Brian Ballentine; v. Las Vegas Metropolitan Police Department

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN BALLENTINE; et al.,
Plaintiffs-Appellees,
v.
LAS VEGAS METROPOLITAN POLICE
DEPARTMENT,
Defendant,
MIKE WALLACE, Sergeant; JOHN
LIBERTY, Lieutenant,
Defendants,
and
CHRISTOPHER T. TUCKER, Detective,
Defendant-Appellant.
No. 17-16728
D.C. No.
2:14-cv-01584-APG-GWF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted and Submission Deferred March 15, 2019**
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUL 2 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Resubmitted June 28, 2019
San Francisco, California
Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges.
In this 42 U.S.C. § 1983 action, the plaintiffs allege that Las Vegas police
officers arrested them in retaliation for protected speech. The district court denied
in part the officers’ motion for summary judgment seeking qualified immunity, and
this appeal followed.
In Nieves v. Bartlett, the Supreme Court held that a plaintiff pursuing a First
Amendment retaliatory arrest claim must generally plead and prove the absence of
probable cause for the arrest. 139 S. Ct. 1715, 1723-24 (2019) (abrogating Ford v.
Yakima, 706 F.3d 1188 (9th Cir. 2013) (per curiam)). The Court noted, however,
“that the no-probable-cause requirement should not apply 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. at 1727. Because
neither the district court nor the parties had the benefit of Nieves when the order on
appeal was decided, we vacate that order and remand for further proceedings in light
of Nieves.
VACATED AND REMANDED.

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