• First Amendment Right to Freedom of Expression
• Retaliatory Arrests

The First Amendment forbids government officials from retaliating against individuals for “speaking out” (i.e., exercising their First Amendment freedom of speech rights), whether or not the persons so speaking are critical of the government.  While the existence of probable cause to arrest precludes, as a general rule, a civil suit based upon an arrest in retaliation for speaking out, an exception to this rule applies where the plaintiff’s violation is one not normally and/or not uniformly enforced.

Plaintiffs Brian Ballentine, Catalino Dazo, and Kelly Patterson, were all members of a local activist group called the “Sunset Activist Collective” which, in turn, was associated with an organization called “CopBlock.”  As the name implies, they tended to be critical of the police.  The Plaintiffs in this case liked to demonstrate their dissatisfaction with the police through the use of chalk, writing anti-police messages on the sidewalks of Las Vegas.  In Nevada, the use of chalk on a city’s sidewalks is illegal. (Nev. Rev. Stat. § 206.330; “plac(ing) graffiti on or otherwise defac(ing) the public or private property, real or personal, of another, without the permission of the owner.”)  On June 8, 2013, Plaintiffs were chalking the sidewalk in front of the Las Vegas Metro Police Department’s headquarters, writing messages (spanning some 320 square feet) that were critical of the police.

Told by a Metro Police supervisor that their chalking activities were illegal—the officer suggesting instead that they use signs like everyone else—they were warned that they would be cited if they didn’t clean up their artwork.  Plaintiffs refused to clean it up their artwork.  So, upon confirming with a state court judge, a deputy district attorney, and an internal affairs detective that sidewalk chalking is a crime under Nevada’s graffiti statute, they were cited.  The cost to the City of cleaning up the Plaintiffs’ artwork was not indicated.  A follow up investigation by Detective Tucker (the listed civil defendant in the eventual lawsuit), researching the Plaintiffs’ social media accounts and tracking their activities, revealed to the detective the Plaintiffs’ association with the above anti-police organizations, as well as the nature of the Plaintiffs’ repeated chalking episodes.

On July 13, 2013 (over a month after the above incident), Plaintiffs Ballentine and Patterson again chalked messages critical of the Metro Police Department on the sidewalks outside of Metro’s headquarters.  This message (spanning 240 square feet) cost the City $300 to clean up.  Five days later (July 18), Plaintiffs appeared in court on the citations issued to them on July 8.  The citations “were not prosecuted” (i.e., dismissed ).  Showing their gratitude (or lack thereof), Plaintiffs left the courtroom and immediately proceeded to chalk up the sidewalks in front of the courthouse.  This time they illustrated their displeasure with the Metro Police Department with such profanities as “F__k Pigs,” and “F__k the Cops.”  This chalking spanned some 1,000 square feet and cost the City approximately $1,250 to clean up.  Detective Tucker witnessed this latest chalking episode.  Confronting the Plaintiffs, the detective’s request to clean up the chalk was ignored.  It was also noted by the Court that other individuals, including children, were not stopped from also chalking the sidewalks that day (a fact that later becomes significant).

A week later (July 26), Detective Trucker applied for arrest warrants for Plaintiffs, alleging violations of Nevada’s chalking law on July 13 (at the Metro Police Department ) and 18 (at the courthouse).  A criminal complaint—referring to the graffiti as “derogatory and profane”—was filed against the Plaintiffs on August 9th, alleging a conspiracy to commit the crime of “placing graffiti,” or otherwise “defacing property.”  Plaintiffs Ballentine and Patterson were arrested at a subsequent protest.  The District Attorney, however, ultimately dropped all charges after concluding that the “prosecutions were not a good use of limited resources.”  Plaintiffs responded by suing all the involved officers and the Metro Police Department itself in federal court, asserting claims pursuant to 42 U.S.C. § 1983 and Nevada law. 

The district court granted the civil defendants’ motion for summary judgment on all claims except one; i.e., the Plaintiffs’ claim that Detective Tucker violated their First Amendment rights by arresting them in retaliation for chalking anti-police messages on the city’s sidewalks.  Detective Tucker appealed.  After a trip up and down the appellate court ladder, with the case eventually being returned to the federal district (trial) court, Detective Tucker’s motion for summary judgment was eventually granted.  The district court’s stated reason for dismissing the lawsuit was that even though the Plaintiffs had the right to be free from retaliatory arrests, this legal concept was not yet clearly established in the law when Detective Tucker issued declarations for the Plaintiffs’ arrests, entitling him to qualified immunity. Plaintiffs timely appealed.

The Ninth Circuit Court of Appeal reversed.  The sole issue heard on appeal was whether the Plaintiffs’ lawsuit alleging that Detective Tucker had filed a criminal complaint against the Plaintiffs in retaliation for them (the Plaintiffs) exercising their First Amendment freedom of speech rights should have been dismissed.  In other words, should Detective Tucker’s motion for summary judgment have been granted (i.e., the case dismissed) along with the rest of the civil defendants   In evaluating this issue, the Court agreed with the federal district (trial) court that, assuming the truth of everything the Plaintiffs alleged (as an appellate court is required to do), “a reasonable factfinder (i.e., usually a jury) could conclude from the evidence that Detective Trucker (did in fact violate) Plaintiffs’ First Amendment rights.”  It is a rule of law that “(t)he First Amendment forbids government officials from retaliating against individuals for speaking out.”  In a lawsuit against the government alleging that such retaliation has occurred, the plaintiff must prove that (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action. 

