SUPREME COURT OF THE UNITED STATES
_________________
No. 22–1025
_________________
SYLVIA GONZALEZ, PETITIONER
v. EDWARD
TREVINO, II, et al.
on writ of certiorari to the united states
court of appeals for the fifth circuit
[June 20, 2024]
Justice Alito, concurring.
The
per curiam opinion correctly decides
that the Fifth Circuit took an unduly narrow view of the exception
we recognized in
Nieves v.
Bartlett, 587 U.S. 391
(2019). I write separately to provide further guidance on the scope
of that decision.
I
Because the District Court dismissed Sylvia
Gonzalez’s complaint for failure to state a claim, the
per
curiam opinion properly takes its facts solely from the
complaint. But I provide a fuller account of the events leading up
to her arrest because they may typify the messy quarrels that
courts will have to sift through if we accept Gonzalez’s reading of
our case law.
Upon her election to the city council, Gonzalez
launched a campaign to oust Ryan Rapelye from his position as city
manager. As part of her efforts, Gonzalez paid personal visits to
Castle Hills residents, requesting their signatures and support.
According to some accounts, her efforts were aggressive. Chalene
Martinez averred that Gonzalez solicited her signature
“ ‘under false pretenses’ ”—specifically by misleading
her about the nature of the petitions and by lying about Rapelye’s
performance in office. Record in No. 5:20–cv–01151 (WD Tex., Sept.
9, 2020), ECF Doc. 1, p. 9; App. 45, 52. Another resident,
Jesus Quilantan, reported that Gonzalez had asked to see his
parents. When she learned that they were not home, Gonzalez cajoled
him into signing the petition on their behalf.
Id., at 57.
Her efforts paid off. In a town of roughly 4,000 inhabitants, she
helped garner over 300 signatures for her petition seeking
Rapelye’s removal.
At the next city council meeting, just over two
weeks after Gonzalez’s election, one resident submitted a stack of
documents representing the petition to remove Rapelye. As the
presiding officer of the meeting, Mayor Edward Trevino assumed
control of the petition. And as the Court’s opinion notes, the
meeting grew contentious. Multiple residents spoke out in support
of Rapelye. Martinez, for instance, accused Gonzalez of misleading
residents into signing the petition based on false representations
about Rapelye and the campaign for his removal. These allegations
disturbed Trevino. The next morning, he arrived before the meeting
resumed to see if the petition contained any anomalies. When he was
finished, he fastened the documents together with a large black
binder clip and placed the stack on top of his other papers on the
dais.
What happened next was captured by surveillance
videos.[
1] Shortly before the
meeting began, Trevino was engaged in conversation with two
constituents. While he turned away from his papers, Gonzalez
approached the dais and took the petition from his pile. After
quickly flipping through its pages, Gonzalez placed the petition
inside her binder.
During the meeting, Trevino could not find the
petition among his papers. He also noticed that Gonzalez’s binder
contained a familiar stack of documents held together with a black
binder clip. But Trevino chalked this up to a coincidence, and he
assumed that the city secretary had already collected the
petition.
Trevino dropped this assumption when the city
secretary asked him for the petition after the meeting. At this
point, Trevino suspected that Gonzalez had taken the petition. He
relayed those suspicions to Captain Esteban Zuniga, a police
officer who was present at the meeting. Zuniga walked over to
Gonzalez and asked her if she had taken the petition. After
Gonzalez denied his accusation, Trevino suggested she check her
binder.
This, too, was captured on tape. At Trevino’s
prompting, Gonzalez slowly flipped through her binder. Before she
reached the binder-clipped stack, however, she stopped and once
again denied possessing the petition. Trevino and Zuniga
simultaneously pointed to the visible black binder clip. Forced to
produce the petition, Gonzalez told Zuniga that she thought it was
an extra copy.
Trevino filed a criminal complaint against
Gonzalez, alleging that she had stolen the petition. See
ante, at 2. On account of Gonzalez’s political post, the
police chief tasked Alex Wright—a peace officer and special
detective—with leading the investigation. As a special detective,
Wright is assigned cases “which might otherwise be considered
sensitive . . . or delicate, either due to the nature of
the crime or . . . the parties involved.” App. 43.
