Supreme Court to Consider First Amendment Retaliation Case Involving Former Texas City Council Member

Sylvia Gonzalez - Institute for Justice

The Supreme Court has agreed to hear the case of Sylvia Gonzalez, a former Castle Hills, Texas, city council member, who was charged with concealing a government record four years ago.

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The Gonzalez v. Trevino case raises important questions about what constitutes “objective evidence” of an arrest made in retaliation for constitutionally protected activity.

In 2019, Sylvia Gonzalez, a newly elected council member, was charged with concealing a government record, which is a misdemeanor. Had she been convicted, this would have led to her removal from office. However, Bexar County District Attorney Joe Gonzales declined to pursue the case.

Gonzalez’s arrest stemmed from what she describes as an honest mistake. After a city council meeting, she inadvertently placed a bundle of petitions against City Manager Ryan Rapelye, petitions she had organized, in her binder along with other papers.

Two months later, she was arrested, and her mug shot appeared in local news reports.

The Institute for Justice filed a Supreme Court petition on Gonzalez’s behalf in April, arguing that her arrest had severely impacted her and amounted to retaliation for constitutionally protected activity.

The case questions whether criminal charges can be used to suppress First Amendment rights.

Anya Bidwell, an attorney with the Institute for Justice, stated, “Criminal laws cannot be used to launder First Amendment violations and create backdoor censorship. But that’s exactly how Castle Hills officials used them against Sylvia.”

Gonzalez’s experience has raised concerns about the security of First Amendment rights in the United States.

She hoped the Supreme Court would hold the city accountable, preventing others from enduring similar ordeals. Gonzalez remarked, “I didn’t think this could happen in America. No one should be arrested for standing up for what they believe in.”

The circumstances surrounding Gonzalez’s arrest strongly suggest it was a trumped-up charge driven by her political activities.

Gonzalez had campaigned on a promise to seek the replacement of City Manager Ryan Rapelye, leading her to organize a petition. At a city council meeting in May 2019, she inadvertently picked up the petition, which she believed had been turned in to the mayor.

This brief mix-up led to her arrest and subsequent legal battle.

Gonzalez’s arrest was carried out under unusual circumstances. Instead of seeking a summons, typically used for nonviolent misdemeanors in Bexar County, an arrest warrant was issued.

The arrest warrant was not in the satellite booking system, forcing Gonzalez to spend a day in jail after turning herself in.

While District Attorney Joe Gonzales dropped the charges when he learned of them, the damage had been done, and Gonzalez decided to resign from her council seat. In September 2020, she filed a complaint in the U.S. District Court, alleging a violation of her First Amendment rights by Castle Hills officials.

The defendants argued that Gonzalez’s First Amendment claim was invalid because probable cause existed for her arrest.

However, the Supreme Court’s 2019 ruling in Nieves v. Bartlett established an exception where a plaintiff could prove retaliation even when an arrest was based on probable cause if they could present “objective evidence that they were arrested when otherwise similarly situated individuals not engaged in the same protected speech had not been.”

The case has generated significant debate in the courts, with differing interpretations of the Nieves test. While the 5th Circuit ruled against Gonzalez, the 7th Circuit and the 9th Circuit have taken a different stance.

The Institute for Justice urges the Supreme Court to resolve this circuit split in favor of a rule that does not require specific evidence of individuals not arrested for similar conduct.

The outcome of Gonzalez v. Trevino could have far-reaching implications, such as whether former President Donald Trump can be charged with making “false statements” about the 2020 election results when others who also challenged election results have never been charged.

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