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Santopietro v. Howell

United States Court of Appeals, Ninth Circuit

May 24, 2017

Michele Santopietro, Plaintiff-Appellant,
v.
Clayborn Howell, Las Vegas Metropolitan Police Department Officer, Badge 9034; Kristine Crawford, Las Vegas Metropolitan Police Officer, Badge 10050; Francisco Lopez-Rosende, Las Vegas Metropolitan Police Department Officer, Badge 8864, Defendants-Appellees.

          Argued and Submitted July 8, 2016 San Francisco, California

         Appeal from the United States District Court for the District of Nevada D.C. No. 2:12-cv-01648-JCM-PAL James C. Mahan, District Judge, Presiding

          Andrew M. Jacobs (argued), Snell & Wilmer LLP, Tucson, Arizona; Kelly H. Dove, Snell & Wilmer LLP, Las Vegas, Nevada; for Plaintiff-Appellant.

          Nicholas Crosby (argued) and Marquis Aurbach Coffing, Las Vegas, Nevada, for Defendants-Appellees.

          Before: Marsha S. Berzon, and N. Randy Smith, Circuit Judges, and Dana L. Christensen, [*] Chief District Judge.

         SUMMARY [**]

         Civil Rights

         The panel reversed, in part, the district court's summary judgment in favor of Las Vegas Metropolitan Police Department officers, and remanded in an action brought by a street performer who alleged that she was unlawfully arrested for conducting business with another performer without a license on the Las Vegas Strip, in violation of her First Amendment rights.

         Plaintiff and her friend, both dressed in "sexy cop" costumes, posed with pedestrians on the Strip and accepted tips in exchange for photos. Defendant police officers, working a plain-clothes Strip enforcement assignment, arrested plaintiff and her friend for doing business without a license after the officers were asked to pay a tip or delete a photo. The charges against plaintiff were ultimately dropped.

         The panel held that, on the summary judgment record viewed most favorably to plaintiff, the panel would assume that it was plaintiff's friend who asked that the officers pay a tip or delete the photo. The panel concluded that the full First Amendment protections accorded to plaintiff's own activities did not lapse because of what her friend said or did without plaintiff's direct participation. The panel determined that there was no evidence at all, for example, of a prior agreement between the women to require a quid-pro-quo payment for posing in photos, nor of a demonstrated pattern of demanding quid-pro-quo payments during performances together. The panel held that plaintiff associated with her friend only for expressive activity protected under Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) (en banc), and that the district court erred by deciding that the officers had probable cause to arrest plaintiff despite the First Amendment protections afforded to her expressive association.

         As to the denial of partial summary judgment to plaintiff, the panel remanded for a determination after trial of the disputed factual issues and for consideration in light of the panel's opinion as to whether, on the facts thus determined, plaintiff was validly arrested for her own statements and actions.

          OPINION

          BERZON, Circuit Judge

         Las Vegas Metropolitan Police Department ("Metro") officers arrested Michele Santopietro, a street performer, for conducting business without a license on the Las Vegas Strip. We consider the constitutionality of her arrest.

         BACKGROUND

         I. Santopietro's Arrest

         The various people involved in the incident that led to Santopietro's arrest provided versions of the events that vary somewhat but, as will appear, are mostly consistent as they relate to the constitutional issues Santopietro raises in this litigation. We recount here both the areas of agreement and those of discord.

         Michele Santopietro is an actress who occasionally engages in street performance. On several occasions, Santopietro and her friend, Lea Patrick, traveled to Las Vegas from California and performed together as "sexy cops" on the Las Vegas Strip (the "Strip").

         On May 27, 2011, Santopietro flew to Las Vegas to meet Patrick. The next day, the two women set about presenting their "sexy cop" routine. Less than an hour into their performance they were approached by three Metro officers-Clayborn Howell, Kristine Crawford, and Francisco Lopez-Rosende (together, "Officers")-who were patrolling the Strip in plain clothes.

