                               In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 19‐1945
WILLIAM LUND,
                                                  Plaintiff‐Appellant,
                                 v.

CITY OF ROCKFORD, ILLINOIS,
a municipal corporation;
SEAN WELSH, TIMOTHY CAMPBELL, and
EDDIE TORRANCE,
                                               Defendants‐Appellees.
                     ____________________

         Appeal from the United States District Court for the
           Northern District of Illinois, Western Division.
          No. 3:17‐cv‐50035 — Frederick J. Kapala, Judge.
                     ____________________

    ARGUED DECEMBER 9, 2019 — DECIDED APRIL 20, 2020
                ____________________

   Before EASTERBROOK, ROVNER, and SCUDDER, Circuit
Judges.
    ROVNER, Circuit Judge. William Lund, a reporter, was ar‐
rested in Rockford, Illinois after discovering a police‐run
prostitution sting operation in the course of his news‐gather‐
ing activities. He sued the City and several officers for
2                                                           No. 19‐1945

retaliatory arrest, malicious prosecution and several other al‐
leged invasions of his rights under federal and state law. The
district court granted summary judgment for the defendants.
While Lund’s case was pending, the Supreme Court issued its
decision in Nieves v. Bartlett, 139 S. Ct. 1715 (2019), which in‐
structs that, in most cases, probable cause to arrest defeats a
claim of retaliatory arrest. Because the police had probable
cause to arrest Lund, Nieves controls, and we affirm the grant
of summary judgment for the defendants.
                                      I.
    Lund was a reporter and administrator for the Rockford
Scanner, a news organization that reports on notable events
in the Rockford Area.1 On May 25, 2015, he heard, by way of
a police scanner, of a number of traffic stops in the Midtown
District of Rockford. Because he did not have a driver’s li‐
cense, he rode a motorized bicycle to the area, where he began
taking photographs. He quickly surmised that the police were
operating a prostitution sting operation. After about ten to fif‐
teen minutes photographing the scene, he retreated to an al‐
ley.
    In the meantime, a surveillance officer at the scene of the
sting noticed Lund riding his motorized bicycle and taking
photographs, and subsequently radioed the other members of
the sting team to report it. One of the undercover officers

1 The defendants label the Rockford Scanner an “internet blog” and note
that Lund was an unpaid reporter with “no background or education in
journalism.” Brief of Appellees Sean Walsh, Timothy Campbell, and Eddie
Torrance, at 4. We note that First Amendment protection does not depend
on the quality of the news source or the wages of the reporter. The defend‐
ants’ brief also contains many references to Lund’s prior criminal record
which are irrelevant to the matter presently before us.
No. 19‐1945                                                  3

posing as a prostitute also noticed Lund and called another
officer, Officer Sean Welsh, on his cell phone and told him she
was concerned about a man on a motorized bike who was tak‐
ing pictures of her. Officer Welsh and Officer Timothy Camp‐
bell both knew of Lund and were familiar with some of his
previous anti‐police speech. Officer Welsh knew that Lund
was a reporter for the Rockford Scanner.
    Officers Campbell and Welsh found Lund in an alley and
Campbell informed Lund that he had to “move on.” Lund
asked if he was breaking any laws, and Campbell informed
him that he was not, but that if he did not leave as requested,
his continued presence would constitute obstruction of a po‐
lice detail and they would arrest him. Lund started the engine
of his bicycle, and as he rode away, he called out to the un‐
dercover officers—loudly, over the noise of the engine—
“goodbye officers.” At that moment, Welsh and Campbell
made the decision to arrest Lund for obstructing a police in‐
vestigation. They had concerns that, because of his previous
animus toward the Rockford police, he might post pictures on
social media while the sting operation was still ongoing
which, they assumed, would create a danger for the under‐
cover officers who were unarmed in a high crime area. Welsh
and Lund followed Lund for three blocks, the second of which
Lund travelled southbound on a one‐way‐street which ran
northbound. After one more block of following Lund, the of‐
ficers stopped and then arrested him for driving the wrong
way on a one‐way street, operating a vehicle without insur‐
ance, resisting or obstructing a police officer, felony aggra‐
vated driving on a revoked license, and operating a motor ve‐
hicle without a valid drivers’ license.
4                                                             No. 19‐1945