Defendant Detective Tucker did not contest an adverse finding on the first two factors, arguing only that Plaintiffs failed to prove that there was a “substantial causal relationship between the constitutionally protected activity” and his subsequent act of arresting them.  In other words, did Detective Tucker arrest Plaintiffs in retaliation for them being critical of the police   On this issue, the U.S. Supreme Court has established a general rule that if the civil defendant (i.e., a law enforcement officer) had probable cause to arrest the plaintiffs, then it cannot be said that the arrest was retaliatory.  (Nieves v. Bartlett (2019) 139 S. Ct. 1715; 204 L. Ed. 2d 1].)  In this case, Plaintiffs were in obvious violation of a Nevada state law that make it a crime to “place graffiti on or otherwise deface the public or private property, real or personal, of another, without the permission of the owner.” (Nev. Rev. Stat. § 206.330.)  However, the Supreme Court has recognized a “narrow” exception to this rule.  That exception applies when “officers have probable cause to make arrests, but typically exercise their discretion not to do so. . . . (I.e.,) when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals engaged in the same sort of protected speech had not been.” (Id. at p. 1727.)

Looking at the facts of this case, the Court found that it was only Plaintiffs who were arrested despite the fact that others (at least at the courthouse) were doing the same thing—except for not being critical of the police—but were not cited or otherwise charged.  From this simple fact (i.e., the difference in how they were treated), a jury could find that Plaintiffs had been retaliated against simply because they were critical of the police.  The Court held that this was the kind of “objective evidence” required by the Supreme Court in the Nieves decision that showed that the Plaintiffs were “arrested when otherwise similarly situated individuals (i.e., also chalking up the sidewalks), (but) not engaged in the same sort of protected speech (i.e., criticizing the police), had not been.”  In fact, Plaintiffs were able to produce evidence showing that between 2011 and 2013, Plaintiffs attended at least nine chalking protests. At these protests, no law enforcement officers cited the Plaintiffs (or anyone else), or told them that chalking on the city sidewalk was illegal. On one occasion in 2012, marshals actually told Plaintiffs that they could chalk messages on the sidewalk in front of the courthouse. During the July 13 and July 18 chalking incidents described above, no officers stopped or cited Plaintiffs. The Court found that this evidence provided sufficient evidence to show that Plaintiffs were subjected to differential treatment from similarly situated individuals, satisfying the Nieves exception.  It was therefore held that at the very least, “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.  Disagreeing with the federal district court and finding this rule to be clearly established in the law (see Skoog v. County of Clackamas (9th Cir. 2006) 469 F.3rd 1221, 1235; and Ford v. City of Yakima (9th Cir. 2013) 706 F.3rd 1188, 1194-1196.), the Court found that Detective Tucker was not entitled to qualified immunity, remanding the case back to the trial court for further proceedings.

California’s vandalism statute is Pen. Code § 594(a):

Every person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism:  (1) Defaces with graffiti or other inscribed material.  (2) Damages.  (3) Destroys. 

It was the law at one time that “chalking” was not a vandalism under California law, it lacking the element of “permanence.”  (See MacKinney v. Nielsen (9th Cir. 1995) 69 F.3rd 1002.)  Section 594 has since been amended, however, eliminating the need to show that the damage was permanent. Now, it need merely be shown that using something (such as chalk) to “(deface) with graffiti or other inscribed material” is enough to constitute a vandalism.  The fact that the writing can be easily cleaned up is no longer relevant to the issue of whether or not a person has committed a vandalism.  (In re Nicholas Y. (2000) 85 Cal.App.4th 941.)  The importance of this new case, however, is to discuss the retaliatory arrest concept.  As decided here—consistent with the Supreme Court’s Nieves decision—the general rule that the existence of probable cause to arrest normally negates any argument that an arrest was done in retaliation for a defendant exercising his or her right to free speech (referred to as “speaking out” in the decision), and the exception to this rule that if the arrested-for offense is not one that is normally enforced, then arresting someone to punish him or her for being critical of the police (even through the use of profanity) is likely to constitute a “retaliatory arrest,” and in violation of the First Amendment.  Also remember that the use of profanity, even if directed at the police, does not itself provide grounds to arrest a person.  The right to show one’s limited intelligence and lack of character by swearing at (or about) the police is protected by the First Amendment. For example, see Wood v. Eubanks (6th Cir. 2022) 25 F.4th 414, where it was held that a subject wearing profanity (i.e., “F__k The Police”) on his t-shirt and verbally using similar language against six officers who escorted him from the fairgrounds due to his disruptive behavior, was constitutionally (First Amendment) protected speech and insufficient to constitute “fighting words” under Ohio’s disturbing the peace statutes (similar to California’s Pen. Code § 415). As noted by the Wood Court, police officers are held to a higher standard than average citizens when confronted by insulting, abusive language.