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.