(Slip Opinion)            Cite as: 

 (2024)                              1

                                     Per Curiam

       NOTICE: This opinion is subject to formal revision before publication in the
       United States Reports. Readers 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.


SUPREME COURT OF THE UNITED STATES
                                     _________________

                                     No. 22–1025
                                     _________________


       SYLVIA GONZALEZ, PETITIONER v. EDWARD
                 TREVINO, II, ET AL.
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE FIFTH CIRCUIT
                                   [June 20, 2024]

  PER CURIAM.
  In Nieves v. Bartlett, 

 (2019), this Court
held that, as a general rule, a plaintiff bringing a retalia-
tory-arrest claim “must plead and prove the absence of
probable cause for the arrest.” At the same time, we recog-
nized a narrow exception to that rule. The existence of
probable cause does not defeat a plaintiff ’s claim if he pro-
duces “objective evidence that he was arrested when other-
wise similarly situated individuals not engaged in the same
sort of protected speech had not been.” 

. We
granted certiorari 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 pro-
ceedings consistent with this opinion.
                              I
   In 2019, Sylvia Gonzalez ran for a seat on the city council
of Castle Hills, a small town in southern 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.
2                       GONZALEZ v. TREVINO

                               Per Curiam

   Gonzalez was elected in May 2019. Her first act in office
was to help gather signatures for a petition seeking
Rapelye’s removal. Eventually, over 300 residents signed
the petition. The petition was introduced at the next city
council meeting, where discussions grew heated after vari-
ous residents rose to Rapelye’s defense and spoke against
Gonzalez. The discussion over the petition continued the
next day.
   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 Gonzalez to check her binder, where she found the
petition. Gonzalez claims that she “did not intentionally
put the petition in her binder,” and that she was “sur-
prise[d]” to find it there. Complaint and Jury Demand in
No. 5:20–cv–01151 (WD Tex., Sept. 9, 2020), ECF Doc. 1,
p. 11.
   Trevino brought this incident to the city police’s atten-
tion, and an investigation into these events soon began.
Within a month, a private attorney tasked with leading the
investigation concluded that Gonzalez had likely violated a
Texas anti-tampering statute that, among other things,
prohibits a person from intentionally “remov[ing] . . . a gov-
ernmental record.” 

(a)(3),
(c)(1) (West Cum. Supp. 2023).1
   On the private attorney’s request, a local Magistrate
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.

——————
  1 The statute also prohibits a person from intentionally “destroy[ing],”

“conceal[ing],” or “otherwise impair[ing] the verity, legibility, or availa-
bility” of a governmental record.
                    Cite as: 

 (2024)                  3

                             Per Curiam

   Gonzalez brought suit under 

, 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
Amendment rights.
   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 doc-
ument.” 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 mak-
ing fake government identification documents.” Ibid.
Other felony indictments included ones for fake checks, hid-
ing 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. Gonzalez 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.
   The defendants moved to dismiss the complaint. They
argued that the presence of probable cause defeated Gonza-
lez’s retaliatory-arrest claims against the individual de-
fendants. The District Court denied the defendants’ mo-
tion. Although Gonzalez conceded that probable cause
supported her arrest, the court allowed her claim to ad-
vance after finding that it fell within an exception to the no-
probable-cause rule that we recognized in Nieves. Gonzalez
v. Castle Hills, 

, *5, n. 7 (WD Tex., Mar.
——————
  2 She also pressed a claim in this action against Castle Hills. That

claim is not before us.
4                   GONZALEZ v. TREVINO

                          Per Curiam

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.” 

 (2022) (internal quotation
marks omitted). Gonzalez’s claim failed because she did not
provide such evidence.
  We granted certiorari. 

 (2023).
                               II
   Gonzalez seeks reversal on two grounds. First, she asks
us to reject the Fifth Circuit’s rule that plaintiffs must use
specific 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 de-
liberative 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 specific comparator evidence—that
is, examples of identifiable people who “mishandled a gov-
ernment petition” in the same way Gonzalez did but were
not arrested. 

