was “consistent . . . with the state of the common law at the time §1983 was enacted”).
When §1983 was enacted, there was no common-law tort for retaliatory arrest in violation of the freedom of speech. See Hartman v. Moore, 547 U.S. 250, 259 (2006). I would therefore look to the common-law torts that “provid[e] the closest analogy” to this claim. Heck, supra, at 484. The closest analogs here are the three arrest-based torts under the common law: false imprisonment, malicious prosecution, and malicious arrest. In defining the elements of these three torts, 19th-century courts emphasized the importance of probable cause.
Consider first the tort of false imprisonment. Common-law courts stressed the need to shape this tort with an “indulgence” for peace officers, who are “specially charged with a duty in the enforcement of the laws.” T. Cooley, Law of Torts 175 (1880) (Cooley); see, e.g., Hogg v. Ward, 3 H. & N. 417, 423, 157 Eng. Rep. 533, 536 (Ex. 1858) (opinion of Watson, B.) (stressing “the utmost importance that the police throughout the country should be supported in the execution of their duty”). Accordingly, private citizens were always liable for false imprisonment if the arrestee had not actually committed a felony, but constables were “excused” if they had “made [the arrest] on reasonable grounds of belief”—i.e., probable cause. Cooley 175; accord, 2 C. Addison, Law of Torts §803, p. 18 (1876); 1 F. Hilliard, The Law of Torts or Private Wrongs §18, pp. 207–208, and n. (a) (1866). As Lord Mansfield explained, it was “of great consequence to the police” that probable cause shield officers from false-imprisonment claims, as “it would be a terrible thing” if the threat of liability dissuaded them from performing their official duties. Ledwith v. Catchpole, 2 Cald. 291, 295 (K. B. 1783). This concern outweighed “the mischief and inconvenience to the public” from the reality that “[m]any an innocent man has and may be taken up upon suspicion.” Ibid. Many State Su-
