Drop the shield on retaliatory officials

Law enforcement officials in Castle Hills, Texas, took no chances. To protect the safety of the small San Antonio enclave, they clapped the accused miscreant in jail and in irons — handcuffed to a metal bench, unable to stand up and stretch her 72-year-old legs.

The grandmother in the orange jail shirt was accused of stealing — months earlier, and for only a few minutes — a petition that she had helped instigate, and that a signer had submitted to the City Council moments before the grandmother supposedly stole it.

The Supreme Court heard oral arguments Wednesday as to whether Sylvia Gonzalez, represented by the Institute for Justice, can sue the officials who, she says, inflicted on her a retaliatory arrest as payback for her criticisms of the city government. A federal appellate court has said she cannot.

Gonzalez, a retiree, was elected to the City Council in 2019. In office, she helped organize a nonbinding citizens petition calling for reinstatement of the previous city manager. This annoyed the mayor and some of his allies.

As Gonzalez gathered her papers after a contentious council debate, filings recount, the mayor asked where the petition was. Puzzled, she said it had been given to him the day before. He told her to look among her papers, where it was found. He said, “You probably picked it up by mistake.”

End of story? No, the beginning of a petty, clumsy, obvious plot to charge her with a misdemeanor to force her from the council. After an “investigation” (by a friend of the police chief ’s), Gonzalez was arrested for violating a law making it an offense to “conceal” or “otherwise impair” the “availability of a government record.”

The charges were eventually dropped, and Gonzalez decided to leave public life — but not to forgo suing the mayor, the police chief and the investigator, charging them with a retaliatory arrest intended to punish her for exercising her First Amendment rights. A panel of the U.S. Court of Appeals for the 5th Circuit overturned a lower court’s ruling for Gonzalez, holding that “qualified immunity” protected the officials. That doctrine, which sensibly protects police making split-second decisions in dangerous situations, should not protect officials who coldly conspire to violate a citizen’s rights.

Judge James C. Ho, in the 5th Circuit’s dissent, cited Supreme Court Justice Neil Gorsuch’s observation that criminal laws have “come to cover so much previously innocent conduct that almost anyone can be arrested for something.” Ho wrote: “The opportunity for public officials to weaponize the criminal justice system against their political adversaries has never been greater.”

The Supreme Court has held that a First Amendment retaliatory-arrest claim can proceed if there is evidence the plaintiff was arrested for actions that do not result in arrests when committed by people who have not engaged in controversial but protected speech. Ho noted that Chief Justice John Roberts Jr. has said: When jaywalking is frequent but rarely results in arrests, if a vocal critic of police behavior is arrested for jaywalking and files a retaliatory-arrest claim, a court would not properly protect First Amendment rights if the claim were reflexively dismissed because the police technically had probable cause.

Gonzalez is asserting a right the court should affirm to advance reconsideration of qualified immunity, which has evolved into a shield for disreputable officials who, carelessly or maliciously, violate individuals’ rights.