Santopietro v. Howell
| Citation | 857 F.3d 980 |
| Decision Date | 24 May 2017 |
| Docket Number | No. 14-16324,14-16324 |
| Parties | 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. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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.
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.
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, to which Patrick added, 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, Meanwhile, Howell told Patrick she could not demand a tip, and Patrick responded, 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,
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.
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." At the same time, the MOU cautioned that "[s]treet performers who are legitimately in violation of a county code, state statute, or other law of general applicability are not immune from prosecution simply because they are street performers."
All three of the defendant Officers in this case had received guidance or training concerning the MOU before Santopietro was arrested. The Officers reported that their principal takeaway from the training was that street performing without a license is not a crime, so long as no "demands" for compensation are made.
Santopietro sued Howell, Crawford, and Lopez–Rosende, asserting eleven federal and state causes of action. Invoking 42 U.S.C. § 1983, she alleged violations of her First Amendment free speech rights; Fourth Amendment right to be free from unreasonable search and seizure; and Fourteenth Amendment substantive and procedural due process and equal protection rights. Santopietro also asserted several causes of action based on state constitutional rights. She sought declaratory and injunctive relief, as well as damages for injuries suffered during detention and attorney's fees. After discovery, the Officers filed a motion for summary judgment. Santopietro filed a cross-motion for partial summary judgment on her § 1983 claim that the arrest violated her First Amendment rights.
The district court granted the Officers' summary judgment motion and denied Santopietro's. Concluding that the Officers had probable cause to arrest Santopietro for doing business without a license, the district court maintained that, for that reason, Santopietro's arrest was in all respects constitutional. In the district court's view, "the [O]fficers did not arrest Santopietro because she was a street performer who was soliciting tips in a non-coercive manner," but because the Officers reasonably had determined that "Patrick, and by association , Santopietro[,] were no longer acting as street performers, but ... were conducting business without a license as prohibited by [Clark Cty. Mun. Code] § 6.56.030."3 (Emphasis added).
Without addressing any First Amendment concerns, the district court held that "the offense of doing business without a license was completed as soon as Santopietro and her partner offered to perform a service in exchange for compensation"; the Officers did not need to wait to "arrest until a tip was demanded several times." Rather, the district court opined, "it is reasonable for an officer to believe that tipping has become involuntary (and thus coerced) when a street performer reminds someone to tip, demands a tip, and asserts that a verbal contract exists that necessitates payment of a tip." As the district court recognized, however, none of those actions were completed by Santopietro; only "Patrick engaged in ... [that] kind of conduct."
Santopietro timely appealed both the grant of summary judgment to the Officers and the denial of her motion for partial summary judgment.4
Santopietro asserts that at the time of her arrest she was...
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