. Although the Nieves excep-
tion is slim, the demand for virtually identical and identifi-
able comparators goes too far.
   We recognized the Nieves exception to account for “cir-
cumstances where officers have probable cause to make ar-
rests, but typically exercise their discretion not to do so.”

. 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 significant
problems that would arise from reviewing police conduct
                  Cite as: 

 (2024)              5

                           Per Curiam

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.” 

(a)(3). Gonzalez’s sur-
vey is a permissible type of evidence because the fact that
no one has ever been arrested for engaging in a certain kind
of conduct—especially when the criminal prohibition is
longstanding and the conduct at issue is not novel—makes
it more likely that an officer has declined to arrest someone
for engaging in such conduct in the past.
   Because we agree with Gonzalez’s first argument, we do
not need to reach her second. We vacate the judgment be-
low and remand the case for the lower courts to assess
whether Gonzalez’s evidence suffices to satisfy the Nieves
exception.
                                               It is so ordered.
                  Cite as: 

 (2024)            1

                      ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES
                          _________________

                          No. 22–1025
                          _________________


    SYLVIA GONZALEZ, PETITIONER v. EDWARD
              TREVINO, II, ET AL.
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE FIFTH CIRCUIT
                         [June 20, 2024]

  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, 

 (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 opin-
ion properly takes its facts solely from the complaint. But
I 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 read-
ing 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
aggressive. Chalene Martinez averred that Gonzalez solic-
ited her signature “ ‘under false pretenses’ ”—specifically by
misleading her about the nature of the petitions and by ly-
ing about Rapelye’s performance in office. Record in No.
5:20–cv–01151 (WD Tex., Sept. 9, 2020), ECF Doc. 1, p. 9;
2                       GONZALEZ v. TREVINO

                           ALITO, J., concurring

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. 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 officer 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, ac-
cused Gonzalez of misleading residents into signing the pe-
tition based on false representations about Rapelye and the
campaign for his removal. These allegations disturbed Tre-
vino. The next morning, he arrived before the meeting re-
sumed to see if the petition contained any anomalies. When
he was finished, he fastened the documents together with a
large black binder clip and placed the stack on top of his
other papers on the dais.
   What happened next was captured by surveillance vid-
eos.1 Shortly before the meeting began, Trevino was en-
gaged 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 flipping
through its pages, Gonzalez placed the petition inside her
binder.
   During the meeting, Trevino could not find the petition
among his papers. He also noticed that Gonzalez’s binder
contained a familiar stack of documents held together with

——————
   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: 

 (2024)              3

                      ALITO, J., concurring

a black binder clip. But Trevino chalked this up to a coin-
cidence, 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 relayed those suspicions to Captain Esteban Zuniga, a
police officer 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 flipped 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 filed a criminal complaint against Gonzalez, al-
leging that she had stolen the petition. See ante, at 2. On
account of Gonzalez’s political post, the police chief tasked
Alex Wright—a peace officer and special detective—with
leading the investigation. As a special detective, Wright is
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.
4                   GONZALEZ v. TREVINO

                      ALITO, J., concurring

   The surveillance videos, moreover, confirmed Trevino
and Zuniga’s account of Gonzalez’s evasiveness. From this
evidence, Wright concluded that Gonzalez had likely vio-
lated Texas’s anti-tampering statute, which makes it a
crime for someone to “remov[e]” a government document in-
tentionally, 

(a)(3) (West Cum.
Supp. 2023), and he sought an arrest warrant from the local
Magistrate. Wright’s warrant affidavit included details
from his interviews with the witnesses and his review of the
surveillance videos. The Magistrate agreed that probable
cause supported 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 five years later. And
Gonzalez has never disputed—at any point of the litiga-
tion—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 on-
the-spot arrests. The Court briskly dispatches this case on
the first question, but I think lower courts and litigants de-
serve 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
                   Cite as: 

 (2024)              5

                       ALITO, J., concurring

Amendment prohibits government officials from subjecting
an individual to retaliatory actions, including criminal
prosecutions, for speaking out.” Hartman v. Moore, 

 (2006). We ordinarily analyze First Amend-
ment retaliation claims under the two-step framework set
out in Mt. Healthy City Bd. of Ed. v. Doyle, 

 (1977). At the first step, the plaintiff must demonstrate
that he engaged in protected speech and that his speech
was a “ ‘substantial’ ” or “ ‘motivating’ ” factor in the defend-
ant’s decision to take action against him. 

