Gonzalez v. Trevino

United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit

___________ FILED
February 22, 2023
No. 21-50276 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-1151
______________________________

ON PETITION FOR REHEARING EN BANC

Before Barksdale, Engelhardt, and Oldham, Circuit Judges.

Per Curiam:

Treating the petition for rehearing en banc as a petition for panel
rehearing (5TH Cir. R. 35 I.O.P.), the petition for panel rehearing is
DENIED. The petition for rehearing en banc is DENIED because, at the
 No. 21-50276

request of one of its members, the court was polled, and a majority did not
vote in favor of rehearing (Fed. R. App. P. 35 and 5TH Cir. R. 35).
In the en banc poll, six judges voted in favor of rehearing (Smith,
Higginson, Ho, Duncan, Oldham and Douglas), and ten voted against
rehearing (Richman, Jones, Stewart, Elrod, Southwick, Haynes, Graves,
Willett, Engelhardt and Wilson).

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James C. Ho, Circuit Judge, dissenting from denial of rehearing en banc:
“[T]he most heinous act in which a democratic government can
engage is to use its law enforcement machinery for political ends.” Laurence
H. Silberman, Hoover’s Institution, Wall St. J., July 20, 2005. And not
just heinous—it’s also unconstitutional.
The First Amendment is supposed to stop public officials from
punishing citizens for expressing unpopular views. In America, we don’t
allow the police to arrest and jail our citizens for having the temerity to
criticize or question the government. If the freedom of speech meant
anything to our nation’s Founders, it meant that “it was beyond the power
of the government to punish speech that criticized the government in good
faith.” Jud Campbell, Natural Rights and the First Amendment, 127 Yale
L.J. 246, 309 (2017). “Criticism of government is at the very center of the
constitutionally protected area of free discussion.” Rosenblatt v. Baer, 383
U.S. 75, 85 (1966).
But it falls on the judiciary to ensure that the First Amendment is not
reduced to a parchment promise. 1 Few officials will admit that they abuse
the coercive powers of government to punish and silence their critics.
They’re often able to invent some reason to justify their actions. So courts
must be vigilant in preventing officers from concocting legal theories to arrest
citizens for stating unpopular viewpoints.

1
See, e.g., The Federalist No. 48, at 313 (James Madison) (Clinton Rossiter
ed., 1961) (“a mere demarcation on parchment of the constitutional limits of the several
departments is not a sufficient guard against . . . encroachments”); Considering the Role of
Judges Under the Constitution of the United States: Hearing Before the S. Comm. on the
Judiciary, S. Hrg. 112–137, at 6–7 (2011) (statement of Justice Scalia) (“Every banana
republic has a bill of rights. . . . The bill of rights of the former [Soviet Union] was much
better than ours. . . . Of course, they were just words on paper, what our Framers would
have called ‘a parchment guarantee.’”).

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That’s why the Supreme Court has made clear that a citizen “need
not prove the absence of probable cause to maintain a claim of retaliatory
arrest” under the First Amendment. Lozman v. City of Riviera Beach, 138 S.
Ct. 1945, 1955 (2018). There’s no “unyielding requirement to show the
absence of probable cause” to state a claim of First Amendment retaliation.
Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019).
And for good reason. There are countless situations in which
“officers have probable cause to make arrests, but typically exercise their
discretion not to do so.” Id. As a result, there’s a meaningful “‘risk that
some police officers may exploit the arrest power as a means of suppressing
speech.’” Id. (quoting Lozman, 138 S. Ct. at 1953).
What’s more, this risk has never been more prevalent than today.
“[C]riminal laws have grown so exuberantly and come to cover so much
previously innocent conduct that almost anyone can be arrested for
something.” Id. at 1730 (Gorsuch, J., concurring in part and dissenting in
part). “[T]he average busy professional in this country wakes up in the
morning, goes to work, comes home, takes care of personal and family
obligations, and then goes to sleep, unaware than he or she likely committed
several crimes that day.” Harvey A. Silverglate, Three Felonies a
Day: How the Feds Target the Innocent xxx (2009).
“[P]rosecutors can find some arguable federal crime to apply to just about
any one of us, even for the most seemingly innocuous conduct.” Id. See also
Paul Larkin & Michael Mukasey, The Perils of Overcriminalization,
Heritage Foundation, Feb. 12, 2015.
In other words, the opportunity for public officials to weaponize the
criminal justice system against their political adversaries has never been
greater.

