this grandmother got elected as the first Hispanic woman on a local city council her political opponents had her arrested on a bogus charge of putting some paperwork in a folder I kid you not take a look at this I went in and got a handcuffed I got frisked they wanted me to put on this orange shirt but I was cold and I had to sit on a metal chair it was a very hurtful experience and the sad part is I did nothing wrong you know misplacing papers happens all the time and yet people don't get arrested for it these three individual defendants did everything in their power to ensure that she would be thrown in jail and not just issued summonses government Machinery should not be weaponized against government critics [Music] as I detail on a prior video The Institute for justice took up Sylvia's case and they filed a federal civil rights lawsuit against those corrupt city officials but it ended up getting lost on completely bogus qualified immunity grounds and that brought up an issue that caused a circuit split and now the institute for justice is appealing the case to the U.S Supreme Court and they want you to know more about it they need your help and I had a really fascinating discussion with Sylvia's attorney check it out still Gonzalez now she is uh 75 years old uh a retiree in Castle Hills Texas she decided to give back to her community after she retired and ran for city council I decided to run for my seat on Castle Hill City Council because I had the time and the energy to work I got a very good response I went to more than 500 residents they complained bitterly about the city and that they could not even get a hold of anyone when she was complaining she heard a lot of constituents of hers potential few about the C manager and saying that they are not happy with him and so she promised uh that if she were to get elected she would Champion a petition to call for his removal because a city manager would not return their calls their streets were not being fixed they're my neighbors you later that's what they talked about they were glad to see someone that was going to finally be able to do something for him so she got elected she 'd be first Hispanic woman to ever be elected to the city council and I won by 53 of the vote as her first active office she spearheaded this petition to remove the city manager one of my supporters came up with a petition I felt the petition was important because it gave my word a lot of strength and it just happened that Mr rapley is very good friends with a city mayor with the police chief and with a special investigator whose name is Alex Wright they conspired to investigate her then she ended up having to spend a day in jail I went in and got a handcuffed I got frisked they wanted me to put on this orange shirt but I was cold and I had to sit on a metal chair it was a very hurtful experience and the sad part is I did nothing wrong so now you're going to ask what did they investigate her right according misplaced a petition that she herself championed according to them she tried to steal the petition that she herself championed that she herself presented to the city council uh by putting it in her binder my first council meeting we were assigned to evaluate the city manager you can share them now objection because of all the turmoil and the hostility they can never get you to return any calls they lasted till after midnight please don't interrupt me at the end of the second day the second meeting I just had all these papers so I tried to gather them and then I tapped them on the desk and then I just stuck them at the top of my binder The Castle Hills police captain comes over Taps me on the shoulder and tells me the mayor wants to speak with me I go over to the mayor and he asked me where is the petition that was turned in and I told him I didn't know where it was he proceeded to tell me that he thought it was in my binder that he could see a little clip and I found the petition to my surprise and I handed it to him and he said you probably picked it up by accident and I thought nothing of it but I was thrown in jail as one of the judges during the oral argument in the fifth circuit said he said so if I take this judge's papers and place them in the binder now you have probable cause to arrest me is that right and the opposing council did not have a good answer to that because there isn't a good answer to that so they found this statute called uh tampering with government record and they said that Sylvia the grandma basically uh because she misplaced the petition and put it in her binder that she is somehow guilty of um tampering with government record now that's a class aim is demeanor Sylvia does not have a criminal record uh she is a council member this misdemeanor is a non-violent misdemeanor so this kind of things even if you thought that there was probable cause for her arrest and even if you thought there was probable cause for her to have violated that statute you don't throw people in jail for that right jails are crowded as is so what happens with non-violent misdemeanors is normally summonses are issued right or you're at least allowed to get processed through a courtroom but these three individual defendants did everything in their power including circumventing the district attorney to ensure that she would be thrown in jail and not just issued summonses so really there is a clear uh retaliatory motive here right they are investigating her for a month and they're finding this broad statute to charge her with and put her occurring jail because she championed this petition to remove their Ally the city manager from power so what happened is that we sued them for First Amendment retaliation we uh went to Bayer County in San Antonio and we asked them just to look at what kind of behavior usually is out there that's charged under that tampering with government record statute and what we saw is that over the last 10 years nobody even remotely