PRELIMINARY PRINT

Volume 602 U. S. Part 1 Pages 653–679

OFFICIAL REPORTS OF

THE SUPREME COURT June 20, 2024

Page Proof Pending Publication

REBECCA A. WOMELDORF reporter of decisions

NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, [email protected], of any typographical or other formal errors. OCTOBER TERM, 2023 653

Syllabus

GONZALEZ v. TREVINO et al.

certiorari to the united states court of appeals for the fth circuit No. 22–1025. Argued March 20, 2024—Decided June 20, 2024 In Nieves v. Bartlett, the Court held that a plaintiff bringing a retaliatory- arrest claim “must plead and prove the absence of probable cause for the arrest.” 587 U. S. 391, 402. Nieves recognized an exception to that rule, namely, that the existence of probable cause does not defeat a plain- tiff's claim if he produces “objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Id., at 407. The Court granted certiorari to consider whether the Fifth Circuit properly applied these principles to petitioner Sylvia Gonzalez's retaliatory-arrest claim. Gonzalez claims that her arrest for violating a Texas anti-tampering statute was in retaliation for gathering signatures on a petition seeking the removal of the city manager of Castle Hills, Texas. To bolster her claim, Gonzalez alleges that the past decade's misdemeanor and felony Page Proof Pending Publication data for Bexar County (where Castle Hills is located) shows that the Texas anti-tampering statute has never been used in the county to crim- inally charge someone for the sort of conduct Gonzalez had engaged in. The District Court denied the defendants' motion to dismiss, but the Fifth Circuit reversed, concluding that because Gonzalez could not pro- vide “comparative evidence” of “otherwise similarly situated individuals who engaged in the same criminal conduct but were not arrested,” Gon- zalez could not qualify for the Nieves exception, 42 F. 4th 487, 493. Held: In requiring petitioner Gonzalez to provide specifc comparator evi- dence to support her retaliatory-arrest claim, the Fifth Circuit took an overly cramped view of Nieves. The Court recognized the Nieves exception to account for “circumstances where offcers have probable cause to make arrests, but typically exercise their discretion not to do so.” 587 U. S., at 406. The only express limit the Court placed on the sort of evidence a plaintiff may present to show their arrest occurred under such circumstances is that it must be objective. Id., at 407. Gonzalez provided a permissible type of evidence because the fact that no one has ever been arrested for engaging in a certain kind of conduct makes it more likely that an offcer has declined to arrest someone for engaging in such conduct in the past. Gonzalez's survey is objective evidence tending to show that she “was arrested when otherwise simi- 654 GONZALEZ v. TREVINO

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larly situated individuals not engaged in the same sort of protected speech had not been.” Ibid. 42 F. 4th 487, vacated and remanded.

Anya Bidwell argued the cause for petitioner. With her on the briefs were Patr ick Jaicomo, Will Aronin, and Marie Miller. Nicole Frazer Reaves argued the cause for the United States as amicus curiae supporting neither party. With her on the brief were Solicitor General Prelogar, Assistant At- torney General Clarke, Deputy Solicitor General Feigin, Tovah R. Calderón, and Jessica Merry Samuels. Lisa S. Blatt argued the cause for respondents. With her on the brief were Sarah M. Harris, Aaron Z. Roper, Scott M. Tschirhart, and Lowell F. Denton.*

*Briefs of amici curiae urging reversal were fled for the American Civil Liberties Union et al. by Vera Eidelman, Esha Bhandari, David D. Cole, Cecillia D. Wang, Barbara E. Bergman, J. T. Morris, Darpana Page Proof Pending Publication Sheth, Clark M. Neily III, and Anastasia P. Boden; for the Constitutional Accountability Center et al. by Elizabeth B. Wydra, Brianne J. Gorod, Brian R. Frazelle, Mary B. McCord, Kelsi Brown Corkran, and Shelby Calambokidis; for the Institute for Free Speech by Easha Anand, Pamela S. Karlan, Jeffrey L. Fisher, and Alan Gura; for the Law Enforcement Action Partnership by David Debold; for the National Police Accountabil- ity Project by Charles A. Rothfeld, Eugene R. Fidell, Paul W. Hughes, and Michael B. Kimberly; for the Reporters Committee for Freedom of the Press by Bruce D. Brown; for the Roderick & Solange MacArthur Justice Center by Devi M. Rao; for the Thomas More Society by Thomas Brejcha, B. Tyler Brooks, and Joan M. Mannix; and for Fane Lozman by Anton Metlitsky and Kerri L. Barsh. Briefs of amici curiae urging affrmance were fled for the State of Alaska et al. by Treg Taylor, Attorney General of Alaska, and Kimberly D. Rodgers, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Ashley Moody of Florida, Lynn Fitch of Mississippi, Austin Knudsen of Montana, Michael T. Hilgers of Ne- braska, Drew H. Wrigley of North Dakota, Dave Yost of Ohio, Alan Wil- son of South Carolina, Marty Jackley of South Dakota, and Sean D. Reyes of Utah; for the State of Texas by Ken Paxton, Attorney General of Texas, Aaron L. Nielson, Solicitor General, Brent Webster, First Assistant Attor- ney General, Lanora C. Pettit, Principal Deputy Solicitor General, and Cite as: 602 U. S. 653 (2024) 655

Per Curiam

Per Curiam. In Nieves v. Bartlett, 587 U. S. 391, 402 (2019), this Court held that, as a general rule, a plaintiff bringing a retaliatory- arrest claim “must plead and prove the absence of probable cause for the arrest.” At the same time, we recognized a narrow exception to that rule. The existence of probable cause does not defeat a plaintiff's claim if he produces “objec- tive evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of pro- tected speech had not been.” Id., at 407. We granted cer- tiorari in this case to consider whether the Fifth Circuit properly applied these principles. It did not. We therefore vacate that court's judgment and remand for proceedings consistent with this opinion.

I In 2019, Sylvia Gonzalez ran for a seat on the city council Page Proof of Castle Hills, a smallPending town in southernPublication Texas. While she was on the campaign trail, Gonzalez heard multiple com- plaints about the city manager, Ryan Rapelye. As city man- ager, Rapelye was responsible for, among other things, en- forcing the city's laws and managing its budget. Gonzalez was elected in May 2019. Her frst act in offce was to help gather signatures for a petition seeking Ra- pelye's removal. Eventually, over 300 residents signed the petition. The petition was introduced at the next city coun- cil meeting, where discussions grew heated after various res- idents rose to Rapelye's defense and spoke against Gonzalez. The discussion over the petition continued the next day.

