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The Only Person Ever Arrested

It was a longshot, but somehow 72-year-old Sylvia Gonzalez managed to pull it off. She was elected to the city council of Castle Hill, Texas on a platform of going after the city manager. That did not make her popular with the mayor, who decided to do something about it.

Gonzalez started a petition for the ouster of the city manager. After a council meeting, she collected her papers and put them in a binder. Included was the petition, which the mayor, Edward Trevino, asked for and which she immediately found and gave to him. Big deal? Big enough, as it turned out.

After a monthslong investigation by a “special detective,” an arrest warrant was obtained for a violation of an obscure law prohibiting concealing a government record. The charges were eventually dropped, but Gonzalez decided to resign from the council rather than fight. Too bad, but the trauma of arrest and prosecution was more than she bargained for. And then she sued.

Ms. Gonzalez resigned and sued city officials, accusing them of retaliation for exercising her First Amendment rights.

But her case ran into the Supreme Court’s general rule that people cannot sue for retaliatory arrest, whatever the arresting officer’s motive, so long as the officer had enough evidence of a crime to support an arrest.

An appeals court dismissed her case. The judges said all that mattered was that Ms. Gonzalez had conceded that there had been probable cause for the arrest, for violating a Texas law making it a crime to conceal government records.

Having concededly put the petition in her binder, even though she was the one who sought the petition and it was mere accident that she gathered it up with other papers, the court held that it was close enough to give rise to probable cause. Represented by the Institute for Justice, Gonzalez argued that she was targeted for her exercise of free speech by prosecution under a law that had never before been used for prosecution.

Ms. Gonzalez argued that it was a free-speech issue and that she never would have been arrested had she not spoken out against the city manager. The appeals court rejected that argument, saying she could not prove that she had been treated differently from others arrested for the same crime.

The case is now before the Supreme Court, where IJ is asking that she be allowed to argue that it was retaliatory and show the no one had ever been prosecuted for violating this law.

Justice Neil M. Gorsuch appeared receptive to the argument, saying that the general rule was too rigid, allowing for politically motivated arrests like the one Ms. Gonzalez said she had experienced. He said it was easy to find a crime for which to arrest a political adversary.

“How many statutes are there on the books these days, many of which are hardly ever enforced?” he asked. “Last I read, there were over 300,000 federal crimes, counting statutes and regulations.”

“They can all sit there unused,” he added, “except for one person who alleges that I was the only person in America who’s ever been prosecuted for this because I dared express a view protected by the First Amendment.”

Notably, the issue is not whether her prosecution violates free speech, as the case was dismissed. Rather, the question is whether she can sue for wrongful arrest and prosecution where there was at least colorable probable cause that the law was violated. If this smells like, “find me the person and I’ll find you a crime,” that’s because it is. And that’s the point. As Justice Gorsuch noted, we are awash in crime, many hypertechnical for reasons that might have made sense under some circumstance but were never used. Yet there they remain, on the books, just waiting for some industrious special detective to find them and apply them to earn his keep.

But then, if there is a law that prohibits conduct, and if there is a minimal basis to argue that the conduct might have been in violation of the law, is the special detective and his patron, the mayor, wrong to use it? After all, it is the law. As we’re regularly reminded these days, no one is above the law, including a councilwoman targeted by a unpleasant mayor.

“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.”

This well reflects the shift in focus, from the sufficiency of “there is a law” to the application of law, obscure or otherwise, for the purpose of retaliating against a person for their exercise of free speech. There was no doubt that the law was on the books, but as Gonzalez argued, that doesn’t change the fact that it was pulled out of obscurity not to protect the public from her accidentally putting a petition in her binder, but to punish her for not being on the mayor’s team.

If Gonzalez can prove that her arrest and prosecution were retaliatory, should that not be sufficient to overcome the argument that her arrest was close enough to probable cause to suffice? It would seem deliberate retaliatory action is exactly what the Court should condemn, as opposed to the mistake of putting a government document in a binder for moments until the error was happily corrected.

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