Arrest for Chalking “Fuck Pigs!” and “Fuck the Cops” May Be Unconstitutional Retaliation

Starting at Ballentine v. Tucker…………… a decision of the Ninth Circuit today in an opinion Judge J. Clifford Wallace, Chief Judge Mary Murguia, and Judge Carlos Bea joined:

The plaintiffs’ claim of differential treatment can be further supported by the jaywalking case. Nieves v. Bartlett (2019) [the relevant Supreme Court precedent -EV].The crime of chalking sidewalks in violation Nevada law is similar to jaywalking. Both are offenses where “officers have probable cause for making arrests but usually exercise their discretion to not make such an arrest.” Metro records reveal that chalking on sidewalks does not lead to arrest.

This is evident from Plaintiffs’ personal experiences. Between 2011-2013, Plaintiffs participated in at least nine chalking protests. No law enforcement officer cited Plaintiffs at these protests and told them chalking on city sidewalks was unlawful. In 2012, marshals allowed Plaintiffs to write messages on the sidewalk near the courthouse. In the two chalking incidents of July 13th and 18th, officers did not stop or cite Plaintiffs. As with jaywalking and chalking, chalking can be considered an offense if “probable causes does little to prove, disprove or establish the causal relationship between animus, injury” Accordingly, plaintiffs have demonstrated differential treatment for individuals similar to them, fulfilling the Nieves exception.

Detective Tucker presents countervailing arguments for Tucker’s decision not to ask for warrants. According to Tucker, one of the reasons for his decision to seek arrest warrants is that lesser alternatives failed due to Plaintiffs’ continued chalking despite June 8 citations. He also claims that efforts to communicate with Plaintiffs to encourage other protests didn’t have an impact. Detective Tucker asserts that Tucker was doing good police work. He detailed Plaintiffs’ affiliation with antipolice groups, and also the contents of the messages. In the declarations of arrest, Tucker also included “FUCK THE COPS!” Detective Tucker claims that this information allows the judge evaluate First Amendment concerns.

However, “[t]It is possible that additional inferences can be drawn [regarding the officers’ motivations]That would be an alternative explanation. [officers’]”Actions do not give them the right to summary judgement.” It is up to the trier-of-fact, not our task, to decide this matter. The district court stated that the trier-of-fact could credit or deny Detective Tucker’s explanations. It is clear that Plaintiffs have at least one genuine dispute of material facts to be able to survive summary judgement, even though the evidence doesn’t “permit”.[ ]There is only one correct conclusion. …

[T]He district court correctly determined Detective Tucker’s warrants for arrest could be justified by the evidence of Plaintiffs’ anti-police chalkings. Detective Tucker understood that the plaintiffs were activists who were critical of police. Detective Tucker previously challenged a chalked message by Plaintiffs that stated no Metro officers had been charged with murder. He explicitly mentioned Plaintiffs’ associations with anti-police organizations and the criticisms in their messages. Moreover, rather than cite Plaintiffs—which the evidence showed was an extremely rare occurrence to begin with—Detective Tucker sought arrest warrants. With the evidence of differential treatments already mentioned, it is possible for a reasonable jury to find that Plaintiffs chalkings contained anti-police elements and was an important or motivating reason for the arrest.

Now the burden shifts from Detective Tucker to prove that Plaintiffs’ antipolice speech did not prevent arrests. The explanations by Detective Tucker that Plaintiffs were detained because June 8 citations weren’t sufficient deterrent could be accepted by a reasonable jury. Additionally, he stated that Plaintiffs were involved in his speech. To allow the judge the possibility of First Amendment violations being assessed, he also included Plaintiffs’ affiliations and the speech content.

A reasonable jury might also conclude that Detective Tucker wouldn’t have requested arrest warrants without Plaintiffs’ involvement in anti-police activity. The evidence was examined and all inferences made in favor of Plaintiffs could lead to a conclusion that Detective Tucker violated the First Amendment rights. The Plaintiffs therefore have raised a real dispute of material facts as to whether Detective Tucker violated their First Amendment rights and satisfied the one-part of qualified immunity inquiry.

Additionally, the panel found that Detective Tucker was not entitled to qualified immunity from the district court.