The US Supreme Court held Thursday in Gonzalez v. Trevino that the existence of probable cause does not necessarily defeat retaliatory arrest claims. The case concerns a Texas councilwoman who argues that she was arrested in retaliation for her speech critical of a city government official.

Retaliation-arrest claims generally must prove the absence of probable cause, as found in Nieves v. Bartlett. However, there is an exception to this rule. The exception allows the petitioner to claim a retaliatory arrest even when probable cause exists if other similarly situated individuals engaged in the same First Amendment-protected speech were not arrested. The Supreme Court found that the Fifth Circuit Court of Appeals erroneously applied these principles.

The case originated when a Texas councilwoman, Sylvia Gonzales, petitioned to have a city manager removed. After two heated council meetings, it was alleged that Gonzales had placed the petition—with over 300 signatures—in her binder, violating a Texas anti-tampering statute. Gonzales claimed that her eventual arrest was retaliation for attempting to remove the city official, not for mistakenly putting the petition in her bag.

Gonzales argued that no one else in her Texas town had been arrested under the same anti-tampering doctrine using the same type of evidence. Despite her investigation turning up 215 felony charges, these charges dealt with the tampering of driver’s licenses or social security cards, not government petitions.

The US Supreme Court held that:

Gonzalez’s survey is a permissible type of evidence because the fact that no one has ever been arrested for engaging in a certain kind of conduct—especially when the criminal prohibition is longstanding and the conduct at issue is not novel—makes it more likely that an officer has declined to arrest someone for engaging in such conduct in the past.

Following this ruling, Gonzales can pursue her claim of retaliation against the county.