The per curiam opinion correctly decides that the Fifth Circuit took an unduly narrow view of the exception we recognized 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 visits to Castle Hills residents, requesting their signatures and support. According to some accounts, her efforts were aggressive. Chalene Martinez averred that Gonzalez solicited her signature “ `under false pretenses' ”—specifcally by misleading 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. Page Proof Pending Publication 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 documents representing the petition to remove Rapelye. As the presiding offcer of the meeting, Mayor Edward Trevino assumed 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 coincidence, 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 1These 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.
Page Proof Pending Publication 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, alleging 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 sensitive . . . or delicate, either due to the nature of the crime or . . . the parties involved.” App. 43.
Wright conducted a thorough investigation. He interviewed 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 strenuously 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 evidence, 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), Page Proof Pending Publication and he sought an arrest warrant from the local Magistrate. Wright's warrant affdavit 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 warrant 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 background for retaliatory-arrest and retaliatory-prosecution claims. Second, I elaborate on the scope of the Nieves exception. 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 prosecutions, for speaking out.” Hartman v. Moore, 547 U. S. 250, 256 (2006). We ordinarily analyze First Amendment retaliation 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 engaged in protected speech and that his speech was a “ `subPage Proof Pending Publication 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 second 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 (discussing 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 rejected because of his poor personal statement).
Our cases have admitted, however, that this framework fts uneasily with First Amendment retaliatory-arrest and retaliatory-prosecution claims for at least three reasons. First, it is all too easy for a plaintiff to subject a law- enforcement offcer to the crucible of litigation based on allegations 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 disturbing 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 consideration” 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 because 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 Page Proof Pending Publication the plaintiff for disorderly conduct and resisting arrest because “they perceived [the plaintiff] to be a threat” based in part on the combative tone and content of his speech. 587 U. S., at 401. And no one suggested that an individual's speech is off-limits in this respect. Ibid. (explaining that “the content and manner of a suspect's speech” may provide important information for law enforcement).
Third, the machinery of criminal justice often 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 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 circumstances, it may be diffcult to discern whether the offcer acted improperly. 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 support 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 requirement 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 Page Proof Pending Publication Page Proof Pending Publication the presumption of good faith we afford to law-enforcement offcials. Ibid. (internal quotation marks omitted).
In Nieves, however, we recognized a narrow exception to the no-probable-cause rule. While a showing of probable cause generally defeats a retaliatory-arrest claim, we observed that this requirement should be relaxed “where offcers have probable cause to make arrests, but typically exercise 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 exception, Nieves offered the example of a vocal critic of the police who is arrested for jaywalking. Id., at 407. The unyielding enforcement of a no-probable-cause requirement in this context would be insuffciently protective of the plaintiff's First Amendment rights because the defendant's animus 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 plaintiff's inability to prove the absence of probable cause is excused only if the plaintiff presents “objective evidence that 2For this reason, I assume for the sake of argument that her alleged conduct constituted a violation of Texas's anti-tampering statute. he was arrested when otherwise similarly situated individuals 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 enforcement is best achieved by the application of objective standards 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 allegations 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 Fifth Circuit will defeat the whole purpose of the noprobable-cause rule. Our decisions refect our sensitivity to these concerns, see Lozman v. Riviera Beach, 585 U. S. 87, 98 (2018), but a proper application of the Nieves exception will not produce this result for at least two reasons. First, courts must remember that the exception is just that—an exception, and a narrow one at that.
Judges should not confate the question whether certain evidence can be considered under the Nieves exception with the entirely distinct question whether the evidence suffces to satisfy 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. Page Proof Pending Publication Second, evidence that tends to show only that the plaintiff's constitutionally protected speech was a “substantial or motivating factor” behind the adverse action should not be considered unless and until the plaintiff can provide other evidence to satisfy the Nieves exception. Lozman, 585 U. S., at 97. This requirement fows from the recognition that the Nieves exception serves only as a gateway to the Mt. Healthy framework.