close to being accused of what Sylvia did was charged under that statute usually what you see with this kind of statutes is that they're being uh you know it's like a social fake Social Security card or fake driver's license fake Green Card uh fake check stuff like that right so clearly this was just a pretext to throw her in jail so we even put that data in the camp complaint and also presented whole bunch of other other evidence that shows retaliatory motive like circumventing the district attorney um and you know in the affidavit even talking about the reason that they don't like Sylvia is because she petitioned the government to remove the city managers and the district court agreed with us they just recorded uh denied qualified immunity to the defendants saying that clearly Ms Gonzalez met her burden here she even you know presented data from Bayer County to show that generally speaking uh you people similarly situated to Sylvia don't get arrested for this kind of behavior and then we went to the fifth circuit because as you know uh the way qualified immunity works is that even if you Prevail below defendants gets to freeze everything and go up on appeal and say hey fifth circuit we want you guys to look at it again because we think the district it was wrong by denying us qualified immunity we lost at the fifth circuit even though we had this amazing oral argument where one of the judges judge all them like I told you basically put another judge's papers in his binder and said no now there's probable cause to arrest me um so yeah there was a two to one Split Decision uh the majority basically said that we very much sympathize with judge Oldham who just sent it here and we think you know there are a lot of uh horrible allegations in the complaint um but that there is this case in the United States Supreme Court called Nieves versus Bartlett that prevents us from allowing Sylvia's claim to move forward but Nieves had an exception for exactly cases like sylvius where if it's clear that the statute is used as a pretext that generally officials use their discretion to not charge people under statutes like that but they do it in this case because she spoke out then in that case probable cause is not going to be a barrier they use an example in Nieves with jaywalking and just as chief justice Roberts says like we know that jaywalking happens all the time and yet people don't get arrested to it for it so if all of a sudden a government critic gets arrested for jaywalking then you know probable cause shouldn't bar protocols for jaywalking shouldn't bar his claim so the majority did not think that we fit within that exception so after that we filed for unbank review uh your your listeners and viewers will know that that's when you ask the entire Circuit Court to rehear the case the unbanked review was denied but six judges out of 16 would have voted to Grant on Bank review and um another judge joined judge all them and wrote a separate descent and just like judge Oldham he said government Machinery should not be weaponized against government critics and that Sylvia Gonzalez's claim should be allowed to proceed here's what's really interesting about it and why we are petitioning to the Supreme Court there is a circuit split on this as you know uh that's one of the uh biggest reasons why Supreme Court picks up petitions we're taking those two descents from Judge Oldham and from Judge ho on how government shouldn't be uh punishing their critics by weaponizing the Machinery of the government and we're also taking Justice Thomas's statements against qualified immunity where he says that it shouldn't be a one-size-fits-all Doctrine and that on the beat cops should have a different level of protection than desk Bond bureaucrats we're taking those things things we're putting them in our petition for certiorari and we're submitting that petition to the Supreme Court asking it to overturn the fifth circuit and hold that when you have obvious evidence of of retaliatory animus right when you have that obvious evidence like we do here then even if there is probable cause for arrest like often there will be probable cause for jaywalking to be arrested for jaywalking right that that probable cause shouldn't bar First Amendment retaliation claims otherwise it just becomes censorship backdoor censorship where they can't pass a law saying you can't criticize me but they can throw you in jail so that person knows not to criticize you in the future if um some police officers wanted to get back you know that didn't like me wanting to get back at me they could pull me over and check my registration card and maybe I didn't sign the back of my registration card in under West Virginia law that's one of the miscellaneous traffic violence it used to be anyways miscellaneous traffic violations that it's just a a generic misdemeanor that could carry a year up to a year in jail so while nobody would really be ticketed for this much less into jail for it you know technically if I didn't sign the back of that registration card I guess I have committed that misdemeanor and theoretically they could they could arrest me for it put me in handcuffs and have me booked and and try to get a prosecutor to argue for me to go away for a year not because I deserved there they did that to anyone else but just because you know they thought they're like getting Al Capone on tax evasion charts that's the only thing that they can get on and two just suppress my speech or to retaliate against me for my speech and right this is something I've worried about before and I've had lots of clients that have worried about it like if I come forward if I file a lawsuit what if they you know what if they retaliate against me and it's if if the K if the law is that and all they have to do is get them on speeding and then if theoretically they can arrest somebody for speeding where whereas they usually wouldn't if that's legal for them to do that just