    Under Illinois law, a motorized bicycle is considered a mo‐
tor vehicle if it can propel a 170‐pound person more than 20
miles per hour or more on a level surface. 625 ILCS §§ 5/1‐
140.15, 1‐146. Conveniently, Lund weighs approximately 170
pounds, and the officers reported that they were following di‐
rectly behind Lund, matching his speed at 24 miles per hour.
In the district court, Lund had argued that his motor had been
modified so that it could only reach a maximum speed of 20
miles per hour. The district court held that “no reasonable
jury could conclude that defendants did not have a basis for
believing, to a reasonable degree of certainty, that plaintiff’s
bicycle was travelling fast enough to violate § 11‐708.” R. 71
at 4. See also 625 ILCS § 5/11‐708(b) (“Upon a roadway so des‐
ignated for one‐way traffic, a vehicle shall be driven only in
the direction designated at all or such times as shall be indi‐
cated by official traffic control devices.”). On appeal, Lund ap‐
pears to have abandoned arguments about the bicycle’s status
as a motor vehicle under Illinois law.2
    Following the arrest, Officer Eddie Torrance put together
a list of all of the people who were arrested during the sting
and gave it to his lieutenant. From there, someone else, who
has not been identified, used the list to prepare a press release
which became the source of news stories that listed Lund’s
name as an arrestee during a prostitution sting. Torrance

2 In his statement of the case, Lund stated that he “rode a low‐powered
gasoline engine bicycle to the area,” and that it could travel no faster than
19 to 20 miles per hour, thus “meeting the definition of a low‐powered
bicycle under Illinois law.” Brief of Plaintiff‐Appellant at 2. The argument
section of his brief, however, does not challenge the district court’s finding
that “no reasonable jury could conclude that defendants did not have a
basis for believing, to a reasonable degree of certainty, that plaintiff’s bi‐
cycle was travelling fast enough to violate § 11‐708(b).” R. 71 at 4.
No. 19‐1945                                                                5

testified that publishing this type of arrest information is a
form of “public shaming” that the department uses to dis‐
suade people from soliciting prostitution. (R. 63‐4, Torrance
Dep. 35).
    The following year, Lund filed a motion to dismiss all of
the charges for lack of probable cause. On the day that the
court scheduled to hear the motion, the state’s attorney en‐
tered a nolle prosequi order, dismissing all of the charges.
    Lund sued the officers and the City of Rockford for false
arrest, unreasonable search and seizure, failure to intervene,
First Amendment retaliation, conspiracy, and malicious pros‐
ecution—all under §1983—and for malicious prosecution un‐
der Illinois law. Lund appeals only the entry of summary
judgment for the defendants with respect to two claims: the
federal First Amendment retaliation claim, and malicious
prosecution under Illinois common law—decisions we re‐
view de novo.3 Youngman v. Peoria Cty., 947 F.3d 1037, 1041
(7th Cir. 2020).




3 Although Lund sued the City of Rockford, the City did not file a brief in
this case. This court issued a Rule to Show Cause, ordering the City to
“show cause … why this appeal should not be submitted to the Court for
decision without a brief and without oral argument by the appellee.” App.
R. 17. In response, the City stated that “[t]he Plaintiff‐Appellant has no
direct claims against the City. Plaintiff’s claims against the City sound
only in vicarious liability and indemnification.” App. R. 19 at 1. In lieu of
submitting its own brief, the City asked to join the briefs of the individual
defendants. Id. at 2. This court denied that request as untimely. App. R.
20.
6                                                     No. 19‐1945

