Courthouse Steps Oral Argument: Gonzalez v. Trevino

[Music]

 

Jack Capizzi:  Well, hello, everyone, and welcome to today's FedSoc Forum.  Today, March 20, 2024, we are excited to present a Courthouse Steps Oral Argument breakdown in the case of Gonzalez v. Trevino. We are delighted today to be joined by Anya Bidwell, an attorney and the leader of the Immunity and Accountability Project at The Institute for Justice. As always, please note that all expressions of opinion are those of the speakers on the call.

 

After Anya has given her remarks, we will turn to you, the audience, for whatever questions you might have. If you do have a question at any point, please just type it into the Q&A function at the bottom of your screen, and we will do our best to answer as many as we can. With that, thank you all very much for joining us today. Anya, the floor is yours.

 

Anya Bidwell:  Hi, everybody. Thanks very much for tuning in. I'm excited to talk about this case. We started litigating this case in 2019, when Sylvia Gonzalez was arrested two months after she briefly misplaced a piece of paper in her binder. And that was used against her, but really our argument, and why we’re here in the Supreme Court, is that she was a political opponent of the mayor in that town. So this probable cause for misplacing a paper was really used as a pretext to punish her for petitioning the city of Castle Hill to remove the mayor’s ally city manager. So at the heart of this case is really this question of whether a protection that was written for, in-the-field police officers making on-the-spot decisions in the case called Nieves v. Bartlett applies in cases like this one, where you do have probable cause, but it's under a very broadly written statute. It covers innocent conduct. And the question is whether Ms. Gonzalez should be allowed to bring in other evidence of retaliation or whether her case gets thrown out merely because there is probable cause on the other side. 

 

      And the argument today was very interesting because the justices seem to be sympathetic to this idea that, while on-the-spot decision-making by police officers should be protected, it is a different type of a situation when you have a two-month investigation when defendants are not arresting officers, but deskbound bureaucrats, who spent two months looking into this one incident and based on no new evidence that developed during those two months, walked a warrant to a district attorney -- sorry, circumvented the district attorney and walked the warrant directly to a judge, under a procedure reserved for violent criminals, so they can put their 72-year-old opponent in jail and teach the City of Castle Hill a lesson. 

 

So the justices were interested in two lines of arguments. One line of argument was about objective evidence. What type of objective evidence should be allowed to overcome the presence of probable cause? So here we show that two regular police officers looked into Ms. Gonzalez and did not think there was anything warranting an arrest. That the prosecutor looked into the charges and decided not to pursue them. That they walked a warrant to a judge to ensure that she would be put in jail rather than issued summons, for example, which is a much more typical procedure in this type of a situation. So the question is, should that objective evidence come in, or do we throw the case out simply because she can’t point to another councilwoman, who also tried to take her petition and put it in the binder briefly for five minutes? That kind of comparator doesn't exist—can't exist. And the Fifth Circuit required it to exist. So that was one line of questioning: what do we do with that objective evidence? Do we tell courts that they can’t look at it? Or should we allow them to look at it and measure it against probable cause?

     

      And there were some of the justices who seemed really sympathetic to exploring that further, like Justice Kagan, Justice Amy Coney Barrett -- Justice Jackson had a lot of questions on that issue. And then some other justices were interested in our other argument having to do with common law. At common law, you could sue for abuse of process when a warrant was obtained for your arrest, but the warrant was obtained not to enforce the crime that you supposedly committed. Instead, the warrant was obtained for, in the words of common law, “private purposes inconsistent with the adjacencies of the writ.” And we argue that this is exactly our case where the warrant for Ms. Gonzalez's arrest was obtained not because they were so concerned with enforcing the tampering statute that they wanted to punish -- put lady in jail who misplaced a petition that she herself presented to the city council. What our argument is is that they did it because they wanted to silence her. And they wanted to remove her from the city council. And some of the justices really seemed interested in that line of argument, just as Gorsuch for example, asked the United States Solicitor General, as well as their opposing counsel, about common law. And Justice Thomas also was interested, unsurprisingly, in questions of common law. So we are optimistic.

 

      You know, it's always that dangerous to be predicting things, but we feel like we left nothing on the floor. We did everything we could. Ms. Gonzalez was there in the courtroom. She felt, at the very least, the justices understood her case, and were very engaged in her case, and wanted to do the right thing. So we will now be waiting for a couple of months for the opinion to come out. And hopefully, it will be in our favor and the Court will make it clear that you can't launder your retaliatory motive through probable cause. That in the country where you have so many criminal laws and where probable cause is really a low standard, low barrier, that it really creates this inherent danger of using warrants as an excuse to punish critics. So we hope for the right outcome. And we are going to rest -- we are going to sleep well tonight, I suppose.

 

Jack Capizzi:  Well, thank you very much, Anya, for that. And I'm sure that you all deserve quite a big rest after all this.

 

Anya Bidwell:  Especially Sylvia.

 

Jack Capizzi:  Yeah, right, right, right. Now is the time to turn over to our audience for any questions that you might have. If you have a question, please type it into the Q&A feature, and I will read those out. But I guess just to get us started -- I know that you said that you feel optimistic. Can you speak a little bit more about if anything else sort of surprised you, or stood out, in terms of what really caught the attention of the justices?

 

Anya Bidwell:  I was very happy to get questions from Justice Thomas about the common law because I know that, on the one hand, he is skeptical of First Amendment retaliation claims given his understanding of what Section 1983 means and what the phrase “under the laws” means to him. So on the one hand, he is skeptical of First Amendment Retaliation under Section 1983. Under color of law, he thinks that doesn't leave room for intentional torts. But on the other hand, he's also interested in common law, and he looks very closely to common law analogs of causes of action at the time that Congress enacted Section 1983. So I was very happy to see him ask questions about common law and ask questions about warrants. It would be amazing if we were to get him, but even if we don't, it is great to know that he is interested in this and thinking through this.

