SYLVIA GONZALEZ v. EDWARD TREVINO, II, MAYOR OF CASTLE HILLS, sued in his INDIVIDUAL CAPACITY; JOHN SIEMENS, CHIEF OF THE CASTLE HILLS POLICE DEPARTMENT, SUED IN HIS INDIVIDUAL CAPACITY; ALEXANDER WRIGHT, SUED IN HIS INDIVIDUAL CAPACITY
No. 21-50276
United States Court of Appeals for the Fifth Circuit
July 29, 2022
Kurt D. ENGELHARDT, Circuit Judge
FILED July 29, 2022, Lyle W. Cayce, Clerk
Sylvia GONZALEZ,
Plaintiff—Appellee,
versus
Edward TREVINO, II, MAYOR OF CASTLE HILLS, sued in his INDIVIDUAL CAPACITY; JOHN SIEMENS, CHIEF OF THE CASTLE HILLS POLICE DEPARTMENT, SUED IN HIS INDIVIDUAL CAPACITY; ALEXANDER WRIGHT, SUED IN HIS INDIVIDUAL CAPACITY,
Defendants—Appellants.
Appeal from the United States District Court for the Western District of Texas
USDC No. 5:20-CV-1511
Before BARKSDALE, ENGELHARDT, and OLDHAM, Circuit Judges.
In this case, we are confronted with a dilemma that the Supreme Court has wrestled with recently: how are we to treat a plaintiff‘s claims when she asserts retaliatory arrest for engaging in conduct protected by the First Amendment, but concedes that there exists probable cause for the arrest? As we are bound by the Court‘s precedent, we hold that Gonzalez fails to establish a violation of her constitutional rights.
I
Sylvia Gonzalez is a resident of Castle Hills, Texas. Castle Hills, a city of fewer than 5000 residents, is governed by a five-member city council that appoints a city manager to handle the day-to-day business of the city. In 2019, Gonzalez was elected to a seat on the city council. During her campaign, Gonzalez learned that many residents of Castle Hills were unhappy with the performance of the contemporary city manager. As her first act in office, Gonzalez participated in organizing a nonbinding petition that called for the removal of the city manager from office. On May 21, Gonzalez attended her first city council meeting as a council member, at which a resident submitted the petition to the council. The council meeting grew contentious and was extended through the next day.
After the meeting ended, Gonzalez left her belongings on the dais and went to speak with a constituent. At one point during this conversation
Two days later, Castle Hills chief-of-police John Siemens informed Sergeant Paul Turner that Trevino would contact Turner. Trevino wanted to file a criminal complaint alleging that Gonzalez took the petition without consent. Turner began an investigation, which yielded no returns. Siemens then asked special detective Alex Wright to take over the investigation. Wright interviewed two witnesses, including Trevino, and requested an interview of Gonzalez, which she refused. Wright determined that Gonzalez committed a violation of
Wright then obtained a warrant against Gonzalez from a magistrate. The process that Wright used was lawful but atypical, as he: (1) chose to secure a warrant, rather
Gonzalez alleges that the action against her under
When Gonzalez learned of the warrant for her arrest, she turned herself in. She was booked on July 18 and spent the evening in jail. She is no longer on the city council, and she alleges that she “will never again help organize a petition or participate in any other public expression of her political speech,” nor will she ever “again run for any political office.” Gonzalez also asserts that Trevino and others engaged in other activities to attempt to remove her from the council, including having her removed from office based on a “made-up technicality,” and filing a civil lawsuit against her alleging incompetence and official misconduct.
Gonzalez sued Trevino, Siemens, Wright, and the City of Castle Hills, asserting two claims under
II
“[A] district court‘s denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of
This court reviews denial of a motion to dismiss based on qualified immunity
III
Gonzalez brings claims under
The question before us is whether Gonzalez has alleged a violation of her constitutional rights when probable cause existed for her allegedly retaliatory arrest. Appellants argue the existence of probable cause dooms Gonzalez‘s claims. Gonzalez does not dispute that probable cause existed to arrest her but argues that it does not bar her suit.1
The Supreme Court addressed the importance of probable cause to retaliatory arrest cases in Nieves v. Bartlett, 139 S. Ct. 1715 (2019). Nieves dealt with an allegedly retaliatory arrest at an extreme sporting event in
However, the Supreme Court carved out a narrow exception to the general rule that the existence of probable cause will defeat a retaliatory arrest claim. Under this exception, plaintiff need not plead lack of probable cause “where officers have probable cause to make arrests, but typically exercise their discretion not to do so.” Id. at 1727. This is because “[i]n such cases, an unyielding requirement to show the absence of probable cause could pose ‘a risk that some police officers may exploit the arrest power as a means of suppressing speech.‘” Id. (quoting Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1953-54 (2018)). The Court provided the example of jaywalking, which it noted “is endemic but rarely results in arrest.” Id. It continued, “[i]f an individual who has been vocally complaining about police conduct is arrested for jaywalking,” the claim should not be dismissed despite the existence of probable cause because “[i]n such a case,... probable cause does little to prove or disprove the causal connection between animus and injury.” Id. The Court “conclude[d] that the no-probable-cause requirement should not apply 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. All parties agree that Nieves governs this case; they differ, however, on whether this “case squeezes through the crack of an opening that Nieves left ajar.” Lund v. City of Rockford, 956 F.3d 938, 944 (7th Cir. 2020).
