In Ballentine v. Tucker, published March 8, 2022, the 9th Circuit affirmed in part and reversed in part a district court's ruling on a police detective's summary judgment motion based on qualified immunity. On multiple occasions, the plaintiffs engaged in protests involving chalking anti-police messages on public sidewalks. On some occasions, they were cited for violating the state's anti-graffiti law; on other occasions, officers observed them without citing them. The defendant detective issued declarations of arrest of the plaintiffs for two of the incidents. The declarations referred to the plaintiffs' membership in police protest groups and the content of some of their anti-police chalk messages. A criminal complaint was filed against the plaintiffs for conspiracy to commit placing graffiti and placing graffiti on property. The plaintiffs were arrested. The DA ultimately dropped all charges. The plaintiffs sued the detective under 42 U.S.C. section 1983 for allegedly violating their 1st Amendment Rights by retaliatory arrest. In ruling on the detective's summary judgment motion, the district court ruled on the first prong of qualified immunity that there was an issue of fact on whether the detective violated the plaintiffs' 1st Amendment rights. But the court granted summary judgment on the second prong of qualified immunity, ruling that in August 2013, when the arrests took place, the law had not clearly established that a retaliatory arrest violated the 1st Amendment if the arrest was supported by probable cause.
The 9th circuit affirmed the ruling that a reasonable jury could find the detective violated the plaintiffs' 1st Amendment rights. In addressing the first prong of qualified immunity--whether, viewing the facts in the light most favorable to plaintiffs, the detective violated the constitutional right at issue--the court applies current law. Under Nieves v. Bartlett (2019) 139 S.Ct. 1715, plaintiffs bringing 1st Amendment retaliatory arrest claims must generally plead and prove absence of probable cause for the arrest; but there is a narrow exception for cases where officers have probable cause to make arrests, but typically exercise their discretion not to do so. Here, the plaintiffs presented objective evidence that others who chalked sidewalks and did not engage in anti-police speech were not arrested. Further, the detective cited the content of the speech in seeking the arrest. While the jury could also infer that the detective would have arrested the protestors absent the content of their speech, the issue was for a jury to decide. But the 9th Circuit reversed the district court's decision that the law on the subject was unclear in 2013. While Nieves was not published until 2013, circuit case law can clearly establish the law. 9th Circuit cases that were published before 2013 clearly established that retaliatory arrests could be actionable under the 1st Amendment despite the existence of probable cause. An unpublished 9th Circuit decision ruling that the law on the subject was not clearly established in 2013 was both nonbinding and wrongly decided. Although the case law did not deal specifically with the facts of this case, the case law was close enough to give officers fair notice that the 1st Amendment prohibited arresting the plaintiffs. The 9th Circuit therefore reversed summary judgment for the detective.
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