 Once the
plaintiff makes this showing, the burden shifts to the de-
fendant at the second step to show that he would have
taken the same adverse action even in the absence of the
protected speech. 

 To carry these burdens, parties op-
erating within the Mt. Healthy framework may present a
wide range of evidence—both objective and subjective. See,
e.g., 

 at 282–283 (discussing the plaintiff ’s behavioral
history in the years leading up to the litigation); Texas v.
Lesage, 

 (1999) (per curiam) (the defendants
produced an affidavit to explain that the plaintiff ’s applica-
tion to graduate school was rejected because of his poor per-
sonal statement).
   Our cases have admitted, however, that this framework
fits 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-
enforcement officer to the crucible of litigation based on al-
legations about an officer’s state of mind that are easy to
make and difficult to disprove. For example, a driver with
an anti-police bumper sticker on his car could claim that
any traffic stop was due to his protected speech. Any person
who carries a sign while trespassing, blocking traffic, 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
6                   GONZALEZ v. TREVINO

                      ALITO, J., concurring

U. S. 731, 737 (2011); see also Kentucky v. King, 

 (2011); Whren v. United States, 

(1996).
   Second, protected speech is often a “wholly legitimate
consideration” for officers when deciding whether to file
charges or to make an arrest. Reichle v. Howards, 

 (2012). An “officer may decide to arrest [a] suspect
because his speech provides evidence of a crime or suggests
a potential threat.” 

 The facts of Nieves itself illustrate
this point. In that case, the police officers decided to arrest
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. 

. And no one suggested that an individual’s
speech is off-limits in this respect. 

 (explaining that
“the content and manner of a suspect’s speech” may provide
important information for law enforcement).
   Third, the machinery of criminal justice often works
through multiple government officers. An officer who
makes an arrest may do so based on his own judgment, or-
ders from a superior, or as in this case, a warrant issued by
a magistrate. 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 cir-
cumstances, it may be difficult to discern whether the of-
ficer acted improperly. Cf. Messerschmidt v. Millender, 

 (2012) (noting that “the fact that a neutral
magistrate has issued a warrant is the clearest indication
that the [arresting] officers acted in an objectively reasona-
ble manner”); Bilida v. McCleod, 

, 174–175
(CA1 2000) (Boudin, J.) (“Plausible instructions from a su-
perior or fellow officer support qualified immunity where,
viewed objectively in light of the surrounding circum-
stances, they could lead a reasonable officer to conclude
that the necessary legal justification for his actions exists”).
   For these reasons, we have required plaintiffs pressing
                  Cite as: 

 (2024)            7

                      ALITO, J., concurring

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 proba-
ble cause will be at issue in practically all” retaliatory-
arrest or retaliatory-prosecution cases given its obvious ev-
identiary value. Nieves, 

 (internal quota-
tion marks omitted). Thus, we reasoned that this require-
ment, 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 the presumption of good faith we afford to law-
enforcement officials. 

 (internal quotation marks omit-
ted).
   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 of-
ficers have probable cause to make arrests, but typically ex-
ercise their discretion not to do so.” 

. Concerned
that some police officers 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.”

; cf. United States v. Armstrong, 

 (1996).
   In recognizing this exception, we emphasized that it is
merely a “narrow qualification” to the general rule. Nieves,

. And to illustrate the thinness of this ex-
ception, Nieves offered the example of a vocal critic of the
police who is arrested for jaywalking. 

. The un-
yielding enforcement of a no-probable-cause requirement in
this context would be insufficiently 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
8                     GONZALEZ v. TREVINO

                         ALITO, J., concurring

the mere existence of probable cause. We chose this exam-
ple because jaywalking represents the type of relatively be-
nign offense that is “endemic but rarely results in arrest.”