Gonzalez cannot take advantage of the Nieves exception because she has failed to “present[] objective evidence that [s]he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” 139 S. Ct. at 1727. Gonzalez does not offer evidence of other similarly situated individuals who mishandled a government petition but were not prosecuted under
We recognize that one of our sister circuits has taken a broader view of the Nieves exception and held that “the [Nieves] majority does not appear to be
In sum, the plain language of the Nieves exception requires evidence that Gonzalez has not provided. Lacking such evidence, Nieves tells us that Gonzalez‘s claims fail because probable cause existed to arrest her.
Gonzalez also relies on another Supreme Court case to argue that her claim may proceed notwithstanding probable cause. In Lozman v. City of Riviera Beach, 138 S. Ct. 1945 (2018), the Supreme Court dealt with a case involving Fane Lozman, a citizen of Riviera Beach. Like Gonzalez, Lozman was an outspoken critic of local city officials. According to Lozman, the city council hatched a plan to intimidate him in order to curtail his speech. Id. at 1949. At a public meeting before the council, Lozman started making remarks, and refused to leave the podium when asked. He was arrested for violating the city counsel‘s rules of procedure. Id. at 1949-50. He alleged that the arrest was in retaliation for his speech but conceded that probable cause existed to arrest him. Lozman sued the City of Rivera Beach, asserting a claim under Monell v. New York City Dep‘t. of Soc. Servs., 436 U.S. 658 (1978). Id. at 1950-51. The jury found for the City, and on appeal the Eleventh Circuit affirmed, holding that the existence of probable cause for the arrest necessarily defeated Lozman‘s claims. Id. at 1950. The Supreme Court reversed, holding that Lozman‘s claim could proceed.
Gonzalez‘s argument is that Lozman is applicable here because, as in that case, her “claim is far afield from the typical retaliatory arrest claim” because she was not arrested by an officer making a “split-second” decision and because there is additional evidence of retaliatory intent, including certain statements in the affidavit. Id. at 1954. But the Supreme Court allowed Lozman‘s claims to proceed not because of the unusual facts of the case, but because
Lozman‘s holding was clearly limited to Monell claims.3 Our sister circuits have recognized as much. See Novak v. City of Parma, 932 F.3d 421, 429-30 (6th Cir. 2019) (holding that ”Lozman does not apply where, as here, the plaintiff sues individual officers“); DeMartini v. Town of Gulf Stream, 942 F.3d 1277, 1294 (11th Cir. 2019) (noting that Lozman applies only to cases involving official policies). Gonzalez did bring a Monell claim against the City of Castle of Hills, but that claim is irrelevant to this appeal.
Finally, in her Rule 28(j) materials, Gonzalez asserts that a recent case from this circuit, Villarreal v. City of Laredo, 17 F.4th 532 (5th Cir. 2021), holds that a claim under
locking up a journalist for asking a question violates the First Amendment” and therefore qualified immunity did not bar the plaintiff‘s suit. Id. at 541. The panel also recognized that its opinion called the constitutionality of the Texas statute into question. Id. at 546-47.
Villarreal was different in kind and did not address the issue we face here. In Villarreal, the conduct the plaintiff was arrested for—asking questions of police officers—was plainly constitutional. Here, the conduct Gonzalez was arrested for—allegedly stealing a government document—is not plainly constitutional. The heart of our holding in Villarreal is that a citizen cannot be arrested under a statute that outlaws plainly constitutional behavior, an issue not raised on these facts. Indeed, Villarreal did not address—nor did it even cite—Nieves or Lozman, the cases both parties recognize govern this case. We therefore find that our opinion in Villarreal does not control here.
In his dissent, Judge Oldham makes a forceful case for why the Constitution ought to provide a claim here, particularly given that Gonzalez‘s arrest was allegedly in response to her exercise of her right to petition. Were we writing on a blank slate, we may well agree with our distinguished colleague. But we remain bound by what we consider the better readings of the relevant Supreme Court precedent.
IV
For the reasons stated herein, we REVERSE the district court‘s order denying Appellants’ motion to dismiss, and REMAND with instructions that Gonzalez‘s claims against Appellants be dismissed.
