United States Court of Appeals

for the Fifth Circuit ___________ 

No. 21-50276

___________ 

Sylvia Gonzalez,

Plaintiff—Appellee,

versus

Edward Trevino, II, Mayor of Castle Hills, sued in his 

individual capacity; John Siemens, Chief of the Castle 

Hills Police Department, sued in his individual 

capacity; Alexander Wright, sued in his individual 

capacity,

Defendants—Appellants.

______________________________ 

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:20-CV-1151 

______________________________ 

ON PETITION FOR REHEARING EN BANC

Before Barksdale, Engelhardt, and Oldham, Circuit Judges. 

Per Curiam:

Treating the petition for rehearing en banc as a petition for panel 

rehearing (5TH Cir. R. 35 I.O.P.), the petition for panel rehearing is 

DENIED. The petition for rehearing en banc is DENIED because, at the 

United States Court of Appeals

Fifth Circuit

FILED

February 22, 2023

Lyle W. Cayce

Clerk
No. 21-50276

2

request of one of its members, the court was polled, and a majority did not 

vote in favor of rehearing (Fed. R. App. P. 35 and 5TH Cir. R. 35).

In the en banc poll, six judges voted in favor of rehearing (Smith, 

Higginson, Ho, Duncan, Oldham and Douglas), and ten voted against 

rehearing (Richman, Jones, Stewart, Elrod, Southwick, Haynes, Graves, 

Willett, Engelhardt and Wilson). 
No. 21-50276

3

James C. Ho, Circuit Judge, dissenting from denial of rehearing en banc: 

“[T]he most heinous act in which a democratic government can 

engage is to use its law enforcement machinery for political ends.” Laurence 

H. Silberman, Hoover’s Institution, Wall St. J., July 20, 2005. And not 

just heinous—it’s also unconstitutional.

The First Amendment is supposed to stop public officials from 

punishing citizens for expressing unpopular views. In America, we don’t 

allow the police to arrest and jail our citizens for having the temerity to 

criticize or question the government. If the freedom of speech meant 

anything to our nation’s Founders, it meant that “it was beyond the power 

of the government to punish speech that criticized the government in good 

faith.” Jud Campbell, Natural Rights and the First Amendment, 127 Yale 

L.J. 246, 309 (2017). “Criticism of government is at the very center of the 

constitutionally protected area of free discussion.” Rosenblatt v. Baer, 383 

U.S. 75, 85 (1966).

But it falls on the judiciary to ensure that the First Amendment is not 

reduced to a parchment promise.1

 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.

1 See, e.g., The Federalist No. 48, at 313 (James Madison) (Clinton Rossiter ed., 

1961) (“a mere demarcation on parchment of the constitutional limits of the several 

departments is not a sufficient guard against . . . encroachments”); Considering the Role of 

Judges Under the Constitution of the United States: Hearing Before the S. Comm. on the 

Judiciary, S. Hrg. 112–137, at 6–7 (2011) (statement of Justice Scalia) (“Every banana 

republic has a bill of rights. . . . The bill of rights of the former [Soviet Union] was much 

better than ours. . . . Of course, they were just words on paper, what our Framers would 

have called ‘a parchment guarantee.’”).
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4

That’s why the Supreme Court has made clear that a citizen “need 

not prove the absence of probable cause to maintain a claim of retaliatory 

arrest” under the First Amendment. Lozman v. City of Riviera Beach, 138 S. 

Ct. 1945, 1955 (2018). There’s no “unyielding requirement to show the 

absence of probable cause” to state a claim of First Amendment retaliation. 

Nieves v. Bartlett, 139 S. Ct. 1715, 1727 (2019).

And for good reason. There are countless situations in which 

“officers have probable cause to make arrests, but typically exercise their 

discretion not to do so.” Id. As a result, there’s a meaningful “‘risk that 

some police officers may exploit the arrest power as a means of suppressing 

speech.’” Id. (quoting Lozman, 138 S. Ct. at 1953).

What’s more, this risk has never been more prevalent than today. 

