Litigation Update: Gonzalez v. Trevino – When the Courts Wrestle with Qualified Immunity

Sam Fendler:  Hello, and welcome to this Federalist Society virtual event. My name is Sam Fendler, and I’m an Assistant Director of Practice Groups with The Federalist Society. Today, we’re excited to host a Litigation Update on Gonzalez v. Trevino – When the Courts Wrestle with Qualified Immunity. Our guest today is Anya Bidwell. Anya is an attorney with Institute for Justice. There, she helps lead the Institute’s Project of Immunity and Accountability. Her work aims to promote judicial engagement and government accountability. Anya is currently serving as counsel of record in Gonzalez v. Trevino. If you’d like to learn more about Anya, you can read her full bio on our website, fedsoc.org.

 

After Anya gives her opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we’ll do our best to answer as many as we can. Finally, I’ll note that as always, all expressions of opinion today are those of our guest speaker and not The Federalist Society. Anya, thank you very much for joining us today, and the floor is yours.

 

Anya Bidwell:   Thanks very much, Sam. And hi, everybody. Thank you guys for coming to listen to this Litigation Update. I will go for about 20 minutes and then answer any questions. I wanted to bring your attention to this case because of an opportunity it offers for legal thinkers on the left and the right to agree on qualified immunity, at least as it applies to the First Amendment retaliation jurisprudence, specifically retaliatory arrests as punishment for criticizing the government.

 

At the heart of this case is the question posed by Justice Thomas in his recent dissent from a denial of certiorari in Hoggard v. Rhodes. He asked, “Why should desk-bound bureaucrats who have time to make calculated choices about violating people’s rights receive the same protection as police officer who makes a split-second decision to use force in a dangerous setting?” Put it alternatively, as Judge James Ho did in dissent in our case, when government officials scheme to weaponize America’s expensive criminal justice system against their political adversaries, why should they be entitled to qualified immunity? There is also an admitted circuit split specifically on our question, which makes this very exciting.

 

But first things first, let me begin by telling you about the facts of this case. I will then summarize for you the Fifth Circuit’s panel opinion and the two dissents from grant of qualified immunity by Judges Oldham and Ho, and I will then talk to you about our next steps and how we are presenting this question to the Supreme Court. So first, the facts.

 

Four years ago, my client, Sylvia Gonzalez, was a 72-year-old retiree in Castle Hills, Texas. That’s a small city adjacent to San Antonio. She decided to run for city council in order to give back to her community after years of being busy with her career and raising her daughter. As Sylvia was campaigning, she learned about Castle Hill’s residents’ discontent with their city and with the city manager who was failing at basic services, like fixing the streets. The city manager—and that’s very important—was closely allied with defendants in this case—the mayor, the chief of police, and a special detective.

 

So in response to the discontent in her community, Sylvia made a campaign promise to organize a petition calling for the removal of the city manager from office. When Sylvia won, unseating a well-healed incumbent connected to the city manager and to the city manager’s allies, she got to work canvassing Castle Hill’s neighborhoods along with other residents in search of support for her petition. In the end, over 300 residents signed the petition, and one of the residents introduced it during Sylvia’s very first council meeting. The meeting was very contentious and rolled over into the next day.

 

When the meeting was finally over, Sylvia, who sat next to the mayor on the dais, put her papers in one pile by tapping them on the desk and sticking them at the top of her binder, as all of us do when meetings are over. Then leaving her binder behind, Sylvia went to the other side of the room to talk to a constituent. A few minutes later, a police officer in charge of safety at the meeting tapped Sylvia on her shoulder and explained that the mayor, who is one of the defendants in our case, wanted to talk to her. The police officer then escorted Sylvia to the mayor, who was still at his seat next to Sylvia’s. The mayor then asked Sylvia, “Where is the petition?” Sylvia responded, “Don’t you have it? It was turned into you yesterday.”

 

At the mayor’s prompting, Sylvia looked inside the binder and found the petition. She then handed the petition to the mayor, and the mayor volunteered to Sylvia that she probably picked it up by mistake. So you’d think that things would end there, right? But they didn’t. The mayor and his allies were not going to let Sylvia’s act of organizing the petition slide. They were going to send her a message that it’s dangerous to oppose them, so they engineered Sylvia’s arrest. Here’s how they did it and why that’s very irregular.

 

So first, defendant chief of police assigned a regular police officer to investigate Sylvia for putting her petition in a binder. The police officer spent a month looking into Sylvia. And when he got nowhere, the chief of police assigned his friend, a lawyer by the name of Alex Wright, to be a special detective. Now, the special detective then wrote an affidavit saying that Sylvia should be charged with a tampering with the government record statute, which is generally used to charge people for faking green cards and driver’s licenses because Sylvia tried to, according to him, steal the petition that she herself organized by placing it in her binder.