ANDREW S. OLDHAM, Circuit Judge, dissenting:
This case involves an alleged conspiracy of city officials to punish Sylvia Gonzalez—a 72-year-old councilwoman—for spearheading a nonbinding petition criticizing
I.
A.
We are reviewing a motion-to-dismiss decision, so we must take the facts as Sylvia Gonzalez plausibly alleges them, drawing every reasonable inference in her favor. See Heinze v. Tesco Corp., 971 F.3d 475, 479 (5th Cir. 2020). At this stage, here‘s what we must accept as true:
Castle Hills is a city in Texas with fewer than 5,000 residents. It‘s governed by a city council of one mayor and five aldermen (called “councilmembers“). The mayor and the councilmembers are elected positions. The council appoints a city manager for an indefinite period to handle the City‘s day-to-day decisionmaking. The city manager nominates the chief of police and needs approval from the city council.
In Spring 2019, Sylvia Gonzalez was a retired 72-year-old woman living in Castle Hills. Because she wanted to give back to her community, Sylvia ran for a seat on the council. She faced an incumbent. And she won.
During her campaign, Sylvia repeatedly heard complaints about the city manager. After her successful election, Sylvia sought to express her constituents’ discontent to the entire city council. So she spearheaded a nonbinding citizens’ petition urging the removal of the city manager Ryan Rapelye. The petition complained that for years, “various city managers [have] talked about [fixing] street[s]” but “[n]one have fixed a single” one. To “restor[e] effective management,” the petition proposed that Rapelye be replaced with a former city manager who had followed through on promises. Hundreds of Castle Hills residents signed the petition.
At Sylvia‘s first council meeting, on May 21, 2019, a resident submitted the petition to the council, specifically to Mayor Edward Trevino. The meeting was contentious, to put it mildly. In fact, the petition spurred so much discussion that it led to another council meeting the next day. Given the apparent significance of the petition, one would think that between this meeting and the one the following day, Trevino would‘ve made copies of the document. But he did not.
The next day did not go more smoothly. The city council continued to debate Rapelye‘s job performance. When the meeting finally finished, Sylvia got ready to leave, picked up her documents, and placed them in her binder. Before she left, a constituent asked Sylvia some questions. During their conversation, a police officer in charge of safety at the meeting (Captain Steve Zuniga) interrupted and told Sylvia that Trevino wanted to talk to her.
Sylvia went to Trevino who was still at his seat next to Sylvia‘s. Trevino asked Sylvia, “Where‘s the petition?” Sylvia responded, “Don‘t you have it? It was turned in to you yesterday.” Trevino said that he didn‘t and then asked Sylvia to check her materials for it. And to Sylvia‘s surprise, the petition was in her binder. So she handed Trevino the petition, who said that she “probably picked it up by mistake.” After all, they sat right next to each other at the meeting. You might think that was the end of the matter.
The Conspirators’ plan had three parts: (1) investigate Sylvia for purporting to intentionally conceal the very petition she championed; (2) drum up charges against Sylvia and arrest her in a way that makes sure she spends the night in jail; and (3) remove her from office. Part three follows from part two because “if a councilmember is convicted of a felony or a misdemeanor involving official misconduct, it would operate as an immediate removal from office.”
Start with the investigation. On May 24, Siemens—who again was appointed by City Manager Rapelye—told another police officer (Sergeant Paul Turner) that Trevino would be contacting him “in reference to the filing of a criminal complaint” against Sylvia. What crime did she conceivably commit? The Conspirators’ theory was that Sylvia “concealed” a government document by picking up her own petition at the end of the second council meeting and then immediately handing it back to Trevino. Trevino asked Sergeant Turner to investigate this purported “crime.” Turner started his investigation and (unsurprisingly) got nowhere.
But this did not stop Trevino and Siemens. On June 18, 2019, Siemens deputized Wright to take over Turner‘s investigation. Wright is a trusted
friend of Siemens and a private attorney; he‘s not a peace officer. Wright then spent another month investigating Sylvia. During the investigation, Wright interviewed Trevino, Captain Zuniga, and Rapelye.
On June 24, 2019, “Special Detective” Wright interviewed Trevino. According to Wright, Trevino stressed that Sylvia was “openly antagonistic to the city manager” and “desperately [wanted] to get him fired.” Wright also interviewed Captain Zuniga. According to Wright, Zuniga provided facts that Wright “found to be consistent with Mayor Trevino‘s.” One fact was that Sylvia stated that she thought the petition in her possession were “extras” because they were “copies.” But recall that even though Trevino now thought that the petition was significant, he never had copies made between the first and second meeting.
“Special Detective” Wright then filed an arrest affidavit asserting that Sylvia committed a Class A misdemeanor for “intentionally destroy[ing], conceal[ing], remov[ing], or otherwise impair[ing] the verity, legibility, or availability of a governmental record.”
