Nieves v. Bartlett, 587 U.S. 391 (2019), was a civil rights case in which the Supreme Court of the United States decided that probable cause should generally defeat a retaliatory arrest claim brought under the First Amendment, unless officers under the circumstances would typically exercise their discretion not to make an arrest.

State trooper Sergeant Luis Nieves approached Bartlett, who was visibly intoxicated, and requested him to stow the keg in his RV.

[2] The Ninth Circuit thus ruled that even if Nieves had probable cause, Bartlett could seek a retaliatory arrest claim based on his First Amendment rights.

The Supreme Court had heard the case of Lozman v. City of Riviera Beach, which had been brought up through the Eleventh Circuit.

Observers to the oral hearing found the Justices concerned on how to develop a proper standard to determine when an arrest can be considered retaliatory; Justice Samuel Alito considered that it would be difficult to set a metric between two extreme cases: that of a man yelling at an officer in a heated setting, and that of a person critical of their local government being arrested on a minor traffic violation.

[11] Ginsburg opined that she would have reversed the lower decision and would have avoided using this case to establish a rigid rule that may chill free speech, but agreed that probable cause alone is not sufficient to defeat a retaliatory arrest claim.

Her main point of dissent was that the majority opinion "fetishizes one specific type of motive evidence—treatment of comparators—at the expense of other modes of proof.

She points to literature on unconstitutional race-based selective prosecution and notes how difficult it is for plaintiffs in that case to provide comparative evidence of the type the majority decision now requires.

[14][15] Gorsuch suggested an evidential standard for clear and convincing of a prohibited purpose which she critiques but refrains from rejecting outright.