Brian Ballentine v. Christopher Tucker

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIAN BALLENTINE; CATALINO No. 20-16805

DAZO; KELLY PATTERSON,

Plaintiffs-Appellants, D.C. No.

2:14-cv-01584-

and APG-EJY

GAIL SACCO,

Plaintiff, OPINION

v.

CHRISTOPHER T. TUCKER, Detective,

Defendant-Appellee,

and

LAS VEGAS METROPOLITAN POLICE

DEPARTMENT; MIKE WALLACE,

Sergeant; JOHN LIBERTY, Lieutenant,

Defendants.

Appeal from the United States District Court

for the District of Nevada

Andrew P. Gordon, District Judge, Presiding

Argued and Submitted October 21, 2021

San Francisco, California

2 BALLENTINE V. TUCKER

Filed March 8, 2022

Before: Mary H. Murguia, Chief Judge, and

J. Clifford Wallace and Carlos T. Bea, Circuit Judges.

Opinion by Judge Wallace

SUMMARY *

Civil Rights

The panel affirmed in part and reversed in part the district

court’s summary judgment, on qualified immunity grounds,

for Las Vegas Metropolitan Police Department Detective

Christopher Tucker in an action brought pursuant to

42 U.S.C. § 1983 alleging, in part, that Tucker violated

plaintiffs’ First Amendment rights when he arrested them in

retaliation for their chalking anti-police messages on

sidewalks.

The panel held that Detective Tucker was not entitled to

qualified immunity because it was clearly established at the

time of plaintiffs’ arrests that an arrest supported by probable

cause but made in retaliation for protected speech violates

the First Amendment.

Citing Nieves v. Bartlett, 139 S. Ct. 1715 (2019), the panel

first recognized that plaintiffs bringing First Amendment

retaliatory arrest claims must generally plead and prove the

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

BALLENTINE V. TUCKER 3

absence of probable cause because the presence of probable

cause generally speaks to the objective reasonableness of an

arrest and suggests that the officer’s animus is not what

caused the arrest. However, the Supreme Court has also

carved out a narrow exception for cases where officers have

probable cause to make arrests, but typically exercise their

discretion not to do so.

Here, plaintiffs presented objective evidence showing that

they were arrested while others who chalked and did not

engage in anti-police speech were not arrested. Given that

plaintiffs had shown differential treatment of similarly

situated individuals, 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. Accordingly,

the panel agreed with the district court that a reasonable

factfinder could conclude from the evidence that Detective

Tucker violated plaintiffs’ First Amendment rights.

The panel held that at the time of Detective Tucker’s

conduct in July 2013, binding Ninth Circuit precedent gave

fair notice that it would be unlawful to arrest plaintiffs in

retaliation for their First Amendment activity,

notwithstanding the existence of probable cause. A

reasonable officer in Detective Tucker’s position had fair

notice that the First Amendment prohibited arresting

plaintiffs. Accordingly, the district court erred in granting

qualified immunity to Detective Tucker.

4 BALLENTINE V. TUCKER

COUNSEL

Devi M. Rao (argued), Roderick & Solange MacArthur

Justice Center, Washington, D.C.; Margaret Ann McLetchie

and Alina Maria Shell, McLetchie Law, Las Vegas, Nevada;

for Plaintiffs-Appellants.

Craig R. Anderson (argued) and Kathleen A. Wilde, Marquis

Aurbach Coffing, Las Vegas, Nevada, for Defendant-

Appellee.

OPINION

WALLACE, Circuit Judge:

Brian Ballentine, Catalino Dazo, and Kelly Patterson

(Plaintiffs) appeal from the district court’s order granting

Detective Christopher Tucker’s motion for summary

judgment and dismissing Plaintiffs’ claims under 42 U.S.C.

§ 1983 based on qualified immunity grounds. The district

court concluded that Detective Tucker is entitled to qualified

immunity because Plaintiffs’ constitutional rights were not

clearly established at the time of their arrests. We have

jurisdiction under 28 U.S.C. § 1291. We affirm the district

court’s holding that a reasonable factfinder could conclude

from the evidence that Detective Tucker violated Plaintiffs’

First Amendment rights. We reverse the district court’s

holding that Detective Tucker is entitled to qualified

immunity because it was clearly established at the time of

Plaintiffs’ arrests that an arrest supported by probable cause

but made in retaliation for protected speech violates the First

Amendment. Accordingly, we affirm in part, reverse in part,

and remand.