The plan then entered its next phase: the arrest. “Special Detective” Wright lived up to his title. He did three special things to ensure that Sylvia would be arrested and jailed rather than simply asked to appear before a judge.
Second, Wright didn‘t get a warrant through the district attorney (“DA“)—even though that‘s the normal procedure. Instead, Wright circumvented the DA. By using a procedure typically reserved for violent felonies or emergency situations, Wright walked the warrant directly to a magistrate judge. This side-step ensured that the DA couldn‘t stop the retaliatory arrest. And there can be little doubt that the DA would‘ve stopped it if given the chance: After all, when the DA‘s office finally learned of the charges and reviewed them, it immediately dismissed them.
Third, by using the procedure that skirted the DA, Wright ensured that Sylvia couldn‘t avoid jail through the satellite-booking function. This function allows individuals with outstanding warrants for nonviolent offenses to be booked, processed, and released without being jailed. But because Sylvia‘s warrant wasn‘t obtained through the traditional channels, it wasn‘t discoverable through the satellite office‘s computer system. This left Sylvia with only one option: jail.
So off to jail she went. When Sylvia learned of the arrest warrant, she decided to turn herself in. On July 18, 2019, Sylvia—a 72-year-old councilwoman—was booked. She spent a day in jail—handcuffed, on a cold metal bench, wearing an orange jail shirt, and avoiding using the restroom, which had no doors and no toilet-paper holders. The entire time she wasn‘t allowed to stand up and stretch her legs.
The next part of the plan was removing her from office. This time the Conspirators only somewhat succeeded. It‘s true that the DA dismissed the charges, so Sylvia wasn‘t “convicted” of the misdemeanor, and in turn, she wasn‘t “immediately remov[ed] from office.” But it‘s also true that Sylvia is “so traumatized by the experience that she will never again help organize a petition or participate in any other public expression of her political speech [and] will ... never again run for any political office.” Although the plan didn‘t go as intended, the Conspirators ended up succeeding in a more underhanded and permanent way.
B.
Sylvia sued the Conspirators in their individual capacities and the City of Castle Hills under
The district court denied both motions to dismiss. Only the denial of the Conspirators’ motion is relevant here on interlocutory appeal. The court first rejected the Conspirators’ principal argument that Sylvia had to prove the absence of probable cause to plead a First Amendment retaliatory-arrest claim. The court did so because under clearly established law, Sylvia alleged “the existence of objective evidence that she was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Because the Conspirators didn‘t meaningfully contest whether Sylvia plausibly alleged a violation of her First Amendment rights, the court concluded
The Conspirators timely appealed. We have jurisdiction under
II.
Qualified immunity includes two inquiries. The first question is whether the officials violated a constitutional right. Jackson v. Gautreaux, 3 F.4th 182, 186 (5th Cir. 2021). I say yes. The second question is whether the right at issue was clearly established at the time of the alleged misconduct. Ibid. On this question, I am not so sure. But my esteemed colleagues in the majority do not address it, so I do not offer a reason to disturb the district court‘s judgment.
A.
To allege a First Amendment retaliation claim, Sylvia must show that: (1) she engaged in a constitutionally protected activity, (2) the officials took a material adverse action that caused her to suffer an injury, and (3) there‘s a causal connection between the officials’ retaliatory animus and her subsequent injury. Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019); see also Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002); Novak v. City of Parma, 932 F.3d 421, 427 (6th Cir. 2019) (Thapar, J.). I address each in turn. I then (4) address (a) the Conspirators’ remaining counterarguments and (b) my esteemed colleagues’ approach.
1.
Sylvia engaged in activity that was protected by the First Amendment as incorporated by the Fourteenth Amendment. The First Amendment provides that “Congress shall make no law ... abridging the freedom of speech ... or the right of the people ... to petition the Government for a redress of grievances.”
The right to petition has a rich historical pedigree that “long antedate[s] the Constitution.” McDonald v. Smith, 472 U.S. 479, 482 (1985); see also Borough of Duryea v. Guarnieri, 564 U.S. 379, 395 (2011) (The right “is of ancient significance in the English law and the Anglo-American legal tradition.“). In fact, its roots “run[] from [the] Magna Carta in 1215 through royal commitments in the Petition of Right of 1628 and the Bill of Right of 1689 to seventeenth- and eighteenth-century parliamentary guarantees of a general right to petition.” Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 NW. U. L. REV. 739, 741 (1999) (quotation omitted).
In 1215, the Magna Carta “confirmed the right of barons to petition the King.” Borough of Duryea, 564 U.S. at 395. In 1689, the English Declaration of Rights provided that “[i]t is the Right of the Subjects to petition the King, and all Commitments and Prosecutions for such Petitioning are Illegal.” 1 Wm. & Mary, ch. 2, 6 Statutes of the Realm 143; see also McDonald, 472 U.S. at 482; Borough of Duryea, 564 U.S. at 395-96; 1 WILLIAM BLACKSTONE, COMMENTARIES *139 (“[A]ll commitments and prosecutions for such petitioning [were] illegal.“).
