by Matt Clarke

The U.S. Court of Appeals for the Ninth Circuit held that a Las Vegas, Nevada, police detective was not entitled to qualified immunity for arresting sidewalk chalkers who had chalked anti-police slogans, when he did not arrest other chalkers whose themes were not anti-police, even though he had probable cause to arrest them.

Since 2011, Brian Ballentine, Catalino Dazo, and Kelly Patterson (“Plaintiffs”) have protested by using chalk to write anti-police messages on the sidewalks. They are members of the Sunset Activist Collective (“Collective”), which is associated with CopBlock, another activist group that is critical of police.

In 2013, responding to increased chalking and costs for cleaning sidewalks, City of Las Vegas officials told the Las Vegas Metropolitan Police Department (“Metro”) they were willing to prosecute chalkers.

During three relevant instances in mid-2013, the Plaintiffs chalked anti-police slogans and statements critical of police on sidewalks surrounding Metro headquarters and the courthouse. In the first incident, a police sergeant and lieutenant asked them to stop and clean the sidewalks. When plaintiffs refused, they were issued a citation for violating Nev. Rev. Stat. § 206.330, which criminalizes defacing or placing graffiti on public or private property without permission of the owner.

Detective Christopher T. Tucker was assigned to investigate the citations. He checked Plaintiffs’ social media and learned about their membership in the Collective and its association with CopBlock.

Plaintiffs repeated their performance a few weeks later, chalking anti-police messages on the sidewalks outside of Metro headquarters. Police observed them but did not talk to them or cite them. Cleanup cost was $300.

On July 18, 2013, Plaintiffs appeared in court for a hearing on their citations, which were not prosecuted. Then they chalked messages critical of police on the sidewalk in front of the courthouse, including “FUCK PIGS !!” and “FUCK THE COPS!” It cost around $1,250 to clean the approximately 1,000 square feet of sidewalk chalking. Tucker was present at the courthouse when the messages were chalked and photographed them. He recognized Ballentine from his investigation and asked if they would clean up the sidewalk. They refused. Neither Tucker nor any other police officer told them to stop or issued a citation.

Tucker issued declarations of arrest for the latter two chalkings. In the declarations, he referred to Plaintiffs’ association with the Collective and CopBlock and quoted some of their messages, including the aforementioned messages containing profanities. A criminal complaint was issued, and the Plaintiffs were arrested at another protest the next day. The prosecutor eventually dropped the charges because no officer told them to stop, while other officers may have told them they could chalk.

Plaintiffs filed a federal civil rights action under 42 U.S.C. § 1983 and state law, alleging Tucker and the other officers violated their First Amendment rights by arresting them in retaliation for chalking anti-police messages on sidewalks. The court granted summary judgement to all of the officers except Tucker. He appealed the denial of summary judgment, which was vacated and remanded in light of Nieves v. Bartlett, 139 S. Ct. 1715 (2019).

Tucker was granted summary judgment on remand after the U.S. District Court for the District of Nevada ruled that the right to be free from retaliatory arrest notwithstanding probable cause was not clearly established until Nieves was decided in 2019. In Nieves, the U.S. Supreme Court held that plaintiffs who bring First Amendment retaliatory arrest claims must generally “plead and prove the absence of probable cause” because its presence generally “speaks to the objective reasonableness of an arrest” and indicates that the “officer’s animus” was not the motivation for the arrest. Nieves.

The Ninth Circuit agreed with the District Court “that a reasonable factfinder could conclude from the evidence that Tucker violated Plaintiffs’ First Amendment Rights,” thereby satisfying the first prong of the qualified immunity analysis. Saucier v. Katz, 533 U.S. 194 (2001).

Quoting Blair v. Bethel School District, 608 F.3d 540 (9th Cir. 2010), the Court detailed what’s required for a successful § 1983 claim based on a violation of a person’s First Amendment rights as follows: “The First Amendment forbids government officials from retaliating against individuals for speaking out. To recover under § 1983 for such retaliation, a plaintiff must prove: (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action.” The Court observed that only the third element is in dispute in this case.

The Court stated that the Nieves Court carved out a narrow exception to the general rule it announced regarding the requirement to plead the absence of probable cause to arrest. The exception applies when “officers have probable cause to make arrests, but typically exercise their discretion not to do so.” Nieves. The Nieves Court explained the exception applies only “when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” Showing “differential treatment addresses [the] causal concern by helping to establish that non-retaliatory grounds [were] in fact insufficient to provoke the adverse consequences.” Id.  

Turning to the present case, the Court stated that the Plaintiffs presented evidence that they were arrested while other people who chalked at the courthouse – but were not engaged in similar protected speech as the Plaintiffs – were not arrested. In fact, the Court noted that no one other than the Plaintiffs has been arrested for chalking sidewalks. The Court explained that this is the kind of “objective evidence” Nieves alluded to in order for the narrow exception to apply. Thus, the Court concluded the “Plaintiffs have shown differential treatment of similarly situated individuals, satisfying the Nieves exception” and ruled the “Plaintiffs have raised a genuine dispute as to whether their constitutional right was violated and have satisfied one part of the qualified immunity inquiry.”

Nevertheless, Tucker is still entitled to qualified immunity if the Plaintiffs’ rights were not clearly established at the time of the alleged misconduct. See Pearson v. Callahan, 555 U.S. 223 (2009). Clearly established means “the contours of the right must be sufficiently clear that a reasonable officer would understand what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635 (1987). There doesn’t need to be an existing case directly on point, but “existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731 (2011). The U.S. Supreme Court has instructed that courts must not “define clearly established law at a high level of generality,” i.e., the clearly established legal rule in question must be fairly specific and not so general as to encompass a wide range of conduct. Plumhoff v. Rickard, 572 U.S. 765 (2014). The relevant inquiry focuses on the state of the law at the time of the alleged misconduct. Hope v. Pelzer, 536 U.S. 730 (2002). 

Turning to the present case, the relevant time period is 2013, when Tucker arrested the Plaintiffs. Tucker argued that the law was not clearly established in 2013 because the U.S. Supreme Court didn’t set forth the standard for retaliation claims until 2019 in Nieves. However, the Court rejected that argument because binding precedent within the Nineth Circuit existed in 2013 that put police on notice that people have a right to be free from retaliatory police action even when probable cause existed for such police action. See Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013) (held Skoog clearly established the rule governing retaliatory claims in November 2006); Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006) (a First Amendment “right exists to be free of police action for which retaliation is a but-for cause even if probable cause exists for that action”). Tucker’s alleged misconduct in question occurred in 2013, so the Court determined that the law on the matter was clearly established when Tucker engaged in the conduct. 

Thus, the Court concluded that Tucker “had fair notice that the First Amendment prohibited arresting Plaintiffs for the content of their speech, notwithstanding probable cause, and so, the District Court erred in granting Tucker qualified immunity.

Accordingly, the Court affirmed in part, reversed in part, and remanded. See: Ballentine v. Tucker, 28 F.4th 54 (9th Cir. 2022). 

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