Kathryn M. Cherry, Assistant Solicitor General; for the Local Govern- ment Legal Center et al. by C. Harker Rhodes IV; for the National Sher- iffs' Association by Gregory C. Champagne and Maurice E. Bostick; and for the Texas Association of Counties et al. by Cameron T. Norris and Mike Thompson, Jr. Michel Paradis fled a brief for Law Professors as amici curiae. 656 GONZALEZ v. TREVINO

Per Curiam

At the end of the second day, Gonzalez was packing up her belongings when the mayor, Edward Trevino, II, asked her for the petition. Gonzalez indicated that the petition was in Trevino's possession, which he denied. He then asked Gon- zalez to check her binder, where she found the petition. Gonzalez claims that she “did not intentionally put the peti- tion in her binder,” and that she was “surprise[d]” to fnd it there. Complaint and Jury Demand in No. 5:20–cv–01151 (WD Tex., Sept. 29, 2020), ECF Doc. 1, p. 11. Trevino brought this incident to the city police's attention, and an investigation into these events soon began. Within a month, a private attorney tasked with leading the investi- gation concluded that Gonzalez had likely violated a Texas anti-tampering statute that, among other things, prohibits a person from intentionally “remov[ing] . . . a governmental record.” Tex. Penal Code Ann. §§ 37.10(a)(3), (c)(1) (West Cum. Supp. 2023).1 On the private attorney's request, a local Magistrate Page Proof Pending Publication granted a warrant for Gonzalez's arrest. When she heard the news, Gonzalez turned herself in and spent an evening in jail. The district attorney ultimately dismissed the charges. Gonzalez claims that this episode has convinced her to step away from political life. Gonzalez brought suit under 42 U. S. C. § 1983 in Federal District Court against Trevino, along with the police chief and the private attorney in their individual capacities.2 Her complaint alleged that she was arrested in retaliation for her role in organizing the petition for Rapelye's removal and that the defendants therefore violated her First Amend- ment rights.

1 The statute also prohibits a person from intentionally “destroy[ing],” “conceal[ing],” or “otherwise impair[ing] the verity, legibility, or availabil- ity” of a governmental record. 2 She also pressed a claim in this action against Castle Hills. That claim is not before us. Cite as: 602 U. S. 653 (2024) 657

Per Curiam

To bolster her claim, Gonzalez alleged that she had re- viewed the past decade's misdemeanor and felony data for Bexar County (where Castle Hills is located) and that her review had found that the Texas anti-tampering statute had never been used in the county “to criminally charge someone for trying to steal a nonbinding or expressive document.” ECF Doc. 1, at 17. Gonzalez's search turned up 215 felony indictments, and she characterized the typical indictment as involving “accusations of either using or making fake govern- ment identifcation documents.” Ibid. Other felony indict- ments included ones for fake checks, hiding murder evidence, or cheating on government exams. Every misdemeanor case, according to Gonzalez, involved “fake social security numbers, driver's licenses, [or] green cards.” Ibid. Gonza- lez pointed to this research as evidence that the defendants had engaged in a political vendetta by bringing a “sham charge” against her. Id., at 27. Page Proof Pending Publication The defendants moved to dismiss the complaint. They ar- gued that the presence of probable cause defeated Gonzalez's retaliatory-arrest claims against the individual defendants. The District Court denied the defendants' motion. Al- though Gonzalez conceded that probable cause supported her arrest, the court allowed her claim to advance after fnding that it fell within an exception to the no-probable-cause rule that we recognized in Nieves. Gonzalez v. Castle Hills, 2021 WL 4046758, *5, n. 7 (WD Tex., Mar. 12, 2021). The Fifth Circuit reversed that decision on appeal. The court thought that a plaintiff's claim could fall within the Nieves exception only if the plaintiff proffered “comparative evidence” of “otherwise similarly situated individuals who engaged in the same criminal conduct but were not ar- rested.” 42 F. 4th 487, 493 (2022) (internal quotation marks omitted). Gonzalez's claim failed because she did not pro- vide such evidence. We granted certiorari. 601 U. S. ––– (2023). 658 GONZALEZ v. TREVINO

Per Curiam

II Gonzalez seeks reversal on two grounds. First, she asks us to reject the Fifth Circuit's rule that plaintiffs must use specifc comparator evidence to demonstrate that they fall within the Nieves exception. Second, Gonzalez contends that the Nieves no-probable-cause rule applies only to claims predicated on split-second arrests, rather than deliberative ones. We agree with Gonzalez that the Fifth Circuit took an overly cramped view of Nieves. That court thought Gonza- lez had to provide very specifc comparator evidence—that is, examples of identifable people who “mishandled a govern- ment petition” in the same way Gonzalez did but were not arrested. 42 F. 4th, at 492. Although the Nieves exception is slim, the demand for virtually identical and identifable comparators goes too far. We recognized the Nieves exception to account for “cir- Page Proof Pending Publication cumstances where offcers have probable cause to make ar- rests, but typically exercise their discretion not to do so.” 587 U. S., at 406. To fall within the exception, a plaintiff must produce evidence to prove that his arrest occurred in such circumstances. The only express limit we placed on the sort of evidence a plaintiff may present for that purpose is that it must be objective in order to avoid “the signifcant problems that would arise from reviewing police conduct under a purely subjective standard.” Id., at 407. Here, Gonzalez provided that sort of evidence. She was charged with intentionally “remov[ing] . . . a governmental record.” Tex. Penal Code Ann. § 37.10(a)(3). 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 long- standing and the conduct at issue is not novel—makes it more likely that an offcer has declined to arrest someone for engaging in such conduct in the past. Cite as: 602 U. S. 653 (2024) 659

