                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 2 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BRIAN BALLENTINE; et al.,                       No.    17-16728

                Plaintiffs-Appellees,           D.C. No.
                                                2:14-cv-01584-APG-GWF
 v.

LAS VEGAS METROPOLITAN POLICE                   MEMORANDUM*
DEPARTMENT,

                Defendant,

MIKE WALLACE, Sergeant; JOHN
LIBERTY, Lieutenant,

                Defendants,

and

CHRISTOPHER T. TUCKER, Detective,

                Defendant-Appellant.

                   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).
                            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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