Anya Bidwell

The Reporter Who Expected to Be Arrested

Anya Bidwell spent her childhood in Ukraine and Kyrgyzstan. She studied journalism at the American University of Central Asia and worked for the CNN Student Bureau in Bishkek.

She assumed the arrest was coming. Not as a fear — as a professional expectation. Sooner or later a story would anger the wrong official in a post-Soviet republic, and the machinery would be turned on her, because that is what the machinery was for.

At sixteen she left her family and came to the United States alone on a university scholarship. She transferred to Hawaii Pacific University to keep studying journalism, then took a master's at the University of Texas in global policy, writing on asymmetric warfare and coauthoring a 2008 study of whether Iran could close the Strait of Hormuz in a conflict with the United States. She went to the University of Texas School of Law after that, drawn to a common-law method that builds its rules case by case out of particular grievances.

She now litigates retaliatory-arrest cases. Bidwell has said they feel personal, and the reason is not obscure: she knows what it looks like when officials punish their critics, and she knows it from the inside of the newsroom rather than the outside of the courthouse.

A Petition in a Binder

Sylvia Gonzalez was seventy-two when she was elected to the city council of Castle Hills, Texas, the first Hispanic woman to hold the seat.

Her first campaign issue was the city manager. At her first council meeting, residents submitted a petition seeking his removal. Afterward, the petition turned up among the papers in Gonzalez's binder. When she was asked for it, she handed it back.

City officials opened an investigation under a Texas statute concerning the concealment of a government record — a law aimed at a different kind of conduct entirely, and one almost nobody is ever charged under. Gonzalez was charged with a misdemeanor in 2019 and spent a day in jail. After local reporters covered the case, the prosecutor dropped it.

Gonzalez gave up her seat.

The Comparator Problem

Gonzalez sued the mayor, the police chief, and a special detective, alleging retaliation against her protected speech. Her claim then ran into a rule that had been quietly closing this kind of case for years.

Where probable cause existed for an arrest, a retaliatory-arrest plaintiff ordinarily had to produce a comparator: someone who had done the same thing and had not been arrested. The requirement has a defensible purpose. It keeps courts from second-guessing every split-second street arrest on an officer's alleged motive.

But it assumes the statute in question gets used. Gonzalez was charged under one that essentially never is. There was no one who had done the same thing and gone free, because there was almost no one who had ever been charged at all — and so the rule required her to produce evidence that the officials' own choice of statute had made impossible to obtain.

The district court denied the officials' motion to dismiss. The Fifth Circuit reversed over a dissent.

Bidwell's answer was to prove the absence. She went to the county's misdemeanor and felony data and established that across the relevant period, nobody had been prosecuted under that statute for conduct anything like Gonzalez's. The comparator did not exist — and its non-existence, documented, was itself objective evidence that the law had been pulled off the shelf for her.

March 20, 2024

Bidwell argued Gonzalez v. Trevino in the Supreme Court. It was her first argument before the Court.

On June 20, 2024, the Court rejected the Fifth Circuit's "overly cramped" reading of the comparator requirement and sent the case back. A retaliatory-arrest plaintiff may use objective evidence that officials enforced a rarely invoked law against her while declining to use it against others who did much the same thing.

The rule went to work immediately. In Murphy v. Schmitt, where a Missouri man alleged that an official arranged his arrest after he criticized local government, the Court granted the petition, vacated the Eighth Circuit's denial of the retaliation claim, and remanded for reconsideration in light of Gonzalez. It did the same in Villarreal v. Alaniz the following week. In the space of a single year, two federal appeals courts had their answers taken back from them.

Gonzalez did not plan to run again. What she had wanted, Bidwell has said, was vindication for herself and a different set of expectations for whoever ran next — candidates who would not have to wonder what their own government might do to them.

3756 Denville Trace

Before dawn on an October morning in 2017, an FBI SWAT team entered a house in suburban Atlanta.

The agents had a photograph and a description of the house they wanted. Their navigation system took them to a different address. Inside were Trina Martin, her partner Toi Cliatt, and her seven-year-old son, Gabe.

A flash-bang grenade went off near the child's bedroom. Agents pulled the adults outside and held the family at gunpoint before working out that the warrant named another house.

The family sued the United States under the Federal Tort Claims Act, the 1946 statute in which Congress decided that when a federal employee injures an innocent person, the government and not the victim should carry the cost. The lower courts held the claims barred anyway, applying the discretionary-function exception and a Supremacy Clause defense.

Bidwell second-chaired Martin v. United States in the Supreme Court with Patrick Jaicomo, alongside Jared McClain and Dylan Moore. The Court heard argument in April 2025 and ruled unanimously for the family that June, rejecting the Supremacy Clause defense, requiring the discretionary-function question to be analyzed again, and returning the case to the Eleventh Circuit.

The Loophole

Bidwell leads the Institute for Justice's Project on Immunity and Accountability from California. The project addresses an asymmetry between the legal protections available to government officials and the practical ability of ordinary plaintiffs to challenge official conduct.

Sue a state or local officer for violating your constitutional rights and there is a statute for it: Section 1983. Sue a federal officer for the same violation and, in most circumstances, there is nothing — only a narrow and shrinking body of law recognizing implied remedies against federal officials, and the Federal Tort Claims Act's limited waiver of sovereign immunity. The official with the most power is the one hardest to hold to account.

Closing that gap is her stated priority, and she works at it from both directions: litigating the question in federal court, and working with Congress and state legislatures on the statutory fix that litigation cannot supply.

Most of this happens before anyone reaches the merits. Whether a right was violated is often the last question a court asks and the first one it never gets to, because the threshold rules — which government is answerable, what cause of action reaches the conduct, what remedy a court can actually grant — dispose of the case first. Her appellate work is largely about which route, if any, is still open.

She has appeared before the Supreme Court five times, including as second chair in Brownback v. King and Tennessee Wine & Spirits Retailers Association v. Thomas.

Practice

Bidwell joined the Institute for Justice in 2017 and is a senior attorney. She advises the American Law Institute's Restatement of the Law, Constitutional Torts, the project attempting to organize the rules governing claims for constitutional violations into something a lawyer can navigate. The Institute elected her to membership in 2026.

Her writing has appeared in the New York Times, the Wall Street Journal, and the Washington Post. She hosts live recordings of the Short Circuit podcast and co-produces the documentary podcast Bound by Oath, which examines the constitutional doctrines that shape those claims outside the courtroom.