to retaliate against somebody and you can't file a lawsuit about it I mean that that seems to be a bad thing so yeah like you guys are taking this on versus Bartlett that announces this probable cause Rule and he said there that you know everybody breaks laws on a daily basis these days right it's just we have so many criminal laws on the books that you can find anything to get somebody for it right and you really don't want that to be uh available out there for um uh for government officials to punish government critics right we don't want speech to be suppressed um in those kind of circumstances and frankly you know this rule about Split Second this having these rules to protect Split Second decisions kind of makes sense but not more than that right so let me describe you like a split second scenario that Nieves versus Bartlett deals with there you have um this uh Festival uh Burning Man festival in Alaska and you have this guy uh you know walking around essentially telling people to not listen to the cops and the cops are walking around and telling people to not drink or like to make sure that you know uh there is some sort of order in this festival and it's a chaotic situation these two police officers are trying to keep it under control and you have this guy basically shadowing them and telling people to don't listen to these guys they can't tell you that right so one of the police officers ends up arresting this guy um and the guy sues for First Amendment retaliation right and there the situation is much more difficult because it's a split second uh type of decision making um and that he was creating problems for these officers to enforce the law in the moment right and his speech when he says don't listen to this police officers that speech is part of actually obstructing police officers in performing their duties so there how in the world are you supposed to distinguish between oh that was probable cause that made them arrest the guy versus oh no that was his speech that made them arrest the guy it's pretty much impossible to disentangle the two and figure out whether it was proper or improper motive so I get it if you think that probable cause is a useful proxy in that type of a situation that seems reasonable but if you go beyond that right and think all of a sudden probable cause is a useful proxy even though you have ton of other evidence showing retaliatory motifs right over the period of months they investigated Sylvia um they did everything they could to ensure that she would be in jail rather than simply issued summons right uh that nobody in Bear County was ever arrested for this kind of behavior before we have so much evidence that helps to untangle probable cause from improper motive that then you know then the value of probable cause as a proxy Planet it doesn't tell you anything anymore so at the very least um you know that kind of probable cause rule should be limited to Split Second decision making and desk Bond bureaucrats certainly shouldn't be allowed the same level of protection as somebody who is making split-second decision making in a very difficult and uncertain type of a situation yeah I can see this popping up and lot of the like the middle finger cases where somebody's driving they flip off the cops or something like that because I could see I could see some good first amendment retaliation claims coming out of those but also the same defense where maybe the guy actually was speeding or maybe maybe there was a brake light out something like that where you know so they they arrested them or charged them really subjectively because of because they didn't like their speech but objectively they did commit that that traffic violation you guys do a good job of finding like the perfect plaintiffs here because this everyone should be able to agree that somebody like Miss Gonzalez who literally had done nothing wrong and you couldn't find better defendants in these these City officials who are planning and plotting behind the scenes and conspiring to to sort of put her through the the their local criminal justice system I mean it's an ideal case how can how can possibly this one moment present a threat right they are basically arresting her the way they're doing it they're circumventing the district attorney right they're using this loophole specifically for like violent individuals or for Flight Risk people and here you have this Grandma you know the most adorable peaceful lady with not even as much as a traffic ticket to her name and somehow this is a non-violent misdemeanor and even if you did believe it was true and somehow you end up thinking that this is the person worth being thrown in jail at the time when jails are overcrowded as is yeah they couldn't find a worse person to throw in jail I don't know what the hell they were thinking but fundamentally though they succeeded because you know Sylvia was so discouraged but by by what happened to her she she stepped down from the city council and she's not politically engaged the way she was before so you know if qualified immunity protects these guys then in a way they succeed which which would be absolutely ridiculous and contrary to Common Sense this is textbook First Amendment retaliation because the the what you have to prove is that they're doing something that would chill free speech and that's exactly what they did not only did they they chill Silvia's Free Speech but they also chilled the free speech of other people who saw what happened to her and had any ideas or thoughts about trying to change things themselves you know they've completely suppressed any opposing speech yes and it they even say in the decision that we sympathize with Miss Gonzalez and you know her claims you know are very strong in that she's alleging that she was silenced uh but there is nothing we can do because of this Supreme Court president and that's just not true it's not the judges that there's nothing they can do