February 22, 2023, opinion

Designated for publication

  • Gonzalez v. Trevino, 21-50276, appeal from W.D. Tex.
    • per curiam (Richman, Jones, Stewart, Elrod, Southwick, Haynes, Graves, Willett, Engelhardt, Wilson voting against rehearing en banc; Smith, Higginson, Ho, Duncan, Oldham, Douglas voting for rehearing en banc); Ho, J., dissenting from denial of rehearing; First Amendment, qualified immunity
    • Denying rehearing of July 29, 2022, decision (Englehardt, J., joined by Barksdale, J.; Oldham, J., dissenting), that reversed judgment denying qualified-immunity-based motion to dismiss claim by city councilmember that the mayor, police chief, detective, and city engaged in a retaliatory arrest for the councilmember’s exercise of her First Amendment rights in organizing a petition advocating for removal of the city manager. The panel opinion was based on the holding that the existence of probable cause to arrest the councilmember for tampering with a government record barred the suit.
    • Judge Ho dissented from the denial of rehearing. “[I]t 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.” He noted that the Supreme Court has expressed that there is no requirement to prove and absence of probable cause in the retaliatory arrest context, and that the plethora of criminal laws underscore the role of police discretion in enforcing them–“the opportunity for public officials to weaponize the criminal justice system against their political adversaries has never been greater.”