BALLENTINE V. TUCKER 5

I.

Plaintiffs are members of the Sunset Activist Collective,

a local activist group, and are associated with CopBlock, an

activist group critical of law enforcement. Since 2011,

Plaintiffs have conducted protests by using chalk to write

anti-police messages on the sidewalks of Las Vegas,

Nevada. In response to increased chalking activity and

incurred cleaning costs, the City of Las Vegas indicated to

the Las Vegas Metropolitan Police Department (Metro) that

it was willing to prosecute if Metro observed someone

chalking the sidewalks.

On June 8, 2013, Plaintiffs were chalking the sidewalk

in front of Metro’s headquarters. The messages were critical

of police, included references to officer-involved shootings,

and spanned approximately 320 square feet. As Sergeant

Mike Wallace drove out of the Metro’s parking lot, he saw

Plaintiffs chalking. He informed Plaintiffs that chalking on

the sidewalk was unlawful and asked them to stop. He also

indicated that Plaintiffs could continue to protest if they did

so lawfully, encouraging them to use signs instead.

Plaintiffs responded that chalking on the sidewalk was not

illegal. When Plaintiffs refused to stop chalking, Sergeant

Wallace decided to issue a citation to each plaintiff for

violation of Nevada’s graffiti statute, which criminalizes

conduct that “places graffiti on or otherwise defaces the

public or private property, real or personal, of another,

without the permission of the owner.” Nev. Rev. Stat.

§ 206.330.

Plaintiff Patterson then requested to speak with Sergeant

Wallace’s supervisor. Lieutenant John Liberty responded

and came to the scene. On the way, he confirmed with a

state court judge, a deputy district attorney, and a detective

of internal affairs that sidewalk chalking constituted a crime

6 BALLENTINE V. TUCKER

under Nevada’s graffiti statute. Upon arrival, Lieutenant

Liberty informed Plaintiffs that they would not be cited if

they cleaned up the sidewalk. He told them that the chalking

was illegal, but that they could continue to protest if they

used signs instead, and that the city was tired of protestors

using chalk and leaving it to the city to pay for cleanup.

Plaintiffs again responded that under Nevada case law,

chalking is not illegal. When Plaintiffs refused to clean the

messages, Sergeant Wallace issued the citations.

Detective Tucker, a Metro officer, was assigned to

investigate the citations. As part of the investigation,

Detective Tucker examined Plaintiffs’ messages and

monitored Plaintiffs’ social media to track their activities,

consistent with his practice in cases involving graffiti.

Through Plaintiffs’ social media activities, Detective Tucker

learned that Plaintiffs were members of the Sunset Activist

Collective and were associated with CopBlock.

On July 13, 2013, Plaintiffs Ballentine and Patterson

again chalked messages critical of Metro on the sidewalks

outside Metro’s headquarters. At least one officer witnessed

them chalking, but no officers talked with or cited them. The

cost to clean up the chalk, which spanned approximately

240 square feet, was $300.

On July 18, 2013, Plaintiffs appeared at the Regional

Justice Center, the local state courthouse, for their hearing

on the June 8 citations. The citations were not prosecuted.

Following the hearing, Plaintiffs chalked messages critical

of Metro and police on the sidewalk in front of the

courthouse. These messages included the statements,

“FUCK PIGS!” and “FUCK THE COPS.” The chalking

spanned approximately 1,000 square feet, and the cleanup

cost was approximately $1,250.

BALLENTINE V. TUCKER 7

Detective Tucker was present at the courthouse while

Plaintiffs chalked, and he photographed the messages. After

recognizing Ballentine from his investigation, he asked if

Plaintiffs were going to clean up after themselves.

Ballentine did not respond. Detective Tucker also told

Plaintiffs that one of their messages was inaccurate—the

chalking stated that no Metro officer had ever been

prosecuted for murder, which he said was false. In the end,

Detective Tucker did not stop Plaintiffs or cite them, and no

officer told Plaintiffs to stop chalking. Plaintiffs also

indicated that no efforts were made to stop other individuals,

including children, from chalking that day.

