Gonzalez v. Trevino

P R E L I M I N A R Y P R I N T
Volume 602 U. S. Part 1
Pages 653–679
OFFICIAL REPORTS
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T H E S U P R E M E C O U R T
June 20, 2024
REBECCA A. WOMELDORF
reporter of decisions
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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
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-

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654 GONZALEZ
v. TREVINO
Syllabus
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 br iefs were Pa tr i ck Jaico mo, Wi ll Aro n in, 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.
Co le, Ceci ll ia D. Wang, Barbara E. Bergman, J. T. Mor r is, Dar pana
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

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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
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.
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
belong
ings 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 pr ivate attor ney's request, a local Mag istrate
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.
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as: 602 U. S. 653 (2024)
657
Per Curiam
To bolster her claim, Gonzalez alleged that she had re-
v
iewed 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.
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' moti on. 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).
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658 GONZALEZ
v. TREVINO
Per Curiam
II
Gonza
lez 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-
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.
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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
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.
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660 GONZALEZ
v. TREVINO
Alito, J., concurring
In a town of roughly 4,000 inhabitants, she helped garner
o
ver 300 sig natures for her petiti on seek ing 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.
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.
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as: 602 U. S. 653 (2024)
661
Alito, J., concurring
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
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),
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662 GONZALEZ
v. TREVINO
Alito, J., concurring
and he sought an arrest warrant from the local Magistrate.
W
right'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
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-
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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 a l l too easy for a plai nti ff to subjec t a law-
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
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664 GONZALEZ
v. TREVINO
Alito, J., concurring
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).
Th ird, the mach inery of cr imina l 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
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
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665
Alito, J., concurring
the presumption of good faith we afford to law-enforcement
offcia
ls. 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-
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
Alito, J., concurring
he was arrested when otherwise similarly situated individu-
a
ls 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
Fi f th Circuit w i l l defeat the whole pur pose 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 excepti on, 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.
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as: 602 U. S. 653 (2024)
667
Alito, J., concurring
Second, evidence that tends to show only that the plain-
ti
ff'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 Ni ev es 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. Hea l th y framework. The N i ev es excepti on 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
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.
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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
Mt. Healthy framework. The Ni ev es 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 k i nd. If a plai nti ff cou ld 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.
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669
Alito, J., concurring
C
W
e 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-prosecuti on claims. Ni ev es self-
consciously emulated Hartman because both types of retali-
ation claims share the same critical characteristics.
Three features st and out. For one th i ng, cour ts ad-
judicati ng either clai m face the “u lti mate problem” of
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.
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670 GONZALEZ
v. TREVINO
Alito, J., concurring
umes about the objective reasonableness of a defendant's ac-
ti
on. 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 reasoni ng it i mpor ted came from the ret a l iatory-
prosecution context, which by defnition involves only delib-
erative government acts.
4
Gonza lez arg ues that we should limit Ni ev es 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 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).
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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
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 si mply a federa l i zed ama lgamati on of pre-existi ng
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.
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v. TREVINO
Alito, J., concurring
And that is for good reason. Many § 1983 claims “can be
f
avorably ana log i zed 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
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.
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as: 602 U. S. 653 (2024)
673
Kavanaugh, J., concurring
the law. Would that arrest be considered a split-second de-
cisi
on 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
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.
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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
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.

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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.
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
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676 GONZALEZ
v. TREVINO
Thomas, J., dissenting
that it must be objective.” Ante, at 658. As the United
St
ates 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-
za lez “was arrested when other w ise similar ly situated
individuals not engaged in the same sort of protected speech
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.

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677
Thomas, J., dissenting
v. Riviera Beach, 585 U. S. 87, 107 (2018) (Thomas, J., dis-
senti
ng).* 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. Br ief for Petiti oner 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 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).
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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
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-
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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-
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 Ni ev es 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.
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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
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:
None