Perez-Morciglio v. Las Vegas Metro. Police Dep't

• Court: U.S. District Court — District of Nevada
• Writing for the Court: PHILIP M. PRO
• Citation: Perez-Morciglio v. Las Vegas Metro. Police Dep't, 820 F.Supp.2d 1100 (D. Nev. 2011)
• Decision Date: 25 October 2011
• Docket Number: No. 2:10–CV–00899–PMP–RJJ.,2:10–CV–00899–PMP–RJJ.
• Parties: Jason A. PEREZ–MORCIGLIO and Sebastian Perez–Morciglio, Plaintiffs, v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT; Sheriff Douglas Gillespie; Sergeant Kendall Bell; Officer T. Scott; Officer S. Schaier; Las Vegas Sands Corporation; Venetian Casino Resort, LLC; Eli Castro; Linda Hagenmaier; Ron Hicks; William Lovegren; Anthony Bronson; Kevin Neanover; Kim Gorman; Paul Tanner; and Tony Whiddon, Defendants.

820 F.Supp.2d 1100

Jason A. PEREZ–MORCIGLIO and Sebastian Perez–Morciglio, Plaintiffs,

v.LAS VEGAS METROPOLITAN POLICE DEPARTMENT; Sheriff Douglas Gillespie; Sergeant Kendall Bell; Officer T. Scott; Officer S. Schaier; Las Vegas Sands Corporation; Venetian Casino Resort, LLC; Eli Castro; Linda Hagenmaier; Ron Hicks; William Lovegren; Anthony Bronson; Kevin Neanover; Kim Gorman; Paul Tanner; and Tony Whiddon, Defendants.

No. 2:10–CV–00899–PMP–RJJ.

United States District Court, D. Nevada.

Oct. 25, 2011.

Allen Lichtenstein, ACLU of Nevada, Las Vegas, NV, for Plaintiffs.

Nicholas Crosby, Marquis & Aurbach, Las Vegas, NV, for Defendants Las Vegas Metropolitan Police Department, Sheriff Douglas Gillespie, Officer S. Schaier and Officer T. Scott.

Robert W. Hernquist, Samuel S. Lionel, David N. Frederick, Lionel, Sawyer & Collins, Las Vegas, NV, for Defendants Las Vegas Sands Corporation, Venetian Casino Resort, LLC, Eli Castro, Linda Hagenmaier, William Lovegren, Anthony Bronson, Kevin Neanover, Kim Gorman, Paul Tanner and Tony Whiddon.

ORDER

PHILIP M. PRO, District Judge.

Presently before the Court is Defendants Las Vegas Sands Corp.; Venetian Casino Resort, LLC; Eli Castro; Linda Hagenmaier; William Lovegren; Anthony Bronson; Kevin Neanover; Kim Gorman; Paul Tanner; and Tony Whiddon's (“Venetian Defendants”) Motion for Summary Judgment (Doc. # 80), filed on May 23, 2011. Plaintiffs filed an Opposition and Counter–Motion for Summary Judgment (Doc. # 95) on June 17, 2011. Venetian Defendants filed a Reply (Doc. # 103) on July 12, 2011. The Court held a hearing on these motions on September 27, 2011. (Mins. of Proceedings (Doc. # 118).)

I. BACKGROUND

Plaintiff Jason Perez–Morciglio (“Jason”) is a street performer who dresses up as a masked bandit like Zorro and performs as this character on the sidewalks along the Las Vegas Strip. (Venetian Defs.' Mot. Summ. J. (Doc. # 80) [“VMSJ”], Ex. 3 at 1.) When he performs, he applies his knowledge from theater and dancing, and uses his “artistic charm” to entertain tourists and locals. (LVMPD Defs.' Mot. Summ. J. (Doc. # 81) [“LVMPD MSJ”], Ex. A at 12.) Jason has been performing as Zorro on the Las Vegas Strip since January 2010, and previously did so on Hollywood Boulevard for over seven years. (VMSJ, Ex. 3 at 1.) Jason avers that when he is performing, he does not ask people for money, but he will accept tips if offered to him. ( Id.) Jason carries plastic swords and knives with him so he can do play sword fights with audience members, or to use as props when posing in pictures with tourists, but he denies selling anything. ( Id.; LVMPD MSJ, Ex. A at 15.) Plaintiff Sebastian Perez–Morciglio (“Sebastian”) is Jason's brother, and also a street performer who performs as Darth Vader. (VMSJ, Ex. 6 at 1.)