 

Here's what the tampering statute says—it’s very broad—“A person commits an offense if he intentionally destroys, conceals, removes, or otherwise impairs the virility, legibility, or availability of a government record.” And government record is defined also very broadly—anything belonging to, received by, or kept by government for information. To point to this breath, Judge Oldham during and oral argument actually took Judge Engelhardt’s notes and put them in his binder. He was sitting next to Judge Engelhardt just like Sylvia was sitting next to the mayor on the dais. He then asked whether there was now probable cause under this tampering statute for him to be arrested. And the opposing counsel, as you can imagine, didn’t have a good answer for that. In his affidavit, the special detective even used Sylvia’s viewpoint as factors justifying that charge. He mentioned that Sylvia “desperately tried to get the city manager fired.” And also in the affidavit, he mentioned that she organized the petition to get him fired.

 

Another irregular thing in addition to the investigation in the affidavit is that the special detective—in the words of Judge Oldham—did very special three things to ensure that Sylvia would have to spend a day in jail. First, instead of obtaining a summons, a standard procedure for nonviolent misdemeanors, especially those involving elected officials, he chose to obtain a warrant. Second, instead of involving the district attorney, he walked this warrant directly to a magistrate, again a procedure reserved for emergencies or violent felonies. Third, because he walked the warrant to a judge, the warrant wasn’t in the satellite booking system, so Sylvia could not take advantage of this function, which prevents the overcrowding of Bexar County jails by letting people with outstanding warrants for nonviolent offenses to be booked, processed, and released without jail time.

 

Finally, another thing that was really irregular is—and we know that from obtaining 10 years’ worth of Bexar County data—no one accused of misplacing government papers was ever charged under the tampering statute. As Judge Oldham said in his dissent, “You would expect people misplacing government papers every legislative beginning at the very least.” But there isn’t even one example of people being thrown in jail for it. Sylvia learned about the warrant for her arrest when she was at a doctor’s office. She turned herself in, had her mugshot taken, put on an orange jail shirt, and sat on a metal bench all day without an opportunity to stretch her legs and to use a bathroom. In the end, the district attorney dismissed the charges against Sylvia as soon as he learned about them.

 

But in the end, defendants’ efforts to intimidate her worked. She got so discouraged by the whole thing that she voluntarily resigned, and she’s no longer politically engaged. We, the Institute for Justice, filed a First Amendment retaliation lawsuit on Sylvia’s behalf. We knew that there would be a problem because of the probable cause situation, since a magistrate judge signed off on the special detective’s affidavit. But we did meet all elements of the retaliation claim. Sylvia engaged in a protected activity. She petitioned the government, and the Supreme Court said that’s like the highest on the hierarchy of the First Amendment protections. Defendants took a materially adverse action that caused Sylvia to suffer an injury, right? They arrested her. And there is a causal connection between animus and injury. Why else a month-long investigation into misplacing papers? Why else a special detective? And why else all the unusual procedures to ensure that a nonviolent misdemeanant with no criminal record would end up in jail?

 

So the question, the big question when we started the case was whether probable cause should blind courts to obvious retaliation and bar First Amendment retaliation claims. The Supreme Court precedent, Nieves v. Bartlett, actually says no. According to the Court, when plaintiff can provide objective evidence to show that similarly situated individuals not engaging in protected speech were not treated the way plaintiff was treated, then probable cause does not bar a retaliation claim. Jaywalking is a great example. It’s a common crime, but people don’t get arrested for it. So when a police officer arrests a jaywalker, probable cause should not bar that claim. Otherwise, it’s insufficiently protected of the First Amendment.

 

We thought and our theory of the case was that misplacing government papers is exactly the same. It happens all the time, but people don’t get arrested for it, except for Sylvia who happens to be a critic of the government. The district court agreed with us and denied qualified immunity to the defendants. But the Fifth Circuit reversed, holding that qualified immunity should be granted because there was probable cause for Sylvia’s arrest. In getting there, the Fifth Circuit read the Supreme Court’s jaywalking standard exceptionally narrowly. According to the Fifth Circuit, it was not enough for Sylvia to show that no one like Sylvia was ever arrested under that statute before—we did by pointing to the Bexar County data over the last 10 years—Sylvia, according to the Fifth Circuit, needed to identify a specific person who engaged in a similar conduct as she did but was not arrested. In other words, if Sylvia were arrested for jaywalking, she needed to point to a specific jaywalker who was not arrested and didn’t criticize the government, otherwise she can’t sue for retaliation.