                                  II.
A.      First Amendment retaliation
     1. Retaliatory arrest and probable cause
    Lund asserts that the district court errantly granted sum‐
mary judgment on his First Amendment retaliation claim, ar‐
guing that he presented objective evidence that the defendant
officers abused their power by suppressing and punishing
Lund’s speech. In other words, Lund claims that the officers
arrested him in retaliation for speech and news‐gathering ac‐
tivities protected by the First Amendment. Lund’s concerns
are not without basis. Nearly every authoring justice of the
latest Supreme Court opinion on retaliatory arrest acknowl‐
edged “’a risk that some police officers may exploit the arrest
power as a means of suppressing speech.’” Nieves v. Bartlett,
139 S. Ct. 1715, 1727 (2019) (quoting Lozman v. City of Riviera
Beach, Fla., 138 S. Ct. 1945, 1953–54 (2018)). The majority opin‐
ion states:
        For example, at many intersections, jaywalking
        is endemic but rarely results in arrest. If an indi‐
        vidual who has been vocally complaining about
        police conduct is arrested for jaywalking at such
        an intersection, it would seem insufficiently
        protective of First Amendment rights to dismiss
        the individual’s retaliatory arrest claim on the
        ground that there was undoubted probable
        cause for the arrest.
Id. at 1727. See also id. at 1732 (Gorsuch, J. concurring in part
and dissenting in part) (“No one doubts that officers regularly
choose against making arrests, especially for minor crimes,
even when they possess probable cause. So the presence of
No. 19‐1945                                                      7

probable cause does not necessarily negate the possibility that
an arrest was caused by unlawful First Amendment retalia‐
tion.”); id. at 1734 (Ginsburg, J. concurring in the judgment in
part, and dissenting in part) (“Arrest authority, as several de‐
cisions indicate, can be abused to disrupt the exercise of First
Amendment speech and press rights.”); id. at 1736 (So‐
tomayor, J. dissenting) (“[S]ome arrests are demonstrably re‐
taliation for protected speech, notwithstanding probable
cause of some coincidental infraction.”); but see id. at 1728
(Thomas, J. dissenting) (“I do not agree that ‘a narrow quali‐
fication is warranted for circumstances where officers have
probable cause to make arrests, but typically exercise their
discretion not to do so.’”).
    Even while expressing concerns about abuse of police
power for retaliatory arrests, the Nieves Court answered the
only question posed in this case: Does “probable cause to
make an arrest defeat[] a claim that the arrest was in retalia‐
tion for speech protected by the First Amendment?” Id. at
1721. The answer, the Supreme Court held (just thirty‐nine
days after the district court entered its opinion in this case), is
“yes.” “The plaintiff pressing a retaliatory arrest claim must
plead and prove the absence of probable cause for the arrest.”
Id. at 1724. This answer definitively resolves the question pre‐
sented by Lund in this case. At the time of Lund’s arrest, the
officers had probable cause to arrest him for, at a minimum,
driving a motorized vehicle the wrong way on a one‐way
street. Lund does not challenge this finding. Therefore his
claim for retaliatory arrest fails.
   All of the other standards and tests that Lund describes
and wishes to apply are inapplicable here, as the Nieves deci‐
sion makes clear that (except in a very narrow exception that
8                                                    No. 19‐1945

we will discuss below, and which does not apply here), prob‐
able cause defeats a claim of retaliatory arrest. Id. at 1724. No
further analysis of causation, motive, or injury is required.
Nieves has left nothing further to discuss.
    All of this presupposes, of course, that we can apply the
holding of Nieves to a case that was still in the pipeline when
the Supreme Court handed down the decision. The rule on
retroactivity instructs that when the Supreme Court
       applies a rule of federal law to the parties before
       it, that rule is the controlling interpretation of
       federal law and must be given full retroactive
       effect in all cases still open on direct review and
       as to all events, regardless of whether such
       events predate or postdate our announcement
       of the rule.
Harper v. Virginia Depʹt of Taxation, 509 U.S. 86, 97 (1993). The
Court in Nieves applied the rule to the parties before it (see id.
at 1728), so the ordinary rules of retroactive application come
into play, and we apply the holding of Nieves to the matter
before us.
    Lund, however, proposes that his case squeezes through
the crack of an opening that Nieves left ajar. The Court de‐
scribed that opening as follows:
       Although probable cause should generally de‐
       feat a retaliatory arrest claim, a narrow qualifi‐
       cation is warranted for circumstances where of‐
       ficers have probable cause to make arrests, but
       typically exercise their discretion not to do so.
       In such cases, an unyielding requirement to
       show the absence of probable cause could pose
No. 19‐1945                                                    9

