Our clients, Brian Ballentine, Catalino Dazo, and Kelly Patterson, are members of the “Sunset Activist Collective,” an activist group in Las Vegas. As part of their activist activities, the group writes protest messages critical of the police in chalk on the sidewalks in front of the Las Vegas Metropolitan Police headquarters and the state courthouse.
Ballentine, Dazo, and Patterson had chalked such messages for years without incident. In June 2013, however, officers cited them for violating a Nevada anti-graffiti statute and Detective Christopher Tucker began investigating the citation. On August 9, Detective Tucker prepared a declaration for the group’s arrest, in which he referenced the anti-police content of their chalked messages.
After the state dropped the charges, the group sued Detective Tucker, other Las Vegas police officers, and the Las Vegas Police Department in the U.S. District Court for the District of Nevada. The district court dismissed all of the group’s claims except their § 1983 claim for First Amendment retaliation against Detective Tucker. Detective Tucker then moved for summary judgment, claiming he was entitled to qualified immunity.
Although the district court held that Ballentine, Dazo, and Patterson had sufficiently alleged a violation of their constitutional right to be free from police action in retaliation for exercising their right to free speech, the court held that the law in the Ninth Circuit was not clearly established when police arrested the group in August 2013. In reaching its conclusion as to the state of the law, the district court relied on the Ninth Circuit’s unpublished (and therefore nonprecedential) decision in Bini v. City of Vancouver, which held, contrary to recent precedent, that the law was not clearly established. Although the district court disagreed with Bini’s legal analysis, it felt constrained to follow its holding. Because the district court held that the law was not clearly established, it granted qualified immunity to Detective Tucker.
We are appealing the district court’s decision that Detective Tucker was entitled to qualified immunity and requesting that the Ninth Circuit issue a published opinion clarifying that Bini was incorrectly decided. We are co-counseling this case with Maggie McLetchie and Alina Shell, attorneys at McLetchie Law, who handled the case in the district court.