 

There are two other things in the opinion in addition to its narrow interpretation of the jaywalking standard that are worth mentioning. First, the Fifth Circuit acknowledged that by interpreting the jaywalking standard so narrowly, it departed from other circuits, specifically the Seventh Circuit, which said that the jaywalking rule needs to be interpreted commonsensically and that the Court would not require evidence of non-arrests. Second, the Fifth Circuit even expressed regret at ruling against Sylvia but said that its hands were tied. Well, Judge Oldham did not think that the hands of the court were tied. Judge Oldham would have denied qualified immunity to the defendants. In his view by pointing to the Bexar County data and showing that no one else like Sylvia was ever charged with the tampering statute she more than met the Nieves jaywalking probable cause exception.

 

In Judge Oldham’s view and in our view, the Supreme Court in Nieves instituted this probable cause threshold requirement to retaliation suits because it was worried about warrantless arrests, where it is generally impossible to tell whether it was probable cause or the police officer’s malice that caused the arrest. Nieves v. Bartlett is a perfect example of that where the officers were trying to police this festival and this individual was telling the festival attendees that they shouldn’t be cooperating with police. So when Officer Nieves arrested Mr. Bartlett, Mr. Bartlett said, “He arrested me because I used my words,” and so it was a First Amendment violation. And Officer Nieves said, “No, I arrested you because you used your words and that was the reason why people weren’t cooperating with me and causing the disturbance.”

 

So in that kind of a situation, how are you supposed to determine whether it was probable cause to arrest for disturbance or actually malice towards the speech that caused the arrest? So that’s when probable cause becomes a very useful proxy. But in cases where there is plenty of evidence to untangle probable cause from arrest, the reason for the threshold requirement disappears, like in our case where there is plenty of other evidence that it was the malice and the desire to intimidate that motivated the individual defendants to ensure their arrest.

 

But Judge Oldham did not stop there in his dissent. He had the broader point. His broader point was that the existence of probable cause should play no role in cases like Sylvia’s at all in cases where there is a deliberative, premeditated action to ensure arrest. Cases like that in his view should not have a threshold requirement at all as long as plaintiff shows that he or she engaged in a constitutionally protected activity, that the defendants caused the injury, and that it was animus that motivated the injury. Plaintiffs should not have to show the absence of probable cause and should be able to maintain their claim. In Judge Oldham’s view, the Nieves probable cause requirement should only shield arresting officers making split-second, warrantless arrests. These officers should be the ones getting the breathing room, not scheming bureaucrats.

 

Our petition for en banc review following his dissent was denied, but six judges would have voted to grant. Among them was Judge Ho, who wrote a dissent from the denial of en banc review. He pointed to the exuberant state of criminal laws in the United States today. He even quoted from the famous Harvey Silverglate Book Three Felonies a Day, where he says that the average busy practitioner in this country wakes up in the morning, goes to work, comes home, takes care of personal and family obligations, and then goes to sleep unaware that he or she likely committed several crimes that day.

 

So according to Judge Ho, it would simply be insufficient First Amendment guarantee if we were -- if we allowed probable cause for such a crime to prevent retaliation claims. In Judge Ho’s view, government officials should not be allowed to throw their critics in jail. He agreed with Judge Oldham that qualified immunity should have been denied in this case. And, again, he said and he emphasized that it’s especially true since we are talking about government officials in the comfort of their offices scheming to punish their critics and not on the beat cops who are making split-second decisions to arrest.

 

Next week, armed with these two dissents, we will be asking the Supreme Court to grant our petition and reverse the Fifth Circuit’s decision immunizing the mayor, the police chief, and the special detective. Our number one point, of course, is that there is an admitted circuit split. The Fifth Circuit split from the Ninth and the Seventh by interpreting the jaywalking exception extremely narrowly and saying that only comparator evidence of non-arrests could satisfy that standard, which even a jaywalker wouldn’t be able to do. The Ninth and the Seventh Circuit do not interpret the jaywalking exception that narrowly and allow all kinds of objective evidence to show disparate treatment.

 

So our second point in the petition is that probable cause should not be a threshold requirement in cases outside of warrantless arrests. That’s Judge Oldham, but that’s also Judge Thapar and his Sixth Circuit colleagues, who in 2019, stated that they don’t think probable cause should apply when, like in our case, there are no thorny causation issues. Then probable cause becomes a blindfold, making courts ignore obvious retaliation. So we have Judge Oldham, and we have the Sixth Circuit that specifically say that.

