Ballentine v. Tucker, 2022 WL 679084 (9th Cir. 2022)
Brian Ballentine, Catalino Dazo and Kelly Patterson are associated with CopBlock, an activist group that is critical of police. They frequently use chalk to write “F— PIGS!” and “F— THE COPS” on public sidewalks. The City of Las Vegas tired of the costs of cleaning public sidewalks after they were defaced by CopBlock graffiti writers. The city asked the Las Vegas Metro Police Department to enforce existing graffiti laws against the sidewalk chalkers.
When a sergeant saw the chalkers writing on the sidewalk outside police headquarters, he asked them to stop and warned they could be cited. He also told them they could continue to protest if they did so lawfully, encouraging them to use signs instead of chalk. The chalkers asked to speak to the sergeant’s supervisor.
A lieutenant came to the scene and told the chalkers they would not be cited if they cleaned up the sidewalk. He told them the chalking was illegal and that the city was tired of protestors using chalk on the sidewalks and leaving it to the city to pay for cleanup. He, too, told them they were welcome to protest at the police department if they would use signs. When the chalkers refused to stop and refused to clean up the graffiti, the sergeant issued citations.
When the chalkers appeared at the state courthouse to answer the charges, a prosecutor declined to prosecute. The chalkers then covered approximately 1,000 square feet with graffiti and vulgarities. The city’s cleanup cost was approximately $1,250. A detective photographed the messages and prepared declarations for the chalkers’ arrests. When the district attorney received the complaints, they were all dismissed because the district attorney did not believe the charges warranted staff time.
The chalkers sued the detective and the police department, alleging the detective violated their First Amendment rights by arresting them in retaliation for chalking anti-police messages on sidewalks. The trial court granted a motion for summary judgment on the ground of qualified immunity. Although the trial judge ruled a reasonable jury could find the detective violated the plaintiffs’ First Amendment rights, the detective was still entitled to qualified immunity because the right to be free from retaliatory arrest, regardless of probable cause, was not clearly established when he issued declarations for the plaintiffs’ arrests. The plaintiff chalkers appealed.
If it was reasonably possible that the anti-police content of the chalked graffiti was a substantial or motivating factor for the declarations of arrest, then the detective was not entitled to summary judgment.
The court of appeals reversed the grant of qualified immunity. To do so, the appellate court considered what the officer involved might have been thinking at the time he issued the citations. The United States Supreme Court’s decision in Nieves v. Bartlett (139 S. Ct. 1715 (2019)) held that plaintiffs bringing “First Amendment retaliatory arrest claims” must generally “plead and prove the absence of probable cause” to arrest because the presence of probable cause generally “speaks to the objective reasonableness of an arrest.” If there is objective probable cause to arrest, then the Court noted the “officer’s animus” is not what caused the arrest.
In this case, the lieutenant who was called to the first scene recognized the necessity of assessing probable cause to arrest the chalkers. Before speaking to the chalkers, he consulted with a state court judge, a deputy district attorney and a detective of internal affairs on whether sidewalk chalking constituted a crime under Nevada’s graffiti statute. Thus, under the Supreme Court’s Nieves holding, the charges should have been valid. Note: The trial court never had the opportunity to rule on the propriety of the charges because the district attorney declined to prosecute.
However, the Supreme Court’s Nieves decision created a “narrow” exception for cases where an officer makes an arrest that might be retaliatory for an offense for which “officers have probable cause to make arrests, but typically exercise their discretion not to do so.” If it was reasonably possible that the anti-police content of the chalked graffiti was a substantial or motivating factor for the declarations of arrest, then the detective was not entitled to summary judgment.
Remember: The trial court ruled the detective was entitled to qualified immunity on the basis that the law was not “clearly established” that the charges—even though indubitably supported by probable cause—were necessarily retaliatory. Notwithstanding, the court of appeals held that the “clearly established” part of the qualified immunity test may not apply “even in novel factual circumstances.” The appellate court opined that the officer should have been able to figure out the arrests would be seen as retaliatory.
So, what’s the lesson here? I’m not sure, simply because the officers did everything I would advise before acting where there was discretionary time. The sergeant consulted with a lieutenant. The lieutenant called a judge, then a prosecutor and, for good measure, an IA detective familiar with policy. One alternative would have been to continue to issue citations (not make arrests) and ask the city officials to exert pressure on the prosecutor to take the time to act. If the matter hadn’t happened in Las Vegas, where water is nearly as precious as slot machine tokens, perhaps inviting the fire service to water down the sidewalk when chalkers are seen might have been an option.