Alito, J., concurring

Because we agree with Gonzalez's frst argument, we do not need to reach her second. We vacate the judgment below and remand the case for the lower courts to assess whether Gonzalez's evidence suffces to satisfy the Nieves exception. It is so ordered. Justice Alito, concurring. The per curiam opinion correctly decides that the Fifth Circuit took an unduly narrow view of the exception we rec- ognized in Nieves v. Bartlett, 587 U. S. 391 (2019). I write separately to provide further guidance on the scope of that decision. I Because the District Court dismissed Sylvia Gonzalez's complaint for failure to state a claim, the per curiam opinion properly takes its facts solely from the complaint. But I Page Proof Pending Publication provide a fuller account of the events leading up to her arrest because they may typify the messy quarrels that courts will have to sift through if we accept Gonzalez's reading of our case law. Upon her election to the city council, Gonzalez launched a campaign to oust Ryan Rapelye from his position as city manager. As part of her efforts, Gonzalez paid personal vis- its to Castle Hills residents, requesting their signatures and support. According to some accounts, her efforts were ag- gressive. Chalene Martinez averred that Gonzalez solicited her signature “ `under false pretenses' ”—specifcally by mis- leading her about the nature of the petitions and by lying about Rapelye's performance in offce. Record in No. 5:20– cv–01151 (WD Tex., Sept. 29, 2020), ECF Doc. 1, p. 9; App. 45, 52. Another resident, Jesus Quilantan, reported that Gonzalez had asked to see his parents. When she learned that they were not home, Gonzalez cajoled him into signing the petition on their behalf. Id., at 57. Her efforts paid off. 660 GONZALEZ v. TREVINO

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In a town of roughly 4,000 inhabitants, she helped garner over 300 signatures for her petition seeking Rapelye's removal. At the next city council meeting, just over two weeks after Gonzalez's election, one resident submitted a stack of docu- ments representing the petition to remove Rapelye. As the presiding offcer of the meeting, Mayor Edward Trevino as- sumed control of the petition. And as the Court's opinion notes, the meeting grew contentious. Multiple residents spoke out in support of Rapelye. Martinez, for instance, accused Gonzalez of misleading residents into signing the petition based on false representations about Rapelye and the campaign for his removal. These allegations disturbed Trevino. The next morning, he arrived before the meeting resumed to see if the petition contained any anomalies. When he was fnished, he fastened the documents together with a large black binder clip and placed the stack on top of his other papers on the dais. Page Proof Pending Publication What happened next was captured by surveillance videos.1 Shortly before the meeting began, Trevino was engaged in conversation with two constituents. While he turned away from his papers, Gonzalez approached the dais and took the petition from his pile. After quickly fipping through its pages, Gonzalez placed the petition inside her binder. During the meeting, Trevino could not fnd the petition among his papers. He also noticed that Gonzalez's binder contained a familiar stack of documents held together with a black binder clip. But Trevino chalked this up to a coinci- dence, and he assumed that the city secretary had already collected the petition. Trevino dropped this assumption when the city secretary asked him for the petition after the meeting. At this point, Trevino suspected that Gonzalez had taken the petition. He 1 These videos are publicly available, and they can be viewed at https:// www.youtube.com/watch?v=VGXht6ARK_4 and https://www.youtube .com/watch?v=GGLIrFiso1c. Cite as: 602 U. S. 653 (2024) 661

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relayed those suspicions to Captain Esteban Zuniga, a police offcer who was present at the meeting. Zuniga walked over to Gonzalez and asked her if she had taken the petition. After Gonzalez denied his accusation, Trevino suggested she check her binder. This, too, was captured on tape. At Trevino's prompting, Gonzalez slowly fipped through her binder. Before she reached the binder-clipped stack, however, she stopped and once again denied possessing the petition. Trevino and Zuniga simultaneously pointed to the visible black binder clip. Forced to produce the petition, Gonzalez told Zuniga that she thought it was an extra copy. Trevino fled a criminal complaint against Gonzalez, alleg- ing that she had stolen the petition. See ante, at 656. On account of Gonzalez's political post, the police chief tasked Alex Wright—a peace offcer and special detective—with leading the investigation. As a special detective, Wright is Page Proof Pending Publication assigned cases “which might otherwise be considered sensi- tive . . . or delicate, either due to the nature of the crime or . . . the parties involved.” App. 43. Wright conducted a thorough investigation. He inter- viewed Trevino, Zuniga, and Martinez, each of whom gave him their version of these events. Zuniga said that he found it “odd” that Gonzalez claimed that she thought the petition in her binder was an “extr[a],” given that she had strenu- ously denied having the petition in her possession. Id., at 48. After meeting with Martinez, Wright suspected that Gonzalez took the petition to avoid further scrutiny. Wright contacted Gonzalez several times to hear her side of the story, but she refused to speak with him. The surveillance videos, moreover, confrmed Trevino and Zuniga's account of Gonzalez's evasiveness. From this evi- dence, Wright concluded that Gonzalez had likely violated Texas's anti-tampering statute, which makes it a crime for someone to “remov[e]” a government document intentionally, Tex. Penal Code Ann. § 37.10(a)(3) (West Cum. Supp. 2023), 662 GONZALEZ v. TREVINO

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and he sought an arrest warrant from the local Magistrate. Wright's warrant affdavit included details from his inter- views with the witnesses and his review of the surveillance videos. The Magistrate agreed that probable cause sup- ported Gonzalez's arrest, and he granted Wright's request. The Court's opinion completes the story. After the war- rant was issued, Gonzalez spent an evening in jail. A month later, the district attorney dropped all charges against her. But Gonzalez's suit against Trevino, Wright, and the police chief is still ongoing fve years later. And Gonzalez has never disputed—at any point of the litigation—that probable cause supported her arrest.

II Gonzalez attacks the Fifth Circuit's judgment on two fronts. First, she contends that the Fifth Circuit took an unduly restrictive view of the Nieves exception. Second, she asks us to cabin the no-probable-cause requirement to Page Proof Pending Publication on-the-spot arrests. The Court briskly dispatches this case on the frst question, but I think lower courts and litigants deserve additional guidance. I therefore divide my analysis into three parts. First, I provide the relevant legal back- ground for retaliatory-arrest and retaliatory-prosecution claims. Second, I elaborate on the scope of the Nieves ex- ception. Third, I explain why Nieves is not limited to split- second arrests. A “[T]he law is settled that as a general matter the First Amendment prohibits government offcials from subjecting an individual to retaliatory actions, including criminal prose- cutions, for speaking out.” Hartman v. Moore, 547 U. S. 250, 256 (2006). We ordinarily analyze First Amendment re- taliation claims under the two-step framework set out in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287 (1977). At the frst step, the plaintiff must demonstrate that he en- gaged in protected speech and that his speech was a “ `sub- Cite as: 602 U. S. 653 (2024) 663