 

Our third point in the petition is that this is a very important issue that needs to be addressed by the Court. There are thousands of federal and state laws that criminalize every manner of activity. The federal government accounts for at least 4,000 of such laws while Texas alone has more than 1,700 crimes on the books, including this very broad tampering statute at issue in the case. Other criminal offenses, all of which carry the risk of incarceration, include a broadly defined fraud in fishing tournaments. That’s a Class A misdemeanor punishable by up to a year in jail. There is also mislabeling a container of citrus fruit. That’s a Class B misdemeanor, which can land a person in jail for 180 days. And my favorite is causing pecans to fall from a pecan tree by any means, including by thrashing. That’s a Class C misdemeanor that comes with a nice side of three months in jail.

 

Each of these laws often, awfully broad and outdated, supplies government officials with discretion to use the arrest power to punish government critics. The mere existence of these excuses to arrest makes it more likely that, as Judge Gorsuch says in Nieves, officers would abuse their authority by making an otherwise lawful arrest with probable cause but for an unconstitutional reason. Our hope is that the Supreme Court will grant our petition. The majority in Nieves worried about abusing the power to arrest. And both Justice Gorsuch and justice Sotomayor wrote separate opinions expounding on this very point.

 

This case is an opportunity to build on Nieves and make it clear that when retaliation is deliberative and premeditated, it simply makes no sense to blind courts to other evidence so long as probable cause is present. There is—I repeat—an admitted circuit split here in just four years since Nieves was issued. So we hope that the justices will see that the Supreme Court’s intervention is badly needed. And with that, I will take any questions.

 

Sam Fendler:  That’s excellent. Thank you so much, Anya, for those opening remarks. I think that’s very helpful. And, again, so we will now turn to audience questions. I’ll say that once more, if you do have a question, please enter into the Q&A function at the bottom of your Zoom window, and we should have plenty of time to answer questions. Anya, I want to start where you started. So you opened your remarks by noting that this case provides a unique opportunity for thinkers of both the left and the right to find common ground on the issue of qualified immunity, which is of course and especially over the last few years quite a thorny issue. Can you talk more about how you conceptualize this common ground, what you think the issue is in particular, and how we may find common ground going forward?

 

Anya Bidwell:  Sure. With regards to qualified immunity in general, I think the common ground is really agreeing that at the very least, qualified immunity should not apply when we are talking to situations outside of split-second decision making. So generally, folks on the left would say that even in those kinds of situations, qualified immunity should not apply because, frankly, qualified immunity is nowhere to be found in Section 1983, and there are also other protections for police officers who make split-second decisions.

 

But put that to the side, on the right, we have a lot of judges who are speaking out and saying that at the very least, qualified immunity should not be a one-size-fits-all doctrine and that it’s very strange to be providing the same level of protection to somebody who is spending a lot of time deliberating about what they can do to violate a person’s rights against somebody who is risking their lives on the beat, making decisions that require them to act really quickly. And John Malcolm—your audience will know him—and I spent time debating this issue of qualified immunity, and he and I both agree that when it comes to things outside of split-second decision making, in those -- at least those types of situations, qualified immunity should not apply.

 

And, again, Justice Thomas, he wrote a dissent from a denial of petition for certiorari in Hoggard where he made exactly the same point saying that why is there is a one-size-fits-all standard. That just simply seems to make no sense. Judge Ho—I refer everybody who’s listening to read his dissent from the denial of en banc review in our case—he dedicates a big chunk of his dissent to this exact idea as well. He even says that the Fifth Circuit gets qualified immunity jurisprudence backwards where there are more protections provided to defendants like the mayor in this case than to officers who are acting in tense, uncertain, and rapidly evolving situations.

 

Sam Fendler:  Anya, have you found that as you’ve been working on this case and talking with people—and I’m assuming that you’re talking with people who are on the ground and close to the case—have you found that a normal layperson, perhaps even a well-read, learned layperson, is surprised to learn that qualified immunity can be extended so broadly?

 

Anya Bidwell:  Yes. Especially with this case, it’s just hard for people to wrap their head around a 72-year-old lady being thrown in jail. Even if you agree that she violated the tampering statute and that she is a misdemeanant in that case, it seems to make very little sense to throw her in jail. That’s an obvious evidence of retaliatory motive. So it really surprises people that Sylvia can’t even move past the motion to dismiss. Even though one of the things she did in her complaint, which is -- very few people can actually do, she obtained a public information request from the Bexar County data just to see -- let’s see who are the people who are charged, what kind of offenses are charged under the tampering statute. And she showed that there isn’t even one remotely similar to hers. So in a case like hers where there are no possible excuses for what the defendants did, it is shocking to people that qualified immunity prevents accountability for their behavior.

