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

OVERVIEW

Christopher Mackinney appeals the district court’s grant of summary judgment in favor of defendants Garon Nielsen, Dash Butler, A1 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.

FACTS

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. Mackin-ney 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.…