Subsequently, on July 26, 2013, Detective Tucker issued

declarations of arrest for Plaintiffs’ July 13 and July 18

chalkings. In the declarations, Detective Tucker referred to

Plaintiffs’ association with the Sunset Activist Collective

and CopBlock. He also specified the content of some of their

messages, including “FUCK PIGS!” and “FUCK THE

COPS.”

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. The Clark County

District Attorney ultimately dropped all charges because

officers that were present at the courthouse did not tell

Plaintiffs to stop, while some officers also possibly told

Plaintiffs where they could and could not chalk, and the

district attorney concluded prosecutions were not a good use

of limited resources.

Plaintiffs responded by filing an action against

individual officers Tucker, Wallace, and Liberty, as well as

8 BALLENTINE V. TUCKER

Metro, asserting claims pursuant to 42 U.S.C. § 1983 and

Nevada law. The district court entered summary judgment

for defendants on all claims except Plaintiffs’ claim that

Detective Tucker violated their First Amendment rights by

arresting them in retaliation for chalking anti-police

messages on sidewalks. Detective Tucker appealed from the

district court’s denial of summary judgment, and we issued

a memorandum disposition vacating and remanding the case

in light of the Supreme Court’s decision in Nieves v. Bartlett,

139 S. Ct. 1715 (2019). See Ballentine v. Las Vegas Metro.

Police Dep’t, 772 F. App’x 584, 585 (9th Cir. 2019).

On remand, Detective Tucker again moved for summary

judgment on the ground that he was entitled to qualified

immunity. The district court granted the motion. Although

the district court held that a reasonable jury could find that

Detective Tucker violated the Plaintiffs’ First Amendment

rights, it concluded that Detective Tucker is still entitled to

qualified immunity because the right to be free from

retaliatory arrest notwithstanding probable cause was not

clearly established when he issued declarations for

Plaintiffs’ arrests. Plaintiffs timely appealed.

II.

We review a district court’s summary judgment based on

qualified immunity de novo. See Evans v. Skolnik, 997 F.3d

1060, 1064 (9th Cir. 2021). “Viewing the evidence in the

light most favorable to the nonmoving party, we must

determine whether there are any genuine issues of material

fact and whether the district court correctly applied the

relevant substantive law.” Devereaux v. Abbey, 263 F.3d

1070, 1074 (9th Cir. 2001) (en banc). “Summary judgment

[based] on qualified immunity is not proper unless the

evidence permits only one reasonable conclusion.” Munger

BALLENTINE V. TUCKER 9

v. City of Glasgow Police Dep’t, 227 F.3d 1082, 1087 (9th

Cir. 2000).

“In § 1983 actions, qualified immunity protects

government officials from liability for civil damages insofar

as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.” Sampson v. County of Los Angeles, 974 F.3d

1012, 1018 (9th Cir. 2020), quoting Pearson v. Callahan,

555 U.S. 223, 231 (2009) (quotation marks omitted).

Therefore, to overcome qualified immunity, Plaintiffs must

show that Detective Tucker (1) “violated a federal statutory

or constitutional right” and (2) “the unlawfulness of their

conduct was clearly established at the time.” District of

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quotation

marks omitted). The two elements do not need to be

analyzed in any specific order, and courts are permitted to

“exercise their sound discretion in deciding which of the two

prongs of the qualified immunity analysis should be

addressed first . . . .” Pearson, 555 U.S. at 236.

III.

First, we agree with the district court that a reasonable

factfinder could conclude from the evidence that Detective

Tucker violated Plaintiffs’ First Amendment rights. “Under

the first prong [of the qualified immunity inquiry,] we ask

whether, ‘[t]aken in the light most favorable to the party

asserting the injury, do the facts alleged show the officer’s

conduct violated a constitutional right?’” Acosta v. City of

Costa Mesa, 718 F.3d 800, 824 (9th Cir. 2013), quoting

Saucier v. Katz, 533 U.S. 194, 201 (2001).

The First Amendment forbids government

officials from retaliating against individuals

for speaking out. To recover under § 1983

10 BALLENTINE V. TUCKER

for such retaliation, a plaintiff must prove:

(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.

Blair v. Bethel Sch. Dist., 608 F.3d 540, 543 (9th Cir. 2010)

(citations omitted). The district court held that the first two

elements were satisfied, and Detective Tucker does not

contend otherwise. The only element in dispute is whether

there was causation.