Alito, J., concurring

stantial' ” or “ `motivating' ” factor in the defendant's decision to take action against him. Ibid. Once the plaintiff makes this showing, the burden shifts to the defendant at the sec- ond step to show that he would have taken the same adverse action even in the absence of the protected speech. Ibid. To carry these burdens, parties operating within the Mt. Healthy framework may present a wide range of evidence— both objective and subjective. See, e.g., id., at 282–283 (dis- cussing the plaintiff's behavioral history in the years leading up to the litigation); Texas v. Lesage, 528 U. S. 18, 19 (1999) (per curiam) (the defendants produced an affdavit to explain that the plaintiff's application to graduate school was re- jected because of his poor personal statement). Our cases have admitted, however, that this framework fts uneasily with First Amendment retaliatory-arrest and retaliatory-prosecution claims for at least three reasons. First, it is all too easy for a plaintiff to subject a law- Page Proof Pending Publication enforcement offcer to the crucible of litigation based on alle- gations about an offcer's state of mind that are easy to make and diffcult to disprove. For example, a driver with an anti-police bumper sticker on his car could claim that any traffc stop was due to his protected speech. Any person who carries a sign while trespassing, blocking traffc, or dis- turbing the peace could similarly allege that an arrest for these offenses was motivated by the sign's message. We are loath to undertake such inquiries into subjective intent in the law-enforcement context. Cf. Ashcroft v. al-Kidd, 563 U. S. 731, 737 (2011); see also Kentucky v. King, 563 U. S. 452, 464 (2011); Whren v. United States, 517 U. S. 806, 812 (1996). Second, protected speech is often a “wholly legitimate con- sideration” for offcers when deciding whether to fle charges or to make an arrest. Reichle v. Howards, 566 U. S. 658, 668 (2012). An “offcer may decide to arrest [a] suspect be- cause his speech provides evidence of a crime or suggests a potential threat.” Ibid. The facts of Nieves itself illustrate this point. In that case, the police offcers decided to arrest 664 GONZALEZ v. TREVINO

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the plaintiff for disorderly conduct and resisting arrest be- cause “they perceived [the plaintiff] to be a threat” based in part on the combative tone and content of his speech. 587 U. S., at 401. And no one suggested that an individual's speech is off-limits in this respect. Ibid. (explaining that “the content and manner of a suspect's speech” may provide important information for law enforcement). Third, the machinery of criminal justice of ten works through multiple government offcers. An offcer who makes an arrest may do so based on his own judgment, orders from a superior, or as in this case, a warrant issued by a magis- trate. Thus, it is often challenging to draw a straight line between the plaintiff's protected speech and the defendant from whom he seeks recovery. In such circumstances, it may be diffcult to discern whether the offcer acted improp- erly. Cf. Messerschmidt v. Millender, 565 U. S. 535, 546 (2012) (noting that “the fact that a neutral magistrate has Page Proof Pending Publication issued a warrant is the clearest indication that the [arresting] offcers acted in an objectively reasonable manner”); Bilida v. McCleod, 211 F. 3d 166, 174–175 (CA1 2000) (Boudin, J.) (“Plausible instructions from a superior or fellow offcer sup- port qualifed immunity where, viewed objectively in light of the surrounding circumstances, they could lead a reasonable offcer to conclude that the necessary legal justifcation for his actions exists”). For these reasons, we have required plaintiffs pressing such claims to prove the absence of probable cause as a threshold requirement before they can advance their claims under the Mt. Healthy framework. We defended this re- quirement on the assumption that the “existence of probable cause will be at issue in practically all” retaliatory-arrest or retaliatory-prosecution cases given its obvious evidentiary value. Nieves, 587 U. S., at 400 (internal quotation marks omitted). Thus, we reasoned that this requirement, which imposes “little or no added cost” on the parties or the court, was a small price to pay for a plaintiff seeking to discard Cite as: 602 U. S. 653 (2024) 665

Alito, J., concurring

the presumption of good faith we afford to law-enforcement offcials. Ibid. (internal quotation marks omitted). In Nieves, however, we recognized a narrow exception to the no-probable-cause rule. While a showing of probable cause generally defeats a retaliatory-arrest claim, we ob- served that this requirement should be relaxed “where off- cers have probable cause to make arrests, but typically exer- cise their discretion not to do so.” Id., at 406. Concerned that some police offcers might exploit the arrest power as a means of suppressing disfavored speech, we explained that the no-probable-cause requirement may be set aside “when a plaintiff 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., at 407; cf. United States v. Armstrong, 517 U. S. 456, 470 (1996). In recognizing this exception, we emphasized that it is merely a “narrow qualifcation” to the general rule. Nieves, 587 U. S., at 406. And to illustrate the thinness of this ex- Page Proof Pending Publication ception, Nieves offered the example of a vocal critic of the police who is arrested for jaywalking. Id., at 407. The un- yielding enforcement of a no-probable-cause requirement in this context would be insuffciently protective of the plain- tiff's First Amendment rights because the defendant's ani- mus is a much likelier explanation for such an arrest than the mere existence of probable cause. We chose this example because jaywalking represents the type of relatively benign offense that is “endemic but rarely results in arrest.” Ibid. B Because Gonzalez concedes that her arrest was supported by probable cause, her claim can proceed only if she falls within Nieves's exception.2 Under this exception, a plain- tiff's inability to prove the absence of probable cause is ex- cused only if the plaintiff presents “objective evidence that 2 For this reason, I assume for the sake of argument that her alleged conduct constituted a violation of Texas's anti-tampering statute. 666 GONZALEZ v. TREVINO