564 U.S. at 396.2 The significance of petitioning continued after the ratification of the Constitution and the First Amendment. See id. at 396-97.
Given this tradition, it‘s unsurprising that the Supreme Court has put the right on a pedestal. The Court has stressed that the right to petition is “one of the most precious of the liberties safeguarded by the Bill of Rights.” BE & K Constr. Co. v. NLRB, 536 U.S. 516, 524 (2002) (quotation omitted). It has also said that the right is “an essential safeguard of freedom.” Borough of Duryea, 564 U.S. at 395. It even went so far to say that “[t]he very idea of a government, republican in form, implies a right . . . to petition for a redress of grievances.” United States v. Cruikshank, 92 U.S. 542, 552 (1875).3 And for good reason: “The right to petition is in some sense the source of other fundamental rights, for petitions have provided a vital means for citizens to
request recognition of new rights and to assert existing rights against the sovereign.” Borough of Duryea, 564 U.S. at 397.4
2.
The Conspirators took a material adverse action against Sylvia. Retaliation by government officials for exercising one‘s right to petition violates the First Amendment. See Nieves, 139 S. Ct. at 1722 (“As a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech.” (quotation omitted)); Hous. Cmty. Coll. Sys. v. Wilson, 142 S. Ct. 1253, 1259 (2022) (“[A]s a general matter, the First Amendment prohibits government officials from subjecting individuals to retaliatory actions after the fact for having engaged in protected speech.” (quotation omitted)).
The adverse action here is “easy to identify“: It‘s the “arrest.” Id. at 1260. And that action is a “material” violation of Sylvia‘s rights. Id. at 1261. Although “we expect elected representatives to shoulder a degree of criticism about their public service from their constituents and their peers,” we don‘t expect them to shoulder an arrest and a night in jail for a misdemeanor as retaliation for exercising their First Amendment right to petition. Ibid.
3.
Next, the causal connection. Sylvia alleged numerous facts to show that the Conspirators arrested her for petitioning the government. This is not a case where we must guess about the Conspirators’ motives. It‘s also not a case where we must rely on the allegations in the complaint standing alone. Rather, the face of the arrest affidavit itself lists Sylvia‘s viewpoints as relevant facts warranting her arrest. For example:
- “From her very first [council] meeting in May of 2019, [Sylvia] has been openly antagonistic to the city manager, Ryan Rapelye, wanting desperately to get him fired.”
- “Part of her plan to oust Mr. Rapelye involved collecting signatures on several petitions to that effect.”
- “Gonzalez had personally gone to [a resident‘s] house on May 13, 2019, to get her signature on one of the petitions under false pretenses, by misleading her, and by telling her several fabrications regarding Ryan Rapelye....”
There is no way to understand “Special Detective” Wright‘s affidavit except that he—as a private attorney deputized to act by his fellow Conspirators—wanted to arrest Sylvia because of her petition.
If there were any doubt on that score, “Special Detective” Wright eliminated it with the highly irregular procedure he used to get Sylvia‘s warrant. See supra, at 15-16. This procedure ensured that the DA couldn‘t stop the arrest and that Sylvia spent the night in jail for a nonviolent misdemeanor rather than merely appearing before a judge at a particular date and time. And the moment the actual prosecutors found out about the shenanigans, they dismissed the case.
Thus, the Conspirators’ animus plainly caused Sylvia‘s arrest. Sylvia has met her
4.
Now, the Conspirators’ and my esteemed colleagues’ objections. I first (a) reject the Conspirators’ contention that Sylvia relies on vicarious liability to establish her claim. I then (b) address my colleagues’ conclusion that the presence of probable cause dooms Sylvia‘s claim.
a.
The Conspirators complain that the district court didn‘t consider each of them separately. That is, they think the court allowed Sylvia to rely on vicarious liability to establish her claim. They‘re wrong.
It‘s true that Sylvia “must plead that each Government-official defendant, through the official‘s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). But she did just that: She sufficiently connected each defendant to her claim through her allegations of a conspiracy.
A “conspiracy allegation offers ‘the conceptual spring’ for holding [one] defendant liable for the actions of another defendant.” Rudd v. City of Norton Shores, 977 F.3d 503, 513 (6th Cir. 2020) (quoting Farrar v. Cain, 756 F.2d 1148, 1151 (5th Cir. 1985)). “A plaintiff must prove that a single plan existed, that each alleged coconspirator shared in the general conspiratorial objective, and that an overt act was committed in furtherance of the conspiracy.” Id. at 517 (quotation omitted). “An express agreement need not exist, and each conspirator need not have known all of the details of the illegal plan or all of the participants involved.” Ibid. (quotation omitted).