       “a risk that some police officers may exploit the
       arrest power as a means of suppressing speech.”
Nieves, 139 S. Ct. at 1727 (quoting Lozman, 138 S. Ct. at 1953).
As an example, the Nieves majority described a hypothetical
in which a police officer uses a jaywalking arrest to retaliate
against a rabble‐rouser complaining about police conduct,
when other jaywalkers are almost never subject to arrest. Id.
at 1727. Lund asserts that his arrest for driving a vehicle the
wrong way down a one‐way street was, in fact, retaliation for
his protected First Amendment journalistic activity. But to
make this argument, Lund would have to present “objective
evidence that he was arrested when otherwise similarly situ‐
ated individuals not engaged in the same sort of protected
speech had not been.” Id. at 1727. That language in Nieves im‐
plies that Lund would have to present objective evidence that
the Rockford police rarely, if ever, arrest citizens who drive
vehicles or, perhaps more specifically, motorized bicycles the
wrong way down one‐way streets. It is possible; however,
Nieves has left open the possibility that Lund could demon‐
strate objective evidence of retaliation in some other way.
    Lund urges us to take the view of the concurring and dis‐
senting Justice Gorsuch and dissenting Justice Sotomayor and
apply the majority’s view of the exception “commonsensi‐
cally.” See id. at 1734 (Gorsuch, J. concurring in part and dis‐
senting in part); id. at 1741 (Sotomayor, J. dissenting). In his
separate opinion, Justice Gorsuch opined that the majority
opinion did not adopt a rigid rule “that First Amendment re‐
taliatory arrest plaintiffs who can’t prove the absence of prob‐
able cause must produce ‘comparison‐based evidence’ in
every case.” Id. at 1734 (Gorsuch, J. concurring in part and dis‐
senting in part) (citing Sotomayor, J. id. at 1737).
10                                                 No. 19‐1945

       I do not understand the majority as going that
       far. The only citation the majority offers in sup‐
       port of its new standard is Armstrong, which ex‐
       pressly left open the possibility that other kinds
       of evidence, such as admissions, might be
       enough to allow a claim to proceed. Given that,
       I retain hope that lower courts will apply to‐
       day’s decision “commonsensically,” post, at
       1741–1742, and with sensitivity to the compet‐
       ing arguments about whether and how Arm‐
       strong might apply in the arrest setting.
Id. at 1734.
    We agree with Justice Gorsuch’s interpretation of the ma‐
jority opinion in Nieves; the majority does not appear to be
adopting a rigid rule that requires, in all cases, a particular
form of comparison‐based evidence. Nieves requires that a
plaintiff “present 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 1727.
We cannot, however, predict in advance every factual sce‐
nario which might meet the Court’s “objective evidence”
standard. We must consider each set of facts as it comes to us,
and in assessing whether the facts supply objective proof of
retaliatory treatment, we surmise that Justices Gorsuch and
Sotomayor are correct—common sense must prevail.
    Regardless of how we interpret the requirements of Nieves,
however, Lund has not presented sufficient objective evi‐
dence of retaliation that would allow him to slip into the nar‐
row exception to the rule which dictates that probable cause
to arrest defeats a retaliatory arrest claim. Lund has made no
attempt to present objective evidence showing that the police
No. 19‐1945                                                  11

rarely make arrests for driving the wrong way on a one‐way
street, or that other similarly situated persons were not ar‐
rested, and he has not demonstrated retaliation in some other
way.
    The only evidence Lund offers is what he labels as an “ad‐
mission” by Welsh and Campbell that they decided to arrest
Lund for obstruction “based solely on his newsgathering ac‐
tivities,” and because he said, “goodbye officers.” See Brief of
Plaintiff‐Appellant at 4–5, 9. To support this claim, Lund cites
to deposition testimony that purports to be an admission by
Officers Welsh and Campbell that they arrested Lund
“solely” for these activities. Id. at 9. But Lund has not pre‐
sented the full picture of the relevant testimony. For example,
he stops his citation to Officer Campbell’s testimony too soon.
The officers make clear that they initially made the decision
to stop and possibly arrest Lund not solely because of his First
Amendment activity, but because they had concluded that his
First Amendment activity (news gathering activity and yell‐
ing “goodbye officers) was obstructing or was about to ob‐
struct their law enforcement investigation. Lund cites only to
the first two question‐and‐answer exchanges below in Officer
Campbell’s deposition, but had he cited to a longer excerpt,
we would see that the officers did not decide to arrest Lund
for saying “goodbye officers,” but rather, under the totality of
the circumstances, they believed at the time that Lund’s
speech compromised or obstructed a police investigation:
       Q. So the reason you guys decided to stop him
          after what we see in the video here is the
          statement he made “Goodbye, Officers,”
          correct?
       A. Yes.
12                                                No. 19‐1945

