NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 23 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEREK TUCSON; ROBIN SNYDER; No. 24-5801 MONSIEREE DE CASTRO; ERIK D.C. No. MOYA-DELGADO, 2:23-cv-00017-MJP Plaintiffs - Appellees, MEMORANDUM*

v.

CITY OF SEATTLE; ALEXANDER

PATTON; DYLAN NELSON; RYAN

KENNARD; MICHELE G. LETIZIA,

Defendants - Appellants,

and

TRAVIS JORDAN, ASATG, MIA

NGUYEN, JAMISON MAEHLER,

NICHOLAS GREGORY, RYAN

BARRETT, JOHN DOES, 1-4; 1-2,

Defendants.

Appeal from the United States District Court for the Western District of Washington Marsha J. Pechman, District Judge, Presiding

Argued and Submitted August 12, 2025 Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: HAWKINS, McKEOWN, and WARDLAW, Circuit Judges.

The City of Seattle and several of its officers (“the City”) appeal a jury

verdict finding them liable for retaliatory arrest. The City challenges the district

court’s jury instructions, the denial of its renewed Rule 50 motion, the denial of its

motion for a new trial, and the award of attorney’s fees. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm. We assume the parties’ familiarity with

the facts.

1. The City first contends that the question of whether Plaintiffs presented

sufficient evidence under Nieves v. Bartlett, 587 U.S. 391 (2019), should have been

submitted to the jury. Under Nieves, absent a “no-probable-cause” showing, a

retaliatory arrest claim fails. Id. at 404. The “no-probable-cause” requirement

does not apply, however, when Plaintiffs present objective evidence that similarly

situated individuals who were not engaged in protected speech were not arrested.

Id. at 407; see also Gonzalez v. Trevino, 602 U.S. 653, 658 (2024). The City

specifically maintains that the issue of disparate treatment was properly for the jury

to decide. Even assuming that is correct, we conclude that any error was harmless.

Improper jury instructions warrant reversal only if it is more likely than not that the

verdict would have been different. See Sidibe v. Sutter Health, 103 F.4th 675, 685

(9th Cir. 2024).

Here, the jury necessarily determined that the evidence of disparate

2 24-5801 treatment sufficiently outweighed any probable cause. Thus, even if the issue were

properly submitted to the jury, the verdict would not change.

2. We also affirm the district court’s denial of the City’s renewed Rule

50(b) motion. We review de novo, Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th

Cir. 2006), but must draw all reasonable inferences in favor of the verdict,

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).

First, the district court properly concluded that there was sufficient evidence

to support a finding of retaliatory animus for any of the officers. Plaintiffs

introduced evidence that each officer knew the content of the chalking and that

others engaging in the same conduct were not arrested. That evidence sufficed to

show retaliatory animus. See Ballentine v. Tucker, 28 F.4th 54, 62 (9th Cir. 2022)

(reasoning that evidence of knowledge of the plaintiffs’ speech, coupled with

evidence of differential treatment, is enough to sustain the jury’s verdict).

Next, the City contests the finding of Monell liability. While we agree that

the City should not have been held liable based on the County Jail’s booking

policy, because the jury did not award damages against the City on the plaintiff’s

Monell claim, we conclude that any error is harmless.

The City also contends that the district court erred in denying qualified

immunity on Plaintiffs’ retaliatory booking claims. However, “binding Ninth

Circuit precedent gave [the officers] fair notice that it would be unlawful to arrest

3 24-5801 Plaintiffs in retaliation for their First Amendment activity, notwithstanding the

existence of probable cause.” Ballentine, 28 F.4th at 65.

The City further objects to the district court’s consideration of whether the

officers thought that Plaintiffs’ chalked messages were “fair to police.” We reject

that argument. An officer’s reaction to the content of speech is directly relevant to

whether that speech was a substantial motivating factor in the arrest. See Skoog v.

Cnty. of Clackamas, 469 F.3d 1221, 1232 (9th Cir. 2006) (“To demonstrate

retaliation in violation of the First Amendment, [the plaintiff] . . . must ultimately

prove that [the officer’s] desire to cause the chilling effect was a but-for cause of

the defendant’s action.” (emphasis added)).

3. The district court did not err in denying the City’s motion for a new trial.

The City sought a new trial based on the district court (1) putting forth misleading

jury instructions, (2) admitting prejudicial evidence concerning the officers’

potential political leanings, and (3) admitting testimony concerning King County

Jail’s “protestor exception” to its COVID-19 jailing policy. We review a district

court’s ruling on a motion for a new trial for abuse of discretion, Janes v.

Wal-Mart Stores Inc., 279 F.3d 883, 886 (9th Cir. 2002), and we discern no abuse.

We first conclude that the jury instructions were not misleading. The

instructions made clear that Plaintiffs’ political speech was protected and that the

jury had to decide whether that speech was a motivating factor in the officers’

4 24-5801 decision to arrest. The district court instructed that the jury must decide “whether

Plaintiffs have proven by a preponderance of the evidence that their viewpoint, as

expressed in their protected activity on January 1, 2021, was a substantial or

motivating factor in each Defendants’ decisions to arrest them.”

Nor did the district court err in its evidentiary determinations. Evidentiary

rulings are reviewed for abuse of discretion. See McEuin v. Crown Equip. Corp.,

328 F.3d 1028, 1032 (9th Cir. 2003), as amended on denial of reh'g and reh'g en

banc (June 17, 2003). Contrary to the City’s protestations, evidence of the

officers’ political views and opposition to vaccine mandates was directly relevant

to the question of retaliatory animus.1 We discern no abuse.

4. Finally, the City challenges the attorney’s fees award, arguing that time

spent on Plaintiffs’ facial challenge to the graffiti ordinance was unrelated to the

issues on which Plaintiffs prevailed. However, the district court reasonably found

factual and legal overlap: both claims turned on Plaintiffs’ arrest under the

ordinance and its susceptibility to discriminatory enforcement. Where claims are

intertwined, fees are recoverable, even for the claim that did not prevail.

See McCown v. City of Fontana, 565 F.3d 1097, 1103 (9th Cir. 2009).

AFFIRMED.

1 Because the jury did not award damages on Plaintiff’s Monell claims, we need not reach the City’s arguments concerning testimony about city and county booking policies.

5 24-5801