Wright conducted a thorough investigation. He
interviewed Trevino, Zuniga, and Martinez, each of whom gave him
their version of these events. Zuniga said that he found it “odd”
that Gonzalez claimed that she thought the petition in her binder
was an “extr[a],” given that she had strenuously denied having the
petition in her possession.
Id., at 48. After meeting with
Martinez, Wright suspected that Gonzalez took the petition to avoid
further scrutiny. Wright contacted Gonzalez several times to hear
her side of the story, but she refused to speak with him.
The surveillance videos, moreover, confirmed
Trevino and Zuniga’s account of Gonzalez’s evasiveness. From this
evidence, Wright concluded that Gonzalez had likely violated
Texas’s anti-tampering statute, which makes it a crime for someone
to “remov[e]” a government document intentionally, Tex. Penal Code
Ann. §37.10(a)(3) (West Cum. Supp. 2023), and he sought an arrest
warrant from the local Magistrate. Wright’s warrant affidavit
included details from his interviews with the witnesses and his
review of the surveillance videos. The Magistrate agreed that
probable cause supported Gonzalez’s arrest, and he granted Wright’s
request.
The Court’s opinion completes the story. After
the warrant was issued, Gonzalez spent an evening in jail. A month
later, the district attorney dropped all charges against her. But
Gonzalez’s suit against Trevino, Wright, and the police chief is
still ongoing five years later. And Gonzalez has never disputed—at
any point of the litigation—that probable cause supported her
arrest.
II
Gonzalez attacks the Fifth Circuit’s judgment
on two fronts. First, she contends that the Fifth Circuit took an
unduly restrictive view of the
Nieves exception. Second, she
asks us to cabin the no-probable-cause requirement to on-the-spot
arrests. The Court briskly dispatches this case on the first
question, but I think lower courts and litigants deserve additional
guidance. I therefore divide my analysis into three parts. First, I
provide the relevant legal background for retaliatory-arrest and
retaliatory-prosecution claims. Second, I elaborate on the scope of
the
Nieves exception. Third, I explain why
Nieves is
not limited to split-second arrests.
A
“[T]he law is settled that as a general matter
the First Amendment prohibits government officials from subjecting
an individual to retaliatory actions, including criminal
prosecutions, for speaking out.”
Hartman v.
Moore,
547 U.S.
250, 256 (2006). We ordinarily analyze First Amendment
retaliation claims under the two-step framework set out in
Mt.
Healthy City Bd. of Ed. v.
Doyle,
429 U.S.
274, 287 (1977). At the first step, the plaintiff must
demonstrate that he engaged in protected speech and that his speech
was a “ ‘substantial’ ” or “ ‘motivating’ ”
factor in the defendant’s decision to take action against him.
Ibid. Once the plaintiff makes this showing, the burden
shifts to the defendant at the second step to show that he would
have taken the same adverse action even in the absence of the
protected speech.
Ibid. To carry these burdens, parties
operating within the
Mt. Healthy framework may present a
wide range of evidence—both objective and subjective. See,
e.
g.,
id., at 282–283 (discussing the
plaintiff ’s behavioral history in the years leading up to the
litigation);
Texas v.
Lesage,
528 U.S.
18, 19 (1999) (
per curiam) (the defendants produced
an affidavit to explain that the plaintiff ’s application to
graduate school was rejected because of his poor personal
statement).
Our cases have admitted, however, that this
framework fits uneasily with First Amendment retaliatory-arrest and
retaliatory-prosecution claims for at least three reasons. First,
it is all too easy for a plaintiff to subject a law- enforcement
officer to the crucible of litigation based on allegations about an
officer’s state of mind that are easy to make and difficult to
disprove. For example, a driver with an anti-police bumper sticker
on his car could claim that any traffic stop was due to his
protected speech. Any person who carries a sign while trespassing,
blocking traffic, or disturbing the peace could similarly allege
that an arrest for these offenses was motivated by the sign’s
message. We are loath to undertake such inquiries into subjective
intent in the law-enforcement context. Cf.
Ashcroft v.
al-Kidd,
563 U.S.
731, 737 (2011); see also
Kentucky v.
King,
563 U.S.
452, 464 (2011);
Whren v.
United States,
517 U.S.
806, 812 (1996).
Second, protected speech is often a “wholly
legitimate consideration” for officers when deciding whether to
file charges or to make an arrest.