To evaluate whether there is a constitutional violation,

we apply the current law. See Sandoval v. County of San

Diego, 985 F.3d 657, 678 (9th Cir. 2021). Accordingly, the

retaliatory arrest framework stated by the Supreme Court in

Nieves governs here. See Nieves, 139 S. Ct. at 1723–24. In

Nieves, the Court held that plaintiffs bringing “First

Amendment retaliatory arrest claims” must generally “plead

and prove the absence of probable cause,” because the

presence of probable cause generally “speaks to the

objective reasonableness of an arrest” and suggests that the

“officer’s animus” is not what caused the arrest. Id.

However, the Supreme Court also carved out a “narrow”

exception for cases where “officers have probable cause to

make arrests, but typically exercise their discretion not to do

so.” Id. at 1727. For example, “[i]f an individual who has

been vocally complaining about police conduct is arrested

for jaywalking”—an offense that “rarely results in arrest”—

“it would seem insufficiently protective of First Amendment

BALLENTINE V. TUCKER 11

rights to dismiss the individual’s retaliatory arrest claim on

the ground that there was undoubted probable cause for the

arrest.” Id. To be sure, the Nieves exception applies only

“when a plaintiff presents objective evidence that he was

arrested when otherwise similarly situated individuals not

engaged in the same sort of protected speech had not been.”

Id. Showing “differential treatment addresses [the] causal

concern by helping to establish that non-retaliatory grounds

[we]re in fact insufficient to provoke the adverse

consequences.” Capp v. County of San Diego, 940 F.3d

1046, 1056 (9th Cir. 2019), quoting Nieves, 139 S. Ct.

at 1727 (quotation marks omitted).

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.” Nieves,

139 S. Ct. at 1727.

12 BALLENTINE V. TUCKER

Plaintiffs’ showing of differential treatment is further

supported when considering the jaywalking example

provided in Nieves. If chalking on sidewalks violates

Nevada law, committing the offense in Las Vegas is much

like jaywalking in that both are offenses for which “officers

have probable cause to make arrests, but typically exercise

their discretion not to do so.” See id. Metro records show

that chalking “rarely results in arrest,” id. Indeed, Plaintiffs’

own experiences confirm this. Between 2011 and 2013,

Plaintiffs attended at least nine chalking protests. At these

protests, no law enforcement officers cited the Plaintiffs or

told them that chalking on the city sidewalk was illegal. On

one occasion in 2012, marshals affirmatively permitted

Plaintiffs to chalk messages on the sidewalk in front of the

courthouse. During the July 13 and July 18 chalking

incidents, no officers stopped or cited Plaintiffs. Similar to

jaywalking, if chalking constitutes an offense, it is an offense

for which “probable cause does little to prove or disprove the

causal connection between animus and injury.” See id.

Thus, Plaintiffs have shown differential treatment of

similarly situated individuals, satisfying the Nieves

exception.

Detective Tucker offers countervailing explanations for

his decision to seek arrest warrants. For example, he argues

that lesser options failed because Plaintiffs continued to

chalk despite the June 8 citations and efforts to talk with

Plaintiffs and encourage alternative protests did not have any

impact. Detective Tucker also contends that he engaged in

good police work by detailing Plaintiffs’ association with

anti-police groups and the content of the messages, including

“FUCK PIGS!” and “FUCK THE COPS,” in the

declarations of arrest. Providing this information, Detective

Tucker contends, allows the judge to evaluate First

Amendment concerns.

BALLENTINE V. TUCKER 13

However, “[t]he possibility that other inferences could

be drawn [regarding the officers’ motivations] that would

provide an alternate explanation for the [officers’] actions

does not entitle them to summary judgment.” Mendocino

Env’t Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1303 (9th Cir.

1999). This issue is for the trier of fact, not for us, to resolve.

See Ford v. City of Yakima, 706 F.3d 1188, 1194 (9th Cir.

2013) (“[T]he issue of causation ultimately should be

determined by a trier of fact.”), abrogated in part by Nieves,

139 S. Ct. 1715. Here, the trier of fact, as the district court

observed, could very well “credit” or “disbelieve” Detective

Tucker’s explanations. Dist. Ct. Dkt. No. 237 at 9–10.