                                B
   Because Gonzalez concedes that her arrest was sup-
ported by probable cause, her claim can proceed only if she
falls within Nieves’s exception.2 Under this exception, a
plaintiff ’s inability to prove the absence of probable cause
is excused only if the plaintiff presents “objective evidence
that he was arrested when otherwise similarly situated in-
dividuals not engaged in the same sort of protected speech
had not been.” 

   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 significant problems
that would arise from reviewing police conduct under a
purely subjective standard.” Ibid.; see also Horton v. Cali-
fornia, 

 (1990) (“[E]venhanded law en-
forcement is best achieved by the application of objective
standards of conduct, rather than standards that depend
upon the subjective state of mind of the officer”). For that
reason, evidence regarding an officer’s state of mind—e.g.,
evidence of bad blood between the officer and the plaintiff
or allegations that the officer harbored animus—does not
qualify.
   The defendants argue that permitting anything other
than the kind of strict comparator evidence demanded by
the Fifth Circuit will defeat the whole purpose of the no-
probable-cause rule. Our decisions reflect our sensitivity to
these concerns, see Lozman v. Riviera Beach, 

 (2018), but a proper application of the Nieves exception
will not produce this result for at least two reasons.
——————
  2 For this reason, I assume for the sake of argument that her alleged

conduct constituted a violation of Texas’s anti-tampering statute.
                  Cite as: 

 (2024)             9

                      ALITO, J., concurring

   First, courts must remember that the exception is just
that—an exception, and a narrow one at that. Judges
should not conflate the question whether certain evidence
can be considered under the Nieves exception with the en-
tirely distinct question whether the evidence suffices to sat-
isfy this threshold inquiry. We have long recognized “[t]he
deep-rooted nature of law-enforcement discretion,” Castle
Rock v. Gonzales, 

 (2005), and a plaintiff
therefore must surmount a very high bar when the official
can point to the existence of probable cause underpinning
an arrest. The example in Nieves of a police officer arrest-
ing a vocal critic for jaywalking serves as a helpful bench-
mark for courts and litigants. A plaintiff may satisfy the
Nieves exception only by providing comparably powerful ev-
idence.
   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, 

. This requirement flows from the recognition
that the Nieves exception serves only as a gateway to the
Mt. Healthy framework.          The Nieves 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 defend-
ant’s adverse decision was influenced by the plaintiff ’s con-
stitutionally 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 affidavit from an officer testifying that
no one has been prosecuted in the jurisdiction for engaging
in similar conduct. Second, he produces a statistical study
corroborating the affidavit. And third, the plaintiff testifies
10                  GONZALEZ v. TREVINO

                      ALITO, J., concurring

that a police officer has been surveilling his house for sev-
eral weeks. The first 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 frame-
work redundant 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 sum-
mary judgment under Mt. Healthy. They argued their po-
sitions forcefully and well, but it is not faithful to our prec-
edent to use the “narrow” Nieves exception as a crowbar for
overturning 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.
   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 officers knowingly refused
to arrest other specific jaywalkers. And we certainly did
not suggest that this jaywalker had to find 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
traffic 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
Mt. Healthy framework. The Nieves exception is most eas-
                     Cite as: 

 (2024)                    11

                          ALITO, J., concurring

ily satisfied by strong affirmative evidence that the defend-
ant let other individuals off the hook for comparable behav-
ior. 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 defined too specifically, 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 behav-
ior had been arrested, courts will be “flooded with dubious
retaliatory arrest suits,” Lozman, 

, and the
Nieves’s exception would drain the no-probable-cause re-
quirement of all force.
                              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 briefing
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 affirmative af-
ter faithfully applying our precedents.
   Nothing about Nieves’s rationale depends on whether the
officer made a split-second arrest of the plaintiff.3 That de-
cision expressly borrowed the no-probable-cause rule and
its underlying justifications from Hartman, the seminal
case governing retaliatory-prosecution claims. Nieves self-
consciously emulated Hartman because both types of retal-
iation claims share the same critical characteristics.
——————
  3 Indeed, the plaintiff in Nieves implied that the officer held a grudge

against him before he even had an opportunity to take the plaintiff into
custody. See 587 U. S., at 396–397.
12                     GONZALEZ v. TREVINO