 

Sam Fendler:  Anya, this question comes from our audience, and I’m not sure if this falls within the scope of your case. But do you or the Institute for Justice have an opinion or a stance that’s part of the case of when qualified immunity should apply?

 

Anya Bidwell:  So that’s a great question. Our stance from -- well, our kind of -- our institutional position is that qualified immunity should not apply, period. As I mentioned earlier, it is ahistorical. It is atextual. And even when we talk about split-second decision making, the Fourth Amendment itself already has protections for police officers who are making those decisions. That said, we are very happy and committed to work on, at the very least, limiting the excesses of qualified immunity. One such excess is when individuals act outside of the scope of their authority, and they still say they should be entitled to qualified immunity. We have cases where we litigate that.

 

So, for example, there was this engineer, a county engineer, who had a grudge against this company. And he stopped the company’s trucks from moving on the highway. He essentially acted like a cop, right? And she said he wants qualified immunity, and our argument is that Harlow v. Fitzgerald, the case that created the current standards, specifically says that qualified immunity only is granted to those who are exercising their job duties. So that’s one example of an excess.

 

Another example of an excess is a situation like ours right here with Sylvia Gonzalez where these individuals had time to scheme and to deliberate and do all kinds of things. And at the very least in situations like these, qualified immunity should not apply. Another excess is what we’re seeing often is how courts are interpreting the clearly established law standard so, so factually bound, looking for exactly identical case on point in the case law. That’s another thing that we argue that it shouldn’t -- the clearly established test should not be that difficult to overcome. So even though are institutional position is qualified immunity should not exist period, we are also happy to work on the margins and, at the very least, ensure that there are no excesses when it comes to qualified immunity.

 

Sam Fendler:  I understand. That’s very helpful to know. I want to move on and ask you about the progress of the case. I understand that it started in the district court and then it went up to the Fifth Circuit. It seems to me that one of the major issues in the case at the Fifth Circuit, while it was at the Fifth Circuit, is this disentanglement of probable cause and malice.

 

Anya Bidwell:  Mm-hmm.

 

Sam Fendler:  And you talked plenty about that in your opening remarks. One of the things that I’m curious about is going forward—if you can talk about this—going forward, what is your theory on how to argue that Sylvia was arrested because of malice and not probable cause? Or in other words, how do you plan to disentangle these two elements as you move forward in the case?

 

Anya Bidwell:  Yeah. That’s a great question, and that’s exactly the reason why we think that the Nieves standard really should not apply here, or at the very least, there should be evidence other than -- evidence of non-arrests to overcome the probable cause requirement. It’s very easy—and Judge Oldham lays it out really well in his dissent—to disentangle probable cause from malice. So even if we admit that there was probable cause for her arrest, it is not at all clear why you would ensure that this woman—who traditionally this kind of nonviolent misdemeanants don’t go to jail, especially in places like Bexar County where crimes are -- where jails are overcrowded—it’s very difficult to see any reason other than malice why they would go out of their way and do three very specific things to ensure that she would be arrested, right?

 

They walked the warrant directly to a judge. They circumvented the DA because the DA, as they expected, dismissed the case very quickly as soon as he learned about it. Also, in their affidavit, they acknowledge -- in the affidavit for the arrest, they acknowledge that it is Sylvia’s speech that they think is part of the reason why she should be charged with the tampering statute. They are saying, “She doesn’t like the city manager. She is doing her best to try to get rid of him.” That kind of stuff is just admitting that her viewpoints are the reason for her arrest.

 

So in cases like this, it’s directly opposite from what the Court in Nieves was worried about, where there, an individual says, “Don’t cooperate with police officers,” and then the police officer is arresting that individual. And the question is, was it the First Amendment -- was the arrest happening because of First Amendment, or was the arrest happening because there was actually probable cause? And the officer legitimately took speech into account. So the Nieves Court says, “How in the world are we supposed to untangle probable cause from malice in this warrantless arrest situation?” Very different from situation like here, where there are just ton and ton and ton of evidence.

 

It’s kind of as I’m thinking about the use of probable cause, it’s almost like night vision goggles, right? And you would know about it given your military background. When you are operating at night, kind of like warrantless arrest type of situations, you put goggles on and they really help you to make the right -- do the right thing, right? But once the light comes on, then when you’re still wearing those goggles, you actually don’t see as well. You’re preventing yourself from fully understanding what’s going on. So probable cause is like this, right? In warrantless arrests, split-second situations, it really helps you to disentangle legitimate form illegitimate reasons. But when the lights are on, when you have all this other evidence, then probable cause becomes a blindfold, and that just makes no sense.