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So it’s up to the judiciary to make sure that those who hold positions
of power stay in their lane. Courts must make certain that law enforcement
officials exercise their significant coercive powers to combat crime—not to
police political discourse.
That’s what the Supreme Court recently reminded us in Lozman and
Nieves. Unfortunately, the panel majority failed to uphold these principles
and instead granted qualified immunity to the defendants in this case. I
respectfully dissent from the denial of rehearing en banc.
I.
At this stage of the proceedings, we accept as true the following
allegations as stated in the complaint:
Sylvia Gonzalez is an elderly retiree from Castle Hills, Texas. Like
many of her fellow citizens, she was unhappy about some aspect of her local
government. But unlike most, she decided to do something about it. She ran
for city council against a well-connected incumbent. And she won.
During the campaign, Gonzalez heard numerous complaints about the
city manager, whom the mayor had appointed to handle the day-to-day
business of running the city.
After taking office, Gonzalez organized a petition that called for the
reinstatement of the previous city manager—and thus, implicitly, the
dismissal of the incumbent city manager. The petition noted that the current
city manager “talked about [fixing] the streets,” but had not “fixed a single
street.” By contrast, the previous city manager “oversaw, from start to
finish, over a dozen street projects.”
More than three hundred Castle Hills residents signed Gonzalez’s
petition calling for the city council to “fix our streets” by removing
the current city manager.

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At Gonzalez’s first city council meeting as an elected member, a
resident of Castle Hill submitted Gonzalez’s petition to the mayor. This
triggered a contentious debate about the current city manager. The debate
spilled over to the next day.
At the end of the next day’s meeting, Gonzalez picked up various
papers off the table and placed them in her binder. While Gonzalez was
chatting after the meeting, the police captain tapped her on the shoulder and
explained that the mayor (who had sat next to her during the meeting) wanted
to have a word. The police captain escorted Gonzalez to the mayor. The
mayor then asked Gonzalez where the petition was. She answered: “Don’t
you have it? It was turned into you yesterday.” At the mayor’s prompting,
Gonzalez looked for the petition in her binder and found it among other
papers that had been beside her on the table. As Gonzalez handed the
petition back to him, the mayor said: “You probably picked it up by
mistake.”
The mayor, the police chief, and a special detective then hatched a
plan to charge Sylvia with a crime in order to remove her from office. The
police chief deputized his close friend, a private attorney, as a special
detective to investigate Gonzalez. Following the investigation, the special
detective filed an arrest affidavit alleging that Gonzalez had committed the
crime of “intentionally destroy[ing], conceal[ing], remov[ing], or otherwise
impair[ing] the verity, legibility, or availability of a governmental record.”
Tex. Pen. Code Ann. § 37.10(a)(3).
“The plan then entered its next phase: the arrest. [The] ‘Special
Detective’ . . . 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.” Gonzalez v. Trevino, 42 F.4th 487, 496 (5th Cir. 2022) (Oldham, J.,
dissenting). First, the special detective got a warrant rather than a summons.

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(A summons is standard for nonviolent offenses—only a warrant can result
in jailtime.) Second, the special detective circumvented the district attorney
by using a procedure normally reserved for emergencies or violent felonies:
He walked the warrant directly to a magistrate. Third, the special detective
prevented Gonzalez from using the satellite booking function, which
facilitates booking, processing, and releasing nonviolent offenders without
jailtime. Gonzalez’s warrant did not go through any of the traditional
channels, so it wasn’t in the satellite booking system.
Gonzalez turned herself in as soon as she learned about the warrant
for her arrest. She then spent a day in jail, handcuffed to a cold metal bench
and wearing an orange jail shirt.
During her jailtime, she was forced to forgo use of a restroom—as a
modest 72-year-old retiree, she was not comfortable using a restroom that
had no doors and no toilet paper. In addition, her jailers refused to let her
stand up and stretch her legs.
The district attorney ultimately dropped the charges. But only after
Gonzelez’s name and photo were splashed across local media for days.
The arrest left Gonzalez so traumatized that she resolved never to
organize a petition or to run for office ever again—precisely what her
tormenters-in-office conspired to achieve.
II.
A retaliatory arrest can give rise to a First Amendment claim even if
the arrest was supported by probable cause. See, e.g., Lozman, 138 S. Ct. at
1955 (“Lozman need not prove the absence of probable cause to maintain a
claim of retaliatory arrest”); Nieves, 139 S. Ct. at 1727 (same).
To illustrate why respect for the First Amendment demands that
probable cause pose no impenetrable barrier to a retaliation claim, the

