The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

Retaliatory Arrest for Content of Chalking May Violate the First Amendment

And that's true even if state graffiti law provided probable cause for the arrest, so long as there's evidence that chalking with other messages almost never leads to arrests.


Plaintiffs had chalked various things in front of the Las Vegas Metro Police Department headquarters, including "fuck pigs" and "fuck the cops." Some of the time, they were given citations under the Nevada graffiti statute, but once a couple of them were arrested. In Ballentine v. Las Vegas Metro. Police Dep't (Aug. 20, 2020) (appeal pending), Judge Andrew P. Gordon (D. Nev.) held that plaintiffs had made out a case of retaliatory arrest:

In Nieves v. Bartlett (2019), the Supreme Court held that probable cause for an arrest will generally defeat a retaliatory arrest claim because the presence of probable cause suggests that the arrest was objectively reasonable and that the officer's animus is not what caused the arrest. However, the Supreme Court held that "a narrow qualification is warranted for circumstances where officers 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 a risk that some police officers may exploit the arrest power as a means of suppressing speech."

Thus, to establish a First Amendment retaliatory arrest claim when probable cause exists, a plaintiff must show objective evidence that he was arrested for committing a crime (e.g., jaywalking) while engaged in protected speech while others committing the same crime but not engaged in protected speech were not arrested. This showing helps establish that non-retaliatory grounds were insufficient on their own to provoke the arrest….

Here, the plaintiffs have presented evidence from which a reasonable jury could conclude that they were arrested for chalking while others who chalked but did not engage in the same sort of protected speech had not been arrested. The plaintiffs' attended at least nine chalking protests between 2011 and 2013 where they were not cited for chalking and were not told by law enforcement officers that chalking on a city sidewalk is illegal. The plaintiffs were first cited two years after they began their chalking protests.  The City Attorney declined to prosecute those citations because he found that sidewalk chalk did not fall within the graffiti statute and he was concerned about First Amendment issues related to the citations.  The plaintiffs also presented evidence that other individuals were chalking at the RJC and there is no evidence those people were arrested.

Tucker concedes that other Metro "officers may have acted differently" when addressing an individual chalking on the sidewalk. Although he argues that the plaintiffs have not shown that he selectively enforced the statute against them, Nieves directs me to look to whether Metro officers typically arrest individuals for chalking on sidewalks, not whether Tucker usually arrests people for doing so.

Tucker presents no evidence that Metro has ever arrested anyone besides the plaintiffs for chalking on the sidewalk. And because a reasonable jury could find that officers typically exercise their discretion not to arrest someone for chalking on sidewalks, the plaintiffs' claims fall within the selective enforcement exception in Nieves. Consequently, the Mt. Healthy test applies.

The plaintiffs have met their initial burden under that test by presenting evidence from which a reasonable jury could conclude that the anti-police content of the chalkings was a substantial or motivating factor for the arrests. Tucker included in his case report information about the plaintiffs' association with CopBlock. Tucker saw the plaintiffs chalking at the RJC but did not tell them to stop. Instead, he took photos and challenged the content of the messages by disputing the accuracy of their speech. And in the declaration of arrest, Tucker referred to the content of the messages and sought arrest warrants instead of simply citing the plaintiffs. A reasonable jury could conclude that the content of the chalkings was a substantial or motivating factor for the arrests.

The burden thus shifts to Tucker to show that he would have arrested the plaintiffs regardless of the content of their speech. Tucker contends that he included the plaintiffs' anti-police affiliations in the declaration of arrest to allow the magistrate judge to evaluate any First Amendment issues related to the arrest. He also argues that he sought the warrants because the citations previously issued to the plaintiffs did not stop them from chalking on the sidewalk.

While a jury may credit Tucker's explanations, it also could disbelieve that Tucker would have arrested the plaintiffs even in the absence of the protected speech given the evidence discussed above. Therefore, the plaintiffs have presented evidence from which a jury could find that Tucker violated their First Amendment rights.

However, the court nonetheless held in Det. Tucker's favor because "plaintiffs' constitutional rights were [not] clearly established at the time of the arrests," and Tucker is thus prostected by qualified immunity:

I [had] previously ruled that the right to be free from a retaliatory arrest even where probable cause existed was clearly established in the Ninth Circuit. But that conclusion has been called into question by subsequent case law. My prior ruling was based on Skoog v. County of Clackamas (9th Cir. 2006) and Ford v. City of Yakima (9th Cir. 2013)…. Just a few months after Ford was decided but before the arrests in this case, the Ninth Circuit issued Acosta v. City of Costa Mesa (9th Cir. 2013)…. I do not believe Acosta created an intra-circuit split because that case evaluated whether there was clearly established law at the time of the January 2006 arrest. Because the Acosta arrest occurred before the Ninth Circuit's decisions in Skoog and Ford, the law was not clearly established at that time that officers may not arrest an individual to retaliate against protected speech, even if probable cause existed. But by the time Tucker acted in 2013, the law in the Ninth Circuit was clearly established, based on Skoog and Ford, that officers could not make a retaliatory arrest even if they had probable cause.

However, while this case was on appeal [an appeal that led to a remand for application of the 2019 decision in Nieves -EV], the Ninth Circuit issued a split decision in an unpublished case, Bini v. City of Vancouver (9th Cir. 2018). The Bini majority held that because Ford and Acosta seem to conflict, "[t]hese two holdings have resulted in some confusion about the state of the law in this circuit." The majority stated that "[i]t appears self-evident that, if district courts in our circuit have had significant difficulty identifying the rule established by our cases, our precedent did not 'place[] the … constitutional question beyond debate.'"

The dissent argued that Acosta was "determining the state of the law as it stood in 2006, when Acosta was arrested…. The decision has nothing to say about the state of the law in 2014, when Bini was arrested." The dissent noted that by the time the officer acted in 2014, "Ford had resolved whatever uncertainty remained in our circuit's case law."

While I agree with the dissent's analysis, I do not feel free to ignore the majority's conclusion that the law was not clearly established under Skoog and Ford. I therefore grant Tucker's motion for summary judgment based on qualified immunity.