Ninth Circuit Says Arresting People For ‘Fuck The Cops’ Chalk Writing Is Unconstitutional Retaliation

Free Speech

from the CHALK-THE-POLICE! dept

Cops and obscenities don’t mix.

Don’t get me wrong. Cops love swear words. They’re a huge part of law enforcement’s arsenal when attempting to achieve “control” of a “scene.” This act usually involves contradictory shouted instructions peppered by F-bombs delivered as frequently and quickly as possible. Swearing at people is completely acceptable. But swearing at cops somehow isn’t.

At best, cops feel expletives sent in their direction represent insufficient deference to law enforcement. At worst (and far too fucking often), cops believe swearing (and certain hand motions) is an arrestable offense. Courts continue to set the record straight. Not that the cops seem to understand, much less care.

And so we have this case — one that involves cops and words cops feel should be illegal if they’re used to refer to cops. And we have yet another rebuttal of this law enforcement-centric delusion that somehow still results in acts of retaliation against protected speech. (via Volokh Conspiracy)

The plaintiffs, members of a group, Sunshine Activist Collective (“associated with CopBlock”), chalked the sidewalk in front of the Las Vegas Metro PD. What was chalked was critical of the PD, mentioning officer-involved shootings and utilizing the phrases “Fuck the pigs” and “Fuck the cops.”

Sergeant Mike Wallace confronted the activists, claiming chalking the sidewalk was unlawful. The plaintiffs refused to stop and informed Wallace that the act was actually not unlawful. Sgt. Wallace cited the plaintiffs for violating Nevada’s graffiti statute, which forbids the “placing” of “graffiti” on any property (public or private) “without permission of the owner.”

Fair enough. Except that this enforcement action was actually unfair. The Metro PD placed the unrepentant chalkers under surveillance, with a detective searching their social media profiles to discover further information. The only information that seemed pertinent to the detective was that the protesters were aligned with police accountability group, CopBlock.

Five days later, the activists again chalked the same sidewalk in front of the Metro PD. Despite the city claiming it cost $300 to un-chalk the sidewalk, no officer cited the activists during this chalking, despite many officers passing by them as they wrote their messages.

The plaintiffs went to court on July 18, 2013 to contend the prosecution. But the city had already decided not to prosecute these alleged offenses. That didn’t stop the detective who had searched their social media accounts from issuing arrest warrants for both chalking incidents, including the one where no officer had bothered citing them.

That led to this:

On August 9, 2013, a criminal complaint was filed against Plaintiffs for conspiracy to commit placing graffiti and placing graffiti on or otherwise defacing property. The complaint referred to the graffiti as derogatory and profane. The next day, Plaintiffs Ballentine and Patterson were arrested at another planned protest.

This didn’t work out the way Detective Tucker thought it would. The Clark County DA dropped the charges, stating police enforcement of this chalking had been, at best, inconsistent and that pursuing the charges would be a waste of the DA’s time (“not a good use of limited resources”).

That led to this lawsuit. Which led to Detective Tucker claiming qualified immunity shielded him from this legal action. He also claimed there was no evidence his pursuit of criminal charges (along with the arrest of the two chalkers) was motivated by the things they wrote. Wrong, says the court [PDF]. There’s enough on the record that a jury should get to decide whether the detective’s actions were retaliatory.

Detective Tucker contends that Plaintiffs’ claims do not fall within the Nieves exception because the evidence does not support their allegations that they were singled out based on a retaliatory motive. But Plaintiffs presented objective evidence showing that they were arrested while others who chalked and did not engage in anti-police speech were not arrested. During discovery, Metro produced records indicating only two instances in which chalkers were suspected of or charged with violating Nevada’s graffiti statute. In these two instances, only one individual was cited—not arrested—for chalking on public property. There is no evidence that anyone besides the Plaintiffs has been arrested for chalking on the sidewalk. Additionally, the Plaintiffs presented evidence that other individuals chalking at the courthouse at the same time as Plaintiffs were not arrested. This is the kind of “objective evidence” required by the Nieves exception to show that a plaintiff was “arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been.”

Not only that, but the detective’s own testimony suggests he targeted these activists solely because he perceived them as anti-law enforcement.

On this point, the district court correctly concluded that 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. Detective Tucker knew that Plaintiffs were activists that were vocally critical of the police. […]

Detective Tucker had previously engaged with Plaintiffs, challenging a chalked message that indicated no Metro officer had ever been prosecuted for murder. In the declarations of arrest, he explicitly included Plaintiffs’ association with anti-police groups and the critical content of their messages. Moreover, rather than cite Plaintiffs—which the evidence showed was an extremely rare occurrence to begin with—Detective Tucker sought arrest warrants. Coupled with the evidence of differential treatment already discussed, a reasonable jury could find that the anti-police content of Plaintiffs’ chalkings was a substantial or motivating factor for effecting the arrest.

The final call? Detective Tucker’s actions in this case went beyond what’s permitted by the Constitution. That means he’ll have to continue facing the lawsuit brought by the two arrested activists. No qualified immunity.

By the time of Detective Tucker’s conduct, Ninth Circuit precedent had long provided notice to officers that “an individual has a right to be free from retaliatory police action, even if probable cause existed for that action.” Detective Tucker’s belief that his conduct was not unlawful because he thoroughly investigated and made the decision to arrest after lesser alternatives failed does not vitiate such notice. A reasonable officer in Detective Tucker’s position had fair notice that the First Amendment prohibited arresting Plaintiffs for the content of their speech, notwithstanding probable cause.

So, head’s up in the Ninth Circuit. If you want to arrest people for anti-cop speech, you’d better make it far less obvious that’s what you’re doing. A better-developed case — along with a history of consistent enforcement — may have allowed Detective Tucker to get away with this. But despite having none of these things, Detective Tucker still felt no one would ever hold him accountable for his actions. He rolled the dice on QI and lost. Unfortunately, it will likely be the residents of Las Vegas who will be footing the bill for this obvious abuse of power.

Filed Under: 1st amendment, 9th circuit, brian ballentine, catalino dazo, christopher tucker, copblock, free speech, fuck the cops, gail sacco, john liberty, kelly patterson, las vegas pd, mike wallace, nevada, qualified immunity