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he was arrested when otherwise similarly situated individu- als not engaged in the same sort of protected speech had not been.” Ibid. The Court is correct to note that a plaintiff must provide objective evidence to fall within the Nieves exception. We enforce this requirement to avoid “the signifcant problems that would arise from reviewing police conduct under a purely subjective standard.” Ibid.; see also Horton v. Cali- fornia, 496 U. S. 128, 138 (1990) (“[E]venhanded law enforce- ment is best achieved by the application of objective stand- ards of conduct, rather than standards that depend upon the subjective state of mind of the offcer”). For that reason, evidence regarding an offcer's state of mind—e. g., evidence of bad blood between the offcer and the plaintiff or allega- tions that the offcer harbored animus—does not qualify. The defendants argue that permitting anything other than the kind of strict comparator evidence demanded by the Page Proof Pending Publication Fif th Circuit will defeat the whole purpose of the no- probable-cause rule. Our decisions refect our sensitivity to these concerns, see Lozman v. Riviera Beach, 585 U. S. 87, 98 (2018), but a proper application of the Nieves exception will not produce this result for at least two reasons. First, courts must remember that the exception is just that—an exception, and a narrow one at that. Judges should not confate the question whether certain evidence can be considered under the Nieves exception with the en- tirely distinct question whether the evidence suffces to sat- isfy this threshold inquiry. We have long recognized “[t]he deep-rooted nature of law-enforcement discretion,” Castle Rock v. Gonzales, 545 U. S. 748, 761 (2005), and a plaintiff therefore must surmount a very high bar when the offcial can point to the existence of probable cause underpinning an arrest. The example in Nieves of a police offcer arresting a vocal critic for jaywalking serves as a helpful benchmark for courts and litigants. A plaintiff may satisfy the Nieves exception only by providing comparably powerful evidence. Cite as: 602 U. S. 653 (2024) 667

Alito, J., concurring

Second, evidence that tends to show only that the plain- tiff's constitutionally protected speech was a “substantial or motivating factor” behind the adverse action should not be considered unless and until the plaintiff can provide other evidence to satisfy the Nieves exception. Lozman, 585 U. S., at 97. This requirement fows from the recognition that the Nieves exception serves only as a gateway to the Mt. Healthy framework. The Ni eves exception asks whether the plaintiff engaged in the type of conduct that is unlikely to result in arrest or prosecution. By contrast, the Mt. Healthy inquiry is keyed toward whether the defendant's adverse decision was infuenced by the plaintiff's constitu- tionally protected speech. To see how these principles operate in practice, consider the following hypothetical. Suppose a plaintiff charged with a particular crime brings three pieces of evidence. First, he proffers an affdavit from an offcer testifying that no one has Page Proof Pending Publication been prosecuted in the jurisdiction for engaging in similar conduct. Second, he produces a statistical study corroborat- ing the affdavit. And third, the plaintiff testifes that a po- lice offcer has been surveilling his house for several weeks. The frst two pieces of evidence count toward the Nieves exception, but the third piece of evidence does not. Instead, the third piece of evidence can be considered only after his claim advances to the Mt. Healthy framework. Any other approach would render the Mt. Healthy framework redun- dant in most, if not all, cases. In Nieves, three Justices dissented at least in part and would have permitted plaintiffs in cases with probable cause to proceed to trial if they were able to survive summary judgment under Mt. Healthy. They argued their positions forcefully and well, but it is not faithful to our precedent to use the “narrow” Nieves exception as a crowbar for over- turning the core of that decision's holding, supported by six Justices—namely, that the existence of probable cause either always or nearly always precludes a suit like this one. 668 GONZALEZ v. TREVINO

Alito, J., concurring

I now turn to the facts of Gonzalez's case. Here, her evi- dence is of the type that plaintiffs can use in making out their case under the Nieves exception. I agree with the Court that a plaintiff does not need to identify another per- son who was not arrested under the same law for engaging in a carbon-copy course of conduct. Our jaywalking exam- ple in Nieves plainly proves this point. We did not suggest that a vocal critic of the police charged with jaywalking had to produce evidence that police offcers knowingly refused to arrest other specifc jaywalkers. And we certainly did not suggest that this jaywalker had to fnd others who com- mitted the offense under the same conditions as those in his case—for example, on a street with the same amount of traf- fc traveling at the same speed within a certain distance from a crosswalk at the same time of day. On remand, the Fifth Circuit must determine whether Gonzalez's survey is enough for her claim to advance to the Page Proof Pending Publication Mt. Healthy framework. The Nieves exception is most easily satisfed by strong affrmative evidence that the de- fendant let other individuals off the hook for comparable be- havior. But when a plaintiff's claim hinges on negative evi- dence, like what Gonzalez offers here, context is key for determining the strength of his case. When a plaintiff's al- leged criminal conduct is egregious or novel, for instance, the lack of similar arrests might warrant little weight. Courts must also ensure that they are assessing the plain- tiff's conduct at the appropriate level of generality because every arrest, if defned too specifcally, can be described as the first of its kind. If a plaintiff could evade the no- probable-cause requirement simply by submitting evidence that no one who engaged in an exact duplicate of his behavior had been arrested, courts will be “fooded with dubious re- taliatory arrest suits,” Lozman, 585 U. S., at 98, and the Nieves's exception would drain the no-probable-cause re- quirement of all force. Cite as: 602 U. S. 653 (2024) 669

Alito, J., concurring

C We also granted certiorari on whether the Nieves no- probable-cause rule applies beyond split-second arrests. The parties vigorously contested this question in briefng and at oral argument, yet the Court today reserves judg- ment on this issue. I disagree with this course. In my view, Nieves already answered this question in the affrma- tive after faithfully applying our precedents. Nothing about Nieves's rationale depends on whether the offcer made a split-second arrest of the plaintiff.3 That de- cision expressly borrowed the no-probable-cause rule and its underlying justifcations from Hartman, the seminal case governing retaliatory-prosecution claims. Nieves self- consciously emulated Hartman because both types of retali- ation claims share the same critical characteristics. Three features stand out. For one thing, courts ad- judicating either claim face the “ultimate problem” of Page Proof Pending Publication determining “whether the adverse government action was caused by the offcer's malice or the plaintiff's potentially criminal conduct.” Nieves, 587 U. S., at 402; see also Hart- man, 547 U. S., at 265. The causal challenge is similarly complex in both contexts because “protected speech is often a `wholly legitimate consideration' ” for offcers deciding whether to launch a prosecution or to make an arrest. Nieves, 587 U. S., at 401. For another, with or without the no-probable-cause rule, the presence or absence of probable cause plays a similarly vital role in both retaliatory-arrest and retaliatory-prosecution cases. That is because “ `evi- dence of the presence or absence of probable cause . . . will be available in virtually every' ” retaliatory-prosecution or retaliatory-arrest case and because such evidence speaks vol-

3 Indeed, the plaintiff in Nieves implied that the offcer held a grudge against him before he even had an opportunity to take the plaintiff into custody. See 587 U. S., at 396–397. 670 GONZALEZ v. TREVINO

