Retaliatory Arrest for Content of Chalking May Violate the First Amendment
Plaintiffs had chalked various things in front of the Las Vegas Metro Police Department headquarters, including “fuck pigs” and “fuck the cops.” Some of the time, they were given citations under the Nevada graffiti statute, but once a couple of them were arrested. In Ballentine v. Las Vegas Metro. Police Dep’t (Aug. 20, 2020) (appeal pending), Judge Andrew P. Gordon (D. Nev.) held that plaintiffs had made out a case of retaliatory arrest:
In Nieves v. Bartlett (2019), the Supreme Court held that probable cause for an arrest will generally defeat a retaliatory arrest claim because the presence of probable cause suggests that the arrest was objectively reasonable and that the officer’s animus is not what caused the arrest. However, the Supreme Court held that “a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so. In such cases, an unyielding requirement to show the absence of probable cause could pose a risk that some police officers may exploit the arrest power as a means of suppressing speech.”
Thus, to establish a First Amendment retaliatory arrest claim when probable cause exists, a plaintiff must show objective evidence that he was arrested for committing a crime (e.g., jaywalking) while engaged in protected speech while others committing the same crime but not engaged in protected speech were not arrested. This showing helps establish that non-retaliatory grounds were insufficient on their own to provoke the arrest….
Here, the plaintiffs have presented evidence from which a reasonable jury could conclude that they were arrested for chalking while others who chalked but did not engage in the same sort of protected speech had not been arrested. The plaintiffs’ attended at least nine chalking protests between 2011 and 2013 where they were not cited for chalking and were not told by law enforcement officers that chalking on a city sidewalk
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