      Q. Was there any other crimes that you noted
         prior to him—or strike that —from where
         we see here until he says “Goodbye, Offic‐
         ers”?
      A. No.
      Q. Is there any other legal justification that you
          base this stop on Mr. Lund other than him
          saying “Goodbye, Officers”?
      A. I think you can take the whole totality of eve‐
          rything together towards the obstruction
          charge, yes.
      Q. That being him taking the photos?
      A. The photos and the videos compromising—
         potentially compromising the detail and the
         safety of the officers, yes.
      Q. Do you know whether or not you can base
         probable cause on actions that aren’t crimes?
      A. It’s called totality of the circumstances. You
         can take somebody’s actions and things that
         they’re doing and put it all together.
R. 63‐5, Campbell dep. 65.
   In fact, Officers Campbell and Welsh repeatedly described
their initial decision to pursue Lund in order to arrest him as
one based on Lund’s compromising, obstructing, or impeding
the investigatory detail, and out of concern for the safety of
the undercover officers. See R. 63‐5, Welsh dep. 74–75 (“there
was concerns that he was interfering with our detail and our
investigation.”); id. 80–81 (“based on the fact we were con‐
cerned for the safety of the undercover officers. … [W]e grew
No. 19‐1945                                                      13

very concerned that he was at this time now impeding in the
investigation. So Officer Campbell and I made the decision to
go arrest Mr. Lund for obstructing an investigation.”); id. at
82–83 (“And so based on those feelings and that concern that
… he had the potential that he could post these pictures on
social media, which put those two officers in jeopardy.”); id.
at 91–92 (“placed under arrest for … [o]bstructing a police in‐
vestigation, interfering with a police investigation.”); id. at 94–
95 (“He hindered the investigation because we had to go and
address what he was doing because of the concerns of the un‐
dercover officers. So we had to put the operation on hold to
address his activities.”); id. at 103–104 (“obstruction … was
the initial reason why we went to go stop him.”), id. at 131–
132 (“Q: Oh, he was impeding? A: Yeah … [w]e had to take
time out of our detail to come and address his activities and
what he was doing. We had to stop what we were doing in
order to address the concerns of the undercover officer on‐
scene.”), id. at 155 (“ I was worried for the safety of the officers
that were on the street corner posing as prostitutes.”); R. 63‐3,
Campbell Dep. 35–37 (The officers asked Lund to leave “[t]o
protect the integrity of the detail and the safety of the … un‐
dercover officers.”); id. at 41 (“Everything put together, yes, I
believe it did at that point constitute obstruction. … [A]t that
point my opinion was that Mr. Lund was attempting to com‐
promise our detail.”); id. at 42–43 (“The safety of the officers I
believe could have been brought into question. … I believe his
actions were an attempt to obstruct what we were doing.”);
id. at 51–52 (“Due to [Lund’s] circling the area on his motor‐
ized bike and him stopping several times to photograph and
record the officers, we felt his activities were compromising
to the success of our detail. … [H]is presence was interfering
with our detail.”).
14                                                   No. 19‐1945

