BALLENTINE v. Christopher T. Tucker, Detective, Defendant-Appellant. (2019)

MEMORANDUM **

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. ––– U.S. ––––, 139 S. Ct. 1715, 1723-24, ––– L.Ed.2d –––– (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.