 

Jack Capizzi:  Well thank you for that insight. Looks like we do have one question here from an audience member who asks, “What is the remedy that is being sought? If there is no qualified immunity, what damages or penalties are you seeking against the governmental agency and individual wrong doers?”

 

Anya Bidwell:  In our complaint, we did not ask for a specific sum. Sylvia doesn't want anything other than vindication. She raised her hand, ran for city council in her small town, wanted to do right by the citizens, and then her mugshot was splattered across TV screens and her community. And everybody thought that she was a criminal. So she really wanted an opportunity to explain herself to her community and an opportunity to fight for her constitutional rights. 

 

So we did not put any sum of money in the complaint. But the only way we could sue was for damages. So it is a complaint for a retrospective relief because she can’t sue for an injunction. Whatever happened to her already happened to her, and she can't prevent the government from doing something like that in the future, given that she's already not on the city council and that she was already arrested and then released. So it's a complaint for a retrospective relief. We prevailed in the district court and went up under interlocutory qualified immunity review to the Fifth Circuit. That threw us out because it felt like we didn't state the constitutional claim, given that there was probable cause. And we couldn't point to another councilwoman, who also briefly misplaced her own petition. So that's where we are, and we are in -- as your listener indicated, we are in the qualified immunity posture. So we are still looking to be able to even begin discovering this case.

 

Jack Capizzi:  Well, thank you for your answer to that question. One more from our audience. This questioner asks, “Would you be able to --” this person's asking if you could tell us more about yourself and how you came to the Court. This person mentions that, “you’re a breath of fresh air.” And that he suspects that many on the Court found you refreshing. So I’ll echo this questioner. But we do appreciate having you on. I guess another question to add is, maybe from an outside perspective, not knowing too much about qualified immunity, this seems like a very unique case. What would the potential impact of the decision be?

 

Anya Bidwell:  The impact of the decision is really -- it’s dangers of criticism. The problem is that the way the law works now and the way the lower courts interpret the law, like the Fifth Circuit, is that it is very difficult for you to criticize the government without the fear of being arrested for it. And we understand why Nieves v. Bartlett was issued and the reasoning behind it. The police officers have very difficult jobs when they are out there patrolling streets, answering domestic violence calls, are on duty being on someone else's time rather than on their own time, having to take speech into account when making difficult decisions that they need these protections. And judges are often not well positioned to look into their heads and try to determine what the hell -- what they’re thinking in the moment, making that arrest. But that kind of reasoning doesn't apply to a case like this one. And the worry is that it does apply to a case where deskbound, thin-skinned bureaucrats, with a whole bunch of time on their hands, will be able to scour for crimes depending on their critics, that that will be a really easy option for retaliation. And we really don't want that to happen. And we would love for the Supreme Court to make it clear that when it comes to defendants like a mayor, in this case, they don't get the same kind of solicitude that an in-the-field police officer would get.

 

Jack Capizzi:  Well, thank you for that summary. That's very helpful to know. It looks like we don't have any other questions from our audience now, so I'll leave it open for a second. But if you were in a position to wrap up, are there any final thoughts that you might have? Maybe anything that you thought had gone -- you wished had gone differently or something maybe that you're anticipating from the decision?

 

Anya Bidwell:  My final thought is that it was really, really nice to have Sylvia at the Supreme Court. And you know, when we just started this case, she was very, very brave to stick her neck out, to stand up to very powerful people in her community. And that takes guts. That takes courage. And it was wonderful to see her at the Supreme Court today. And hopefully, regardless of the outcome, it sends a message to government officials all across the country that when you arrest your critics, there -- it doesn't mean that you’re going to get away with it.

 

Jack Capizzi:  Well, thank you. It looks like we just had one more come in, if you don't mind staying for one more question. 

 

Anya Bidwell:  Sure.

 

Jack Capizzi:  This person asks, “Having been a judge, this is not an isolated shenanigan by a political official. Did the Court seem open to eliminating immunity when First Amendment rights are an issue? Alternately, are there any indications that immunity would be limited to police officers?” 

 

Anya Bidwell:  That's a good question. And you are so right to point out that these kinds of shenanigans are not a needle in a haystack, unfortunately. We, at The Institute for Justice, receive phone calls on a daily basis about things like that happening, especially in small communities where officials, for some reason, think that they are too small for the general public to pay attention. And they can, essentially, intimidate members of the public in their communities. And I do think that one of the reasons the Supreme Court granted this case is because it involves political retaliation. It involves First Amendment retaliation, rather than, say, you know, an excessive force case where decision-making is much more difficult to figure out than in a case like this one, where you have two months to figure things out. And the government officials shouldn't have the same expectation of the same level of protection from lawsuits. So I do think that the Court is sympathetic to this kind of a claim that involves deliberation. So, hopefully -- hopefully, this will motivate them to rule for us.

 

Jack Capizzi:  Well, thank you very much for your answer to that question. It seems like we don't have any other questions left, so it seems to be a good place to wrap up. With that, on behalf of The Federalist Society, I want to thank Anya, very greatly, for her valuable time and expertise today. And I also want to thank all of our audience members for joining us and participating with their questions. As always, we do welcome listener feedback by email at [email protected]. And as always, we do please ask you to keep an eye on our website and your emails for announcements about upcoming programs. With that, thank you all very much for being with us today. We are adjourned.