Sylvia Gonzalez only made it as far as her second meeting as a new member of the city council in her small Texas community when a police officer tapped her on the shoulder in what she viewed as “a negative way.”

Gonzalez, then 72, would eventually be arrested for stealing a government document at the meeting – a charge that stemmed from what she said was an inadvertent shuffling of papers and what city officials said may have been motivated by a cover-up.

From this small-city politics dispute, an important First Amendment question has been queued up for the Supreme Court on Wednesday: When may people sue government officials for First Amendment retaliation claims – and when are those suits barred by a legal doctrine known as qualified immunity that shields those officials from certain suits?

The court’s decision, according to Gonzalez’s attorney, could have startling consequences if it gives city officials more latitude to arrest critics.
The attorney representing JR Trevino, the mayor of Castle Hills, Texas, calls those concerns overblown and noted that police obtained an arrest warrant from a judge.

“I had a clean record. I didn’t even have a parking ticket,” Gonzalez said as she recalled being handcuffed. “I was shocked there was a warrant for my arrest.”

Gonzalez, who wound up spending a day in jail, ran for the council in part on a promise to organize a campaign against the incumbent city manager, her lawyers say. Soon after being sworn in, she organized a citizens’ petition urging the official’s removal. It was that petition Gonzalez says she mistakenly put in her binder during the meeting.

But attorneys for Trevino said Gonzalez did so after residents at the meeting accused her of misleading them about the nature of the petition. One resident accused Gonzalez of urging him to forge his parents’ signatures, according to court records.

Police found probable cause to believe Gonzalez violated the law, Trevino’s lawyers told the Supreme Court, and that she was “apparently motivated by a desire to avoid residents’ accusations that she misleadingly solicited petition signatures.”

Prosecutors ultimately dropped the charges against Gonzalez. She sued in federal court, alleging retaliation in violation of the First Amendment, saying that city officials engineered a plan to arrest her and remove her from office.

A district court denied qualified immunity to the officers, allowing the case to continue, but Gonzalez lost at the 5th US Circuit Court of Appeals, which held that there was probable cause to arrest her and that it “necessarily defeated” her retaliatory arrest claim.

Normally, a person alleging retaliatory arrest must demonstrate police had not proven probable cause. But there is an exception: Police are not shielded from such lawsuits if officers often exercise discretion not to arrest – say, for petty crimes like jaywalking.

But unlike jaywalking, taking government documents during a city council meeting is a rare occurrence. Gonzalez’s attorneys said there is no way to demonstrate that police had let slide similar infractions involving others – since there were none.

If that standard is embraced by the high court, her attorneys say, it would greenlight government officials to arrest their critics under suspect circumstances.

“It’d be very easy to basically come up with an excuse to put somebody behind bars and scare not only them but also people in the future who don’t want to be put in the same situation,” said Anya Bidwell, an attorney at the Institute for Justice who will be arguing on behalf of Gonzalez.

Trevino’s attorney stressed police obtained a warrant that was reviewed by a judge who “found probable cause based on a warrant application that detailed witness statements and security footage capturing the theft.”

The attorney, veteran Supreme Court litigator Lisa Blatt, waved off the notion that a ruling for the mayor would lead to an uptick in political arrests.

“America – home of the warrant, due process, and impartial courts – has never been a police state,” she told the Supreme Court.

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