“[C]riminal laws have grown so exuberantly and come to cover so much 

previously innocent conduct that almost anyone can be arrested for 

something.” Id. at 1730 (Gorsuch, J., concurring in part and dissenting in 

part). “[T]he average busy professional in this country wakes up in the 

morning, goes to work, comes home, takes care of personal and family 

obligations, and then goes to sleep, unaware than he or she likely committed 

several crimes that day.” Harvey A. Silverglate, Three Felonies a 

Day: How the Feds Target the Innocent xxx (2009). 

“[P]rosecutors can find some arguable federal crime to apply to just about 

any one of us, even for the most seemingly innocuous conduct.” Id. See also 

Paul Larkin & Michael Mukasey, The Perils of Overcriminalization, 

Heritage Foundation, Feb. 12, 2015.

In other words, the opportunity for public officials to weaponize the 

criminal justice system against their political adversaries has never been 

greater.
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5

So it’s up to the judiciary to make sure that those who hold positions 

of power stay in their lane. Courts must make certain that law enforcement 

officials exercise their significant coercive powers to combat crime—not to 

police political discourse.

That’s what the Supreme Court recently reminded us in Lozman and 

Nieves. Unfortunately, the panel majority failed to uphold these principles 

and instead granted qualified immunity to the defendants in this case. I 

respectfully dissent from the denial of rehearing en banc.

I. 

At this stage of the proceedings, we accept as true the following 

allegations as stated in the complaint:

Sylvia Gonzalez is an elderly retiree from Castle Hills, Texas. Like 

many of her fellow citizens, she was unhappy about some aspect of her local 

government. But unlike most, she decided to do something about it. She ran 

for city council against a well-connected incumbent. And she won.

During the campaign, Gonzalez heard numerous complaints about the 

city manager, whom the mayor had appointed to handle the day-to-day 

business of running the city.

After taking office, Gonzalez organized a petition that called for the 

reinstatement of the previous city manager—and thus, implicitly, the 

dismissal of the incumbent city manager. The petition noted that the current 

city manager “talked about [fixing] the streets,” but had not “fixed a single 

street.” By contrast, the previous city manager “oversaw, from start to 

finish, over a dozen street projects.”

More than three hundred Castle Hills residents signed Gonzalez’s 

petition calling for the city council to “fix our streets” by removing 

the current city manager.
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At Gonzalez’s first city council meeting as an elected member, a 

resident of Castle Hill submitted Gonzalez’s petition to the mayor. This 

triggered a contentious debate about the current city manager. The debate 

spilled over to the next day.

At the end of the next day’s meeting, Gonzalez picked up various 

papers off the table and placed them in her binder. While Gonzalez was 

chatting after the meeting, the police captain tapped her on the shoulder and 

explained that the mayor (who had sat next to her during the meeting) wanted 

to have a word. The police captain escorted Gonzalez to the mayor. The 

mayor then asked Gonzalez where the petition was. She answered: “Don’t 

you have it? It was turned into you yesterday.” At the mayor’s prompting, 

Gonzalez looked for the petition in her binder and found it among other 

papers that had been beside her on the table. As Gonzalez handed the 

petition back to him, the mayor said: “You probably picked it up by 

mistake.”

The mayor, the police chief, and a special detective then hatched a 

plan to charge Sylvia with a crime in order to remove her from office. The 

police chief deputized his close friend, a private attorney, as a special 

detective to investigate Gonzalez. Following the investigation, the special 

detective filed an arrest affidavit alleging that Gonzalez had committed the 

crime of “intentionally destroy[ing], conceal[ing], remov[ing], or otherwise 

impair[ing] the verity, legibility, or availability of a governmental record.” 

Tex. Pen. Code Ann. § 37.10(a)(3).