Reichle v.
Howards,
566 U.S.
658, 668 (2012). An “officer may decide to arrest [a] suspect
because his speech provides evidence of a crime or suggests a
potential threat.”
Ibid. The facts of
Nieves itself
illustrate this point. In that case, the police officers decided to
arrest the plaintiff for disorderly conduct and resisting arrest
because “they perceived [the plaintiff] to be a threat” based in
part on the combative tone and content of his speech. 587
U. S., at 401. And no one suggested that an individual’s
speech is off-limits in this respect.
Ibid. (explaining that
“the content and manner of a suspect’s speech” may provide
important information for law enforcement).
Third, the machinery of criminal justice often
works through multiple government officers. An officer who makes an
arrest may do so based on his own judgment, orders from a superior,
or as in this case, a warrant issued by a magistrate. Thus, it is
often challenging to draw a straight line between the
plaintiff ’s protected speech and the defendant from whom he
seeks recovery. In such circumstances, it may be difficult to
discern whether the officer acted improperly. Cf.
Messerschmidt v.
Millender,
565
U.S. 535, 546 (2012) (noting that “the fact that a neutral
magistrate has issued a warrant is the clearest indication that the
[arresting] officers acted in an objectively reasonable manner”);
Bilida v.
McCleod,
211 F.3d 166, 174–175 (CA1 2000) (Boudin, J.) (“Plausible
instructions from a superior or fellow officer support qualified
immunity where, viewed objectively in light of the surrounding
circumstances, they could lead a reasonable officer to conclude
that the necessary legal justification for his actions
exists”).
For these reasons, we have required plaintiffs
pressing such claims to prove the absence of probable cause as a
threshold requirement before they can advance their claims under
the
Mt. Healthy framework. We defended this requirement on
the assumption that the “existence of probable cause will be at
issue in practically all” retaliatory- arrest or
retaliatory-prosecution cases given its obvious evidentiary value.
Nieves, 587 U. S., at 400 (internal quotation marks
omitted). Thus, we reasoned that this requirement, which imposes
“little or no added cost” on the parties or the court, was a small
price to pay for a plaintiff seeking to discard the presumption of
good faith we afford to law-enforcement officials.
Ibid.
(internal quotation marks omitted).
In
Nieves, however, we recognized a
narrow exception to the no-probable-cause rule. While a showing of
probable cause generally defeats a retaliatory-arrest claim, we
observed that this requirement should be relaxed “where officers
have probable cause to make arrests, but typically exercise their
discretion not to do so.”
Id., at 406. Concerned that some
police officers might exploit the arrest power as a means of
suppressing disfavored speech, we explained that the
no-probable-cause requirement may be set aside “when a plaintiff
presents objective evidence that he was arrested when otherwise
similarly situated individuals not engaged in the same sort of
protected speech had not been.”
Id., at 407; cf.
United
States v.
Armstrong,
517 U.S.
456, 470 (1996).
In recognizing this exception, we emphasized
that it is merely a “narrow qualification” to the general rule.
Nieves, 587 U. S., at 406. And to illustrate the
thinness of this exception,
Nieves offered the example of a
vocal critic of the police who is arrested for jaywalking.
Id., at 407. The unyielding enforcement of a
no-probable-cause requirement in this context would be
insufficiently protective of the plaintiff ’s First Amendment
rights because the defendant’s animus is a much likelier
explanation for such an arrest than the mere existence of probable
cause. We chose this example because jaywalking represents the type
of relatively benign offense that is “endemic but rarely results in
arrest.”
Ibid.
B
Because Gonzalez concedes that her arrest was
supported by probable cause, her claim can proceed only if she
falls within
Nieves’s exception.[
2] Under this exception, a plaintiff ’s inability to
prove the absence of probable cause is excused only if the
plaintiff presents “objective evidence that he was arrested when
otherwise similarly situated individuals not engaged in the same
sort of protected speech had not been.”
Ibid.
The Court is correct to note that a plaintiff
must provide objective evidence to fall within the
Nieves
exception. We enforce this requirement to avoid “the significant
problems that would arise from reviewing police conduct under a
purely subjective standard.”
Ibid.; see also
Horton
v.
