There is an interesting free speech case out of Nevada this week where Ninth Circuit Judge J. Clifford Wallace (joined by Chief Judge Mary Murguia and Judge Carlos Bea) ruled that police may have violated the First Amendment rights of protesters who were arrested after writing “F**k Pigs” and “F**k the Cops” in chalk on sidewalks. Notably, in Ballentine v. Tucker, the Ninth Circuit did not view the ban on chalking to be unconstitutional but the selective enforcement of the ban.
The case came before the court after the district court granted summary judgment, on qualified immunity grounds, in favor of Las Vegas Metropolitan Police Department Detective Christopher Tucker. Tucker was sued under 42 U.S.C. § 1983 alleging, in part, that he violated the First Amendment rights of Brian Ballentine, Catalino Dazo, and Kelly Patterson when he arrested them for chalking up the anti-police statements.
The Court offered this summary:
“Plaintiffs are members of the Sunset Activist Collective, a local activist group, and are associated with CopBlock, an activist group critical of law enforcement. Since 2011, Plaintiffs have conducted protests by using chalk to write anti-police messages on the sidewalks of Las Vegas, Nevada. In response to increased chalking activity and incurred cleaning costs, the City of Las Vegas indicated to the Las Vegas Metropolitan Police Department (Metro) that it was willing to prosecute if Metro observed someone chalking the sidewalks.
On June 8, 2013, Plaintiffs were chalking the sidewalk in front of Metro’s headquarters. The messages were critical of police, included references to officer-involved shootings, and spanned approximately 320 square feet. As Sergeant Mike Wallace drove out of the Metro’s parking lot, he saw Plaintiffs chalking. He informed Plaintiffs that chalking on the sidewalk was unlawful and asked them to stop. He also indicated that Plaintiffs could continue to protest if they did so lawfully, encouraging them to use signs instead. Plaintiffs responded that chalking on the sidewalk was not illegal. When Plaintiffs refused to stop chalking, Sergeant Wallace decided to issue a citation to each plaintiff for violation of Nevada’s graffiti statute, which criminalizes conduct that “places graffiti on or otherwise defaces the public or private property, real or personal, of another, without the permission of the owner.” Nev. Rev. Stat. § 206.330.”
The panel did not find the ban unconstitutional but rather ruled that a selective, content-based enforcement of the ban could be unconstitutional.
“Plaintiffs presented objective evidence showing that they were arrested while others who chalked and did not engage in anti-police speech were not arrested. During discovery, Metro produced records indicating only two instances in which chalkers were suspected of or charged with violating Nevada’s graffiti statute. In these two instances, only one individual was cited—not arrested—for chalking on public property. There is no evidence that anyone besides the Plaintiffs has been arrested for chalking on the sidewalk. Additionally, the Plaintiffs presented evidence that other individuals chalking at the courthouse at the same time as Plaintiffs were not arrested. This is the kind of “objective evidence” required by the Nieves exception to show that a plaintiff was “arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.” …
Plaintiffs’ showing of differential treatment is further supported when considering the jaywalking example provided in Nieves v. Bartlett (2019) [the relevant Supreme Court precedent -EV]. If chalking on sidewalks violates Nevada law, committing the offense in Las Vegas is much like jaywalking in that both are offenses for which ‘officers have probable cause to make arrests, but typically exercise their discretion not to do so.’ Metro records show that chalking ‘rarely results in arrest.’
Indeed, Plaintiffs’ own experiences confirm this. Between 2011 and 2013, Plaintiffs attended at least nine chalking protests. At these protests, no law enforcement officers cited the Plaintiffs or told them that chalking on the city sidewalk was illegal. On one occasion in 2012, marshals affirmatively permitted Plaintiffs to chalk messages on the sidewalk in front of the courthouse. During the July 13 and July 18 chalking incidents, no officers stopped or cited Plaintiffs. Similar to jaywalking, if chalking constitutes an offense, it is an offense for which “probable cause does little to prove or disprove the causal connection between animus and injury.” Thus, Plaintiffs have shown differential treatment of similarly situated individuals, satisfying the Nieves exception.”