The 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 defendant's adverse decision was infuenced by the plaintiff's constitutionally 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 corroborating the affdavit. And third, the plaintiff testifes that a police 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 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 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 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. Page Proof Pending Publication I now turn to the facts of Gonzalez's case. Here, her evidence 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 person who was not arrested under the same law for engaging in a carbon-copy course of conduct. Our jaywalking example 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 committed the offense under the same conditions as those in his case—for example, on a street with the same amount of traffc 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 easily satisfed by strong affrmative evidence that the defendant let other individuals off the hook for comparable behavior. But when a plaintiff's claim hinges on negative evidence, like what Gonzalez offers here, context is key for determining the strength of his case. When a plaintiff's alleged 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 plaintiff's conduct at the appropriate level of generality because every arrest, if defned too specifcally, can be described as the first of its kind.
If a plaintiff could evade the noprobable-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 retaliatory arrest suits,” Lozman, 585 U. S., at 98, and the Nieves's exception would drain the no-probable-cause requirement of all force.
Page Proof Pending Publication
C
We also granted certiorari on whether the Nieves noprobable-cause rule applies beyond split-second arrests. The parties vigorously contested this question in briefng and at oral argument, yet the Court today reserves judgment on this issue. I disagree with this course. In my view, Nieves already answered this question in the affrmative 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 decision expressly borrowed the no-probable-cause rule and its underlying justifcations from Hartman, the seminal case governing retaliatory-prosecution claims. Nieves self- consciously emulated Hartman because both types of retaliation claims share the same critical characteristics.
Three features stand out.
For one thing, courts adjudicating either claim face the “ultimate 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 “ `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 vol3Indeed, 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.
Page Proof Pending Publication umes about the objective reasonableness of a defendant's action. Ibid.; see also Hartman, 547 U. S., at 265. Lastly, by focusing the inquiry on objective indicia of reasonableness, a no-probable-cause rule refects our general reluctance to probe the subjective intent of law-enforcement offcers. Nieves, 587 U. S., at 403; see also Hartman, 547 U. S., at 263–265.
This analysis—none of which turns on whether an arrest was made in a split-second context—is plainly incompatible with Gonzalez's theory. And it would be bizarre to think Nieves silently limited itself to split-second decisions when the reasoning it imported came from the retaliatory- prosecution context, which by defnition involves only deliberative government acts.4 Gonzalez argues that we should limit Nieves to split- second cases because, in her view, a retaliatory-arrest claim is analogous to the common-law tort of abuse of process, which lacks a no-probable-cause requirement. Tr. of Oral Arg. 5–6. She urges us to rely on the abuse-of-process analogy to draw a line between split-second arrests with no process 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 4It 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 noprobable-cause rule rather than as a limit on the rule's applicability. The “ultimate problem” remains the diffculty of fguring out whether the arrest was motivated by “the offcer's malice or the plaintiff's potentially criminal conduct.” Id., at 402 (emphasis added).
Page Proof Pending Publication 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 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 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 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 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 analog 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-probablecause 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.
Page Proof Pending Publication And that is for good reason. Many § 1983 claims “can be favorably analogized to more than one of the ancient common-law forms of action.” Wilson v. Garcia, 471 U. S. 261, 272–273 (1985). Because any analogy to a common-law cause of action is thus “bound to be imperfect,” id., at 272, we necessarily deal in generalities when we look to the common 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 different tort analogies within the same class of § 1983 claims. Consider the parties' arguments in Hartman. The 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 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 discovered and verifed. I see little value in endorsing this awkward and predictably ineffcient innovation.
Gonzalez's proposed limit on Nieves would also be unworkable in practice because it raises thorny line-drawing questions 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 5First Amendment retaliation claims offer a particularly good example of this point. Justice Thomas's dissent in this case shows, at a minimum, 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. Page Proof Pending Publication the law. Would that arrest be considered a split-second decision 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 hypotheticals illustrate the vast practical diffculties with Gonzalez'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 incentive 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 neutral magistrate before arresting her. Under her approach, the defendants would have been better off if they had arrested 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 retaliatory 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.