                          ALITO, J., concurring

   Three features stand out. For one thing, courts adjudi-
cating either claim face the “ultimate problem” of determin-
ing “whether the adverse government action was caused by
the officer’s malice or the plaintiff ’s potentially criminal
conduct.” Nieves, 

; see also Hartman, 

. The causal challenge is similarly complex in
both contexts because “protected speech is often a ‘wholly
legitimate consideration’ ” for officers deciding whether to
launch a prosecution or to make an arrest. Nieves, 

. 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 “ ‘evidence 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
volumes about the objective reasonableness of a defendant’s
action. Ibid.; see also Hartman, 

. Lastly,
by focusing the inquiry on objective indicia of reasonable-
ness, a no-probable-cause rule reflects our general reluc-
tance to probe the subjective intent of law-enforcement of-
ficers. Nieves, 

; 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 definition involves only delib-
erative government acts.4

——————
  4 It is certainly true that we made a fleeting reference to split-second

arrests in Nieves. Specifically, we mentioned that officers often must
make quick, difficult assessments of a potential arrestee’s conduct and
speech to determine whether the subject poses a threat. 

. But we offered that observation as an additional justification for
                     Cite as: 

 (2024)                  13

                         ALITO, J., concurring

   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
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 pro-
cess 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 

 (noting
that “we could debate whether the closer common-law ana-
log 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
necessarily rejected the force of any analogy to abuse of
process. In Nieves, the core dispute was whether we
should extend the same no-probable-cause requirement to
retaliatory-arrest claims. Once we decided to do so, we cop-
ied Hartman’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 Curiae in Nieves v. Bartlett, O. T. 2018, No. 17–
1174, p. 10, n. 2.
   Gonzalez’s common-law argument suffers from another
——————
the no-probable-cause rule rather than as a limit on the rule’s applica-
bility. The “ultimate problem” remains the difficulty of figuring out
whether the arrest was motivated by “the officer’s malice or the plain-
tiff ’s potentially criminal conduct.” Id., at 402 (emphasis added).
14                     GONZALEZ v. TREVINO

                         ALITO, J., concurring

defect. It is well settled that common-law principles are
meant to serve as helpful guides rather than prefabricated
components of a §1983 claim. Manuel v. Joliet, 

 (2017); see also Rehberg v. Paulk, 

 (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 analysis to the
common law of torts. In Hartman, for instance, we ex-
pressly declined the parties’ “invitation to rely on common-
law parallels,” and never took a position on whether mali-
cious prosecution or abuse of process was the better analog
to retaliatory prosecution. 

. And in Nieves,
we looked to the common law only to “confir[m]” what we
had already concluded: that the same no-probable-cause re-
quirement we established in Hartman should also apply to
retaliatory-arrest claims. 

. Common-law
torts can assist our analysis, but they do not dictate every
dimension of a §1983 claim.
  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, 

, 272–273 (1985). Because any analogy to a common-
law cause of action is thus “bound to be imperfect,” 

, we necessarily deal in generalities when we look to the
common law to define §1983 claims.5 The specific 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
different tort analogies within the same class of §1983
claims. Consider the parties’ arguments in Hartman. The
——————
  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 1–3.
                  Cite as: 

 (2024)           15

                      ALITO, J., concurring

defendants 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 ana-
log. 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 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. Un-
der her view, the elements of a plaintiff ’s meritorious §1983
claim may evolve throughout the lawsuit as more facts are
discovered and verified. I see little value in endorsing this
awkward and predictably inefficient innovation.
   Gonzalez’s proposed limit on Nieves would also be un-
workable in practice because it raises thorny line-drawing
questions about the meaning of a “split-second” decision to
arrest. Consider an officer who surveils a political dissident
for many months with the plan of arresting him the mo-
ment he broke the law. Would that arrest be considered a
split-second decision under Gonzalez’s view? Or suppose
that an arresting officer takes several minutes to confer
with another officer on the scene. Would the no-probable-
cause requirement apply? What if an officer takes time to
ensure that everyone at a crime scene is safe before com-
pleting an arrest? These hypotheticals illustrate the vast
practical difficulties with Gonzalez’s theory, and there is no
principled basis for drawing such finely grained lines in any
event.
   A “split-second” rule would also create a perverse incen-
tive for police officers to make quick arrest decisions rather
than proceeding in a deliberative manner. Gonzalez’s test
punishes the city officials for seeking a warrant from a neu-
tral magistrate before arresting her. Under her approach,
16                    GONZALEZ v. TREVINO

                        ALITO, J., concurring

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
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 fit within its narrow exception. 