Certainly, there is at least a genuine dispute of material fact

for Plaintiffs to survive summary judgment, as the evidence

does not “permit[] only one reasonable conclusion,”

Munger, 227 F.3d at 1087.

In addition to showing the absence of probable cause or

the applicability of the exception, the “plaintiff must show

that the retaliation was a substantial or motivating factor

behind the [arrest], and, if that showing is made, the

defendant can prevail only by showing that the [arrest]

would have been initiated without respect to retaliation.”

Nieves, 139 S. Ct. at 1725, 1727 (citation omitted).

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. Cf. Lozman v. City of Riviera Beach,

138 S. Ct. 1945, 1954 (2018) (stating that plaintiff “likely

could not have maintained a retaliation claim against the

arresting officer” where there was “no showing that the

officer had any knowledge of [plaintiff’s] prior speech or

14 BALLENTINE V. TUCKER

any motive to arrest him for his earlier expressive

activities”). 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 burden then shifts to Detective Tucker, who can

prevail only by showing that the arrests would have occurred

regardless of Plaintiffs’ anti-police speech. See Nieves,

139 S. Ct. at 1722, 1727. A reasonable jury could credit

Detective Tucker’s explanations that he arrested Plaintiffs

because the June 8 citations were not a sufficient deterrent,

and that he included the content of the speech and Plaintiffs’

affiliations in the declarations of arrest to allow the judge to

evaluate potential First Amendment implications. But a

reasonable jury could also find that Detective Tucker would

not have sought arrest warrants in the absence of Plaintiffs’

anti-police activities. Viewing the evidence and drawing all

reasonable inferences in the favor of Plaintiffs, a jury could

conclude that Detective Tucker violated Plaintiffs’ First

Amendment rights. Accordingly, Plaintiffs have raised a

genuine dispute of material fact as to whether their

constitutional right was violated and have satisfied one part

of the qualified immunity inquiry.

BALLENTINE V. TUCKER 15

IV.

A government officer is nevertheless entitled to qualified

immunity if the plaintiff’s rights were not clearly established

at the time of the alleged misconduct. See Pearson, 555 U.S.

at 231–32. “To be ‘clearly established, the contours of the

right must be sufficiently clear that a reasonable official

would understand that what he is doing violates that right.’”

Acosta, 718 F.3d at 824, quoting Anderson v. Creighton,

483 U.S. 635, 639 (1987). While there need not be “a case

directly on point, [] existing precedent must have placed the

statutory or constitutional question beyond debate.”

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). Under this

inquiry, we look first to binding precedent. “If the right is

clearly established by decisional authority of the Supreme

Court or this Circuit, our inquiry should come to an end.”

Boyd v. Benton Cnty., 374 F.3d 773, 781 (9th Cir. 2004).

Whether a right is clearly established “depends

substantially upon the level of generality at which the

relevant ‘legal rule’ is to be identified.” Anderson, 483 U.S.

at 639. The Supreme Court has “repeatedly stressed that

courts must not ‘define clearly established law at a high level

of generality.’” Wesby, 138 S. Ct. at 590, quoting Plumhoff

v. Rickard, 572 U.S. 765, 779 (2014).

To determine if a right was clearly established, “[t]he

relevant inquiry is whether, at the time of the officers’ action,

the state of the law gave the officers fair warning that their

conduct was unconstitutional.” Ford, 706 F.3d at 1195,

citing Hope v. Pelzer, 536 U.S. 730, 741 (2002).

Accordingly, we look to the state of the law that concerned

conduct at the time of the challenged police action.

At the outset, Detective Tucker argues that the law was

not clearly established at the time of his conduct in 2013

16 BALLENTINE V. TUCKER

because the Supreme Court’s decision in Nieves did not

clarify the appropriate standard for First Amendment

retaliation claims until 2019. But a right can also be clearly

established by this circuit’s precedent. See Boyd, 374 F.3d

at 781.