“The plan then entered its next phase: the arrest. [The] ‘Special 

Detective’ . . . lived up to his title. He did three special things to ensure that 

Sylvia would be arrested and jailed rather than simply asked to appear before 

a judge.” Gonzalez v. Trevino, 42 F.4th 487, 496 (5th Cir. 2022) (Oldham, J., 

dissenting). First, the special detective got a warrant rather than a summons. 
No. 21-50276

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(A summons is standard for nonviolent offenses—only a warrant can result 

in jailtime.) Second, the special detective circumvented the district attorney 

by using a procedure normally reserved for emergencies or violent felonies: 

He walked the warrant directly to a magistrate. Third, the special detective 

prevented Gonzalez from using the satellite booking function, which 

facilitates booking, processing, and releasing nonviolent offenders without 

jailtime. Gonzalez’s warrant did not go through any of the traditional 

channels, so it wasn’t in the satellite booking system.

Gonzalez turned herself in as soon as she learned about the warrant 

for her arrest. She then spent a day in jail, handcuffed to a cold metal bench 

and wearing an orange jail shirt.

During her jailtime, she was forced to forgo use of a restroom—as a 

modest 72-year-old retiree, she was not comfortable using a restroom that 

had no doors and no toilet paper. In addition, her jailers refused to let her 

stand up and stretch her legs.

The district attorney ultimately dropped the charges. But only after 

Gonzelez’s name and photo were splashed across local media for days.

The arrest left Gonzalez so traumatized that she resolved never to 

organize a petition or to run for office ever again—precisely what her 

tormenters-in-office conspired to achieve.

II. 

A retaliatory arrest can give rise to a First Amendment claim even if 

the arrest was supported by probable cause. See, e.g., Lozman, 138 S. Ct. at 

1955 (“Lozman need not prove the absence of probable cause to maintain a 

claim of retaliatory arrest”); Nieves, 139 S. Ct. at 1727 (same).

To illustrate why respect for the First Amendment demands that 

probable cause pose no impenetrable barrier to a retaliation claim, the 
No. 21-50276

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Supreme Court has offered the following simple example: “[A]t many 

intersections, jaywalking is endemic but rarely results in arrest.” Nieves, 139 

S. Ct. at 1727. So “[i]f an individual who has been vocally complaining about 

police conduct is arrested for jaywalking at such an intersection, it would 

seem insufficiently protective of First Amendment rights to dismiss the 

individual’s retaliatory arrest claim on the ground that there was undoubted 

probable cause for the arrest.” Id.

Accordingly, a plaintiff may proceed on a First Amendment 

retaliatory arrest claim so long as he “presents objective evidence that he was 

arrested when otherwise similarly situated individuals not engaged in the 

same sort of protected speech had not been.” Id.

It’s not difficult to imagine different forms of evidence that might be 

used to prove this point.

To take one example, a plaintiff might identify particular individuals 

who had engaged in the same acts, but not the same speech, and yet were not 

arrested—what the panel majority called “comparative evidence.” 42 F.4th 

at 492.

But alternatively, a plaintiff might present evidence that the 

underlying statute had never been used under analogous circumstances, 

despite the fact that such conduct is commonplace—what the panel dissent 

called “negative evidence.” Id. at 506 (Oldham, J., dissenting).

The latter is what Gonzales presented here. As the panel dissent 

noted, “government employees routinely—with intent and without it—take 

stacks of papers before, during, and after meetings.” Id. Gonzalez made 

clear in her complaint that she would present objective evidence that no one 

has ever been arrested for doing what she did. She reviewed all of the charges 

brought in the county during the last decade and concluded that “neither the 

misdemeanor tampering statute, nor its felony counterpart, has ever been 
No. 21-50276

9

used to criminally charge someone for allegedly trying to steal a nonbinding 

or expressive document, such as the petition at issue in this case.” As she 

explained in her complaint:

Of 215 grand jury felony indictments obtained under the 

tampering statute at issue in this case, not one had an allegation 

even closely resembling the one mounted against [Gonzalez]. 

By far the largest chunk of the indictments involved 

accusations of either using or making fake government 

identification documents: altered driver’s licenses, another 

person’s ID, temporary identification cards, public safety 

permits, green cards, or social security numbers. A few others 

concerned the misuse of financial information, like writing of 

fake checks or stealing banking information. The rest are 

outliers, but all very different from Sylvia’s situation. They 

concern hiding evidence of murder, cheating on a governmentissued exam, and using a fake certificate of title, among others.

