Whether the Nieves probable-cause exception allows courts to consider allegations that no one else has been arrested for the same crime

QUESTIONS PRESENTED Under Nieves v. Bartlett, probable cause does not bar a retaliatory-arrest claim when the plaintiff shows “that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” 139 S. Ct. 1715, 1727 (2019). The circuits disagree on how to satisfy this standard, and this Court granted certiorari in Gonzalez v. Trevino, No. 22-1025, to address the conflict. Specifically, the circuits disagree on whether courts may consider allegations that no one else has been arrested for the same conduct. Compare Ballentine v. Tucker, 28 F.4th 54, 60 (CA9 2022), with Pet.App.5a—6a (CA8 2023) (2-1 decision, with Grasz, J., dissenting), and Gonzalez v. Trevino, 42 F.4th 487, 493 (CA5 2022). They also disagree on whether courts may consider an arresting officer’s statements made after an arrest. Compare Lund v. City of Rockford, 956 F.3d 938, 945 (CA7 2020), with Pet.App.6a (CA8 2023) (2-1 decision, with Grasz, J., dissenting), and Gonzalez, 42 F.4th at 493. The questions presented are: 1. Whether the Nieves probable-cause exception allows courts to consider allegations that no one else has been arrested for the same crime. 2. Whether the Nieves probable-cause exception allows courts to consider an arresting officer’s statements made after an arrest. Here, the petitioner engaged in protected speech when talking with a police officer, who arrested him. ii Probable cause supported the arrest because the officer saw the petitioner walking on the wrong side of a rural road. The petitioner sued, alleging that officers usually do not arrest for walking on the wrong side of the road and no one in the county had been arrested for that crime in recent memory. Video footage also shows that, while at the jail after the arrest, the officer asked what he could charge the petitioner with and made other remarks indicating that similarly situated people would not have been arrested.