Solomon v. Las Vegas Metropolitan Police Department
Opinion
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 12 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
NEBYOU SOLOMON, No. 23-4166 D.C. No. Plaintiff - Appellant, 2:19-cv-00652-CDS-DJA v. MEMORANDUM* LAS VEGAS METROPOLITAN POLICE DEPARTMENT; JOHN PELLETIER; RICHARD E. MAUPIN; RYAN FRYMAN; JUAN CONTRERAS; ALLEN PAVESE; BRANDON MEADS; JOSEPH LOMBARDO,
Defendants - Appellees.
Appeal from the United States District Court for the District of Nevada Cristina D. Silva, District Judge, Presiding
Argued and Submitted May 14, 2025 Phoenix, Arizona
Before: RAWLINSON, BUMATAY, and SANCHEZ, Circuit Judges.
Plaintiff Nebyou Solomon appeals the district court’s order granting
Defendants’ motion for summary judgment against Solomon on his First, Fourth,
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. and Fourteenth Amendment claims, as well as his claims under Monell v.
Department of Social Services of the City of New York, 436 U.S. 658 (1978). We
affirm.
“We review the [district court’s] grant of summary judgment de novo, using
the same standard as the district court” under Federal Rule of Civil Procedure 56(c).
Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002).
1. Defendants did not violate Solomon’s First Amendment right “to film an
event of public significance.” Even assuming, as the district court did, that the
Fashion Show Mall (“FSM”) sidewalk constitutes a public forum, the actions by
Defendants constituted a reasonable time, place, and manner restriction.
FSM informed Defendant Las Vegas Metropolitan Police Department
(“LVMPD”) that “they did not want any protest related activity on their property.”
This restriction on protest-related activity on the FSM sidewalk was “justified
without reference to the content of the regulated speech,” as it was issued against all
involved in protest-related activity, regardless of the subject or content of their
message. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984).
This restriction was narrowly tailored because it did not “burden substantially more
speech than is necessary to further the government’s legitimate interests.” Ward v.
Rock Against Racism, 491 U.S. 781, 799 (1989). There is a legitimate government
interest in “ensuring public safety and order, promoting the free flow of traffic on
2 23-4166 streets and sidewalks, [and] protecting property rights.” McCullen v. Coakley, 573
U.S. 464, 486 (2014) (quoting Schenck v. Pro-Choice Network of W. N.Y., 519 U.S.
357, 376 (1997)). LVMPD’s instruction that Solomon vacate his location on the
sidewalk and move west towards an alternative filming location narrowly promotes
that interest. Body worn camera footage shows Solomon’s large camera tripod
obstructed over half of the sidewalk, and pedestrians would potentially be forced to
move through traffic or up a rocky incline to get past Solomon. Finally, this
restriction allowed ample room for alternative means of communication. Solomon
does not dispute that he could have filmed the protest from across the street. Further,
he could have filmed from the center median. Rather than pursue either of those
alternatives, Solomon violated the officers’ instructions and concedes that he
intended to continue filming in a restricted area.
2. Solomon was not retaliated against for exercising his First Amendment
rights. To succeed on a First Amendment retaliation claim, Solomon must provide
evidence that chilling Solomon’s speech was “a substantial or motivating factor in
the defendant’s conduct.” Mendocino Env’t Ctr. v. Mendocino Cnty., 192 F.3d 1283,
1300 (9th Cir. 1999) (simplified). But the record shows Defendants’ motivations in
arresting Solomon were content neutral.
As explained below, Defendants had probable cause to believe Solomon was
trespassing in violation of Nev. Rev. Stat. § 207.200. But rather than comply with
3 23-4166 Sgt. Fryman’s instruction to pick up his camera equipment and move west down the
sidewalk so as not to be trespassing, Solomon told officers he intended to film
elsewhere on the FSM property and moved east. Only after the officers developed
probable cause to believe Solomon was trespassing did they arrest him. People have
a First Amendment “right verbally to challenge the police.” Velazquez v. City of
Long Beach, 793 F.3d 1010, 1019 (9th Cir. 2015) (simplified). They do not,
however, possess a right to disobey police orders. Nothing in the record suggests
Defendants were motivated to arrest Solomon due to his First Amendment activity.
3. Defendants did not violate Solomon’s Fourth Amendment rights.
Defendants had probable cause to believe Solomon was trespassing. See Nev. Rev.
Stat. § 207.200. At the time of the arrest, the sidewalk at issue had not yet been
declared a public forum. And FSM officials informed Solomon that he could not
film on their property and had to move. Sgt. Fryman also informed Solomon the
property was private and he had to leave. So at that moment, Defendants had
probable cause to arrest Solomon for trespassing. Defendants also had probable
cause to arrest Solomon for obstructing a police officer by refusing to identify
himself. See Nev. Rev. Stat. §§ 171.123(3), 197.190. Ofc. Contreras informed
Solomon that it was a crime in Nevada to refuse to identify to a police officer and
Solomon refused to do so.
4 23-4166 4. Solomon was not exposed to excessive force. It was “objective[ly]
reasonable[]” for Defendants to grab Solomon’s arm and place him in handcuffs as
part of his lawful arrest. Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). The
force used here was minimal and Solomon does not claim any injury.
5. Defendants did not violate Solomon’s Fourteenth Amendment Equal
Protection Clause rights. Solomon cannot identify a similarly situated individual
who was treated differently than him. See City of Cleburne, Tex. v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985). The white man who was taking pictures of the
protest from the FSM sidewalk was argumentative with officers, but unlike
Solomon, he complied with their order to continue moving westward along the FSM
sidewalk so as not to trespass. None of the individuals identified by Solomon as
“similarly situated” to him traveled east on FSM’s sidewalk in violation of a police
officer’s order—only Solomon did. Further, there is no evidence in the record that
any individuals other than Solomon were blocking the FSM sidewalk with their
equipment.
6.
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