Contrary to Detective Tucker’s characterization of

Plaintiffs’ claims, Plaintiffs did not merely “describe the

‘clearly established’ right in general terms like ‘retaliatory

law enforcement action.’” Dkt. No. 19 at 28. Rather,

Plaintiffs defined the right as “the right to be free from

retaliatory law enforcement action even when probable

cause existed for that action.” Dkt. No. 12 at 13 (emphasis

added). In so doing, Plaintiffs defined the right as we did in

Skoog and Ford. See Skoog v. County of Clackamas,

469 F.3d 1221, 1235 (9th Cir. 2006) (“In this case, we define

the right as the right of an individual to be free of police

action motivated by retaliatory animus but for which there

was probable cause.”), abrogated in part by Nieves, 139 S.

Ct. 1715; Ford, 706 F.3d at 1195–96 (“[T]his Court’s 2006

decision in Skoog established that an individual has a right

to be free from retaliatory police action, even if probable

cause existed for that action.”). 1

Thus, at the time of Detective Tucker’s conduct in July

2013, binding Ninth Circuit precedent gave fair notice that it

would be unlawful to arrest Plaintiffs in retaliation for their

First Amendment activity, notwithstanding the existence of

1

Nieves abrogated Ford and Skoog to the extent those cases held

that a plaintiff can prevail on a First Amendment retaliatory arrest claim

regardless of whether probable cause existed for the arrest. A plaintiff

either “must plead and prove the absence of probable cause for the arrest”

or that the offense at issue is one for which “officers have probable cause

to make arrests, but typically exercise their discretion not to do so.” See

Nieves, 139 S. Ct. at 1721–28.

BALLENTINE V. TUCKER 17

probable cause. The right was first established in our

November 2006 decision in Skoog, which held that a First

Amendment “right exists to be free of police action for

which retaliation is a but-for cause even if probable cause

exists for that action.” 469 F.3d at 1235. Then, our February

2013 decision in Ford held that by July 2007, in light of

Skoog, it was clearly established law in this circuit that there

is a “First Amendment right to be free from police action

motivated by retaliatory animus, even if probable cause

existed for that action.” 706 F.3d at 1195–96. Because

Detective Tucker’s conduct occurred in July 2013, the right

had been clearly established by Skoog.

Detective Tucker argues that our decision in Acosta,

718 F.3d at 806, created uncertainty as to the state of the law.

But Detective Tucker misunderstands Acosta. There, police

arrested Acosta in January 2006 for violating a municipal

ordinance prohibiting disorderly conduct at city council

meetings. Id. at 806–08. We correctly concluded that “at

the time of the Council meeting,” there was no clearly

established right to be free from a retaliatory arrest otherwise

supported by probable cause. Id. at 825. This was so

because the panel in Acosta was required to examine the law

“at the time of the challenged conduct” in January 2006, see

id. at 824–26, which pre-dated Skoog and Ford. Since

Acosta only addressed the state of the law in January 2006,

it has no effect on the state of the law in July 2013, the time

of Detective Tucker’s conduct. Neither Skoog nor Ford had

any place in the Acosta inquiry. In contrast, by the time of

Detective Tucker’s conduct in 2013, Skoog had clearly

established the right. That the decision in Acosta was issued

in 2013 is therefore irrelevant because the decisive inquiry

is the state of the law at the time of the challenged conduct.

18 BALLENTINE V. TUCKER

The district court, however, concluded that the right was

not clearly established because of our unpublished decision

in Bini v. City of Vancouver, 745 F. App’x. 281 (9th Cir.

2018). There, the majority held that at the time of Bini’s first

arrest in 2014, “it was not clearly established in this circuit

that an arrest supported by probable cause, but made in

retaliation for protected speech, violated the Constitution.”

Id. at 282. In so holding, the majority stated, “we held in

Ford . . . —more than a year before Bini’s first arrest in

2014—that such a right was clearly established in this

circuit. But a month later [in Acosta] we held that the same

right had not been clearly established.” Id. (citations

omitted).

But Bini does not change our analysis. First, as an

unpublished memorandum disposition, Bini does not bind

this panel. See 9th Cir. R. 36-3(a). Second, the Bini majority

erred by relying on the dates of the Ford and Acosta

decisions, rather than the dates of the challenged conduct.

