from the fucking-people-over-because-they-can dept
We’ve long known the Fifth Circuit is the worst circuit to hear your case involving rights violations by law enforcement. Despite one particularly blistering dissent from Judge Don Willett calling qualified immunity a “rigged game” litigants almost always lose, the Fifth Circuit continues to coddle cops and overreaching government officials to give them what they want at the expense of rights of the governed.
And that’s what has happened here. Sylvia Gonzalez, a retiree living in Castle Hills, Texas, ran for office after being continually disappointed by the people in power. She managed to win her first election, securing a position on the city council despite running against a much more well-funded incumbent.
Once in office, Gonzalez refused to shut up about the problems she believed existed in the existing city council. This, of course, did not endear her to her other council members who were more than willing to continue to mismanage the city as long as it didn’t affect their paychecks.
Gonzalez, however, did more than talk. She acted. She organized a petition to unseat the city manager and reinstate the former city manager whom she believed did a better job than the current office holder. She presented the signed petition to the mayor. There was some discussion about the document’s original location which was spun by the mayor as a criminal act — that being the “concealing or removing of a government document or record.”
This crime usually addresses situations where people have made off with official documents without permission. In this case, the document was Sylvia’s. And her temporary inability to locate the signed document — one she had placed in a folder rather than presented publicly — was treated by the opportunistic mayor as a criminal act. And local law enforcement was only too happy to punish Gonzalez for irritating her betters by (1) complaining about them and (2) obtaining the needed signatures to unseat the current city manager.
Gonzalez was arrested. Nothing about it was normal. The detective got a warrant rather than a summons. He obtained this warrant by taking it directly to the magistrate, treating it as an emergency, rather than the non-violent, not-even-really-a-crime it actually was. The detective also bypassed the normal booking procedure which would have seen Gonzalez immediately released on her own recognizance to ensure she spent some time behind bars for irritating other government officials.
All this added up to a day in jail for Gonzalez and civil rights lawsuit naming all those involved in this miscarriage of justice. But the Fifth Circuit Appeals Court didn’t see it as a miscarriage. It saw a full-term, completely healthy justice baby, even if those involved in the delivery didn’t always act like professionals, much less like public servants sworn to respect the Constitution. After a pass-and-a-half (the Fifth Circuit denied an en banc rehearing request from Gonzalez), the Fifth Circuit handed out qualified immunity like cigars to everyone in the delivery room.
That denial led to an angry dissent by Judge James Ho, who called this what it was: a concerted effort to silence someone the current city government thought was making too much noise:
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.
But it falls on the judiciary to ensure that the First Amendment is not reduced to a parchment promise. 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.
Judge Ho says the court got this wrong. Now, we’ll get to see what the Supreme Court has to say about arresting people for exercising their Constitutional rights. Sylvia Gonzalez’s case has been accepted by the nation’s top court, giving her a small, but perceptible, chance at having these wrongs righted by the judicial system.
The Supreme Court agreed last month to review this decision. The case will hinge on a simple principle: Freedom to criticize the government is at the core of the First Amendment.
Our entire nation is built on this right. When Thomas Jefferson wrote the Declaration of Independence, he spent most of his time compiling a “long train of abuses” by King George III. Anyone with a high school diploma knows that arresting political opponents for their speech is a textbook example of violating the Constitution. Yet that is what the mayor and police chief did to Gonzalez.
That’s exactly what’s at stake here, a point driven home by Gonzalez’s petition [PDF], composed by Institute for Justice lawyers. What happened here was orchestrated retaliation, something made clear by the involved officials’ actions.
The officer first assigned to investigate Gonzalez spent almost a month looking into the
allegations and “got nowhere…”
Following that investigation, respondents Trevino and Siemens engaged a friendly “Special Detective” (respondent Wright) who did “three special [and irregular] things” to ensure that Gonzalez, who has no criminal record, would be arrested for a nonviolent misdemeanor…
Once the district attorney learned about the charges against Gonzalez, he promptly dismissed them…
The affidavit for Gonzalez’s arrest listed her viewpoints as relevant to her arrest, even though Gonzalez’s “spearheading of the petition was irrelevant to the elements of the criminal offense” of tampering with a government record…
Gonzalez was arrested for supposedly trying to intentionally conceal the very petition she organized…
None of that looks like legitimate use of government power. Every aspect of it looks like a concerted effort to punish someone for irritating other office holders by weaponizing law enforcement. That shouldn’t be allowed to stand. And those involved certainly shouldn’t be allowed to just walk away from this simply because they were able to find a law to misuse for their own ends.
Hopefully, the Supreme Court will overturn this qualified immunity decision. While the Supreme Court hasn’t exactly been great on the civil rights front lately, it has at least recognized the Fifth Circuit tends to err on the side of the government far too often, especially when it’s obviously clear rights have been violated. Sure, the Supreme Court is as much to blame as the appellate court for the current state of qualified immunity case law, but the least the nation’s top court can do is clarify once again it’s simply not constitutional to arrest people for engaging in political speech.