Does probable cause defeat a retaliatory prosecution claim

QUESTION PRESENTED In Hartman v. Moore, 547 U.S. 250 (2006), this Court held that probable cause always defeats as a matter of law a retaliatory prosecution claim under 42 U.S.C. § 1983 because prosecution, as opposed to arrest, involves a prosecutor's discretion. In Reichle v. Howards, 566 U.S. 658 (2012), the Court recognized that Hartman was "decided against a legal backdrop" that treated retaliatory arrest and prosecution claims similarly "when considering the relevance of probable cause." Id. at 667. In Nieves v. Bartlett, 139 S.Ct. 1715, 1735 (2019), eight justices agreed that probable cause alone does not always suffice to defeat a retaliatory arrest claim under § 1983. Jd. at 1735 (Sotomayor, J., dissenting). Five justices ruled that a showing of probable cause will defeat a retaliatory prosecution claim unless the person arrested can show that "otherwise similarly situated individuals" whose speech differed from his were not arrested for the same criminal conduct. /d. at 1727. Justice Gorsuch did not interpret the majority's opinion to adopt a "rigid rule" that precluded plaintiffs "who can't prove the absence of probable cause" from presenting "other kinds of evidence" that they were arrested because of their speech. Justice Sotomayor correctly predicted that the majority opinion in Nieves created "a Frankenstein-like constitutional tort that does more harm than good," id. at 1738, and that would “shortchange[]" individuals’ freedom to complain about police action "in the name of marginal convenience." Id. at 1742. The question presented is: Does probable cause defeat a retaliatory prosecution claim when there is strong circumstantial proof that a policeman initiated the prosecution to retaliate against the plaintiff's complaint against the policeman, the prosecution was initiated without the involvement of a prosecutor, and there is no “similarly situated individual[]” to be used as a comparator?