Sunday, October 2, 2011

" Officer Davis stepped out of the car and told Mackinney that if he did not stop writing on the sidewalk he would be arrested. "

 Constitutional Rights Violations - In Hamilton Montana it Seems to Be Illegal to Chalk the Sidewalks.

Does Qualified Immunity give Law Enforcement Free Reign to Violate your Consititutional Rights if they "Believe" that are "acting" within the Law?  Qualified Immunity seems to me to be something that protects your Constitutional Rights to Be Violated.

Qualified Immunity -  Constitutional Rights Violations Case in "Chalking"


Christopher MACKINNEY, Plaintiff-Appellant, v. Garon NIELSEN, Dash Butler, Al Littles, and City of Berkeley, Defendants-Appellees.

No. 94-15438.

Argued and Submitted March 9, 1995. -- November 06, 1995

Before:  PREGERSON, KOZINSKI and LEAVY, Circuit Judges.
Maureen Laflin, Supervising Attorney, Sheryle Musgrove, and Arthur Bistline, University of Idaho Legal Aid Clinic, Moscow, Idaho, for plaintiff-appellant.Matthew J. Orebic, Deputy City Attorney, Berkeley, California, for defendants-appellees.


Christopher Mackinney appeals the district court's grant of summary judgment in favor of defendants Garon Nielsen, Dash Butler, Al Littles, and the City of Berkeley in his 42 U.S.C. § 1983 action.  

Mackinney alleges that his constitutional rights were violated when he was arrested and detained for writing on a sidewalk with chalk.   We have jurisdiction under 28 U.S.C. § 1291.   We affirm in part and reverse in part.


Mackinney is a resident of Berkeley, California.   On September 17, 1992, Mackinney and a friend wrote on a public sidewalk in Berkeley with “sidewalk chalk,” an allegedly washable, non-permanent material.   Mackinney wrote:  “A police state is more expensive than a welfare state-we guarantee it.”  

As he was finishing writing this message, Berkeley police officers Davis and Tejada, driving in an unmarked car on their way to serve a search warrant, saw Mackinney and ordered him to stop writing.   Before complying with this order, Mackinney underlined the last phrase of his message.

The officers pulled their car up to the sidewalk.   Officer Davis stepped out of the car and told Mackinney that if he did not stop writing on the sidewalk he would be arrested.   Mackinney, though he had already stopped writing, refused to agree to stop writing, asserting that his actions were legal.  

 During this exchange, Berkeley Police Sergeant Nielsen arrived.   Nielsen rushed to the scene and asked what Mackinney had said.   Mackinney said that he told officer Davis that he was violating Mackinney's civil rights.   Nielsen responded by grabbing the chalk from Mackinney's hand and throwing it behind him.   He allegedly said to Mackinney, “I don't give a f-k about your civil rights.”

Sergeant Nielsen ordered the officers to arrest Mackinney.   Officer Davis arrested Mackinney and charged him with violating California Penal Code § 594, which prohibits defacing “with paint or any other liquid” or damaging property that is not one's own.   The officers took Mackinney to the Berkeley jail and kept him there for three to four hours.   He was then released on bail.   He was not prosecuted for violating § 594 or any other statute.

Mackinney filed this suit under 42 U.S.C. § 1983 in the United States District Court for the Northern District of California.1  Mackinney alleged that his constitutional rights were violated because he was arrested without probable cause, and because he was arrested for exercising his First Amendment right to free speech.  

The district court granted summary judgment in favor of the defendants.   Mackinney now appeals.


A. Standard of Review.

We review a grant of summary judgment de novo.  Jesinger v. Nevada Fed. Credit Union, 24 F.3d 1127, 1130 (9th Cir.1994).   We must determine whether the evidence viewed in a light most favorable to the non-moving party presents any genuine issues of material fact and whether the district court correctly applied the law.  Id.  We review the district court's order granting qualified immunity de novo.  Baker v. Racansky, 887 F.2d 183, 185 (9th Cir.1989)."

B. Qualified Immunity for Defendant Nielsen.

The district court found that Sergeant Nielsen is entitled to qualified immunity.   Qualified immunity protects law enforcement officials who reasonably believe they are acting lawfully in carrying out their duties.   Act Up! Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993).   Whether a defendant is entitled to qualified immunity turns on a two part inquiry:  “(1) Was the law governing the official's conduct clearly established?  (2) Under that law, could a reasonable officer have believed the conduct was lawful?”   Id.  The analysis under these two prongs will necessarily involve an inquiry into the substantive issue of whether Nielsen violated Mackinney's Fourth Amendment rights by arresting him without probable cause.

On the merits, the district court found that Nielsen did not have probable cause to arrest Mackinney under California Penal Code § 594, which prohibits damaging property.   Instead the district court found that Nielsen did have probable cause to arrest Mackinney under California Penal Code § 148 for obstructing the officers in their line of duty.  

As to qualified immunity, the district court found Nielsen to be immune from suit because he “reasonably believed” his conduct to be lawful when he ordered Mackinney's arrest.   We disagree and find that Nielsen is not entitled to qualified immunity and that he did not have probable cause to arrest Mackinney for violating either § 594 or § 148 of the California Penal Code.

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