The Supreme Court made it harder for political bosses running local governments to arrest their critics without fear of the consequences. On June 20, the high court held in Gonzalez v. Trevino that probable cause for a pretextual crime cannot justify retaliation by arrest.
The decision reverses a lower court’s decision to the contrary, allowing the case of Sylvia Gonzalez, a 77-year-old former city councilwoman, to move forward against Mayor Edward “JR” Treviño and other officials who orchestrated her jailing in Castle Hills, Texas.
This ruling is encouraging. As Justice Neil Gorsuch says in a related opinion, there are so many crimes on the books in the United States that “almost anyone can be arrested for something.” Before Gonzalez’s case, politicians and bureaucrats nationwide could get away with jailing their opponents so long as they were creative enough to find that “something” to support a charge.
The risk for abuse increases during this era of amplified partisanship. Mayors, police chiefs, city managers and government officials of all shapes and sizes increasingly reach for arrests, fines and raids to silence critics and send harrowing messages to anyone who might dare speak up. The smaller the constituency, the bolder the retaliatory acts, flying under the radar of the press and the judicial system.
As a result, First Amendment cases involving retaliatory law enforcement have become common. Our public interest law firm, the Institute for Justice, representing Gonzalez, has seen everything.
Other examples abound. Police in Escambia County, Alabama, arrested a newspaper publisher and reporter in October 2023 after the newspaper published an article about a school superintendent misusing COVID-19 funds. The superintendent was close with the district attorney and the sheriff. Apparently, it is a crime for journalists to publish material leaked by their sources.
In March in Surfside, Fla., a teenage activist spent 27 hours in jail after he posted a video questioning the mayor about his trip to Dubai. The student was accused of felony assault by the mayor’s ally. However, two minutes of witness interviews would have established that he did not lay a finger on the man.
Another example from Trumbull County, Ohio: A local politician spent a day in jail after criticizing a sheriff for abominable jail conditions. If that were not enough, consider what happened in Newtown, Iowa, where a 22-year-old critic of the mayor was twice arrested after calmly speaking in public meetings. There was also a raid in August 2023 on a newspaper in Marion County, Kan.
All this happened in the last year and a half.
When this issue first came to the Supreme Court’s attention in 2017, the U.S. government argued that cases like these are “a needle in a haystack.” Turns out, there are quite a few pricks in the hay.
If petty tyrants know they cannot be sued for arresting their critics but can be sued for using other tools in the toolbox — as the Supreme Court confirmed in another case this term — experience shows that local officials will reach for arrest. After all, nothing chills speech like an orange shirt and metal bars.
Just ask Gonzalez. Five years after her arrest, she still trembles every time she thinks back to her time in a cell. But her experience, though inexcusable, was not in vain. With the Supreme Court allowing her case to proceed, the law is now safer for the First Amendment and everyone who enjoys its protection.
Maybe now local politicians and bureaucrats will finally understand: In the United States, we don’t arrest our political opponents. If you do, you had better be prepared to defend yourself in court.
