Close this search box.

Probable cause for arrest bars §1983 alleging the arrest was retaliation for protected speech


In 2019, Sylvia Gonzalez was elected to a seat on the city council. As her first act in office, Gonzalez participated in organizing a nonbinding petition that called for the removal of the city manager from office. On May 21, Gonzalez attended her first city council meeting as a council member, at which a resident submitted the petition to the council. The council meeting grew contentious and was extended through the next day.

After the meeting ended, Gonzalez left her belongings on the dais and went to speak with a constituent. At one point during this conversation, a police officer approached Gonzalez and informed her that Mayor Edward Trevino wished to speak with her. Gonzalez returned to the dais, and Trevino inquired where the petition was located. Trevino asked Gonzalez to look for the petition in her binder, and, to her alleged surprise, she found the petition there.

Trevino advised Castle Hills chief-of-police John Siemens that he wanted to file a criminal complaint alleging that Gonzalez took the petition without consent. Detective Alex Wright interviewed two witnesses, including Trevino, and requested an interview of Gonzalez, which she refused. Wright determined that Gonzalez committed a violation of Texas Penal Code §§ 37.10(a)(3) and (c)(1), which provide that a person commits an offense if he intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record. A video of the meeting showed Gonzalez allegedly concealing and removing the Petition from city custody.

Gonzalez alleges that the action against her under Texas Penal Code § 37.10(a)(3) for her conduct is unprecedented. She asserts that a review of the misdemeanor and felony data from Bexar County over the past decade makes it clear that the misdemeanor tampering statute has never been used in Bexar County to criminally charge someone for trying to steal a nonbinding or expressive document.

Gonzalez sued Trevino, Siemens, Wright, and the City of Castle Hills, asserting two claims under 42 U.S.C. § 1983 for violation of her First and Fourteenth Amendment rights. The district court found that Gonzalez’s claims could proceed notwithstanding the existence of probable case for the arrest. The 5th reversed.


Gonzalez brings claims under 42 U.S.C. § 1983 against Trevino, Siemens, and Wright on the grounds that she was arrested in retaliation for her protected speech.

The question before us is whether Gonzalez has alleged a violation of her constitutional rights when probable cause existed for her allegedly retaliatory arrest. Appellants argue the existence of probable cause dooms Gonzalez’s claims. Gonzalez does not dispute that probable cause existed to arrest her but argues that it does not bar her suit.

The Supreme Court addressed the importance of probable cause to retaliatory arrest cases in Nieves. Nieves dealt with an allegedly retaliatory arrest at an extreme sporting event in Alaska. Russell Bartlett quarreled with two police officers and claimed that he was arrested partly for refusing to speak with one of the officers. The Court held that the existence of probable cause to arrest Bartlett necessarily defeated his retaliatory arrest claim.

In retaliatory prosecution cases a plaintiff must plead and prove the absence of probable cause for the underlying criminal charge. The rule applies to retaliatory arrest claims both because officers frequently must make split-second judgments when deciding whether to arrest, and the content and manner of a suspect’s speech may convey vital information, and because evidence of the presence or absence of probable cause for the arrest will be available in virtually every retaliatory arrest case.

However, the Supreme Court carved out a narrow exception to the general rule that the existence of probable cause will defeat a retaliatory arrest claim. Under this exception, plaintiff need not plead lack of probable cause where officers have probable cause to make arrests, but typically exercise their discretion not to do so. In such cases, an unyielding requirement to show the absence of probable cause could pose a risk that some police officers may exploit the arrest power as a means of suppressing speech. (example: jaywalking)

Gonzalez cannot take advantage of the Nieves exception because she has failed to present objective evidence that she was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. Gonzalez 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). Rather, the evidence she offers is that virtually everyone prosecuted under § 37.10(a)(3) was prosecuted for conduct different from hers.

The plain language of Nieves requires comparative evidence, because it required objective evidence of otherwise similarly situated individuals who engaged in the same criminal conduct but were not arrested. The evidence Gonzalez provides here comes up short.

Gonzalez also relies on another Supreme Court case to argue that her claim may proceed notwithstanding probable cause. In Lozman, he was an outspoken critic of local city officials. At a public meeting before the council, Lozman started making remarks, and refused to leave the podium when asked. He was arrested for violating the city counsel’s rules of procedure. He alleged that the arrest was in retaliation for his speech but conceded that probable cause existed to arrest him.

Lozman sued the City of Rivera Beach, asserting a claim under Monell v. New York City Dep’t. of Soc. Servs., 436 U.S. 658 (1978). The Supreme Court allowed Lozman’s claims to proceed not because of the unusual facts of the case, but because he was asserting a Monell claim against the municipality itself, rather than individuals. It held that the fact that Lozman must prove the existence and enforcement of an official policy motivated by retaliation separates Lozman’s claim from the typical retaliatory arrest claim. This was so because an official retaliatory policy is a particularly troubling and potent form of retaliation, for a policy can be long term and pervasive, unlike an ad hoc, on-the-spot decision by an individual officer. Lozman’s holding was clearly limited to Monell claims.

Finally, Gonzalez asserts that a recent case from this circuit, Villarreal, holds that a claim under § 1983 may proceed on similar facts. In Villarreal, the plaintiff was a citizen-reporter who was arrested for violating a Texas statute that prohibited citizens from soliciting governmental information from public officials that had not yet been made public. In Villarreal, the conduct the plaintiff was arrested for—asking questions of police officers—was plainly constitutional. Here, the conduct Gonzalez was arrested for—allegedly stealing a government document—is not plainly constitutional.

The heart of our holding in Villarreal is that a citizen cannot be arrested under a statute that outlaws plainly constitutional behavior, an issue not raised on these facts. Indeed, Villarreal did not address—nor did it even cite—Nieves or Lozman, the cases both parties recognize govern this case. We therefore find that our opinion in Villarreal does not control here.

In his dissent, Judge Oldham makes a forceful case for why the Constitution ought to provide a claim here, particularly given that Gonzalez’s arrest was allegedly in response to her exercise of her right to petition. Were we writing on a blank slate, we may well agree with our distinguished colleague. But we remain bound by what we consider the better readings of the relevant Supreme Court precedent.

For the reasons stated herein, we REVERSE the district court’s order denying Appellants’ motion to dismiss, and REMAND with instructions that Gonzalez’s claims against Appellants be dismissed.