The Volokh Conspiracy
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From Ballentine v. Tucker, decided today by the Ninth Circuit in an opinion by Judge J. Clifford Wallace joined by Chief Judge Mary Murguia and Judge Carlos Bea:
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 offers countervailing explanations for his decision to seek arrest warrants. For example, he argues that lesser options failed because Plaintiffs continued to chalk despite the June 8 citations and efforts to talk with Plaintiffs and encourage alternative protests did not have any impact. Detective Tucker also contends that he engaged in good police work by detailing Plaintiffs' association with anti-police groups and the content of the messages, including "FUCK PIGS!" and "FUCK THE COPS," in the declarations of arrest. Providing this information, Detective Tucker contends, allows the judge to evaluate First Amendment concerns.
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.
The panel also concluded that "the district court erred in granting qualified immunity to Detective Tucker."