We’re at the point in the Court’s term when even the cases decided with less fanfare have interesting things going on.
We’re at the point in the Supreme Court’s term when even the cases decided with less fanfare have interesting things going on. The Court decided three other cases Thursday besides the big tax case. Two of them were good news for critics of law enforcement, because they made it marginally easier to sue for retaliatory arrest or malicious prosecution. The third (not discussed here) will undoubtedly be met with dismay by the criminal-defense bar for giving broader latitude for prosecution “expert” witnesses on the behavior of drug traffickers.
In Chiaverini v. City of Napoleon, Ohio, the Court ruled that a malicious-prosecution claim under 42 U. S. C. §1983 is not absolutely precluded by the fact that some of the criminal charges were legitimate. The decision was 6–3, with the opinion written by Justice Elena Kagan; Justice Clarence Thomas dissented, joined by Justice Samuel Alito, and Justice Neil Gorsuch dissented separately. There is a practical case to be made for allowing a malicious-prosecution suit in a case such as this one, where the presence of two valid misdemeanor charges was not an excuse for bringing what the plaintiff (a jeweler caught with stolen goods) claimed was a baseless felony money-laundering charge grounded on what he alleged was lies by the cops about what he told them. The presence of such a charge, in the majority’s view, might be found to taint the entire decision to detain the accused — although the Court did not settle on what test to apply, limiting its holding to the conclusion that the presence of valid charges did not automatically require dismissal of the malicious-prosecution suit. Thomas’s dissent reiterated his view from a 2022 case that malicious prosecution wasn’t even an available legal theory for bringing a Section 1983 lawsuit premised upon a violation of the Fourth Amendment right against unreasonable seizures. Gorsuch agreed, while suggesting that a narrower ground for such a lawsuit might be found in violations of due process.
Gonzalez v. Trevino involved not only a dispute among the justices, but apparently a dispute over whether it was a case worthy of a dispute. The Court issued an unsigned per curiam decision running just five pages and resting narrowly on one of the two questions presented. That’s how it customarily gives the back of its hand to easy cases. But it provoked a 16-page concurring opinion by Alito, concurring opinions by Justices Brett Kavanaugh and Ketanji Brown Jackson, and a dissent by Thomas. That lineup may suggest that someone — most likely Alito — was assigned to write a majority opinion and lost control of the majority.
The case, another Section 1983 lawsuit, arose from a city councilwoman who alleged that she was selectively prosecuted for walking out of a public meeting with a petition she filed, under a Texas statute against removing government documents. Her complaint paints a compelling story:
Gonzalez alleged that she had reviewed the past decade’s misdemeanor and felony data for Bexar County (where Castle Hills is located) and that her review had found that the Texas anti-tampering statute had never been used in the county “to criminally charge someone for trying to steal a nonbinding or expressive document.” Gonzalez’s search turned up 215 felony indictments, and she characterized the typical indictment as involving “accusations of either using or making fake government identification documents.” Other felony indictments included ones for fake checks, hiding murder evidence, or cheating on government exams. Every misdemeanor case, according to Gonzalez, involved “fake social security numbers, driver’s licenses, [or] green cards.” Gonzalez pointed to this research as evidence that the defendants had engaged in a political vendetta by bringing a “sham charge” against her.
That sounds a lot like the unprecedented charges brought in New York and D.C. against Donald Trump by his political enemies. The Court ruled that a selective-prosecution complaint of this sort does not require proof of “examples of identifiable people who ‘mishandled a government petition’ in the same way Gonzalez did but were not arrested” in the form of “virtually identical and identifiable comparators”; rather, “Gonzalez’s survey is a permissible type of evidence because the fact that no one has ever been arrested for engaging in a certain kind of conduct—especially when the criminal prohibition is longstanding and the conduct at issue is not novel—makes it more likely that an officer has declined to arrest someone for engaging in such conduct in the past.” The Court dodged the broader question of whether the standard is different for “split-second arrests” than for cases such as this one, involving an arrest after a deliberative investigation.
As Alito noted, however, the evidentiary record (including videotape of the public meeting available on YouTube) told a very different story: After Gonzalez was accused of irregularities in gathering signatures on the petition, she basically stole it from another official’s binder to evade scrutiny. He argued for a standard more sympathetic to law enforcement precisely because cases such as this one can be very different in proof than they are in pleading, but also acknowledged:
I agree with the Court that a plaintiff does not need to identify another person who was not arrested under the same law for engaging in a carbon-copy course of conduct. [In a prior case,] we did not suggest that a vocal critic of the police charged with jaywalking had to produce evidence that police officers knowingly refused to arrest other specific jaywalkers. And we certainly did not suggest that this jaywalker had to find others who committed the offense under the same conditions as those in his case—for example, on a street with the same amount of traffic traveling at the same speed within a certain distance from a crosswalk at the same time of day.
Kavanaugh thought Gonzalez’s case had unraveled to the point where it was probably unwise to even rule: “At this point, the Court’s grant of certiorari looks ill-advised given that the question presented . . . bears no relation to the issue on which Gonzalez’s suit actually turns. In any event, we are where we are. I concur in the per curiam because the per curiam does not seem to say anything that is harmful to the law, even though the per curiam (in my view) does not really have anything to do with Gonzalez’s case.” Jackson sniped at Alito and argued for a broader view of the possible proof of such cases, citing the solicitor general’s view that “officers’ employment of an unusual, irregular, or unnecessarily onerous arrest procedure” and “the timing of and events leading up to a plaintiff ’s arrest” could support a lawsuit. Thomas, by contrast, went back to the same well of common-law analogues as in Chiaverini, arguing that the Court was asking the wrong questions entirely about what it takes to prove a Section 1983 case of this type.