Gonzalez v. Trevino

42 F.4th 487

Sylvia GONZALEZ, Plaintiff—Appellee,

v.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.

No. 21-50276

United States Court of Appeals, Fifth Circuit.

FILED July 29, 2022

Anya Bidwell, Attorney, William R. Aronin, Patrick M. Jaicomo, Institute for Justice, Arlington, VA, for Plaintiff-Appellee.

Scott Michael Tschirhart, Denton, Navarro, Rocha, Bernal & Zech, P.C., Austin, TX, Lowell Frank Denton, Denton, Navarro, Rocha, Bernal & Zech, P.C., San Antonio, TX, for Defendants-Appellants.

Devi Rao, Roderick & Solange MacArthur Justice Center, Washington, DC, for Amici Curiae Roderick & Solange MacArthur Justice Center, American Civil Liberties Union, National Police Accountability Project, American Civil Liberties Union of Texas.

Brianne Jenna Gorod, Constitutional Accountability Center, Washington, DC, for Amicus Curiae Constitutional Accountability Center.

Before Barksdale, Engelhardt, and Oldham, Circuit Judges.

Kurt D. Engelhardt, Circuit Judge:

In this case, we are confronted with a dilemma that the Supreme Court has wrestled with recently: how are we to treat a plaintiff's claims when she asserts retaliatory arrest for engaging in conduct protected by the First Amendment, but concedes that there exists probable cause for the arrest? As we are bound by the Court's precedent, we hold that Gonzalez fails to establish a violation of her constitutional rights.

I

Sylvia Gonzalez is a resident of Castle Hills, Texas. Castle Hills, a city of fewer than 5000 residents, is governed by a five-member city council that appoints a city manager to handle the day-to-day business of the city. In 2019, Gonzalez was elected to a seat on the city council. During her campaign, Gonzalez learned that many residents of Castle Hills were unhappy with the performance of the contemporary city manager. 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.

Two days later, Castle Hills chief-of-police John Siemens informed Sergeant Paul Turner that Trevino would contact Turner. Trevino wanted to file a criminal complaint alleging that Gonzalez took the petition without consent. Turner began an investigation, which yielded no returns. Siemens then asked special detective Alex Wright to take over the investigation. 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."

Wright then obtained a warrant against Gonzalez from a magistrate. The process that Wright used was lawful but atypical, as he: (1) chose to secure a warrant, rather than a summons, for a nonviolent crime, and (2) circumvented the district attorney by walking the warrant directly to the magistrate. According to Gonzalez, the use of this process prevented her from using the satellite booking function of the Bexar County jail system, making her unable to avoid spending time in jail when arrested. Wright's affidavit in support of the warrant included statements about the speech in her petition, noting that "[f]rom her very first [council] meeting in May of 2019 [Gonzalez] (along with another alderwoman) has been openly antagonistic to the city manager, Ryan Rapelye, wanting desperately to get him fired." The petition also described, in significant detail, the result of Wright's investigation. Wright narrates a video of the meeting which he characterizes as "clearly show[ing] Defendant Gonzalez intentionally concealing and removing the Petition[ ] from city custody." According to Wright, the video also shows that Gonzalez was reluctant to return the petition from her binder. And the affidavit speculates on a possible motive for Gonzalez taking the petition: a resident claimed that Gonzalez got her to sign the petition under false pretenses.

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." She continues, "[o]f 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]." Gonzalez notes that most indictments under the statute involved fake government IDs, such as driver's licenses, and that misdemeanor data is similar.

When Gonzalez learned of the warrant for her arrest, she turned herself in. She was booked on July 18 and spent the evening in jail. She is no longer on the city council, and she alleges that she "will never again help organize a petition or participate in any other public expression of her political speech," nor will she ever "again run for any political office." Gonzalez also asserts that Trevino and others engaged in other activities to attempt to remove her from the council, including having her removed from office based on a "made-up technicality," and filing a civil lawsuit against her alleging incompetence and official misconduct.

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 Defendants moved to dismiss based on the independent-intermediary doctrine and on qualified immunity grounds. The district court denied Defendants' motion, finding that Gonzalez's claims could proceed notwithstanding the existence of probable case. The individual Defendants appealed.

II

"[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment." Mitchell v. Forsyth , 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). Accordingly, under the collateral order doctrine, we have jurisdiction to review this interlocutory appeal of the district court's denial of qualified immunity. Backe v. LeBlanc , 691 F.3d 645, 648 (5th Cir. 2012).

This court reviews denial of a motion to dismiss based on qualified immunity de novo. Kelson v. Clark , 1 F.4th 411, 416 (5th Cir. 2021). "In doing so, ‘we must accept all well-pleaded facts as true and draw all reasonable inferences in favor of the nonmoving party.’ " Id. (quoting Morgan v. Swanson , 659 F.3d 359, 370 (5th Cir. 2011) (en banc)). The complaint must contain sufficient facts to "allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). But a complaint's " ‘naked assertion[s]’ devoid of ‘further factual enhancement’ " will not suffice, see id. (quotation omitted), and courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ; see also Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (holding that "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions"). "[A] plaintiff seeking to overcome qualified immunity must plead specific facts that both allow the court to draw the reasonable inference that the defendant is liable for the harm he has alleged and that defeat a qualified immunity defense with equal specificity." Backe , 691 F.3d at 648.

III

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. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins , 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Appellants assert a defense of qualified immunity. "There are two aspects to qualified immunity: whether the plaintiff has alleged a violation of a [statutory or] constitutional right and whether the right at issue was ‘clearly established’ at the time of the alleged violation." Cope v. Cogdill , 3 F.4th 198, 204 (5th Cir. 2021) (citing Pearson v. Callahan , 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) ).

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...