they could have interpreted this commonsensically and that's what qualified immunity allows uh judges to do just basically say we're very sorry there's nothing we can do our hands are tied uh even though we see this Injustice and it's obvious and it's clear uh you know we we really don't have much discretion here and we have to deny your claim what's the time frame on this we are filing our petition on April April 20th there are a lot of aniki who are interested in supporting us a public interest organizations and professors and former police officers who are interested in the case and want to support our cause um and they will file their briefs as well um and then you know it will be up to the Supreme Court to see whether to Grant it or not and you know here you really have um an acknowledged circuit split which often you don't right we usually try to convince the Supreme Court there is really a circuit split if you look at it just right you can see that there is a disagreement but here you don't need to look at it just right the fifth circuit is acknowledging that it is disagreeing with the seventh and it really is a great case for the Supreme Court to really grapple with this idea of why probable cause is useful and what are the situations when probable cause is not useful and is just an excuse to silence somebody so we hope that they uh uh you know will give it a fair consideration and Grant yeah I mean this is definitely an important issue that that hopefully people can understand that it's you know it's necessary for free speech you know for us to be able to not only do like Miss Gonzalez did but to be able to criticize our our government officials just as Citizens or criticizing police officers I mean it if you can't do that you you can't do anything if you know and there's what 5 000 Plus Federal criminal laws several thousand more criminals laws at the state level in in every state I mean if they want to get find probable cause for something they will how can how can people contribute or how can people help the cause here just you know pay attention stay engaged um these kind of rules are very procedural they're very complicated right the courts are not saying there is no right to free speech because if the courts were to say that people would be protesting on the streets right how do you mean there's no right to free speech but these kind of laws their back door censorship they are something that's very difficult to understand like this idea of probable cause barring at First Amendment retaliation claim you know like what the hell is that even supposed to mean why government officials feel comfortable doing this kind of stuff is because generally speaking people don't understand all these procedural rules and how it all works so you know as long as people pay attention I think that'll that'll go a long way and we certainly hope that people know about this case that there is awareness so when we file on April 20th and it comes to the Supreme Court docket it doesn't come as a surprise that people will know oh yes I heard about this case that's the case where two conservative judges judge Oldham and judge ho are dissented from a grant of qualified immunity right you don't hear that very often you don't hear about conservative judges dissenting When government officials get qualified immunity and yet in this case they did because First Amendment to them is special so we hope that this case will get a lot of attention and by the time it gets on the Supreme Court's desk they will know what this case is all about and they would want to take an opportunity that this case presents and say that we need to clarify the probable cause Rule and we need to ensure that government officials don't use it as an excuse to punish speech I look forward to reading this reading this brief definitely um you know let me know when I had followed this case before too I I when the fifth circuit decision came out I I read that I think I did a video on it as well yes you did you did Sylvia was very excited she actually texted me about it oh great awesome did you see this guy jump right to divide their case if you can't sue for violations of your first amendment rights then what good is that guarantee in the Constitution it's just an empty promise it's just words if you can't come to the court and if you can't say hold this guy accountable then what's the point so there you have it this is an important issue you want to fight qualified immunity well here is the case to do it we're not even dealing with a police officer there making some split-second decision at the scene involving somebody who was breaking a law or something this is a completely innocent super likable awesome grandmother we're not even dealing with police officers here we're dealing with corrupt city officials they should not get qualified immunity nobody should get qualified immunity but this is the case to really fight these qualified immunity issues and not just in court but also in the court of public opinion spray read the word here look you want to know about qualified immunity that was given to these people to these corrupt city officials who by all accounts according to the federal courts engaged in suppression of first amendment constitutional rights The Institute for justice does great work I really if you want to know what you can do to help donate to the institute for justice follow their YouTube channel follow their website subscribe for updates if you have money to give give it if not spread the word thanks for watching and also thanks again to The Institute for justice thanks to Sylvia and I know she watched the the last video that I did on this because this was a case I was really interested in if you're watching Sylvia thank you for doing what you did and I really hope that you win this case in the end and perhaps then you'll be ready to get back involved in politics remember freedom is scary deal with it foreign foreign