Gonzalez v. Trevino

Brief for Amici Curiae American Civil Liberties Union, American Civil Liberties Union of Texas, Cato Institute, Foundation for Individual Rights and Expression, and National Association of Criminal Defense Lawyers in Support of Petitioner

Brief filed: 12/18/2023


Gonzalez v. Trevino

United States Supreme Court; Case No. 22-1025


The Supreme Court held in Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019), that the existence of probable cause will presumptively bar a retaliation claim arising from an officer’s ad hoc decision to arrest. This case does not involve an officer’s on-the-spot decision to arrest, and so Nieves’ narrow exception to the ordinary rules governing First Amendment retaliation claims should not apply. Where, as here, the decision to arrest was not made by an officer under time constraints or with necessarily limited information, there is a far greater risk that a government official will have the time and opportunity to use an arrest to retaliate against a critic or a political opponent. In addition, there is no reason to presume regularity based on the officer’s probable cause determination. The Nieves exception should not be extended beyond on-the-spot warrantless arrests where the speech and the conduct giving rise to probable cause arise in a single incident or encounter. Even if the Court were to expand Nieves’ exception to reach premeditated arrests, Petitioner’s claim should be allowed to proceed because she has alleged objective evidence of retaliatory treatment that suffices to overcome Nieves’ presumptive probable-cause bar. 


Vera Eidelman, Esha Bhandari, ACLU Foundation New York, N.Y., David D. Cole, ACLU Foundation, Washington, D.C., Cevillia D. Wang, ACLU Foundation San Francisco, CA, Adriana PiƱon, Savannah Kumar, Brian Klosterboer, ACLU Foundation of Texas, Inc., Houston, TX, J.T. Morris and Darpana Sheth, Foundation for Individual Rights and Expression, Washington, D.C., Clark M. Neilly III, Cato Institute, Washington, D.C. and Barbara E. Bergman, NACDL, Tucson, AZ.

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