Page 38 - TPA Journal January February 2025

pering statute had never been used in the county a gov ernment petition” in the same way Gonzalez
“to criminally charge someone for trying to steal a did but were not arrested. Although the Nieves
nonbinding or expressive doc ument.” Other excep tion is slim, the demand for virtually identi-
felony indictments included ones for fake checks, cal and identifi able comparators goes too far. We
hid ing murder evidence, or cheating on govern- recognized the Nieves exception to account for
ment exams. Every misdemeanor case, according “cir cumstances where officers have probable
to Gonzalez, involved “fake social security num- cause to make ar rests, but typically exercise their
bers, driver’s licenses, [or] green cards.” discretion not to do so.”
Gonzalez pointed to this research as evidence that
the defendants had engaged in a political vendetta To fall within the exception, a plaintiff must pro-
by bringing a “sham charge” against her. duce evidence to prove that his arrest occurred in
such circumstances. The only express limit we
The defendants moved to dismiss the complaint. placed on the sort of evidence a plaintiff may pre-
They argued that the presence of probable cause sent for that purpose is that it must be objective in
defeated Gonza lez’s retaliatory-arrest claims order to avoid “the significant problems that
against the individual de fendants. The District would arise from reviewing police conduct under
Court denied the defendants’ mo tion. Although a purely subjective standard.”
Gonzalez conceded that probable cause supported
her arrest, the court allowed her claim to ad vance Here, Gonzalez provided that sort of evidence.
after finding that it fell within an exception to the She was charged with intentionally “remov[ing] .
no probable-cause rule that we recognized in . a governmental record.” Gonzalez’s sur vey is a
Nieves. permissible type of evidence because the fact that
no one has ever been arrested for engaging in a
The Fifth Circuit reversed that decision on appeal. certain kind of conduct—especially when the
The court thought that a plaintiff ’s claim could criminal prohibition is longstanding and the con-
fall within the Nieves exception only if the plain- duct at issue is not novel—makes it more likely
tiff proffered “comparative evidence” of “other- that an officer has declined to arrest someone for
wise similarly situated individuals who engaged in engaging in such conduct in the past.
the same criminal conduct but were not ar rested.”
Gonzalez’s claim failed because she did not pro- Because we agree with Gonzalez’s first argument,
vide such evidence. we do not need to reach her second. We vacate the
judgment be low and remand the case for the lower
We granted certiorari. courts to assess whether Gonzalez’s evidence suf-
fices to satisfy the Nieves exception.
Gonzalez seeks reversal on two grounds. First, she It is so ordered.
asks us to reject the Fifth Circuit’s rule that plain- Gonzales v. Trevino, U.S. Supreme Court, No.
tiffs must use specific comparator evidence to 22-1025, June 20, 2024.
demonstrate that they fall within the Nieves excep- ****************************************
tion. Second, Gonzalez contends that the Nieves ******************
no-probable-cause rule applies only to claims
predicated on split-second arrests, rather than de -
liberative ones. We agree with Gonzalez that the
Fifth Circuit took an overly cramped view of
Nieves. That court thought Gonza lez had to pro-
vide very specific comparator evidence—that is,
examples of identifiable people who “mishandled

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