Alito, J., concurring

umes about the objective reasonableness of a defendant's ac- tion. Ibid.; see also Hartman, 547 U. S., at 265. Lastly, by focusing the inquiry on objective indicia of reasonableness, a no-probable-cause rule refects our general reluctance to probe the subjective intent of law-enforcement offcers. Nieves, 587 U. S., at 403; see also Hartman, 547 U. S., at 263–265. This analysis—none of which turns on whether an arrest was made in a split-second context—is plainly incompatible with Gonzalez's theory. And it would be bizarre to think Nieves silently limited itself to split-second decisions when the reasoning it imported came from the retaliatory- prosecution context, which by defnition involves only delib- erative government acts.4 Gonzalez argues that we should limit Nieves to split- second cases because, in her view, a retaliatory-arrest claim is analogous to the common-law tort of abuse of process, which lacks a no-probable-cause requirement. Tr. of Oral Page Proof Pending Publication Arg. 5–6. She urges us to rely on the abuse-of-process anal- ogy to draw a line between split-second arrests with no proc- ess and arrests pursuant to process that can be likened to the common-law tort. Ibid. Gonzalez's appeal to the common law is wrong twice over. To start, she is wrong to suggest that the abuse-of-process tort was somehow not before us when we decided Nieves. Our prior decision in Hartman gave full consideration to whether abuse of process was the appropriate analog for a retaliatory-prosecution claim. See 547 U. S., at 258 (noting 4 It is certainly true that we made a feeting reference to split-second arrests in Nieves. Specifcally, we mentioned that offcers often must make quick, diffcult assessments of a potential arrestee's conduct and speech to determine whether the subject poses a threat. 587 U. S., at 401. But we offered that observation as an additional justifcation for the no- probable-cause rule rather than as a limit on the rule's applicability. The “ultimate problem” remains the diffculty of fguring out whether the ar- rest was motivated by “the offcer's malice or the plaintiff's potentially criminal conduct.” Id., at 402 (emphasis added). Cite as: 602 U. S. 653 (2024) 671

Alito, J., concurring

that “we could debate whether the closer common-law analog to retaliatory prosecution is malicious prosecution (with its no-probable-cause element) or abuse of process (without it)”). By holding that such a claim requires a plaintiff to prove there was no probable cause for the charge, Hartman neces- sarily rejected the force of any analogy to abuse of process. In Nieves, the core dispute was whether we should ex- tend the same no-probable-cause requirement to retaliatory- arrest claims. Once we decided to do so, we copied Hart- man's reasoning. It is therefore quite clear that the Nieves Court was aware of the abuse-of-process tort, as well as the argument that this tort should govern our decision. And if we needed any reminding, the United States argued in Nieves that “[a] retaliatory-arrest claim is not analogous to the tort of abuse of process.” Brief for United States as Amicus Cu- riae in Nieves v. Bartlett, O. T. 2018, No. 17–1174, p. 10, n. 2. Gonzalez's common-law argument suffers from another Page Proof Pending Publication defect. It is well settled that common-law principles are meant to serve as helpful guides rather than prefabricated components of a 42 U. S. C. § 1983 claim. Manuel v. Joliet, 580 U. S. 357, 370 (2017); see also Rehberg v. Paulk, 566 U. S. 356, 366 (2012) (“[T]he Court has not suggested that § 1983 is simply a federalized amalgamation of pre-existing common-law claims”). At the end of the day, none of our decisions in this area has unthinkingly outsourced our analy- sis to the common law of torts. In Hartman, for instance, we expressly declined the parties' “invitation to rely on common-law parallels,” and never took a position on whether malicious prosecution or abuse of process was the better ana- log to retaliatory prosecution. 547 U. S., at 258. And in Nieves, we looked to the common law only to “confr[m]” what we had already concluded: that the same no-probable- cause requirement we established in Hartman should also apply to retaliatory-arrest claims. 587 U. S., at 405. Common-law torts can assist our analysis, but they do not dictate every dimension of a § 1983 claim. 672 GONZALEZ v. TREVINO

Alito, J., concurring

And that is for good reason. Many § 1983 claims “can be favorably analogized to more than one of the ancient common-law forms of action.” Wilson v. Garcia, 471 U. S. 261, 272–273 (1985). Because any analogy to a common-law cause of action is thus “bound to be imperfect,” id., at 272, we necessarily deal in generalities when we look to the com- mon law to defne § 1983 claims.5 The specifc facts of a given case might align more or less well with the chosen common-law analog, but until today no one has suggested that our jurisprudence requires courts to toggle between dif- ferent tort analogies within the same class of § 1983 claims. Consider the parties' arguments in Hartman. The defend- ants urged us to analogize retaliatory-prosecution claims to the malicious-prosecution tort, while the plaintiff suggested that abuse of process might be the more apt analog. Brief for Petitioners 25–30 and Brief for Respondent 41–42 in Hartman v. Moore, O. T. 2005, No. 04–1495. But neither party asked us to adopt the malicious-prosecution analogy Page Proof Pending Publication for some § 1983 retaliatory-prosecution claims while relying on the abuse-of-process analogy for others. Gonzalez, by contrast, invites us to slice and dice every complaint alleging a retaliatory-arrest claim based on a quick skim of the facts at the motion-to-dismiss stage. Under her view, the elements of a plaintiff's meritorious § 1983 claim may evolve throughout the lawsuit as more facts are dis- covered and verifed. I see little value in endorsing this awkward and predictably ineffcient innovation. Gonzalez's proposed limit on Nieves would also be unwork- able in practice because it raises thorny line-drawing ques- tions about the meaning of a “split-second” decision to arrest. Consider an offcer who surveils a political dissident for many months with the plan of arresting him the moment he broke

5 First Amendment retaliation claims offer a particularly good example of this point. Justice Thomas's dissent in this case shows, at a mini- mum, that there are strong reasons to suspect that the abuse-of-process tort is an inferior analog compared to the torts of false imprisonment, malicious arrest, and malicious prosecution. See post, at 676–679. Cite as: 602 U. S. 653 (2024) 673