Sylvia sufficiently alleged a conspiracy between Trevino, Siemens, and Wright. First, Sylvia adequately alleged that there was one plan: retaliate against Sylvia for exercising her right to petition with the goal of removing her from the city council.
Second, Sylvia adequately alleged that each coconspirator shared in the general conspiratorial objective. Mayor Trevino nominated Rapelye to be city manager. Siemens was appointed to his position as the chief of police by Rapelye. Siemens hired his trusted friend Wright as a “special detective” to take over the investigation from Sergeant Turner, even though Siemens‘s own sergeant had no success in his investigation. Trevino‘s interview with Wright made clear that it was Sylvia‘s petition efforts that motivated his filing of the complaint. And Wright‘s inclusion of these seemingly irrelevant facts in the warrant affidavit underscores that Wright shared in the conspiratorial objective to retaliate against Sylvia for spearheading the petition.
Last, Sylvia adequately alleged that one of the Conspirators took an overt act in furtherance of the general conspiratorial objective. Obviously, at least Wright took an affirmative act when he secured an arrest warrant and ensured that Sylvia spent the night in jail. But Trevino and Siemens did too. Trevino took an overt act because he filed the criminal complaint that started it all and participated in his coconspirator‘s investigation by giving an interview. And Siemens deputized Wright in the first place.
In short, Sylvia sufficiently connected each individual defendant to this claim through her conspiracy allegations.
b.
Next, my esteemed colleagues don‘t dispute that Sylvia engaged in protective activity, that the Conspirators took a material
With deepest respect, I am obligated to disagree. I first (i) explain Nieves. I then (ii) explain the more relevant precedent, Lozman. I last (iii) explain that under Nieves or Lozman or both, Sylvia has met her burden.
i.
It‘s well-established that “the language of an opinion is not always to be parsed as though we were dealing with the language of a statute.” Brown v. Davenport, 142 S. Ct. 1510, 1528 (2022) (quotation omitted); see also Borden v. United States, 141 S. Ct. 1817, 1833 n.9 (2021). Instead, we must read precedent, including Nieves, “fairly and holistically.” Mitchell Law Firm, LP v. Bessie Jeanne Worthy Revocable Tr., 8 F.4th 417, 421 (5th Cir. 2021); see also United States v. Vargas-Soto, 35 F.4th 979, 991 (5th Cir. 2022) (explaining that “it‘s never a fair reading of precedent to take . . . sentences out of context“).
In Nieves, the Supreme Court announced a two-part rule. The first part is a general rule: “The presence of probable cause should generally defeat a First Amendment retaliatory arrest claim.” 139 S. Ct. at 1726 (emphasis added). The second part is a “narrow qualification“: Probable cause will not defeat a retaliatory-arrest claim in “circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.” Id. at 1727. To avail herself of the second part of this rule, the plaintiff can “present[] objective evidence that [s]he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Ibid. This is an “objective inquiry.” Ibid.
My learned colleagues hold that the “most reasonable reading of this language is that some comparative evidence is required to invoke” the second part of Nieves‘s rule. Ante, at 8. That is, my colleagues hold that probable cause will defeat a retaliatory-arrest claim (Nieves part one) unless the retaliatory-arrest plaintiff can produce comparative evidence showing that officers generally do not arrest people for the underlying crime (Nieves part two).
In my view, and again with deepest respect, such comparative evidence is not required. Nieves simply requires objective evidence. And evidence is “[s]omething (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact.” Evidence, BLACK‘S LAW DICTIONARY (11th ed. 2019). So the retaliatory-arrest plaintiff need only provide (objective) evidence that supports the required proposition by tending to connect the officers’ animus to the plaintiff‘s arrest. Such evidence could be comparative. But as far as I can tell, nothing in Nieves requires it to be so.
Context confirms that straightforward reading. The second part of the Nieves rule identifies circumstances “where officers have probable cause to make arrests, but typically exercise their discretion not to do so.” 139 S. Ct. at 1727. In those circumstances, “probable cause does little to prove or disprove the causal connection between animus and injury.” Ibid. The Nieves majority gave a prototypical example of a circumstance that should meet the second part: jaywalking. As the Court explained:
For example, at many intersections, jaywalking is endemic but rarely results in
arrest. If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual‘s retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest. In such a case, . . . probable cause does little to prove or disprove the causal connection between animus and injury . . . .
Ibid. It‘s not clear that there will always (or ever) be available comparative evidence of jaywalkers that weren‘t arrested. Rather, the retaliatory-arrest-jaywalking plaintiff always (or almost always) must appeal to the commonsense proposition that jaywalking happens all the time, and jaywalking arrests happen virtually never (or never). Yet under today‘s opinion, I am afraid the very jaywalking plaintiff invoked by the Supreme Court to illustrate part two of the Nieves rule would lose for lack of nonexistent comparative evidence.
