When someone claims to have been arrested in retaliation for constitutionally protected speech, what sort of evidence is necessary to make that case? Five years ago in Nieves v. Bartlett, the Supreme Court held that an arrest can violate the First Amendment even if it was based on probable cause, provided the claimant can present “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Today in Gonzalez v. Trevino, the Court said that showing does not require “very specific comparator evidence” indicating that “identifiable people” engaged in very similar conduct but were not arrested.
“This is a great day for the First Amendment and Sylvia Gonzalez, who has courageously fought against retaliatory actions by government officials,” says Anya Bidwell, a senior attorney at the Institute for Justice, which represents Gonzalez, a former Castle Hills, Texas, city council member who says her political opponents engineered her arrest on a trumped-up charge of tampering with a government document. The document in question was a petition that Gonzalez herself had spearheaded, calling for the replacement of City Manager Ryan Rapelye. Gonzalez had run for office on a promise to seek Rapelye’s removal, and she claimed his allies were determined to punish her for that position.
Anyone else seeing J6 written all over this? “Either they all are or…” basically a get out of jail free card for all that can’t be proven to have done something specific? But if that is true:
* Millions were doing the exact same thing, in the exact same way…so why was I arrested for it, when the majority were not? What made me so unlucky?
* “…comparator evidence…”? Draw conclusions by comparing people to one another, like say comparing me to a PFR that was arrested/convicted for recidivism? What conclusions could be drawn from that, I wonder? How dissimilar do I have to be, and for how long, before the arbitrary and unnecessary (vindictive?) nature of blanket inclusion becomes undeniable?
After reading this, I can’t help reflecting on the too-many-to-count occasions where a PO would threaten me with arrest and revocation essentially for pissing them off. And I can’t help but wonder how many parolees or probationers were similarly situated and actually arrested.