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Supreme Court has offered the following simple example: “[A]t many
intersections, jaywalking is endemic but rarely results in arrest.” Nieves, 139
S. Ct. at 1727. So “[i]f 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.” Id.
Accordingly, a plaintiff may proceed on a First Amendment
retaliatory arrest claim so long as he “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.
It’s not difficult to imagine different forms of evidence that might be
used to prove this point.
To take one example, a plaintiff might identify particular individuals
who had engaged in the same acts, but not the same speech, and yet were not
arrested—what the panel majority called “comparative evidence.” 42 F.4th
at 492.
But alternatively, a plaintiff might present evidence that the
underlying statute had never been used under analogous circumstances,
despite the fact that such conduct is commonplace—what the panel dissent
called “negative evidence.” Id. at 506 (Oldham, J., dissenting).
The latter is what Gonzales presented here. As the panel dissent
noted, “government employees routinely—with intent and without it—take
stacks of papers before, during, and after meetings.” Id. Gonzalez made
clear in her complaint that she would present objective evidence that no one
has ever been arrested for doing what she did. She reviewed all of the charges
brought in the county during the last decade and concluded that “neither the
misdemeanor tampering statute, nor its felony counterpart, has ever been

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used to criminally charge someone for allegedly trying to steal a nonbinding
or expressive document, such as the petition at issue in this case.” As she
explained in her complaint:
Of 215 grand jury felony indictments obtained under the
tampering statute at issue in this case, not one had an allegation
even closely resembling the one mounted against [Gonzalez].
By far the largest chunk of the indictments involved
accusations of either using or making fake government
identification documents: altered driver’s licenses, another
person’s ID, temporary identification cards, public safety
permits, green cards, or social security numbers. A few others
concerned the misuse of financial information, like writing of
fake checks or stealing banking information. The rest are
outliers, but all very different from Sylvia’s situation. They
concern hiding evidence of murder, cheating on a government-
issued exam, and using a fake certificate of title, among others.
So as the panel dissent concluded, “common sense dictates that
[Gonzalez’s] negative assertion amounts to direct evidence that similarly
situated individuals not engaged in the same sort of protected activity had not
been arrested.” Id. Gonzalez showed that county officials decided to arrest
her, even though they usually exercise their discretion not to make such
arrests. And that’s all Nieves requires.
Yet the panel majority dismissed Gonzalez’s claim on the ground that
she “does not offer evidence of other similarly situated individuals who
mishandled a government petition but were not prosecuted under Texas
Penal Code § 37.10(a)(3).” Id. at 492. According to the majority, Nieves
“requires some comparative evidence.” Id. at 493.
But that misreads Nieves. Recall the jaywalking example: “an
individual who has been vocally complaining about police conduct is arrested
for jaywalking.” 139 S. Ct. at 1727. As the panel dissent explains, “[i]t’s not
clear that there will always (or ever) be available comparative evidence of

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jaywalkers [who] 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).” Gonzalez, 42 F.4th at 503 (Oldham, J.,
dissenting). I agree that it makes little sense to read Nieves to require
comparative evidence.
III.
The panel majority’s reading of Nieves is not just mistaken—it also
creates an admitted split with the Seventh Circuit. See 42 F.4th at 492–93
(“We recognize that one of our sister circuits has taken a broader view of
[Nieves] . . . . We do not adopt this more lax reading.”).
As the Seventh Circuit has observed, Nieves does not “adopt[] a rigid
rule that requires, in all cases, a particular form of comparison-based
evidence.” Lund v. City of Rockford, 956 F.3d 938, 945 (7th Cir. 2020).
Rather, Nieves requires “objective evidence”—and in determining what
counts, “common sense must prevail.” Id.
Under Nieves, comparator evidence is certainly sufficient, but it’s not
necessary for a retaliation claim to proceed. All Nieves requires is “objective
evidence that [the plaintiff] was arrested when otherwise similarly situated
individuals . . . had not been.” 139 S. Ct. at 1727. A plaintiff can point to
specific individuals who engaged in the same prohibited conduct yet were not
arrested. But a plaintiff can alternatively point to other evidence that the
conduct, though common, rarely results in arrest. This latter type of
evidence works because “[e]vidence that an arrest has never happened
before (i.e., a negative assertion) can support the proposition that there are
instances where similarly situated individuals . . . hadn’t been arrested.”
Gonzalez, 42 F.4th 487 at 505 (Oldham, J., dissenting).

