Supreme Court Update: Gonzalez v. Trevino

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Supreme Court Update:  Gonzalez v. Trevino


This case has implications for the ease with which private citizens can file frivolous retaliatory arrest claims against county law enforcement, which could lead to costly litigation for cities and counties and a chilling effect on public safety enforcement by county agencies.


To limit frivolous retaliatory arrest claims, the Supreme Court set a rule in Nieves: if the government can demonstrate that the law enforcement officer had probable cause to make the arrest, the claim is dismissed. They carved out one exception: if the plaintiff can prove that police officers typically choose not to arrest for this offense. In this case, Ms. Gonzalez' claim that she was arrested in retaliation for protected speech failed in the Fifth Circuit because there was indisputably probable cause in her arrest, which involved the illegal possession of government documents, and she could not provide specific examples of arrests that never happened to meet the Nieves exception. Ms. Gonzalez asked the Supreme Court to reverse the Fifth Circuit’s ruling and decide whether the probable-cause exception in Nieves should be broadened and whether or not Nieves should be limited to "split-second" arrests.


In a Local Government Legal Center Amicus Brief in support of the respondent, NACo argued against both expanding the probable-case exception under Nieves and limiting the rule's application to a specific type of arrest, which would result increased liability and litigation costs for counties and could have a chilling effect on arresting officers because of an increase in retaliatory arrest claims.


On June 20, 2024, the Court issued a per curiam (unauthored) ruling in favor of the petitioner on the first question, suggesting that the Fifth Circuit's ruling went too far in demanding virtually identical and identifiable comparators to meet the threshold for the Nieves exception. The Court affirmed that any form of objective evidence is sufficient, and Gonzalez likely met this criteria by offering a survey of the types of crimes typically charged under the statute used in her case. While this decision means that more plaintiffs may be able to bring a retaliatory arrest claim under the Nieves exception by utilizing any form of objective evidence, the Court was careful to emphasize that the Nieves exception is narrow. Additionally, because the Court did not take up the second question, local governments may see future arguments by plaintiffs by plaintiffs that the requirement to plead and prove an absence of probable cause does not apply in non-split-second arrests. Learn more here.