Detective Tucker argued that the arrests were undertaken after “lesser options failed because Plaintiffs continued to chalk despite the June 8 citations and efforts to talk with Plaintiffs and encourage alternative protests.” The Ninth Circuit, however, noted that this is a question of summary judgment and whether the protesters should be allowed an opportunity to prove their case.
However, “[t]he possibility that other inferences could be drawn [regarding the officers’ motivations] that would provide an alternate explanation for the [officers’] actions does not entitle them to summary judgment.” This issue is for the trier of fact, not for us, to resolve. Here, the trier of fact, as the district court observed, could very well “credit” or “disbelieve” Detective Tucker’s explanations. Certainly, there is at least a genuine dispute of material fact for Plaintiffs to survive summary judgment, as the evidence does not “permit[ ] only one reasonable conclusion.” …
[T]he district court correctly concluded that a reasonable jury could find that the anti-police content of Plaintiffs’ chalkings was a substantial or motivating factor for Detective Tucker’s declarations of arrest. Detective Tucker knew that Plaintiffs were activists that were vocally critical of the police. Detective Tucker had previously engaged with Plaintiffs, challenging a chalked message that indicated no Metro officer had ever been prosecuted for murder. In the declarations of arrest, he explicitly included Plaintiffs’ association with anti-police groups and the critical content of their messages. Moreover, rather than cite Plaintiffs—which the evidence showed was an extremely rare occurrence to begin with—Detective Tucker sought arrest warrants. Coupled with the evidence of differential treatment already discussed, a reasonable jury could find that the anti-police content of Plaintiffs’ chalkings was a substantial or motivating factor for effecting the arrest.
The burden then shifts to Detective Tucker, who can prevail only by showing that the arrests would have occurred regardless of Plaintiffs’ anti-police speech. A reasonable jury could credit Detective Tucker’s explanations that he arrested Plaintiffs because the June 8 citations were not a sufficient deterrent, and that he included the content of the speech and Plaintiffs’ affiliations in the declarations of arrest to allow the judge to evaluate potential First Amendment implications.
But a reasonable jury could also find that Detective Tucker would not have sought arrest warrants in the absence of Plaintiffs’ anti-police activities. Viewing the evidence and drawing all reasonable inferences in the favor of Plaintiffs, a jury could conclude that Detective Tucker violated Plaintiffs’ First Amendment rights. Accordingly, Plaintiffs have raised a genuine dispute of material fact as to whether their constitutional right was violated and have satisfied one part of the qualified immunity inquiry.”
Detective Tucker’s argument on the failure of “lesser options” does raise an interesting defense that the protesters were the ones who escalated the case. Yet, the Ninth Circuit is right that the plaintiffs should be able to prove their case.
In order to negate immunity protections, it must be shown that Detective Tucker not only violated the First Amendment in this case but that “the unlawfulness of their conduct was clearly established at the time.” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018). The Ninth Circuit acknowledge that “while there need not be ‘a case directly on point,  existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).
The Ninth Circuit notes, however, that it has previously held that, even when probable cause exists, police still violate the Constitution through retaliatory or selective enforcement. See Skoog v. County of Clackamas, 469 F.3d 1221, 1235 (9th Cir. 2006) (“In this case, we define the right as the right of an individual to be free of police action motivated by retaliatory animus but for which there was probable cause.”), abrogated in part by Nieves, 139 S. Ct. 1715; Ford, 706 F.3d at 1195–96 (“[T]his Court’s 2006 decision in Skoog established that an individual has a right to be free from retaliatory police action, even if probable cause existed for that action.”).
It is not clear if Detective Tucker will now seek an en banc review or appeal to the Supreme Court.