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IV.
“[T]he First Amendment’s guarantee of free speech is not just a legal
doctrine. It represents the most fundamental value in American democracy.
A national commitment to uninhibited political speech is a crucial aspect of
our country’s culture.” Laurence H. Silberman, Free Speech Is the Most
Fundamental American Value, Wall St. J., Sep. 30, 2022. So “[u]nless all
American institutions are committed to free political speech, I fear the strain
on the First Amendment’s guarantees will become unbearable.” Id.
We should’ve championed these principles and granted rehearing en
banc in this matter. Instead, we have chosen to leave the decision of the panel
majority intact.
But that decision not only misreads Nieves and thereby creates an
admitted circuit split. It also under-protects the American people against
violations of their First Amendment rights. As a result, citizens in our circuit
are now vulnerable to public officials who choose to weaponize criminal
statutes against citizens whose political views they disfavor.
Moreover, I fear that this latest en banc denial continues to take our
court down the wrong path. Our circuit’s en banc decisions continue to get
the First Amendment not only wrong, but backwards.
We deny First Amendment protection when it comes to sincere acts
of political advocacy—but we invoke First Amendment protection when it
comes to demonstrated acts of political corruption. Compare, e.g.,
Zimmerman v. City of Austin, 881 F.3d 378 (5th Cir. 2018), with United States
v. Hamilton, 46 F.4th 389, 398 n.3 (5th Cir. 2022). We presume corruption
where we should presume innocence—but we excuse corruption where the
evidence is extravagant. See id. But see United States v. Hamilton, _ F.4th _,
_ (5th Cir. 2023) (Ho, J., dissenting from denial of rehearing en banc)
(“[O]ur circuit is getting the First Amendment backwards in case after case.

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The freedom of speech guaranteed to every citizen protects political
advocacy—not corruption.”); Zimmerman v. City of Austin, 888 F.3d 163, 164
(5th Cir. 2018) (Ho, J., dissenting from denial of rehearing en banc).
We reject our citizens when they claim a First Amendment right to
criticize their government—but we embrace public officials who claim a First
Amendment right not to be criticized by others. Compare, e.g., Gonzalez, 42
F.4th 487, with Wilson v. Houston Community College System, 955 F.3d 490
(5th Cir. 2020), rev’d, 142 S. Ct. 1253 (2022). But see Wilson v. Houston
Community College System, 966 F.3d 341, 345 (5th Cir. 2020) (Ho, J.,
dissenting from denial of rehearing en banc) (“The First Amendment
guarantees freedom of speech, not freedom from speech. It secures the right
to criticize, not the right not to be criticized.”).
We worry about preserving the rights of violent protesters—but not
the rights of people of faith. Compare, e.g., Doe v. Mckesson, 947 F.3d 874 (5th
Cir. 2020) (eight votes to revive First Amendment defense of violent
protest), with East Texas Baptist University v. Burwell, 807 F.3d 630 (5th Cir.
2015) (only four votes to revive religious liberty challenge to the Affordable
Care Act). See also Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011) (en banc)
(denying relief to evangelical Christian students who were prohibited from
expressing their faith to other students at any time while at school). 2

2
Compare our en banc decision in Morgan with our en banc rehearing denial in
Oliver v. Arnold, 19 F.4th 843 (5th Cir. 2021). In both cases, public school students
expressed religious views that school officials sought to ostracize. In Morgan, we sided with
the school. In Oliver, we sided with the student. Religious liberty experts have described
Oliver as “the Fifth Circuit’s redemption for its mistake in Morgan.” Hiram Sasser, Fifth
Circuit Gets It Right in Arnold Decision, Federalist Soc’y, Dec. 20, 2021,
https://fedsoc.org/commentary/fedsoc-blog/fifth-circuit-gets-it-right-in-arnold-decision.
But our decision in Oliver triggered sharp rebuke and opposition from seven members of
the court. See, e.g., 19 F.4th at 859, 862 (Duncan, J., dissenting from denial of rehearing en

