile.”
A divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit said that was not enough. “Gonzalez does not offer evidence of other similarly situated individuals who mishandled a government petition but were not prosecuted,” Judge Kurt D. Engelhardt wrote for the majority.
That is a high bar. It is one thing to show that no one else had been arrested for what she did. It is another to prove that others had misplaced pieces of paper and had not been arrested.
When the case was argued before the Fifth Circuit, a lawyer for the city officials Ms. Gonzalez had sued said the exception the chief justice had identified was basically limited to jaywalking.
The 2019 case “talked specifically about jaywalking and places where jaywalking is endemic,” said the lawyer, Scott M. Tschirhart. “What she would have to show is that stealing government documents was endemic, and that’s never been shown.”