I‘m also not sure what to make of the separate writings in Nieves. Contra ante, at 8-9. The Nieves Court gave us five different opinions to explain its holding. It‘s true that Justice Sotomayor (writing only for herself) said the Nieves majority “arbitrarily fetishizes one specific type of motive evidence—treatment of comparators—at the expense of other modes of proof.” 139 S. Ct. at 1739 (dissenting op.). But Justice Gorsuch (also writing only for himself) concurred by emphasizing that “I do not understand the majority as going that far.” Id. at 1734 (concurring op.). And the Nieves majority said nary a word about either assertion. Nor did any of this actually matter in Nieves because the case did not implicate comparative evidence in any event. So I think the absolute most that can be said about the Court‘s holding is that (1) the presence of probable cause is not a bar to retaliatory-arrest claims, so long as (2) the plaintiff produces objective evidence of retaliatory animus.
But the more fundamental problem is that it‘s not even clear to me Nieves is the most relevant precedent here. Recall that Nieves creates a two-part rule: a general rule that probable cause defeats retaliatory-arrest claims (part one), and an exception for circumstances where officers generally exercise discretion not to arrest (part two). The Nieves Court framed the entirety of that two-part rule to accommodate the necessities of split-second decisions to arrest. See id. at 1724 (pointing to the need for “split-second judgments” (quotation omitted)); see also id. at 1725 (“Police officers conduct approximately 29,000 arrests every day—a dangerous task that requires making quick decisions in circumstances that are tense, uncertain, and rapidly evolving.” (quotation omitted)). And Nieves itself involved precisely such a split-second warrantless arrest. See id. at 1720-21 (describing the incident, which involved a drunk and combative partygoer who did not immediately comply with police orders and almost got tased). It‘s unclear to me why we should apply a rule designed for split-second warrantless arrests to a deliberative, premeditated, weeks-long conspiracy.5
In short, Nieves designed a rule to reflect “the fact that protected speech [or conduct] is often a legitimate consideration
ii.
Rather, the more relevant rule appears to come from Lozman. That case involved materially identical facts to ours. There, Fane Lozman was “an outspoken critic” of the City of Riviera Beach, who “often spoke during the public-comment period at city council meetings,” “criticized” public officials, and even sued the City. 138 S. Ct. at 1949. During “a closed-door session,” the City‘s council “formed an official plan to intimidate him” and executed the plan at the next public meeting. During the public-comment period, Lozman “stepped up to the podium to give remarks,” but early into his remarks, a councilmember “interrupted Lozman” and “direct[ed] him to stop” talking. Ibid. Lozman, however, continued, so the councilmember “called for the assistance of the police officer in attendance.” Ibid. After Lozman refused to leave the podium, the councilmember ordered the officer to arrest him. Id. at 1949-50. And the officer did. Id. at 1950.
Lozman sued the City under
Each of those characteristics is present (at least in part) here. First, Sylvia didn‘t sue an officer who made the arrest. To be sure, Wright obtained the arrest warrant. But he didn‘t find Sylvia and arrest her; that is, he didn‘t actually execute the warrant. Rather, another official executed the warrant when Sylvia turned herself in. And Sylvia didn‘t sue that official. Second, the Conspirators “formed a premeditated plan” to retaliate against Sylvia for engaging
In the end, the only relevant difference between Lozman and this case is that Sylvia‘s claim is against the Conspirators, while Lozman brought a Monell claim against the City itself. My esteemed colleagues find this difference dispositive. See ante, at 10 (”Lozman‘s holding was clearly limited to Monell claims.“).6 It‘s true that Lozman involves a Monell claim and that Nieves wrote that the Lozman Court “limited [its] holding to arrests that result from official policies of retaliation.” 139 S. Ct. at 1722. But as the Nieves Court acknowledged, the Monell claim mattered because it showed that Lozman involved “facts [that] were far afield from the typical retaliatory arrest claim,” while Nieves involved a “more representative case.” Ibid. (quotation omitted). So even though Lozman‘s holding is limited, the opinion‘s teachings are still instructive—especially when understanding Nieves.
iii.
Under Nieves or Lozman or both, Sylvia has met her burden. She alleges that “a review of the misdemeanor and felony data from Bexar County over the past decade makes it clear that the misdemeanor tampering statute has never been used in Bexar County to criminally charge someone for trying to steal a nonbinding or expressive document.” More specifically, she alleges that most indictments under the statute involved fake government IDs, such as driver‘s licenses, social security numbers, and green cards. As my esteemed colleagues recognize, “the evidence [Sylvia] offers is that virtually everyone prosecuted under [the Texas statute] was prosecuted for conduct different from hers.” Ante, at 8. In these circumstances, that is enough to satisfy the second part of the Nieves rule and to hold that probable cause does nothing to defeat Sylvia‘s retaliatory-arrest claim.
