From Ballentine v. Tucker, decided today by the Ninth Circuit in an opinion by Judge J. Clifford Wallace joined by Chief Judge Mary Murguia and Judge Carlos Bea:
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." …