 

Sam Fendler:  I like that example quite a bit. I want to ask you more about this Nieves case. And forgive me for my ignorance, but I think it would be helpful. You may have said this, so this could be a short answer. But was it the case that in Nieves, the Court ruled that these issues could not be disentangled? Is that right? And then you’re arguing that this case with Sylvia is different because you think that they certainly can be disentangled.

 

Anya Bidwell:  Yes. So the Supreme Court in Nieves dealt specifically with a split-second. warrantless arrest situation. And as it was looking at the split-second. warrantless arrest situation, it was saying, “Oh, my God. This is really hard to disentangle. Probable cause is really good evidence of objective reasonableness, and so we should totally use that information.” But our case is not like Nieves in that it’s not a warrantless arrest, split-second type of a situation.

 

In addition though, even in Nieves, the Supreme Court said, “Even when it comes to split-second warrantless arrests, there are still times where you can disentangle,” and that’s the jaywalking example. Because jaywalking, that’s also a warrantless, split-second arrest. But there, everybody knows that people don’t get arrested for jaywalking. And if somehow this person is arrested for jaywalking and others are not and others are not criticizing the government and this person and this person is criticizing the government, then the Supreme Court says, “We are not going to let probable cause stand in the way. In those types of situations, if people show, if plaintiffs show that there is objective reasonableness of disparate treatment between speakers and non-speakers, then we will allow a case to move forward.”

 

And the disagreement between the circuits is what that objective evidence requires. In the Fifth Circuit, they’re basically saying, “What it requires is evidence of non-arrests of people who didn’t criticize the government.” But that data is essentially impossible to obtain. Like with jaywalking, how in the world are you supposed to actually find a jaywalker who wasn’t criticizing the government and didn’t get arrested? So the Seventh Circuit and the Ninth Circuit are saying, “We’re not going to require such a difficult test. So we are going to accept any objective evidence of retaliatory motive even in situations involving split-second, warrantless arrests.” So even under Nieves, Sylvia prevails, but especially so if there isn’t a threshold probable cause requirement in situations that are premeditated and deliberate.

 

Sam Fendler:  Anya, so just there, you were touching on multiple times the fact that in this jaywalking case—or perhaps not the fact—but the idea that in this jaywalking case, in order to show a different treatment of one defendant, you could point to a specific -- and I understand that you’re saying it’s difficult just by nature of basically pointing out something that doesn’t exist, right? Like saying, “Well, they weren’t arrested, so we don’t actually know what happened there.”

 

Anya Bidwell:  Right.

 

Sam Fendler:  Now, with Sylvia’s case, I understand that the Fifth Circuit wanted to see somebody who did something similar and was treated differently. Can you talk more about that and specifically I’m curious, were you able to see that in fact nobody has been arrested for what Sylvia was arrested for? Or is it just a problem of actually finding a good example, good data, on this issue?

 

Anya Bidwell:  Yeah. So the Fifth Circuit specifically said that what Sylvia needed to do was to find another person who misplaced government papers and was not a critic of the government. If she could point to that person and say that that person was not arrested, then she would overcome the probable cause requirement. That’s a very, very difficult thing to do. That’s pretty much impossible. And Justice Gorsuch and Justice Sotomayor in Nieves specifically talk about that. What Sylvia did provide is negative evidence. She said, “Look, I looked through 10 years of Bexar County data of charges of people under this tampering statute to see if somebody else like me was ever charged under that statute. And by looking at that data, there was nobody that I could find.” So she’s basically saying, “There isn’t a person ever arrested under this tampering statute except for me, and I happen to be a government critic.”

 

Now, for Judge Oldham and for the Seventh Circuit and for the Ninth Circuit, that’s more than enough of objective evidence to overcome the probable cause requirement. But for the Fifth Circuit, it’s not enough. For the Fifth Circuit, they’re saying, “No, no, no, no, no. Nobody is actually worse than if somebody were already a victim of being charged under that statute.” Like, “If you could actually find somebody charged for your exact behavior, then we’re in business. But this way, we’re not in business. And if you were a victim of this unorthodox retaliation technique, that’s too bad for you.”

 

It’s a little bit like the qualified immunity test in general. What we often see is that if a government official can design a very unique way to violate somebody’s rights, then the court would say, “Hey, there isn’t a precedent on point on this, so qualified immunity to the officers.” But that just incentivizes really outrageous, unorthodox behavior by government officials when they are scheming to do something like this.