. 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.
                  Cite as: 

 (2024)            1

                   KAVANAUGH, J., concurring

SUPREME COURT OF THE UNITED STATES
                          _________________

                          No. 22–1025
                          _________________


    SYLVIA GONZALEZ, PETITIONER v. EDWARD
              TREVINO, II, ET AL.
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE FIFTH CIRCUIT
                         [June 20, 2024]

  JUSTICE KAVANAUGH, concurring.
  Sylvia Gonzalez was arrested for intentionally stealing a
government record. See 

(a)(3)
(West Cum. Supp. 2023). Gonzalez sued city officials under

, alleging that she was arrested in
retaliation for First Amendment-protected activity.
  But Gonzalez conceded that city officials had probable
cause to arrest her for intentionally removing the
government record. (A video shows Gonzalez putting the
government record into her binder at a city council meeting.
See ante, at 1–4 (ALITO, J., concurring).) An arrestee
ordinarily cannot sue a public official under §1983 for
retaliatory arrest if the official had probable cause to make
the arrest. See Nieves v. Bartlett, 

 (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 officers “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
required 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 course, Gonzalez could not plausibly claim that
2                  GONZALEZ v. TREVINO

                   KAVANAUGH, J., concurring

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 intentionally, and that people who accidentally remove
government 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
jaywalking. Gonzalez’s argument turns not on her conduct
(taking government records) but rather on her mens rea.
She essentially argues that an objectively reasonable officer
would have known that Gonzalez accidentally rather than
intentionally took the government record.
  When Gonzalez conceded that the officials had probable
cause to arrest her, however, she necessarily conceded that
the officers had probable cause to conclude that she
“intentionally” removed the document. 

(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 reasonable officer 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.
                  Cite as: 

 (2024)             1

                     JACKSON, J., concurring

SUPREME COURT OF THE UNITED STATES
                          _________________

                          No. 22–1025
                          _________________


    SYLVIA GONZALEZ, PETITIONER v. EDWARD
              TREVINO, II, ET AL.
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE FIFTH CIRCUIT
                         [June 20, 2024]

   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, 

 (2019); see ante, at 5.
   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 satisfied in
“circumstances where officers have probable cause to make
arrests, but typically exercise their discretion not to do so.”

. “The only express limit we placed on the
sort of evidence a plaintiff may present for that purpose is
that it must be objective.” Ante, at 4. As the United States
explains, such objective evidence could “include officers’ em-
ployment 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
2                        GONZALEZ v. TREVINO

                          JACKSON, J., concurring

as Amicus Curiae 20.* Similarly, “if officers falsely docu-
ment the arrest or include other indicia of retaliatory mo-
tive 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 officer’s warrant affidavit suggesting a re-
taliatory motive. See Brief for Petitioner 43–44. Those cat-
egories of evidence, too, can support the conclusion that
Gonzalez “was arrested when otherwise similarly situated
individuals not engaged in the same sort of protected
speech had not been.” Nieves, 

. On re-
mand, the lower courts may consider the full scope of objec-
tive evidence that Gonzalez has offered to establish differ-
ential treatment. See ante, at 4.
   With this understanding, I join the Court’s per curiam
opinion.