California,
496 U.S.
128, 138 (1990) (“[E]venhanded law enforcement is best achieved
by the application of objective standards of conduct, rather than
standards that depend upon the subjective state of mind of the
officer”). For that reason, evidence regarding an officer’s state
of mind—
e.g., evidence of bad blood between the officer and
the plaintiff or allegations that the officer harbored animus—does
not qualify.
The defendants argue that permitting anything
other than the kind of strict comparator evidence demanded by the
Fifth Circuit will defeat the whole purpose of the
no-probable-cause rule. Our decisions reflect our sensitivity to
these concerns, see
Lozman v.
Riviera Beach, 585 U.S.
87, 98 (2018), but a proper application of the
Nieves
exception will not produce this result for at least two
reasons.
First, courts must remember that the exception
is just that—an exception, and a narrow one at that. Judges should
not conflate the question whether certain evidence can be
considered under the
Nieves exception with the entirely
distinct question whether the evidence suffices to satisfy this
threshold inquiry. We have long recognized “[t]he deep-rooted
nature of law-enforcement discretion,”
Castle Rock v.
Gonzales,
545 U.S.
748, 761 (2005), and a plaintiff therefore must surmount a very
high bar when the official can point to the existence of probable
cause underpinning an arrest. The example in
Nieves of a
police officer arresting a vocal critic for jaywalking serves as a
helpful benchmark for courts and litigants. A plaintiff may satisfy
the
Nieves exception only by providing comparably powerful
evidence.
Second, evidence that tends to show only that
the plaintiff ’s constitutionally protected speech was a
“substantial or motivating factor” behind the adverse action should
not be considered unless and until the plaintiff can provide other
evidence to satisfy the
Nieves exception.
Lozman, 585
U. S., at 97. This requirement flows from the recognition that
the
Nieves exception serves only as a gateway to the
Mt.
Healthy framework. The
Nieves exception asks whether the
plaintiff engaged in the type of conduct that is unlikely to result
in arrest or prosecution. By contrast, the
Mt. Healthy
inquiry is keyed toward whether the defendant’s adverse decision
was influenced by the plaintiff ’s constitutionally protected
speech.
To see how these principles operate in practice,
consider the following hypothetical. Suppose a plaintiff charged
with a particular crime brings three pieces of evidence. First, he
proffers an affidavit from an officer testifying that no one has
been prosecuted in the jurisdiction for engaging in similar
conduct. Second, he produces a statistical study corroborating the
affidavit. And third, the plaintiff testifies that a police officer
has been surveilling his house for several weeks. The first two
pieces of evidence count toward the
Nieves exception, but
the third piece of evidence does not. Instead, the third piece of
evidence can be considered only after his claim advances to the
Mt. Healthy framework. Any other approach would render the
Mt. Healthy framework redundant in most, if not all,
cases.
In
Nieves, three Justices dissented at
least in part and would have permitted plaintiffs in cases with
probable cause to proceed to trial if they were able to survive
summary judgment under
Mt. Healthy. They argued their
positions forcefully and well, but it is not faithful to our
precedent to use the “narrow”
Nieves exception as a crowbar
for overturning the core of that decision’s holding, supported by
six Justices—namely, that the existence of probable cause either
always or nearly always precludes a suit like this one.
I now turn to the facts of Gonzalez’s case.
Here, her evidence is of the type that plaintiffs can use in making
out their case under the
Nieves exception. I agree with the
Court that a plaintiff does not need to identify another person who
was not arrested under the same law for engaging in a carbon-copy
course of conduct. Our jaywalking example in
Nieves plainly
proves this point. We did not suggest that a vocal critic of the
police charged with jaywalking had to produce evidence that police
officers knowingly refused to arrest other specific jaywalkers. And
we certainly did not suggest that this jaywalker had to find others
who committed the offense under the same conditions as those in his
case—for example, on a street with the same amount of traffic
traveling at the same speed within a certain distance from a
crosswalk at the same time of day.