 

Sam Fendler:  So, Anya, I’m listening to what you’re saying. Under this Fifth Circuit way of doing things, it sounds a little bit to me like proving innocence. Have you guys thought about that, or do you have any opinion on that, the fact that you must go find -- they said, “Well, you can’t find exactly what we’re looking for. Therefore, we don’t have anything to help you out with.” Have you thought about that?

 

Anya Bidwell:  We have thought about this. And it’s very similar in that regard. We’re not arguing that in our petition, but I think it’s a helpful way to think about what happened here, absolutely.

 

Sam Fendler:  This is another one from our audience. Just to be clear, one of our audience members is asking what specifically the charge that Sylvia was arrested for.

 

Anya Bidwell:  She was arrested for trying to steal the petition that she herself organized. And that’s another thing that Judge Oldham says, “That just makes no sense why she would have been trying to steal her own petition.” That’s another piece of evidence of malice, right? She was charged under the tampering statute in Texas. It’s a very, very broad statute that basically says—and I quote from it—“A person commits an offense if he intentionally destroys, conceals, removes, or otherwise impairs the virility, legibility, or availability of government records.” And government record is defined as anything belonging to, received by, or kept by government for information.

 

So they’re basically saying petition -- these nonbinding, expressive documents calling for the removal of the city manager, they’re saying that petition is a government record, and they’re saying because Ms. Gonzalez put it in her binder as she was getting ready to leave just putting all the papers together -- because she put it in her binder, that means that she tried to steal it. And that goes back to Judge Oldham’s point during the oral argument where he was sitting next to Judge Engelhardt and he said, “Judges’ notes are government records under this definition. So if I take Judge Engelhardt’s papers as I’m organizing my area here and putting them in my binder, now you have probable cause under this tampering statute. Should you be arresting me now?” That’s the statute under which Sylvia was arrested, the tampering with the government records statute.

 

Sam Fendler:  I understand. So let’s look forward now. You said that next week you’re going to petition the Supreme Court to hear your case.

 

Anya Bidwell:  Yep.

 

Sam Fendler:  I asked you previously about the disentanglement of probable cause and malice. But from what I understand, you’re saying the second prong of your argument is in fact that probable cause should not even apply. Is that correct?

 

Anya Bidwell:  That’s correct. That’s our second point in the petition is that the Sixth Circuit, as well as Judge Oldham, have argued that when it comes to warrantless -- when it comes to situations outside of warrantless arrests, when the arresting officer is in fact not a defendant, in those situations, the probable cause requirement simply makes no sense because, again, you’re forcing courts to wear night vision goggles in a situation where the lights are on and you can actually see all this other evidence of malice. Why in the world in that type of a situation would you require for the courts to essentially blind themselves?

 

So the Court can answer either question. This case is a great vehicle to answer either question. The first question is, what kind of objective evidence is required within the Nieves warrantless arrest framework to overcome probable cause? Is it only evidence of non-arrests of non-critics, or can be other objective evidence? Our case is a great vehicle for that. But also if the Court chooses to clarify the scope of Nieves, when Judge Oldham says, “I think what the Court was doing was looking at warrantless arrest. The facts of Nieves are warrantless arrest facts. And the concerns that they expressed in there are warrantless concerns. So I don’t think Nieves has purchase here.” So the Court has an opportunity also to use our case to clarify the applicability of Nieves to cases like ours with deliberative, premeditated conduct. Yeah.

 

Sam Fendler:  Anya, I’m going to jump back on you so that I can ask you another audience question, which is, what was the evidence that the defendant Sylvia violated this tampering statute with intent? Was there some evidence about her intent? Or was that necessary?

 

Anya Bidwell:  So that’s a great question because the statute does talk about intentionally destroying, concealing, and removing, right? And that’s kind of in the affidavit that the special detective wrote. Some of the evidence of intent included that she has a grudge against the city manager and that she wants to get him fired. And that’s when she also -- another piece of evidence is that when she was canvassing her neighborhood asking for people’s signatures against the city manager that she somehow misrepresented the record of the city manager and the kind of things that he did, and that because she obtained those signatures through misrepresentation, then she really felt like she needed to steal this petition to hide the evidence of misrepresentation.

 

But, again, think about it. We are a country where we have elections all the time, right? People are talking about each other’s record. And by that definition, anybody who is discussing -- a politician who is discussing another politician’s record and is being critical of them can be again liable for misrepresenting the true information about that person. So that’s kind of one of the biggest pieces of evidence that this was malice is that in the affidavit, in order to prove intent, they actually used Sylvia’s viewpoint and they said that because of those viewpoints, she should be charged with the tampering statute.

 

Sam Fendler:  Understood. So jumping back to the forward-facing look here as you approach the Supreme Court, this may be too early to ask, but is there -- do you guys have any ideas on potential amicus briefs?

