Gonzalez v. Trevino

What Happened

Sylvia Gonzalez was a newly elected city council member in Castle Hills, a small town in southern Texas. Her first act in office was organizing a petition to remove the city manager, Ryan Rapelye, after hearing complaints from residents. Over 300 people signed the petition — a remarkable number in a town of roughly 4,000 residents.

Things got heated at the next city council meeting. Residents rose to defend Rapelye and spoke against Gonzalez. At the end of the second day, as Gonzalez was packing up, Mayor Edward Trevino asked her for the petition. She said it was in his possession. He disagreed and asked her to check her binder, where she found it. Gonzalez said she was surprised — she hadn’t intentionally put it there.

Trevino brought the incident to the city police, and within a month, a private attorney leading the investigation concluded that Gonzalez had likely violated a Texas anti-tampering statute that makes it a crime to intentionally remove a governmental record. A magistrate granted an arrest warrant. Gonzalez turned herself in and spent a night in jail. The district attorney ultimately dismissed the charges, but Gonzalez said the experience drove her from political life.

Gonzalez sued under § 1983, alleging her arrest was retaliation for organizing the petition — a violation of her First Amendment rights. She conceded probable cause existed for the arrest but argued she fell within the narrow exception recognized in Nieves v. Bartlett (2019).

What the Court Decided

The Supreme Court vacated the Fifth Circuit’s judgment in a per curiam opinion. The core issue was how to apply the Nieves exception, which allows a retaliatory-arrest claim to proceed despite probable cause if the plaintiff provides “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”

The Fifth Circuit had demanded very specific comparator evidence — essentially requiring Gonzalez to identify people who “mishandled a government petition” the same way she did but weren’t arrested. The Supreme Court said this was “an overly cramped view of Nieves.” While the exception is narrow, demanding “virtually identical and identifiable comparators goes too far.”

Gonzalez had surveyed a decade of Bexar County data and found that the Texas anti-tampering statute had never been used to charge someone for “trying to steal a nonbinding or expressive document.” Typical uses involved fake IDs, forged checks, hiding murder evidence, or cheating on government exams. The Court found this survey was a “permissible type of evidence” — the fact that no one had ever been arrested for similar conduct made it more likely that officers had exercised discretion not to arrest in similar situations before.

The Court remanded for the lower courts to determine whether Gonzalez’s evidence was sufficient to satisfy the exception — not just admissible.

What It Means in Practice

Gonzalez is a critical win for anyone bringing a retaliatory-arrest claim under the First Amendment. Before this decision, the Fifth Circuit’s strict comparator requirement made it nearly impossible to satisfy the Nieves exception — you had to find a specific person who did the exact same thing but wasn’t arrested. Now plaintiffs can use broader objective evidence, including:

• Statistical surveys showing the charged statute has never been applied to similar conduct
• Historical data demonstrating a pattern of non-enforcement for the type of offense
• Evidence of “unusual, irregular, or unnecessarily onerous arrest procedure” (as Justice Jackson’s concurrence noted)
• Timing and circumstances surrounding the arrest that suggest differential treatment

The case is especially important for political activists, community organizers, and anyone who challenges local government officials. The facts here — a council member arrested after organizing a petition against a city manager — illustrate exactly the kind of retaliatory abuse the First Amendment is designed to prevent.

How You Can Use It

• When you were arrested for an offense rarely enforced: Conduct a survey of how the charging statute has been applied in your jurisdiction. If no one has ever been arrested for similar conduct, that is powerful objective evidence under the Nieves exception.
• Key quote: “The fact that no one has ever been arrested for engaging in a certain kind of conduct — especially when the criminal prohibition is longstanding and the conduct at issue is not novel — makes it more likely that an officer has declined to arrest someone for engaging in such conduct in the past.” 602 U.S. at ___ (slip op., at 5).
• Template language: “As the Supreme Court held in Gonzalez v. Trevino, 602 U.S. ___ (2024), a plaintiff need not identify specific comparators to satisfy the Nieves exception. Plaintiff’s survey of [jurisdiction] records demonstrates that [statute] has never been used to criminally charge someone for [conduct similar to plaintiff’s], establishing the objective evidence required.”
• When to cite: Any retaliatory-arrest case where probable cause exists but you can show the arrest was unusual. Cite alongside Nieves v. Bartlett, 587 U.S. 391 (2019).
• Justice Jackson’s concurrence is especially useful: she noted that objective evidence of differential treatment can include “officers’ employment of an unusual, irregular, or unnecessarily onerous arrest procedure” and “[t]he timing of and events leading up to a plaintiff’s arrest.” Use this language to argue for a broad evidentiary scope.

How It Can Be Used Against You

• The exception remains narrow: Justice Alito’s concurrence stressed that the Nieves exception is “just that — an exception, and a narrow one at that.” Courts will apply a “very high bar” when the defendant can point to probable cause. Your evidence must be as powerful as the jaywalking example in Nieves.
• “Obvious alternative explanation”: Defendants will argue that even if the statute was rarely enforced, your conduct was “egregious or novel,” such that the lack of similar arrests “might warrant little weight.” Alito’s concurrence at slip op. 11.
• Level of generality: Defense counsel will argue your conduct should be defined specifically — “every arrest, if defined too specifically, can be described as the first of its kind.” Be prepared to frame your conduct at the appropriate level of generality.
• Subjective evidence excluded at the threshold: Evidence of an officer’s personal animus or bad blood does not count toward the Nieves exception. It can only be considered if you first clear the exception using objective evidence and proceed to the Mt. Healthy framework.

How to counter: Build a robust evidentiary record with objective data. Conduct a thorough statistical survey of the charging statute. Document the full procedural history of how arrests under that statute have been handled. Save subjective evidence of animus for the Mt. Healthy stage.