         Howell spoke first, asking Santopietro and Patrick, "How much does a picture cost?" According to Santopietro, she replied, "It doesn't cost anything. We just ask for a tip, " to which Patrick added, "We pose for tips. Is that okay?"[1]Howell responded, "okay, " posed for a picture with Santopietro and Patrick, and, after Crawford snapped a shot, told the two "sexy cops, " he was "going to go get the money for the tip."[2]

         But he did not. Instead, Howell slowly moved a few steps away from Santopietro and Patrick, offering no payment. Although Patrick reminded Howell, "don't forget the tip, " none was offered. Patrick reiterated: "You said you would tip, " whereupon Howell made clear that no gratuity was in store. At that point, either Patrick or Santopietro asked Crawford to delete the photo from her camera if Howell was unhappy with it or, according to the Officers, if he was not going to tip. The parties dispute the characterization of the statement, as well as of others assertedly made by Patrick. Specifically, they disagree as to whether the statements were made as polite requests or as "demands"-albeit, the Officers concede, "non-coercive" ones.

         Crawford then approached Santopietro and queried, "And what are you going to do to my camera if I don't give you a tip?" Santopietro's reply was, "I'm not going to do anything to your camera. I'm not going to touch you. What exactly are you trying to get me to say?" Meanwhile, Howell told Patrick she could not demand a tip, and Patrick responded, "You're absolutely right, I can't demand a tip. I just said that you said you would tip." Patrick also told Howell he had entered into a "verbal agreement" or "verbal contract" to tip her.

         Either seconds before or immediately after Patrick mentioned the verbal agreement, Howell lifted his shirt to reveal his Metro badge to Patrick and Santopietro. One or more of the Officers then proceeded to handcuff the "sexy cops." According to Patrick and Santopietro, just Patrick was handcuffed at first; Santopietro was handcuffed only after she said, "You can't arrest [Patrick]; she hasn't done anything wrong." Crawford agreed with this sequence, testifying in her deposition that Officer Lopez-Rosende, the third Metro officer at the scene, took umbrage at Santopietro's remark and handcuffed her after she made it.

         According to Santopietro, she twice protested, as she was being placed in handcuffs, that she had not said anything to the Officers to justify her arrest. Crawford did not recall Santopietro making such a statement, but she agreed that Lopez-Rosende said something to the effect of, "I'll tell you right now it doesn't matter. You're here doing business together, dressed alike, so you don't have to say anything."

         Whatever precisely was said and whoever said it, the Officers arrested Santopietro and Patrick for doing business without a license in violation of Clark County Code § 6.56.030. That section provides: "It is unlawful for any person, in the unincorporated areas of the county to operate or conduct business as a temporary store, professional promoter or peddler, solicitor or canvasser without first having procured a license for the same . . . ." The charges against Santopietro eventually were dropped.

         II. 2010 Memorandum of Understanding

         Santopietro and Patrick were by no means the first street performers arrested by Metro officers. Most notably, as a result of repeated arrests and citations made for street performance activities, two street performers sued Metro (and other government entities and officials) in 2009 to prevent similar future arrests and citations, alleging that such enforcement of Clark County Code § 6.56.030 and related ordinances violates the First Amendment.

         To settle that suit, the parties, including Metro, agreed to an Interim Stipulated Memorandum of Understanding ("MOU") in 2010. The MOU (1) specified that the sidewalks and pedestrian bridges along the Strip constitute a traditional public forum; (2) defined "street performer" as "a member of the general public who engages in any performing art or the playing of any musical instrument, singing or vocalizing, with or without musical accompaniment, and whose performance is not an official part of a sponsored event"; and (3) recognized that this court held in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) (en banc), "that street performing is expressive speech or expressive conduct protected under the First Amendment." The MOU went on to provide that "[s]treet performing, including the acceptance of unsolicited tips and the non-coercive solicitation of tips, is not a per se violation of any of the codes or statutes being challenged in [the] action, " which included Chapter 6 of the Clark County Code. The MOU also recited that "[t]he entirety of Chapter 6 of the Clark County Code, the business licensing codes, as written, is inapplicable to the act of street performing." ...


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