    We present these examples only to counter Lund’s claim
that the officers “admitted” that they arrested Lund solely for
his First Amendment activity. They did not. We take no posi‐
tion as to whether Lund’s behavior met the criteria for ob‐
struction of justice, and we need not. The officers’ reasonable
belief that Lund’s activities were obstructing, or might come
to obstruct, their investigation was sufficient for them to stop
Lund and ask him to move along. Although First Amendment
activity is generally protected, it loses its protection when it
violates the law. See generally Brandenburg v. Ohio, 395 U.S.
444, 447 (1969). And generally applicable laws, like those that
prohibit interference with a police investigation, “do not of‐
fend the First Amendment simply because their enforcement
against the press has incidental effects on its ability to gather
and report the news.” Cohen v. Cowles Media Co., 501 U.S. 663,
669 (1991). It is possible, of course, that based on Lund’s ac‐
tivities, a court might conclude that no reasonable officer
could have construed his actions as constituting obstruction
of justice. After all, reporters are free to take photos and vid‐
eos of what they see on a public street, even when it involves
police activity. See 720 ILCS § 5/14‐2(e). See also Am. Civil Lib‐
erties Union of Illinois v. Alvarez, 679 F.3d 583, 608 (7th Cir.
2012). Again, however, we note that we need not delve into
this question. The officers had a clear right to stop Lund, ques‐
tion him, and direct him to cease doing anything that placed
their undercover investigation in jeopardy.
    We need not address the question of whether the officers
had probable cause to arrest Lund for obstruction of justice,
because whatever the officers reasonably believed about
Lund’s activities, and whether those activities in fact consti‐
tuted obstruction of justice, did not matter in the end. Lund
was not arrested until after his clear violation of an Illinois
No. 19‐1945                                                   15

vehicular law—driving against the traffic pattern on a one‐
way street. See 625 ILCS § 5/11‐708. And Lund has not argued
in this court that the officers did not have probable cause to
arrest him for that offense.
    Lund has not supplied any “objective evidence” that “sim‐
ilarly situated individuals not engaged in the same sort of
protected speech” have not been and would not be arrested
for driving the wrong way down a one‐way street. Nieves, 139
S. Ct. at 1727. Although we might all agree that jaywalking—
the example given in Nieves—is the type of law‐breaking to‐
ward which most officers would turn a blind eye, it is less
clear that officers routinely give a pass to persons driving mo‐
torized vehicles the wrong way on one‐way streets, an action
that could have fatal consequences. And although Lund, in
his brief, describes his behavior as riding or driving a “bicy‐
cle,” Illinois law makes a distinction between low‐powered
bicycles and motorized vehicles (625 ILCS §§ 5/1‐140.15,
1‐146), and Lund has not challenged the district court’s find‐
ing that the officers had a reasonable basis for believing, to a
reasonable degree of certainty that Lund was operating a mo‐
torized vehicle under Illinois law. R. 71 at 4. Lund has pre‐
sented no evidence that this behavior would ordinarily get a
pass from police officers, and common sense does not supply
an obvious answer.
    In sum, it is clear that the officers had probable cause to
arrest Lund for violating an Illinois traffic law. Probable cause
defeats a retaliatory arrest claim in all but the most narrow of
exceptions. Nieves, 139 S. Ct. at 1727. Lund has offered no ev‐
idence that his actions or arrest fall within that narrow excep‐
tion.
16                                                   No. 19‐1945

     2. Qualified Immunity
    As we have noted, the rule of Nieves applies retroac‐
tively—if a plaintiff cannot plead and prove the absence of
probable cause, the retaliatory arrest claim fails. Id. at 1725.
But even if Nieves did not apply retroactively, Lund still could
not prevail, as the defendant officers were entitled to qualified
immunity.
    Police officers are entitled to qualified immunity under
section 1983 unless they “violated a statutory or constitutional
right that was clearly established at the time of the challenged
conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012).
“’Clearly established’ means that, at the time of the officer’s
conduct, the law was ‘sufficiently clear’ that every ‘reasonable
official would understand that what he is doing’ is unlawful.”
D.C. v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Ashcroft v. al‐
Kidd, 563 U.S. 731, 741 (2011)).
    Three years before Lund’s arrest, the Supreme Court was
asked to decide two questions: “whether a First Amendment
retaliatory arrest claim may lie despite the presence of proba‐
ble cause to support the arrest,” and second, “whether clearly
established law at the time of [the plaintiff’s] arrest so held.”
Reichle, 566 U.S. at 663. The Court passed on the first question,
(but, as we just noted, answered it seven years later in Nieves,
as we described above). The Court, in 2012, did, however, de‐
cide the second question and determined that at the time of
the defendant’s arrest in Reichle, “it was not clearly estab‐
lished that an arrest supported by probable cause could vio‐
late the First Amendment.” Id. at 663. See also Thayer v.
Chiczewski, 705 F.3d 237, 253 (7th Cir. 2012) (granting qualified
immunity to the arresting officer because “neither our circuit
nor the Supreme Court has “’recognized a First Amendment
No. 19‐1945                                                   17