On remand, the Fifth Circuit must determine
whether Gonzalez’s survey is enough for her claim to advance to the
Mt. Healthy framework. The
Nieves exception is most
easily satisfied by strong affirmative evidence that the defendant
let other individuals off the hook for comparable behavior. But
when a plaintiff ’s claim hinges on negative evidence, like
what Gonzalez offers here, context is key for determining the
strength of his case. When a plaintiff ’s alleged criminal
conduct is egregious or novel, for instance, the lack of similar
arrests might warrant little weight. Courts must also ensure that
they are assessing the plaintiff ’s conduct at the appropriate
level of generality because every arrest, if defined too
specifically, can be described as the first of its kind. If a
plaintiff could evade the no- probable-cause requirement simply by
submitting evidence that no one who engaged in an exact duplicate
of his behavior had been arrested, courts will be “flooded with
dubious retaliatory arrest suits,”
Lozman, 585 U. S.,
at 98, and the
Nieves’s exception would drain the
no-probable-cause requirement of all force.
C
We also granted certiorari on whether the
Nieves no-probable-cause rule applies beyond split-second
arrests. The parties vigorously contested this question in briefing
and at oral argument, yet the Court today reserves judgment on this
issue. I disagree with this course. In my view,
Nieves
already answered this question in the affirmative after faithfully
applying our precedents.
Nothing about
Nieves’s rationale depends
on whether the officer made a split-second arrest of the
plaintiff.[
3] That decision
expressly borrowed the no-probable-cause rule and its underlying
justifications from
Hartman, the seminal case governing
retaliatory-prosecution claims.
Nieves self-consciously
emulated
Hartman because both types of retaliation claims
share the same critical characteristics.
Three features stand out. For one thing, courts
adjudicating either claim face the “ultimate problem” of
determining “whether the adverse government action was caused by
the officer’s malice or the plaintiff ’s potentially criminal
conduct.”
Nieves, 587 U. S., at 402; see also
Hartman, 547 U. S., at 265. The causal challenge is
similarly complex in both contexts because “protected speech is
often a ‘wholly legitimate consideration’ ” for officers
deciding whether to launch a prosecution or to make an arrest.
Nieves, 587 U. S., at 401. For another, with or without
the no-probable-cause rule, the presence or absence of probable
cause plays a similarly vital role in both retaliatory-arrest and
retaliatory-prosecution cases. That is because “ ‘evidence of
the presence or absence of probable cause . . . will be
available in virtually every’ ” retaliatory-prosecution or
retaliatory-arrest case and because such evidence speaks volumes
about the objective reasonableness of a defendant’s action.
Ibid.; see also
Hartman, 547 U. S., at 265.
Lastly, by focusing the inquiry on objective indicia of
reasonableness, a no-probable-cause rule reflects our general
reluctance to probe the subjective intent of law-enforcement
officers.
Nieves, 587 U. S., at 403; see also
Hartman, 547 U. S., at 263–265.
This analysis—none of which turns on whether an
arrest was made in a split-second context—is plainly incompatible
with Gonzalez’s theory. And it would be bizarre to think
Nieves silently limited itself to split-second decisions
when the reasoning it imported came from the retaliatory-
prosecution context, which by definition involves only deliberative
government acts.[
4]
Gonzalez argues that we should limit
Nieves to split- second cases because, in her view, a
retaliatory-arrest claim is analogous to the common-law tort of
abuse of process, which lacks a no-probable-cause requirement. Tr.
of Oral Arg. 5–6. She urges us to rely on the abuse-of-process
analogy to draw a line between split-second arrests with no process
and arrests pursuant to process that can be likened to the
common-law tort.
Ibid.
Gonzalez’s appeal to the common law is wrong
twice over. To start, she is wrong to suggest that the
abuse-of-process tort was somehow not before us when we decided
Nieves. Our prior decision in
Hartman gave full
consideration to whether abuse of process was the appropriate
analog for a retaliatory-prosecution claim. See 547 U. S., at
258 (noting that “we could debate whether the closer common-law
analog to retaliatory prosecution is malicious prosecution (with
its no-probable-cause element) or abuse of process (without it)”).
By holding that such a claim requires a plaintiff to prove there
was no probable cause for the charge,
Hartman necessarily
rejected the force of any analogy to abuse of process. In
Nieves, the core dispute was whether we should extend the
same no-probable-cause requirement to retaliatory-arrest claims.
Once we decided to do so, we copied
Hartman’s reasoning. It
is therefore quite clear that the
Nieves Court was aware of
the abuse-of-process tort, as well as the argument that this tort
should govern our decision. And if we needed any reminding, the
United States argued in
Nieves that “[a] retaliatory-arrest
claim is not analogous to the tort of abuse of process.” Brief for
United States as
Amicus Curiae in
Nieves v.