Kavanaugh, J., concurring

the law. Would that arrest be considered a split-second de- cision under Gonzalez's view? Or suppose that an arresting offcer takes several minutes to confer with another offcer on the scene. Would the no-probable-cause requirement apply? What if an offcer takes time to ensure that everyone at a crime scene is safe before completing an arrest? These hy- potheticals illustrate the vast practical diffculties with Gon- zalez's theory, and there is no principled basis for drawing such fnely grained lines in any event. A “split-second” rule would also create a perverse incen- tive for police offcers to make quick arrest decisions rather than proceeding in a deliberative manner. Gonzalez's test punishes the city offcials for seeking a warrant from a neu- tral magistrate before arresting her. Under her approach, the defendants would have been better off if they had ar- rested her immediately. I see no good reason to switch out Nieves for a novel doctrinal dichotomy that generates such Page Proof Pending Publication counterintuitive results. In sum, Nieves applies to all retaliatory-arrest claims brought under § 1983. And that decision means what it says. “[P]robable cause should generally defeat a retalia- tory arrest claim,” and a plaintiff bringing such a claim “must plead and prove the absence of probable cause for the arrest” unless he can ft within its narrow exception. 587 U. S., at 402, 406. Nothing in the Court's decision today should be understood as casting doubt on this holding.

III With these observations, I join the Court's opinion.

Justice Kavanaugh, concurring. Sylvia Gonzalez was arrested for intentionally stealing a government record. See Tex. Penal Code Ann. § 37.10(a)(3) (West Cum. Supp. 2023). Gonzalez sued city offcials under 42 U. S. C. § 1983, alleging that she was arrested in retalia- tion for First Amendment-protected activity. 674 GONZALEZ v. TREVINO

Kavanaugh, J., concurring

But Gonzalez conceded that city offcials had probable cause to arrest her for intentionally removing the govern- ment record. (A video shows Gonzalez putting the govern- ment record into her binder at a city council meeting. See ante, at 659–662 (Alito, J., concurring).) An arrestee ordi- narily cannot sue a public offcial under § 1983 for retaliatory arrest if the offcial had probable cause to make the arrest. See Nieves v. Bartlett, 587 U. S. 391, 404 (2019). To somehow maintain her § 1983 suit, Gonzalez invoked what is known as the Nieves exception. That exception applies when an individual is arrested for minor criminal conduct where off- cers “typically exercise their discretion not” to arrest. Id., at 406. The prime example is jaywalking. Id., at 407. To come within the Nieves exception, Gonzalez was re- quired to present “objective evidence” that she was arrested when “similarly situated individuals” who engaged in the same conduct would not have been arrested. Ibid. Of Page Proof Pending Publication course, Gonzalez could not plausibly claim that people in Texas who steal things (or more precisely here, who steal government records) do not get arrested. Instead, she says that she took the government record accidentally, not inten- tionally, and that people who accidentally remove govern- ment documents are not arrested. Properly understood, that is not a Nieves-exception claim at all. The Nieves exception is a conduct-based comparison. Only if the conduct does not usually trigger an arrest under any statute can you have a Nieves-exception claim—like jay- walking. Gonzalez's argument turns not on her conduct (taking government records) but rather on her mens rea. She essentially argues that an objectively reasonable offcer would have known that Gonzalez accidentally rather than in- tentionally took the government record. When Gonzalez conceded that the offcials had probable cause to arrest her, however, she necessarily conceded that the offcers had probable cause to conclude that she “in- tentionally” removed the document. Tex. Penal Code Ann. Cite as: 602 U. S. 653 (2024) 675

Jackson, J., concurring

§ 37.10(a)(3). That may have been an unwise concession. But it should have foreclosed Gonzalez's attempt to contest her mens rea for purposes of her § 1983 retaliatory arrest claim. And even if Gonzalez had not made the concession, the question here would be whether an objectively reason- able offcer would have known that Gonzalez accidentally (rather than intentionally) took the document. In short, this is (at most) a case about probable cause as to mens rea, not about conduct-based comparisons. This case has nothing to do with the Nieves exception. At this point, the Court's grant of certiorari looks ill- advised given that the question presented about the Nieves exception bears no relation to the issue on which Gonzalez's suit actually turns. In any event, we are where we are. I concur in the per curiam because the per curiam does not seem to say anything that is harmful to the law, even though the per curiam (in my view) does not really have anything to do with Gonzalez's case. Page Proof Pending Publication Justice Jackson, with whom Justice Sotomayor joins, concurring. Today, the Court rightly recognizes that petitioner Sylvia Gonzalez's survey—showing that, in the last decade, no one charged with the crime for which she was arrested had en- gaged in conduct similar to hers—is objective evidence ad- missible to prove that she “was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Nieves v. Bartlett, 587 U. S. 391, 407 (2019); see ante, at 658. That recognition, however, should not be taken to suggest that plaintiffs cannot use other types of objective evidence to make this showing. The Nieves exception is satisfed in “circumstances where offcers have probable cause to make arrests, but typically exercise their discretion not to do so.” 587 U. S., at 406. “The only express limit we placed on the sort of evidence a plaintiff may present for that purpose is 676 GONZALEZ v. TREVINO

Thomas, J., dissenting

that it must be objective.” Ante, at 658. As the United States explains, such objective evidence could “include off- cers' employment of an unusual, irregular, or unnecessarily onerous arrest procedure,” as well as “[t]he timing of and events leading up to a plaintiff's arrest.” Brief for United States as Amicus Curiae 20.* Similarly, “if offcers falsely document the arrest or include other indicia of retaliatory motive in arrest-related documents, that too might suggest meaningfully differential treatment.” Id., at 21. Here, in addition to her survey, Gonzalez presented this other kind of evidence as well. Before the District Court, Gonzalez pointed to, among other things, details about the anomalous procedures used for her arrest and statements in the arresting offcer's warrant affdavit suggesting a retalia- tory motive. See Brief for Petitioner 43–44. Those catego- ries of evidence, too, can support the conclusion that Gon- zalez “was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech Page Proof Pending Publication had not been.” Nieves, 587 U. S., at 407. On remand, the lower courts may consider the full scope of objective evi- dence that Gonzalez has offered to establish differential treatment. See ante, at 658. With this understanding, I join the Court's per curiam opinion. Justice Thomas, dissenting. I continue to believe that “plaintiffs bringing a First Amendment retaliatory-arrest claim under § 1983 should have to plead and prove a lack of probable cause.” Lozman *Justice Alito suggests that evidence of this sort—such as the fact that “a police offcer has been surveilling [a plaintiff's] house for several weeks”—would not “count toward the Nieves exception.” Ante, at 667 (concurring opinion). He does not explain, however, why such evidence would not be objective, or why such evidence would not be relevant to proving that a plaintiff “was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Nieves, 587 U. S., at 407. Cite as: 602 U. S. 653 (2024) 677