As we discussed above, Acosta examined the state of the law

in January 2006, before the right was clearly established by

Skoog and Ford. The Bini dissent correctly recognized that

Acosta was “determining the state of the law as it stood in

2006, when Acosta was arrested. The decision has nothing

to say about the state of the law in 2014, when Bini was

arrested.” 745 F. App’x at 283 (Watford, J., dissenting in

part) (citation omitted). Thus, by the time of Bini’s arrest in

2014, “Ford had resolved whatever uncertainty remained in

our circuit’s case law.” Id. Likewise, here, by the time of

Plaintiffs’ arrests in 2013, Skoog and Ford had clearly

established the right.

To summarize, in November 2006, Skoog established the

First Amendment right to be free from retaliatory law

enforcement action even where probable cause exists.

BALLENTINE V. TUCKER 19

469 F.3d at 1235. Ford subsequently held that Skoog clearly

established this right in November 2006. 706 F.3d at 1195–

96. Acosta, which examined the state of the law in January

2006—before Skoog and Ford were decided—is irrelevant

to the state of the law in question here. See Acosta, 718 F.3d

at 808, 825–26. Accordingly, at the time of Detective

Tucker’s conduct in July 2013, the right was clearly

established.

Finally, Detective Tucker argues that the facts of then-

existing case law are distinguishable from the facts of this

case. But “[a] right can be clearly established despite a lack

of factually analogous preexisting case law, and officers can

be on notice that their conduct is unlawful even in novel

factual circumstances.” Ford, 706 F.3d at 1195; see also

Ioane v. Hodges, 939 F.3d 945, 956 (9th Cir. 2018) (a

plaintiff “need not identify a prior identical action to

conclude that [a] right is clearly established” (citation

omitted)). Thus, “[t]he question is not whether an earlier

case mirrors the specific facts here. Rather, the relevant

question is whether ‘the state of the law at the time gives

officials fair warning that their conduct is unconstitutional.’”

Ellins v. City of Sierra Madre, 710 F.3d 1049, 1064 (9th Cir.

2013) (citation omitted).

Moreover, Detective Tucker’s attempts to distinguish the

facts of this case from prior precedent fail. For example, he

contends that Skoog stands only for the “proposition that an

officer violates the First Amendment when he performs an

official act pursuant to a warrant supported by weak

probable cause and where there is substantial evidence of a

retaliatory motive.” Dkt. No. 19 at 34. He claims Skoog is

distinguishable because Detective Tucker presented a

detailed warrant, including the content of the speech, that

was supported by probable cause. But we have never

20 BALLENTINE V. TUCKER

construed Skoog so narrowly. On the contrary, we have

concluded that any reasonable officer would understand that

police action “falls squarely within the prohibition[] of . . .

Skoog” where it is “motivated by retaliatory animus, even if

probable cause existed for that action.” Ford, 706 F.3d at

1196. The fact that Detective Tucker presented a detailed

warrant supported by probable cause does not render Skoog

inapposite.

Detective Tucker also argues that Ford is

distinguishable. There, a Section 1983 plaintiff brought a

retaliatory arrest claim against officers who arrested him

following a traffic stop. See id. at 1190. Ford presented

evidence that the officers arrested him because he yelled at

them during the stop and accused them of making a racially

motivated stop. See id. at 1190–91. By contrast, Detective

Tucker argues he presented all of the evidence—including

the content of the speech—to a neutral magistrate after he

“completed a thorough investigation, sought input from

others, and made a calm decision after lesser alternatives

failed to deter Plaintiffs’ behavior.” Dkt. No. 19 at 36.

Although the evidence of Detective Tucker’s alleged

retaliatory animus may not be so overt as that in Ford, the

conflicting evidence is sufficient for a reasonable jury to

conclude that Detective Tucker’s conduct was retaliatory,

notwithstanding a “thorough” and “calm” investigation. But

it is the role of the trier of fact, not us, to weigh the strength

of the evidence of retaliatory animus.

Even so, “officers can be on notice that their conduct is

unlawful even in novel factual circumstances.” Ford,

706 F.3d at 1195. Where a case “involve[s] the kind of mere

application of settled law to a new factual permutation,” “we

assume an officer had notice that his conduct was unlawful.”

Id. at 1196 (citation and quotation marks omitted). By the

BALLENTINE V. TUCKER 21

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.” Id. at 1195–96.

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. Accordingly, the district court erred in

granting qualified immunity to Detective Tucker.

AFFIRMED in part, REVERSED in part, and

REMANDED.