Bartlett, O. T. 2018, No. 17–1174, p. 10,
n. 2.
Gonzalez’s common-law argument suffers from
another defect. It is well settled that common-law principles are
meant to serve as helpful guides rather than prefabricated
components of a §1983 claim.
Manuel v.
Joliet, 580
U.S. 357, 370 (2017); see also
Rehberg v.
Paulk,
566 U.S.
356, 366 (2012) (“[T]he Court has not suggested that §1983 is
simply a federalized amalgamation of pre-existing common-law
claims”). At the end of the day, none of our decisions in this area
has unthinkingly outsourced our analysis to the common law of
torts. In
Hartman, for instance, we expressly declined the
parties’ “invitation to rely on common-law parallels,” and never
took a position on whether malicious prosecution or abuse of
process was the better analog to retaliatory prosecution. 547
U. S., at 258. And in
Nieves, we looked to the common
law only to “confir[m]” what we had already concluded: that the
same no-probable-cause requirement we established in
Hartman
should also apply to retaliatory-arrest claims. 587 U. S., at
405. Common-law torts can assist our analysis, but they do not
dictate every dimension of a §1983 claim.
And that is for good reason. Many §1983 claims
“can be favorably analogized to more than one of the ancient
common-law forms of action.”
Wilson v.
Garcia,
471 U.S.
261, 272–273 (1985). Because any analogy to a common-law cause
of action is thus “bound to be imperfect,”
id., at 272, we
necessarily deal in generalities when we look to the common law to
define §1983 claims.[
5] The
specific facts of a given case might align more or less well with
the chosen common-law analog, but until today no one has suggested
that our jurisprudence requires courts to toggle between different
tort analogies within the same class of §1983 claims. Consider the
parties’ arguments in
Hartman. The defendants urged us to
analogize retaliatory-prosecution claims to the
malicious-prosecution tort, while the plaintiff suggested that
abuse of process might be the more apt analog. Brief for
Petitioners 25–30 and Brief for Respondent 41–42 in
Hartman
v.
Moore, O. T. 2005, No. 04–1495. But neither party
asked us to adopt the malicious-prosecution analogy for some §1983
retaliatory-prosecution claims while relying on the
abuse-of-process analogy for others.
Gonzalez, by contrast, invites us to slice and
dice every complaint alleging a retaliatory-arrest claim based on a
quick skim of the facts at the motion-to-dismiss stage. Under her
view, the elements of a plaintiff ’s meritorious §1983 claim
may evolve throughout the lawsuit as more facts are discovered and
verified. I see little value in endorsing this awkward and
predictably inefficient innovation.
Gonzalez’s proposed limit on
Nieves would
also be unworkable in practice because it raises thorny
line-drawing questions about the meaning of a “split-second”
decision to arrest. Consider an officer who surveils a political
dissident for many months with the plan of arresting him the moment
he broke the law. Would that arrest be considered a split-second
decision under Gonzalez’s view? Or suppose that an arresting
officer takes several minutes to confer with another officer on the
scene. Would the no-probable-cause requirement apply? What if an
officer takes time to ensure that everyone at a crime scene is safe
before completing an arrest? These hypotheticals illustrate the
vast practical difficulties with Gonzalez’s theory, and there is no
principled basis for drawing such finely grained lines in any
event.
A “split-second” rule would also create a
perverse incentive for police officers to make quick arrest
decisions rather than proceeding in a deliberative manner.
Gonzalez’s test punishes the city officials for seeking a warrant
from a neutral magistrate before arresting her. Under her approach,
the defendants would have been better off if they had arrested her
immediately. I see no good reason to switch out
Nieves for a
novel doctrinal dichotomy that generates such counterintuitive
results.
In sum,
Nieves applies to
all
retaliatory-arrest claims brought under §1983. And that decision
means what it says. “[P]robable cause should generally defeat a
retaliatory arrest claim,” and a plaintiff bringing such a claim
“must plead and prove the absence of probable cause for the arrest”
unless he can fit within its narrow exception. 587 U. S., at
402, 406. Nothing in the Court’s decision today should be
understood as casting doubt on this holding.
III
With these observations, I join the Court’s
opinion.