Thomas, J., dissenting

v. Riviera Beach, 585 U. S. 87, 107 (2018) (Thomas, J., dis- senting).* Under the Court's precedents, 42 U. S. C. § 1983 is “construed in light of common-law principles that were well settled at the time of its enactment.” Kalina v. Flet- cher, 522 U. S. 118, 123 (1997). “Because no common-law tort for retaliatory arrest in violation of the freedom of speech existed when § 1983 was enacted, we look to the common-law torts that provide the closest analogy to this claim.” Nieves v. Bartlett, 587 U. S. 391, 409 (2019) (Thomas, J., concurring in part and concurring in judgment) (internal quotation marks and alteration omitted). As I have previously explained, the common-law torts most analo- gous to retaliatory-arrest claims are false imprisonment, ma- licious arrest, and malicious prosecution—all of which re- quired a plaintiff to prove “the absence of probable cause.” Id., at 409–410. Gonzalez concedes that there was probable cause for her arrest. Brief for Petitioner 30. Her retaliatory-arrest claim therefore cannot proceed. Page Proof Pending Publication Resisting that conclusion, Gonzalez contends that there is still another common-law analogue for a retaliatory-arrest claim: abuse of process. Although the exact contours of that tort are unclear, abuse of process generally addressed the “extortionate perversion of lawfully initiated process to ille- gitimate ends.” Heck v. Humphrey, 512 U. S. 477, 486, n. 5 (1994). Critically for Gonzalez's argument, an abuse-of- process claim did not require a plaintiff to establish the ab- sence of probable cause. See C. Addison, Wrongs and Their Remedies 601–602 (3d ed. 1870) (Addison); 1 T. Cooley, Law of Torts 356 (3d ed. 1906) (Cooley).

*I also remain “skeptical that 42 U. S. C. § 1983 recognizes a claim for retaliatory arrests under the First Amendment.” Lozman, 585 U. S., at 104, n. 2 (Thomas, J., dissenting). “Because no party questions whether § 1983 claims for retaliatory arrests under the First Amendment are ac- tionable, I assume that § 1983 permits such claims.” Nieves v. Bartlett, 587 U. S. 391, 409, n. (2019) (Thomas, J., concurring in part and concurring in judgment). 678 GONZALEZ v. TREVINO

Thomas, J., dissenting

I am not persuaded that an abuse-of-process claim is analo- gous to Gonzalez's retaliatory-arrest claim. Gonzalez's cen- tral argument is that her arrest was invalid because the de- fendants had an improper motive. As she sees it, even though the defendants had probable cause to arrest her, they did so only in retaliation for her constitutionally protected speech. See App. to Pet. for Cert. 126a, 129a. Abuse of process, however, appeared to be less concerned with why process was initiated and more with whether process was ultimately used as “intended by the law.” Mayer v. Walter, 64 Pa. 283, 285–286 (1870); see Addison 602 (abuse-of-process tort applies where process has been “prostituted to an illegal purpose”). An abuse of process occurred when an ordinary process was distorted “for a purpose not justifed by the law,” and the tort required “ `an act in the use of the process not proper in the regular prosecution of the proceeding.' ” Cooley 354–356. For example, a plaintiff could assert an Page Proof Pending Publication abuse-of-process claim if an offcer arrested and detained him in an oppressive manner as a means of extortion. See id., at 354–355 (providing as an example “causing an arrest . . . and keeping [the plaintiff] imprisoned until, by stress thereof, he is compelled to surrender property to which the other is not entitled”). Or, a plaintiff could bring an abuse- of-process claim if an offcer deprived him of food while he was detained. Wood v. Graves, 144 Mass. 365, 366, 11 N. E. 567, 576 (1887) (describing where a person “arrested . . . is treated with cruelty, is deprived of proper food, or is other- wise treated with oppression and undue hardship”). Either way, the essential question appears to have been how the process was used—not whether the process was initiated with an improper motive. See Glidewell v. Murray-Lacy & Co., 124 Va. 563, 569, 98 S. E. 665, 667 (1919) (explaining that the “distinctive nature of an action for abuse of process . . . lies for the improper use of a regularly issued process, not for maliciously causing process to issue”); Cooley 356 (“ `Reg- ular and legitimate use of process, though with a bad inten- Cite as: 602 U. S. 653 (2024) 679

Thomas, J., dissenting

tion, is not a malicious abuse of process' ”). Because Gonza- lez's retaliatory-arrest claim focuses on the motives behind her arrest and not the process itself, the abuse-of-process tort is a poor ft. The Court takes an even more dubious route in its at- tempt to salvage Gonzalez's case. In Nieves v. Bartlett, the Court correctly recognized that probable cause precludes a retaliatory-arrest claim. 587 U. S., at 406. But, it intro- duced one purportedly “narrow qualifcation.” Ibid.; see Lund v. Rockford, 956 F. 3d 938, 944 (CA7 2020) (considering whether a plaintiff's “case squeeze[d] through the crack of an opening that Nieves left ajar”). The Nieves Court con- cluded that a plaintiff need not show a lack of probable cause if 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.” 587 U. S., at 407. Today, the Court expands that qualifcation. Nieves's ex- Page Proof Pending Publication ception can now apply if a plaintiff presents evidence of any objective fact that “makes it more likely that an offcer has declined to arrest someone for engaging in such conduct in the past.” Ante, at 658 (emphasis deleted). Accordingly, even though Gonzalez's proffered evidence does not point to a single “similarly situated individua[l],” the Court none- theless concludes she may satisfy the Nieves exception. Nieves, 587 U. S., at 407. There is “no basis in either the common law or our First Amendment precedents” for the exception created in Nieves and expanded upon today. Id., at 409 (opinion of Thomas, J.). And, the Court should not craft § 1983 rules “as a mat- ter of policy.” Id., at 411. I would adhere to the only rule grounded in history: Probable cause defeats a retaliatory- arrest claim. I respectfully dissent. Reporter’s Note

The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions Page Proof Pending Publication for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:

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