In 2019, police in Castle Hills, Texas arrested Sylvia Gonzalez, a 72-year-old first-time city council member, because they didn’t like that she was advocating for the removal of the city manager, a police ally. Since police can’t constitutionally arrest someone simply because they find what they’re saying offensive, Castle Hills officers used a section of the Texas Penal Code related to the handling of government documents to arrest Gonzalez. Her purported crime was accidentally placing a citizen petition she had introduced at her first city council meeting into her personal binder.

Gonzalez sued, alleging that the police violated the First Amendment by arresting her in retaliation for her speech about the city manager. To establish that the arrest was retaliatory, she argued that the law used to arrest her had never been used to go after similar conduct. The Fifth Circuit dismissed her case, holding that to prove retaliation, she would have had to prove that other people who did exactly what she did (accidentally put a petition in their personal binder) but expressed different views (support for the city manager) were not also arrested. The court did not explain how she could possibly have offered such evidence.

Gonzalez has asked the Supreme Court to take her case. This month, the ACLU filed an amicus brief in support of her petition, urging the court to overturn the Fifth Circuit’s rigid rule to ensure that the police can’t use broad, vague, or new laws in novel ways to arrest critics of police and government.

As our brief explains, the Fifth Circuit’s decision denies crucial First Amendment protections that the Supreme Court sought to preserve in the 2019 case Nieves v. Bartlett. While the existence of probable cause to arrest generally defeats retaliatory arrest claims, the Supreme Court recognized in Nieves an important exception for circumstances in which “officers have probable cause to make arrests, but typically exercise their discretion not to do so.” The court pointed to the example of jaywalking, an act that’s illegal in many places but happens all the time, and typically goes unpunished. The court held that a vocal critic of the police should be able to bring a retaliatory arrest claim if they were arrested for jaywalking where jaywalking is commonplace but rarely results in arrest.

The court recognized what is now known as the Nieves exception because it was concerned that the wide expanse of criminal laws across the country gives police discretion to arrest in a broad range of circumstances, and that discretion could be exploited to punish disfavored speech. It’s what happened in Gonzalez’s case. While the Texas tampering law gives discretion to police to arrest people for attempting to steal (or for misplacing) a government record, it has not, in fact, been used that way — except to arrest Gonzalez. But the Fifth Circuit held that the Nieves exception was not available to Gonzalez because she did not show that other similarly situated individuals had mishandled government documents and were not arrested.

If left in place, the Fifth Circuit’s rigid reading of the Nieves exception would have dangerous consequences for critics of police and the government. People bringing retaliatory arrest claims will rarely be able to get the type of evidence required by the Fifth Circuit, because they typically don’t have access to evidence of others engaged in conduct identical to theirs. How would Gonzalez have evidence that other people put petitions in their binders and didn’t get arrested for it? How would someone arrested for a minor traffic infraction show that other drivers who committed the same infraction but didn’t “talk back” to the officer didn’t get arrested? How would someone arrested under a noise ordinance have evidence that others who played less offensive music at the same volume under the same circumstances didn’t get arrested for it?

Police arresting people because they don’t like their speech isn’t just a hypothetical. Take the case of Michael Picard, who was arrested in 2015 when protesting legally near a DUI checkpoint with a sign reading “Cops Ahead: Keep Calm and Remain Silent.” Officers brainstormed how they might charge Picard and one suggested, “We can hit him with reckless use of the highway by a pedestrian and creating a public disturbance.” Or the case of George Alston, who was pulled over for driving with tinted windows, but ultimately arrested because an officer disliked the way he criticized the traffic stop to his wife over the phone. In another instance, an officer said to a motorist, “[i]f you run your mouth, I will book you in jail for it.”

As these examples demonstrate, it’s easy for police to abuse their discretion and exercise their arrest power against those with whom they disagree. It is crucial that the Nieves exception apply where police use broadly-worded laws in novel ways to arrest critics like Gonzalez. We all have a right to free speech, and arresting anyone for exercising their rights is unconstitutional. We hope SCOTUS will take up this case to ensure that it doesn’t become impossible to allege a retaliatory arrest claim.

Every person deserves equal, effective treatment and safety, especially when in crisis. In such a vulnerable circumstance, people need professionals trained to provide support and care.

But too often, when a person is experiencing a mental health crisis, 911 dispatchers send armed police officers as a default response. We don’t send armed police when someone is experiencing a heart attack, but we do when a person is experiencing suicidal ideation. That doesn’t make sense.

Professor Jessica Gillooly, a former call-taker and expert on 911 dispatch, explains the problem to us this way: “Too often, 911 call-takers send police to calls because of a lack of timely, robust alternatives. The goal should be creating a 911 system that provides call-takers the tools and training to send the right response at the right time.”

The good news is that many jurisdictions have begun to consider incorporating trained civilian crisis responders into their emergency response systems. This approach offers significant improvements for public safety: Routing calls away from the police can reduce police use of force, escalation of situations that could have been stabilized by trained mental health providers, violence against people with disabilities, and unnecessary arrests that entangle people in the criminal justice system.

But that is only half of it.

911 dispatchers make crucial, frontline decisions every day about how to respond to emergencies. They are important partners in ensuring that all community members receive safety and equal treatment. Successful diversion programs require that 911 call-takers are empowered, through adequate technology and training, to make appropriate decisions about when to send crisis response teams instead of the police.

Crisis response teams should have adequate staffing and resources so that they are able to respond in a timely manner to all behavioral health crisis calls. This prevents situations in which 911 call-takers default to police officers because crisis response teams are unavailable.

Trained behavioral health professionals should also staff 911 dispatch centers to stabilize callers while they wait for a team to arrive. One option is for clinicians to be staffed at the dispatch center. Another is to integrate emergency response systems with the new 988 Suicide & Crisis Lifeline.