 

Anya Bidwell:  We are so lucky to have a very broad support in this case. One of the cases that I haven’t discussed but it is a complement to Nieves is Lozman v. City of Riviera Beach. And there, city council was a defendant, not individual city officials. And there, the Supreme Court said, “Because you sue a municipality, then you don’t need to overcome the probable cause.” And Fane Lozman, the plaintiff in that case, he is writing an amicus brief in support of review here saying that “This case is indistinguishable from mine.” So really the standard should be that second part that we discussed, where the Nieves standard shouldn’t be applying at all.

 

We have Cato writing on overcriminalization and kind of echoing Justice Gorsuch’s argument in his Nieves concurrence about how when there is probable cause to arrest anybody for anything on a daily basis, that having that arrest power is really not protective of First Amendment. It’s a backdoor to First Amendment violations, right? If the city council here were to pass a law that were to say, “You can’t petition the government for removal for city managers,” it would be struck down as unconstitutional immediately, right? But here, it’s like a backdoor of ensuring that nobody will petition the government by basically punishing somebody who did it by throwing them in jail.

 

So we have Cato. We have Fane Lozman. We have professors of evidence and criminal procedure who are discussing the value of probable cause. And again, just like what we talked about, they’re saying, “Listen.” And one of them, one of the professors—he even was in law enforcement—and he is basically saying, “Listen, I can see how probable cause can be really valuable when the nighttime and we need the goggles one, but it’s value is limiting when you’re talking about situations where there is other evidence available.” ACLU is also filing an amicus brief, and we’re very grateful to them. And LEAP, the Law Enforcement Action Partnership, they’re filing an amicus brief, and they will discuss how irregular it is what individual defendants did in this case. So we are hoping at least six amicus briefs will be filed in support of Sylvia and in support of granting certiorari in this case.

 

Sam Fendler:  Well, it’s great to hear that you’ll be -- it sounds like you got some good friends coming with you. We’re running a little bit low on time here. But I think we got time for one more audience question. And this is, did the government even try to explain why they wanted to have Ms. Gonzalez actually arrested? Was there a point in the case, whether at the district level, perhaps just at the initial arresting stage, was there any record of them explaining the why?

 

Anya Bidwell:  The only record that we have is their affidavit. And in that affidavit, they’re basically saying, “Why? Because Sylvia doesn’t like the city manager.” And that’s also another problem with qualified immunity here, that really the only evidence we have at this point is the affidavit and also our data that we collected form Bexar County showing that nobody ever was arrested under the tampering statute for misplacing government papers. But defendants invoke qualified immunity immediately at the motion-to-dismiss stage. So before we even had a chance to talk to Mayor Trevino and say, “Mayor, why did you do that?” we had to argue on qualified immunity.

 

And the district court actually agreed with us and said, “No, let’s proceed to discovery in addition to affidavit, hear what the mayor, the chief of the police, and the special detective have to say.” But they didn’t want to answer those questions. So they petitioned the Fifth Circuit and they said, “Hey, you should reverse the district court’s denial of qualified immunity.” And that’s where we are now. So the entire litigation is frozen until we petition the Supreme Court and have them hopefully reverse the Fifth Circuit and we can actually depose the individual defendants.

 

Sam Fendler:  Absolutely. It seems like there’s still much more to be had here, and it’s quite interesting. Anya, really appreciate you joining us today and sharing everything with us. Would you like to leave the audience with some final words?

 

Anya Bidwell:  Thank you very much for this opportunity. Thank you for being interested in this case. I just want you guys to think about how this kind of a law is really a backdoor to censorship, right? It’s very difficult in America—thank God—to pass laws that infringe on people’s ability to speak. Those kind of laws get struck down immediately. So what we see a lot—and the Institute for Justice is having a lot of cases coming our way these days—is that with increasing frequency, government officials basically punish their critics to ensure that they don’t speak out against them and to ensure that there is a message sent to other potential critics so they know to not mess with the government. So this is backdoor censorship. IJ has a lot of retaliation cases on our docket right now because we’re seeing this as an increasing trend. So pay attention to that and -- pay attention to that and make sure that you stay engaged and that the courts don’t blind themselves to obvious retaliations, as they are doing in this case.

 

Sam Fendler:  Excellent. Well, Anya, again, and this time on behalf of The Federalist Society, I want to thank you very much for the benefit of your time and expertise today. To our audience, I want to thank you as well. We greatly appreciate your participation. Please check out our website, fedsoc.org, or you can follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Thank you all once more for tuning in, and we are adjourned.