So as the panel dissent concluded, “common sense dictates that 

[Gonzalez’s] negative assertion amounts to direct evidence that similarly 

situated individuals not engaged in the same sort of protected activity had not 

been arrested.” Id. Gonzalez showed that county officials decided to arrest 

her, even though they usually exercise their discretion not to make such 

arrests. And that’s all Nieves requires.

Yet the panel majority dismissed Gonzalez’s claim on the ground that 

she “does not offer evidence of other similarly situated individuals who 

mishandled a government petition but were not prosecuted under Texas 

Penal Code § 37.10(a)(3).” Id. at 492. According to the majority, Nieves

“requires some comparative evidence.” Id. at 493.

But that misreads Nieves. Recall the jaywalking example: “an 

individual who has been vocally complaining about police conduct is arrested 

for jaywalking.” 139 S. Ct. at 1727. As the panel dissent explains, “[i]t’s not 

clear that there will always (or ever) be available comparative evidence of 
No. 21-50276

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jaywalkers [who] weren’t arrested. Rather, the retaliatory-arrest-jaywalking 

plaintiff always (or almost always) must appeal to the commonsense 

proposition that jaywalking happens all the time, and jaywalking arrests 

happen virtually never (or never).” Gonzalez, 42 F.4th at 503 (Oldham, J., 

dissenting). I agree that it makes little sense to read Nieves to require 

comparative evidence.

III.

The panel majority’s reading of Nieves is not just mistaken—it also 

creates an admitted split with the Seventh Circuit. See 42 F.4th at 492–93 

(“We recognize that one of our sister circuits has taken a broader view of 

[Nieves] . . . . We do not adopt this more lax reading.”). 

As the Seventh Circuit has observed, Nieves does not “adopt[] a rigid 

rule that requires, in all cases, a particular form of comparison-based 

evidence.” Lund v. City of Rockford, 956 F.3d 938, 945 (7th Cir. 2020). 

Rather, Nieves requires “objective evidence”—and in determining what 

counts, “common sense must prevail.” Id.

Under Nieves, comparator evidence is certainly sufficient, but it’s not 

necessary for a retaliation claim to proceed. All Nieves requires is “objective 

evidence that [the plaintiff] was arrested when otherwise similarly situated 

individuals . . . had not been.” 139 S. Ct. at 1727. A plaintiff can point to 

specific individuals who engaged in the same prohibited conduct yet were not 

arrested. But a plaintiff can alternatively point to other evidence that the 

conduct, though common, rarely results in arrest. This latter type of 

evidence works because “[e]vidence that an arrest has never happened 

before (i.e., a negative assertion) can support the proposition that there are 

instances where similarly situated individuals . . . hadn’t been arrested.” 

Gonzalez, 42 F.4th 487 at 505 (Oldham, J., dissenting).
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IV.

“[T]he First Amendment’s guarantee of free speech is not just a legal 

doctrine. It represents the most fundamental value in American democracy. 

A national commitment to uninhibited political speech is a crucial aspect of 

our country’s culture.” Laurence H. Silberman, Free Speech Is the Most 

Fundamental American Value, Wall St. J., Sep. 30, 2022. So “[u]nless all 

American institutions are committed to free political speech, I fear the strain

on the First Amendment’s guarantees will become unbearable.” Id.

We should’ve championed these principles and granted rehearing en 

banc in this matter. Instead, we have chosen to leave the decision of the panel 

majority intact.

But that decision not only misreads Nieves and thereby creates an 

admitted circuit split. It also under-protects the American people against 

violations of their First Amendment rights. As a result, citizens in our circuit 

are now vulnerable to public officials who choose to weaponize criminal 

statutes against citizens whose political views they disfavor.

Moreover, I fear that this latest en banc denial continues to take our 

court down the wrong path. Our circuit’s en banc decisions continue to get 

the First Amendment not only wrong, but backwards.

