Brian Ballentine v. Christopher Tucker
28 F.4th 54
9th Cir.2022Background
- Plaintiffs (members of Sunset Activist Collective/CopBlock) repeatedly chalked large, anti‑police messages on public sidewalks at Metro headquarters and the courthouse in Las Vegas in 2013.
- After an initial June 8 citation under Nevada’s graffiti statute, Detective Christopher Tucker investigated, monitored Plaintiffs’ social media, and prepared arrest declarations for July 13 and July 18 chalkings that referenced Plaintiffs’ affiliations and message content.
- Officers present at the courthouse did not stop or arrest Plaintiffs during the July 18 incident; cleanup costs were documented; criminal charges were later filed and ultimately dropped.
- Plaintiffs sued under 42 U.S.C. § 1983 for retaliatory arrest in violation of the First Amendment; the district court initially allowed the claim to proceed but, after remand, granted Tucker qualified immunity.
- The Ninth Circuit held that a reasonable jury could find a First Amendment violation (applying Nieves’ framework and the differential‑treatment exception) and reversed the grant of qualified immunity because Ninth Circuit precedent had clearly established the relevant right by 2013; the case was remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tucker violated the First Amendment by arresting Plaintiffs in retaliation for chalking | Ballentine: chalking = protected speech; arrests were motivated by retaliatory animus | Tucker: arrests were supported by probable cause for graffiti | Genuine dispute of material fact; a reasonable jury could find a First Amendment violation |
| Whether Nieves bars the claim because probable cause existed | Ballentine: Nieves exception applies—chalking is an offense that rarely leads to arrest and similarly situated non‑critical chalkers were not arrested (differential treatment) | Tucker: no objective evidence of differential treatment; probable cause defeats the claim | Court applied Nieves; plaintiffs presented objective evidence of differential treatment sufficient to invoke the narrow exception |
| Whether Tucker is entitled to qualified immunity for arrests made in 2013 | Ballentine: Ninth Circuit cases (Skoog, Ford) had already clearly established that retaliatory law‑enforcement action is unlawful even if probable cause exists | Tucker: Nieves (2019) shows uncertainty; Acosta/Bini create circuit ambiguity; official lacked fair warning in 2013 | Right was "clearly established" in this circuit by Skoog and Ford by 2013; qualified immunity reversed; case remanded |
Key Cases Cited
- Nieves v. Bartlett, 139 S. Ct. 1715 (2019) (Supreme Court rule: retaliatory‑arrest plaintiffs generally must plead absence of probable cause, with a narrow differential‑treatment exception)
- Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006) (recognized right to be free from retaliatory police action even when probable cause exists)
- Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013) (held Skoog had clearly established the right in this circuit)
- Acosta v. City of Costa Mesa, 718 F.3d 800 (9th Cir. 2013) (examined state of law as of an earlier arrest date and found no clearly established right at that earlier time)
- Pearson v. Callahan, 555 U.S. 223 (2009) (qualified immunity two‑step framework; courts may decide order of prongs)
- District of Columbia v. Wesby, 138 S. Ct. 577 (2018) (clarified standard for determining whether a right is clearly established)
- Saucier v. Katz, 533 U.S. 194 (2001) (articulated initial framework for qualified immunity analysis)