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V.
Even worse, we’re not just getting the First Amendment backwards.
We’re also getting qualified immunity backwards. Just compare the denial of
en banc rehearing here with some of our other recent en banc decisions.
We grant qualified immunity to officials who trample on basic First
Amendment rights—but deny qualified immunity to officers who act in good
faith to stop mass shooters and other violent criminals. Compare, e.g.,
Gonzalez, 42 F.4th 487; Morgan, 659 F.3d 359 (granting qualified immunity
to principal who prohibited students from expressing their faith while at
school), with Cole v. Carson, 935 F.3d 444 (5th Cir. 2019) (en banc) (denying
qualified immunity to police officers who took lethal action against a student
who was about to shoot up his high school); Winzer v. Kaufman County, 940
F.3d 900 (5th Cir. 2019) (denying rehearing en banc in case against police
department for lethal actions taken during active shooting incident).
Accordingly, officers who punish innocent citizens are immune—but
officers who protect innocent citizens are forced to stand trial. Officers who
deliberately target citizens who hold disfavored political views face no
accountability—but officers who make split-second, life-and-death decisions
to stop violent criminals must put their careers on the line for their heroism.
But see Hoggard v. Rhodes, 141 S. Ct. 2421, 2422 (2021) (Thomas, J.,
respecting denial of cert.) (“But why should university officers, who have

banc) (disparaging decision as a “dumpster fire” and urging federal judges to defer to
school boards).
Similarly, in Sambrano v. United Airlines, Inc., 2022 WL 486610 (5th Cir. 2022),
the panel majority allowed people of faith to seek preliminary injunctive relief to vindicate
their religious objections to a COVID-19 vaccine mandate. We denied en banc rehearing.
But as in Oliver, our decision in Sambrano triggered sharp rebuke and opposition from four
members of the court. See Sambrano, 2022 WL 486610, at *28 (Smith, J., dissenting)
(disparaging decision as an “orgy of jurisprudential violence”); Sambrano v. United
Airlines, Inc., 45 F.4th 877 (5th Cir. 2022).

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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?”).
Put simply, “we grant immunity when we should deny—and we deny
immunity when we should grant.” Horvath v. City of Leander, 946 F.3d 787,
795 (5th Cir. 2020) (Ho, J., concurring in the judgment in part and dissenting
in part). Indeed, ours is the rare circuit that has been summarily reversed by
the Supreme Court for both wrongly granting and wrongly denying qualified
immunity. See Tolan v. Cotton, 572 U.S. 650 (2014), summarily rev’g 713 F.3d
299 (5th Cir. 2013); Mullenix v. Luna, 577 U.S. 7 (2015), summarily rev’g 773
F.3d 712 (5th Cir. 2014); Taylor v. Riojas, 141 S. Ct. 52 (2020), summarily
rev’g 946 F.3d 211 (5th Cir. 2020). 3
This pattern is not just disconcerting to me. It’s also disconcerting to
a broad coalition of civil rights organizations—including organizations that
disagree with one another over countless issues, but agree that there’s
something amiss about our court’s approach to qualified immunity and the
First Amendment. In Morgan, for example, the amicus coalition led by the
First Liberty Institute included the American Center for Law and Justice, the
American Civil Liberties Union, the Becket Fund for Religious Liberty, the
Cato Institute, Christian Legal Society, the Claremont Institute, the National
Association of Evangelicals, and Wallbuilders. 4

3
The Tenth Circuit appears to be the only other circuit that the Supreme Court
has summarily reversed in recent years for both wrongly granting and wrongly denying
qualified immunity. See White v. Pauly, 580 U.S. 73 (2017), summarily rev’g 814 F.3d 1060
(10th Cir. 2016); Sause v. Bauer, 138 S. Ct. 2561 (2018), summarily rev’g 859 F.3d 1270 (10th
Cir. 2017); City of Tahlequah v. Bond, 142 S. Ct. 9 (2021), summarily rev’g 981 F.3d 808
(10th Cir. 2020).
4
A similarly diverse group of amici appears in Villarreal v. City of Laredo, 52 F.4th
265 (5th Cir. 2022), including such nationally respected civil rights organizations and
public interest groups as Alliance Defending Freedom, Americans for Prosperity

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These respected public interest organizations no doubt have limited
resources that they must deploy wisely. Yet they all took the time and effort
to make their views known to our court in Morgan. “It is no accident that
several religiously affiliated organizations have filed amicus briefs in support
of [the First Amendment] claim” and “uniformly decry the potential for
misuse” of government power to “harass” and “uniquely burden religious
organizations.” Whole Woman’s Health v. Smith, 896 F.3d 362, 370, 373–74
(5th Cir. 2018).
***
It’s heartwarming that, in these divisive times, an ideologically diverse
group of leading organizations can still unite behind the cause of freedom of
speech and tolerance for conflicting viewpoints. It’s unfortunate that our
court was unable to unite behind that same cause today. I respectfully dissent
from the denial of rehearing en banc.

Foundation, the Cato Institute, the Constitutional Accountability Center, the Electronic
Freedom Foundation, the First Liberty Institute, and the Institute for Justice.

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