We deny First Amendment protection when it comes to sincere acts 

of political advocacy—but we invoke First Amendment protection when it 

comes to demonstrated acts of political corruption. Compare, e.g.,

Zimmerman v. City of Austin, 881 F.3d 378 (5th Cir. 2018), with United States 

v. Hamilton, 46 F.4th 389, 398 n.3 (5th Cir. 2022). We presume corruption 

where we should presume innocence—but we excuse corruption where the 

evidence is extravagant. See id. But see United States v. Hamilton, _ F.4th _, 

_ (5th Cir. 2023) (Ho, J., dissenting from denial of rehearing en banc) 

(“[O]ur circuit is getting the First Amendment backwards in case after case. 
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The freedom of speech guaranteed to every citizen protects political 

advocacy—not corruption.”); Zimmerman v. City of Austin, 888 F.3d 163, 164 

(5th Cir. 2018) (Ho, J., dissenting from denial of rehearing en banc).

We reject our citizens when they claim a First Amendment right to 

criticize their government—but we embrace public officials who claim a First 

Amendment right not to be criticized by others. Compare, e.g., Gonzalez, 42 

F.4th 487, with Wilson v. Houston Community College System, 955 F.3d 490 

(5th Cir. 2020), rev’d, 142 S. Ct. 1253 (2022). But see Wilson v. Houston 

Community College System, 966 F.3d 341, 345 (5th Cir. 2020) (Ho, J., 

dissenting from denial of rehearing en banc) (“The First Amendment 

guarantees freedom of speech, not freedom from speech. It secures the right 

to criticize, not the right not to be criticized.”).

We worry about preserving the rights of violent protesters—but not 

the rights of people of faith. Compare, e.g., Doe v. Mckesson, 947 F.3d 874 (5th 

Cir. 2020) (eight votes to revive First Amendment defense of violent 

protest), with East Texas Baptist University v. Burwell, 807 F.3d 630 (5th Cir. 

2015) (only four votes to revive religious liberty challenge to the Affordable 

Care Act). See also Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011) (en banc) 

(denying relief to evangelical Christian students who were prohibited from 

expressing their faith to other students at any time while at school).2

2 Compare our en banc decision in Morgan with our en banc rehearing denial in 

Oliver v. Arnold, 19 F.4th 843 (5th Cir. 2021). In both cases, public school students 

expressed religious views that school officials sought to ostracize. In Morgan, we sided with 

the school. In Oliver, we sided with the student. Religious liberty experts have described 

Oliver as “the Fifth Circuit’s redemption for its mistake in Morgan.” Hiram Sasser, Fifth 

Circuit Gets It Right in Arnold Decision, Federalist Soc’y, Dec. 20, 2021, 

https://fedsoc.org/commentary/fedsoc-blog/fifth-circuit-gets-it-right-in-arnold-decision. 

But our decision in Oliver triggered sharp rebuke and opposition from seven members of 

the court. See, e.g., 19 F.4th at 859, 862 (Duncan, J., dissenting from denial of rehearing en
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V.

Even worse, we’re not just getting the First Amendment backwards. 

We’re also getting qualified immunity backwards. Just compare the denial of 

en banc rehearing here with some of our other recent en banc decisions.

We grant qualified immunity to officials who trample on basic First 

Amendment rights—but deny qualified immunity to officers who act in good 

faith to stop mass shooters and other violent criminals. Compare, e.g.,

Gonzalez, 42 F.4th 487; Morgan, 659 F.3d 359 (granting qualified immunity 

to principal who prohibited students from expressing their faith while at 

school), with Cole v. Carson, 935 F.3d 444 (5th Cir. 2019) (en banc) (denying 

qualified immunity to police officers who took lethal action against a student 

who was about to shoot up his high school); Winzer v. Kaufman County, 940 

F.3d 900 (5th Cir. 2019) (denying rehearing en banc in case against police 

department for lethal actions taken during active shooting incident).

Accordingly, officers who punish innocent citizens are immune—but 

officers who protect innocent citizens are forced to stand trial. Officers who 

deliberately target citizens who hold disfavored political views face no 

accountability—but officers who make split-second, life-and-death decisions 

to stop violent criminals must put their careers on the line for their heroism. 

But see Hoggard v. Rhodes, 141 S. Ct. 2421, 2422 (2021) (Thomas, J., 

respecting denial of cert.) (“But why should university officers, who have 

banc) (disparaging decision as a “dumpster fire” and urging federal judges to defer to 

school boards).