right to be free from a retaliatory arrest that is supported by
probable cause.’”) (quoting Reichle, 566 U.S. at 664–65).
    At the time of Lund’s arrest, therefore, the Supreme Court
had specifically stated that it had “never recognized a First
Amendment right to be free from a retaliatory arrest that is
supported by probable cause.” Id. at 664. This forecloses an
argument that any reasonable officer would have understood
that the First Amendment precluded Lund’s arrest. In short,
no matter whether we apply the substantive holding of Nieves
or look at the qualified immunity question presented in
Reichle, Lund cannot prevail. None of Lund’s other argu‐
ments—including Lund’s arguments about the publication of
his name, the officers’ subjective intent, and causation, among
others—therefore, are relevant.
B.     Malicious prosecution
    Under Illinois law, to succeed on a malicious prosecution
claim, a plaintiff must prove: “(1) the commencement or con‐
tinuance of an original criminal or civil judicial proceeding by
the defendant; (2) the termination of the proceeding in favor
of the plaintiff; (3) the absence of probable cause for such pro‐
ceeding; (4) the presence of malice; and (5) damages resulting
to the plaintiff.” Swick v. Liautaud, 662 N.E.2d 1238, 1242
(1996). Only the second of these requirements is at issue here.
    Approximately eight months after Lund’s arrest, his attor‐
ney filed a motion to dismiss all charges. That same day, the
state’s attorney filed a motion to dismiss all of those same
charges. In response, the court entered a bare nolle prosequi or‐
der which simply stated, “cases dismissed on motion of
state’s attorney.” R. 54‐6. Under Illinois law a nolle prosequi
(meaning “refuse to pursue”) does not dispose of a case on its
18                                                 No. 19‐1945

merits, but merely “reverts the matter to the same condition
which existed before the commencement of the prosecution.”
Swick, 662 N.E.2d at 1242 (quoting People v. Woolsey, 564
N.E.2d 764, 766 (Ill. 1990)). For purposes of a malicious pros‐
ecution action, the plaintiff has the burden to prove that the
nolle prosequi was entered for reasons related to his innocence.
Id. at 1243. “The circumstances surrounding the abandon‐
ment of the criminal proceedings must compel an inference
that there existed a lack of reasonable grounds to pursue the
criminal prosecution.” Id. (emphasis ours). A bare nolle prose‐
qui order, which does not state the reasons behind it, is insuf‐
ficient to establish that the proceedings were terminated in
the plaintiff’s favor. Id.
    Despite the bare order, Lund argues that the timing and
circumstances surrounding the entry of a nolle prosequi order
support a finding that the charges were dismissed because the
government lacked “reasonable cause to proceed.” Brief of
Plaintiff‐Appellant at 18–19. Lund points to the fact that the
state’s attorney moved to enter a nolle prosequi order on the
same day that Lund’s criminal defense attorney noticed his
motion to dismiss all of the charges. There are many reasons
why a state’s attorney might choose not to prosecute a case
including, among others, decisions about how to expend lim‐
ited resources, availability of police and other witnesses, and
ease of garnering evidence. Illinois law makes clear that the
burden is on the plaintiff to prove a favorable termination,
and a coincidence in timing on top of a bare use of the nolle
prosequi order does not constitute the sort of proof which
might compel an inference that there existed a lack of reason‐
able grounds to pursue the criminal prosecution. Lund has
not met his burden to demonstrate that the nolle prosequi order
No. 19‐1945                                                19

in this case was a termination favorable to him, and therefore
his malicious prosecution claim fails.
                               III.
   Because Lund cannot mount either a retaliatory arrest or
malicious prosecution claim, we AFFIRM the district court’s
entry of summary judgment for all defendants.
