Ballentine v. Tucker, No. 20-16805 (9th Cir. 2022)Annotate this Case
Plaintiffs filed suit alleging claims under 42 U.S.C. 1983 and Nevada law against individual law enforcement officers and the Las Vegas Metropolitan Police Department. Plaintiffs' claims stemmed from their arrest for chalking anti-police messages on sidewalks. On appeal, plaintiffs challenge the district court's grant of qualified immunity to Detective Tucker.
The panel affirmed the district court's holding that a reasonable factfinder could conclude from the evidence that Detective Tucker violated plaintiffs' First Amendment rights. The panel reversed the district court's holding that Detective Tucker is entitled to qualified immunity because it was clearly established at the time of plaintiffs' arrests that an arrest supported by probable cause but made in retaliation for protected speech violates the First Amendment. The panel stated that plaintiffs have shown differential treatment of similarly situated individuals, satisfying the Nieves exception. In this case, the 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. Therefore, a reasonable factfinder could conclude that Detective Tucker violated plaintiffs' First Amendment rights. Furthermore, a reasonable officer in Detective Tucker's position had fair notice that the First Amendment prohibited arresting plaintiffs for the content of their speech, notwithstanding probable cause.