Similarly, in Sambrano v. United Airlines, Inc., 2022 WL 486610 (5th Cir. 2022), 

the panel majority allowed people of faith to seek preliminary injunctive relief to vindicate 

their religious objections to a COVID-19 vaccine mandate. We denied en banc rehearing. 

But as in Oliver, our decision in Sambrano triggered sharp rebuke and opposition from four 

members of the court. See Sambrano, 2022 WL 486610, at *28 (Smith, J., dissenting) 

(disparaging decision as an “orgy of jurisprudential violence”); Sambrano v. United 

Airlines, Inc., 45 F.4th 877 (5th Cir. 2022).
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time to make calculated choices about enacting or enforcing unconstitutional 

policies, receive the same protection as a police officer who makes a splitsecond decision to use force in a dangerous setting?”).

Put simply, “we grant immunity when we should deny—and we deny 

immunity when we should grant.” Horvath v. City of Leander, 946 F.3d 787, 

795 (5th Cir. 2020) (Ho, J., concurring in the judgment in part and dissenting 

in part). Indeed, ours is the rare circuit that has been summarily reversed by 

the Supreme Court for both wrongly granting and wrongly denying qualified 

immunity. See Tolan v. Cotton, 572 U.S. 650 (2014), summarily rev’g 713 F.3d 

299 (5th Cir. 2013); Mullenix v. Luna, 577 U.S. 7 (2015), summarily rev’g 773 

F.3d 712 (5th Cir. 2014); Taylor v. Riojas, 141 S. Ct. 52 (2020), summarily 

rev’g 946 F.3d 211 (5th Cir. 2020).3

This pattern is not just disconcerting to me. It’s also disconcerting to 

a broad coalition of civil rights organizations—including organizations that 

disagree with one another over countless issues, but agree that there’s 

something amiss about our court’s approach to qualified immunity and the 

First Amendment. In Morgan, for example, the amicus coalition led by the 

First Liberty Institute included the American Center for Law and Justice, the 

American Civil Liberties Union, the Becket Fund for Religious Liberty, the 

Cato Institute, Christian Legal Society, the Claremont Institute, the National 

Association of Evangelicals, and Wallbuilders.4

3 The Tenth Circuit appears to be the only other circuit that the Supreme Court 

has summarily reversed in recent years for both wrongly granting and wrongly denying 

qualified immunity. See White v. Pauly, 580 U.S. 73 (2017), summarily rev’g 814 F.3d 1060 

(10th Cir. 2016); Sause v. Bauer, 138 S. Ct. 2561 (2018), summarily rev’g 859 F.3d 1270 (10th 

Cir. 2017); City of Tahlequah v. Bond, 142 S. Ct. 9 (2021), summarily rev’g 981 F.3d 808 

(10th Cir. 2020). 4 A similarly diverse group of amici appears in Villarreal v. City of Laredo, 52 F.4th 

265 (5th Cir. 2022), including such nationally respected civil rights organizations and 

public interest groups as Alliance Defending Freedom, Americans for Prosperity 
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These respected public interest organizations no doubt have limited 

resources that they must deploy wisely. Yet they all took the time and effort 

to make their views known to our court in Morgan. “It is no accident that 

several religiously affiliated organizations have filed amicus briefs in support 

of [the First Amendment] claim” and “uniformly decry the potential for 

misuse” of government power to “harass” and “uniquely burden religious 

organizations.” Whole Woman’s Health v. Smith, 896 F.3d 362, 370, 373–74 

(5th Cir. 2018).

* * *

It’s heartwarming that, in these divisive times, an ideologically diverse 

group of leading organizations can still unite behind the cause of freedom of 

speech and tolerance for conflicting viewpoints. It’s unfortunate that our 

court was unable to unite behind that same cause today. I respectfully dissent 

from the denial of rehearing en banc.

Foundation, the Cato Institute, the Constitutional Accountability Center, the Electronic 

Freedom Foundation, the First Liberty Institute, and the Institute for Justice.