Editor's Note: Bad Takes is a column of opinion and analysis.
"It is hard to imagine a more stupid or more dangerous way of making decisions than by putting those decisions in the hands of people who pay no price for being wrong." — Thomas Sowell, 2000.
"It's very easy to throw in the towel, you know, and say, 'I don't want any more trouble.' I still live in [Castle Hills], I still have to deal with the city and the police. I mean, you don't never know what they're going to do next." — Sylvia Gonzalez, 2024
There's a good chance you have recently read about Sylvia Gonzalez, the former Castle Hills City Council member whose legal fight has made it to the U.S. Supreme Court. Although some media coverage has treated it as a legal curiosity, it's more than that. It should make you mad.
In 2019, Gonzalez, a grandmother in her 70s, ran for Castle Hills City Council and won on a campaign promise to raise a vote of no confidence in the city manager who, she argued, had failed to fix the municipality's streets. Right or wrong, the freedom to petition the government for redress of one's grievances without fear of reprisal is fundamental to this whole experiment in self-government we're still trying to perfect after 230-some-odd years.
But, by all appearances, the Castle Hills power structure flunked basic civics. The mayor and other city officials tried to unseat Gonzalez on a technicality, and when that didn't fly thanks to a judge reinstating her, they had her arrested and hauled off to jail for allegedly tampering with a governmental record.
As video of council chambers confirmed, she mistakenly placed a copy of the notorious petition in her binder before realizing the mistake. "You probably picked it up by accident," she says Mayor "JR" Treviño told her at the time.
Two months later she found herself in the slammer.
Even though the county prosecutor swiftly dropped the bogus charge, her mugshot made the rounds, and now — saddled with tens of thousands of dollars in legal bills — she ultimately retired from public office.
That would have been the end of this sad tale but not for some pesky libertarians. With the pro bono assistance of the Institute for Justice (IJ), a nonprofit law firm dedicated to constitutional accountability, Gonzalez sued the officials who wronged her and took her cause all the way to the Supreme Court, which heard oral arguments March 20.
Castle Hills, a tiny enclave of less than 4,000 residents, has already wasted $69,307 to protect its public officials from liability and $10,000 more on an insurance deductible for the case before it reached the high court, according to an open records request filed by News4 San Antonio.
If Gonzalez is at long last allowed to have her day in court, seasoned litigator Lisa Blatt, who represents Castle Hills, claimed "this will happen in every case."
"Every looting will be 'I took a toothbrush' or 'I don't know how that ring got in my bag' or 'I left the party as soon as the cocaine came,'" the attorney continued. "How can police enforce the law in this type of environment?"
Well, they can look at the evidence, and judges and juries can decide whether it holds water. Simply putting a political bumper sticker on your car and protesting that a cop pulled you over because they hate gun rights or Black lives is hardly likely to persuade anyone.
And the opposite hypothetical is far more compelling.
"Even if a city couldn't pass an ordinance saying that Sylvia can't say bad things about the city manager, they could just as easily arrest her under some pretextual crime like tampering with a government document or knocking pecans out of a tree," Patrick Jaicomo, senior attorney for IJ, said during a recent YouTube discussion of the case.
Jaicomo described Gonzalez's ordeal as "a perfect illustration of something that we're seeing all across the country ... small town governments becoming little fiefdoms of petty tyrants."
Well said. It's rare a column searching for bad takes gets a pitch like Blatt's so squarely in the strike zone, and even rarer when it can let an arch-conservative like George Will hit one out of the park. The longtime right-wing commentator wrote that Gonzalez "is asserting a right the court should affirm: the right to sue officials who inflict retaliatory arrests. Affirmation would advance reconsideration of qualified immunity, the court-created doctrine that has evolved into a shield protecting disreputable officials who, carelessly or maliciously, violate individuals' rights."
Will also quoted Trump-nominated Justice Neil Gorsuch, who penned a scathing dissent against the precedent Blatt is citing to get Treviño and company off the hook.
"History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively," Gorsuch wrote in 2019. "In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties. The freedom to speak without risking arrest is one of the principal characteristics by which we distinguish a free nation."
We live under lazy totalitarianism. If everybody who ever smoked grass or illicitly downloaded a song or movie or picked pecans illegally were suddenly thrown behind bars, we'd add countless numbers to our nation's current count of 1.2 million inmates and give the dystopias of Kafka and Orwell a run for their money.
The petty criminals we lock our doors in fear of are, in actuality, much less of a threat to the prospect of a decent society than the corporate fraudsters and wannabe dictators we permit to operate with impunity.
Here's hoping no warrants will be issued for my writing this column, nor you for reading it.
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