——————
  *JUSTICE ALITO suggests that evidence of this sort—such as the fact
that “a police officer has been surveilling [a plaintiff ’s] house for several
weeks”—would not “count towards the Nieves exception.” Ante, at 10
(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, 

.
                     Cite as: 

 (2024)                     1

                         THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
                              _________________

                              No. 22–1025
                              _________________


     SYLVIA GONZALEZ, PETITIONER v. EDWARD
               TREVINO, II, ET AL.
 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
            APPEALS FOR THE FIFTH CIRCUIT
                             [June 20, 2024]

   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
v. Riviera Beach, 

 (2018) (THOMAS, J., dis-
senting).* Under the Court’s precedents, §1983 is “con-
strued in light of common-law principles that were well set-
tled at the time of its enactment.” Kalina v. Fletcher, 

 (1997). “Because no common-law tort for re-
taliatory 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, 

 (2019) (THOMAS, J., concurring
in part and concurring in judgment) (internal quotation
marks and alteration omitted). As I have previously ex-
plained, the common-law torts most analogous to retalia-
tory-arrest claims are false imprisonment, malicious arrest,
and malicious prosecution—all of which required a plaintiff

——————
   *I also remain “skeptical that 

 recognizes a claim for
retaliatory arrests under the First Amendment.” Lozman, 

 (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,

, n. (2019) (THOMAS, J., concurring in part and concur-
ring in judgment).
2                  GONZALEZ v. TREVINO

                    THOMAS, J., dissenting

to prove “the absence of probable cause.” 

 at 409–410.
Gonzalez concedes that there was probable cause for her ar-
rest. Brief for Petitioner 30. Her retaliatory-arrest claim
therefore cannot proceed.
   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 ad-
dressed the “extortionate perversion of lawfully initiated
process to illegitimate ends.” Heck v. Humphrey, 

 (1994). Critically for Gonzalez’s argument,
an abuse-of-process claim did not require a plaintiff to es-
tablish the absence of probable cause. See C. Addison,
Wrongs and Their Remedies 601–602 (3d ed. 1870) (Addi-
son); T. Cooley, Law of Torts 356 (3d ed. 1906) (Cooley).
   I am not persuaded that an abuse-of-process claim is
analogous to Gonzalez’s retaliatory-arrest claim. Gonza-
lez’s central argument is that her arrest was invalid be-
cause the defendants 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 pro-
cess was ultimately used as “intended by the law.” Mayer
v. Walter, 

, 285–286 (1870); see Addison 602
(abuse-of-process tort applies where process has been “pros-
tituted to an illegal purpose”). An abuse of process occurred
when an ordinary process was distorted “for a purpose not
justified 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 abuse-of-process claim if an officer arrested
and detained him in an oppressive manner as a means of
extortion. See 

 at 354–355 (providing as an example
                  Cite as: 

 (2024)              3

                      THOMAS, J., dissenting

“causing an arrest . . . and keeping [the plaintiff] impris-
oned 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 officer deprived
him of food while he was detained. Wood v. Graves, 

, 

 (1887) (describing where
a “person arrested . . . is treated with cruelty, is deprived of
proper food, or is otherwise treated with oppression and un-
due 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 Glide-
well v. Murray-Lacy & Co., 

, 

 (1919) (explaining that the “distinctive nature of an ac-
tion for abuse of process . . . lies for the improper use of a
regularly issued process, not for maliciously causing pro-
cess to issue”); Cooley 356 (“ ‘Regular and legitimate use of
process, though with a bad intention, is not a malicious
abuse of process’ ”). Because Gonzalez’s retaliatory-arrest
claim focuses on the motives behind her arrest and not the
process itself, the abuse-of-process tort is a poor fit.
   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. 

. But, it intro-
duced one purportedly “narrow qualification.” Ibid.; see
Lund v. Rockford, 

 (CA7 2020) (consider-
ing 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 ar-
rested when otherwise similarly situated individuals not
engaged in the same sort of protected speech had not been.”

.
   Today, the Court expands that qualification. Nieves’s ex-
ception can now apply if a plaintiff presents evidence of any
objective fact that “makes it more likely that an officer has
4                  GONZALEZ v. TREVINO

                    THOMAS, J., dissenting

declined to arrest someone for engaging in such conduct in
the past.” Ante, at 5 (emphasis deleted). Accordingly, even
though Gonzalez’s proffered evidence does not point to a
single “similarly situated individua[l],” the Court nonethe-
less concludes she may satisfy the Nieves exception. Nieves,

.
  There is “no basis in either the common law or our First
Amendment precedents” for the exception created in Nieves
and expanded upon today. 

 (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.