First, Sylvia‘s evidence is obviously objective. She did a comprehensive “review of misdemeanor and felony data from Bexar County over the past decade.” And she doesn‘t rely on “the statements and motivations of the particular [officials].” Nieves, 139 S. Ct. at 1727.
Second, Sylvia‘s evidence supports the proposition that Nieves requires: She “was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech [or conduct] had not been.” Ibid. Evidence that an arrest has never happened before (i.e., a negative assertion) can support the proposition that there are instances where similarly situated individuals not engaged in the same protected activity hadn‘t been arrested
Here, common sense dictates that Sylvia‘s negative assertion amounts to direct evidence that similarly situated individuals not engaged in the same sort of protected activity had not been arrested. See Lund v. City of Rockford, 956 F.3d 938, 945 (7th Cir. 2020) (“We must consider each set of facts as it comes to us, and in assessing whether the facts supply objective proof of retaliatory treatment, . . . common sense must prevail.“). After all, government employees routinely—with intent and without it—take stacks of papers before, during, and after meetings. Under the Conspirators’ interpretation of
In short, Sylvia properly alleged that the Conspirators jailed her for petitioning the government. Nieves is no barrier to her retaliatory-arrest claim. She has therefore pleaded a constitutional violation and satisfied the first prong of the qualified-immunity inquiry.
B.
The second prong is whether the Conspirators violated Sylvia‘s clearly established rights. This question is admittedly harder. You might reasonably think that if the First Amendment clearly establishes anything, it‘s that the government cannot arrest a citizen for her petition. That‘s obviously been true since at least the English Declaration of Rights in 1689. See 1 Wm. & Mary, ch. 2, 6 Statutes of the Realm 143 (“It is the Right of the Subjects to petition the King, and all Commitments and Prosecutions for such Petitioning are Illegal.“); see also Declaration and Resolves of the First Continental Congress Resolution 8 (Oct. 14, 1774) (“That they have a right peaceably to assemble, consider of their grievances, and petition the king; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.“).
On the other hand, in Reichle v. Howards, 566 U.S. 658 (2012), the Court held that we cannot define the right against retaliatory arrests “as a broad general proposition.” Id. at 665 (quotation omitted). Rather, “the right in question is not the general right to be free from retaliation for one‘s speech, but the more specific right to be free from a retaliatory arrest that is otherwise supported by probable cause. This Court has never held that there is such a right.” Ibid. So Reichle
On yet another hand, however, Reichle (like Nieves) involved a split-second decision to arrest an unruly person in a public place. See id. at 661 (describing the incident, in which Howards assaulted the Vice President, lied about it, and was arrested). Neither Reichle nor Nieves involved secret, deliberative, and intentional conspiracies to jail an elderly woman for petitioning the government. And it‘s not at all clear that we should apply the same qualified-immunity inquiries for First Amendment cases, Fourth Amendment cases, split-second-decisionmaking cases, and deliberative-conspiracy cases. See, e.g., Hoggard v. Rhodes, 141 S. Ct. 2421, 2421 (2021) (statement of Thomas, J., respecting the denial of certiorari) (criticizing the “one-size-fits-all doctrine“). As Justice Thomas has observed, “why should [speech-suppressing] officers, who have time to make calculated choices about enacting or enforcing unconstitutional policies, receive the same protection as a police officer who makes a split-second decision to use force in a dangerous setting?” Id. at 2422; see also Andrew S. Oldham, Official Immunity at the Founding, 46 HARV. J.L. & PUB. POL‘Y ___ (forthcoming) (manuscript at 26-27), https://ssrn.com/abstract=3824983. That further suggests that the Conspirators here should not get the same qualified-immunity benefits that cops on the beat might get.
And in any event, Reichle was not the Court‘s last word on the topic. In Lozman, the Court supplied the holding that Reichle said was theretofore missing—namely, it held that retaliatory-arrest plaintiffs can prevail even when their arrests are supported by probable cause. 138 S. Ct at 1955. Moreover, as noted above, Lozman and our case involve materially identical facts. And the Supreme Court decided Lozman in 2018—the year before the Conspirators jailed Sylvia for petitioning the government. So that might lead you to think that the Conspirators were given every conceivable form of fair notice—in a string of authority from 1689 to 2018—that their conduct was flagrantly violative of the First Amendment. See Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam) (Qualified immunity‘s “focus is on whether the officer had fair notice that her conduct was unlawful.“).8 Whatever the right answer to this question might be, my distinguished colleagues in the majority have no occasion to reach it. See ante, at 5-11 (resolving the case on prong one of the qualified-immunity inquiry). So I see little use in saying more about it.
With deepest respect, I dissent.