The American Rescue Plan provides states funding for crisis call centers, crisis response teams, and crisis stabilization centers.

The training for 911 operators must recognize the costs and safety concerns of unnecessarily sending police officers to situations that they are not trained to handle, including risks of escalation, use of force, infringement on the civil liberties of community members, and resulting entanglement in the criminal justice system.

The training for 911 operators should include examples of questions probing the level of risk posed by the situation the caller describes. For example, if the caller reports an attempted break-in at a residence, as occurred in the arrest of Henry Louis Gates Jr., 911 call-takers should be empowered to ask the caller the basis for assuming that the subject of the call does not live there. The dispatch software should include a way to capture callers’ uncertainty about the level of risk.

For medical emergencies, call-takers often have checklists and question scripts to help standardize patient risk assessments. A similar list of factors to consider would help 911 call-takers decide which first responder to dispatch. Some jurisdictions are already piloting this approach.

911 systems must create clear criteria for which situations qualify for behavioral health responses, so that the response doesn’t vary depending on which call-taker answers the phone. Two common examples of incident types that are likely to be appropriate for a crisis response team instead of police officers include a subset of calls about an “emotionally disturbed person” or a “welfare check.”

The 911 system should develop protocols to respond to a caller who specifically asks for a behavioral health response or guide the caller to consider whether their emergency warrants such a response. For example, 911 call-takers in Austin answer calls with the question: “Are you calling for police, fire, EMS, or mental health services?”

Finally, feedback and data collection (while respecting privacy) are important to evaluate performance and areas to improve.

The 911 system is a crucial component of an effective behavioral health crisis response system, which requires someone to call, someone to respond, and somewhere to go. A person experiencing a mental health crisis should be able to call for help with de-escalation, receive on-site assistance from trained mental health professionals, and go to a 24-hour crisis stabilization facility — just as those experiencing physical health crises can. Reforming the 911 system is the first step for a functioning crisis response system. We need to send the right response at the right time.

Recent decisions from the U.S. Supreme Court are, to use a complex legal term, not great. In many areas, from abortion to voting rights to tribal sovereignty, the current court has curtailed civil rights and individual freedom, even at the expense of longstanding precedent. In other areas, such as policing and qualified immunity, the court has shown that it can move very slowly, or not at all, when it is apparently unbothered by harsh and legally indefensible precedent.

This erosion of our most cherished rights is disturbing, but we are not without hope. The ACLU has long worked in both federal and state courts — and the latter are now more important than ever. To make the most of the opportunities that state constitutional law and state courts present, the ACLU is launching a new State Supreme Court Initiative. This is our first legal program that focuses on a type of court rather than a particular subject matter. We are its first two attorneys, and we’re excited to get started.

American Civil Liberties Union

State Supreme Court Initiative | ACLU

The State Supreme Court Initiative will build on the ACLU's existing work in state supreme courts and expand our litigating capacity.

While this deeper investment in state-level legal advocacy may be new, the ACLU is no stranger to taking to the states to protect and extend our rights. Each state has its own constitution and its own laws, and state supreme courts can — and often do — interpret those provisions to provide broader protections for civil rights and civil liberties than the U.S. Supreme Court has recognized or preserved under federal law. Last summer, the need to further turn our attention to the states was thrown into sharp relief following the Supreme Court’s egregious decision in Dobbs v. Jackson Women’s Health Organization. Alongside our allies, we showed up in numerous state courts to protect abortion access. In recognizing the need for greater reliance on state courts to protect civil rights and individual liberties, we released “Our New Federalism,” an overview of the ACLU’s extensive experience litigating in state courts nationwide and our reliance on state law to protect people’s rights across many issue areas.

As we build on this work, the State Supreme Court Initiative will do at least three things.

First, the initiative intends to identify, litigate, and win cases involving civil rights and civil liberties in state high courts across the country. The ACLU is well situated to go into the states because, in fact, we’re already there. We have affiliates in every state, and they do groundbreaking work that combines expertise in their unique state constitutions with keen insights into local concerns and conditions. The initiative will offer new resources and cross-state expertise to build on these ongoing efforts across the states, all with the goal of establishing greater protections for civil rights and liberties under state law, no matter how much the U.S. Supreme Court might hollow out federal protections.

Second, the initiative will foster collaboration and information-sharing among advocates, experts, and communities who are fighting in, or studying, state supreme courts. While the ACLU’s State Supreme Court Initiative may be new, state supreme court advocacy is not: Likewise, many others have been conducting state court advocacy, and groups like the Brennan Center and the State Law Research Initiative are building bodies of research about that vital work. The ACLU hopes to contribute by, among other things, connecting advocates and experts from different states so that their successes and ideas can more easily spread from one state to the next

Third, the initiative aims to address, through litigation and other advocacy, barriers that limit people’s access to justice in state courts. We anticipate, for example, that the initiative will work with advocates around the country to push for greater transparency in state supreme court proceedings, so that people can learn about in advance, and where appropriate participate in, state supreme court cases that could fundamentally affect their freedoms.

All of this work will recognize that the most significant casualties of the U.S. Supreme Court’s jurisprudence aren’t precedents; they’re people. People deserve protection from improper assaults on their liberty. From laws that undermine their right to vote. Or their bodily autonomy. Or their freedom. Yet the U.S. Supreme Court isn’t providing that protection, with disastrous consequences. People are less safe, and less free, because of the court’s decisions. The work of our initiative cannot change the fact that the U.S. Supreme Court still wields enormous, and often harmful, power over the country. But as former Supreme Court Justice William Brennan, Jr., put it, “state courts no less than federal are and ought to be the guardians of our liberties.” The ACLU agrees.

For more information or to let us know about a pending case, contact statesupremecourt@aclu.org.