On Friday, January 15, 2010, Jason was dressed up as Zorro and went to the Las Vegas Strip to perform. ( Id.) Sebastian was with his brother, but was not dressed as any character. ( Id.) Plaintiffs were passing the Venetian to get to the Paris or Bellagio hotels. (VMSJ, Ex. 4 at 125.) Jason was near the fence between the sidewalk and Las Vegas Boulevard. (VMSJ, Ex. 3 at 1; Notice of Manual Filing (Doc. # 82).) Sebastian paused at the fence to watch the Mirage Hotel volcano show taking place across the street. (VMSJ, Ex. 6 at 1; Notice of Manual Filing.) Jason walked up to a trash can to throw away a tissue when Defendant William Lovegren (“Lovegren”), a private security guard with the Venetian, approached him. (VMSJ, Ex. 3 at 1; Notice of Manual Filing.)

Jason and Lovegren dispute what occurred during their initial encounter. According to Lovegren, he observed Jason from a distance of approximately fifty to sixty feet give a sword to a tourist, and the tourist gave Jason money. (VMSJ, Ex. 10 at 43–44.) Although Lovegren could not hear any conversation between Jason and the tourist, Lovegren concluded that Jason had solicited the tourist to purchase the sword. ( Id. at 44–45.) According to Lovegren, he then approached Jason and told Jason soliciting was not permitted on the property. ( Id. at 49.) Jason responded that Lovegren was violating his First and Fourteenth Amendment rights. ( Id. at 50.)

Jason denies that he sold anything prior to the time Lovegren approached him. (VMSJ, Ex 4 at 124.) According to Jason, Lovegren told him that he was on private property and had to leave immediately. (VMSJ, Ex. 3 at 1.) Jason told Lovegren he was on a public sidewalk, and thus was not trespassing; Lovegren was violating his constitutional rights; and Lovegren should call the police if Lovegren truly believed Jason was trespassing. (VMSJ, Ex. 3 at 2.) When Jason would not leave, Lovegren's supervisor, Defendant Anthony Bronson (“Bronson”), advised Lovegren via the radio to trespass Jason by reading him Nevada Revised Statutes § 207.200 and by telling Jason that he was being trespassed for soliciting, and Lovegren did so. ( Id., Ex. 10 at 53–55, 62–64.) Bronson acknowledges that soliciting is not illegal, but asserts it is a violation of an unwritten Venetian policy, and that policy applies to the sidewalk in front of the Venetian. (Decl. of Margaret A. McLetchie in Supp. of Pls.' Opp'n to Mot. Summ. J. of Venetian Defs. (Doc. # 93) [“Opp'n to VMSJ”], Ex. 1 at 44, 81.)

Both Jason and Lovegren agree that Lovegren asked Jason to leave and read him the trespass card several times, but Jason refused to leave and continued to assert his right to be on the sidewalk. (VMSJ, Ex. 4 at 146, Ex. 10 at 54–56.) According to Lovegren, he told Jason that the Venetian owned the property up to the curb, and although there is a public walk-through, Jason could not solicit in that area. (VMSJ, Ex. 10 at 56.)

Four more Venetian security guards, Defendants Linda Hagenmaier (“Hagenmaier”), Ron Hicks (“Hicks”), Eli Castro (“Castro”), and Kevin Neanover (“Neanover”), then arrived on the scene. (VMSJ, Ex. 3 at 1.) According to Lovegren, after he had read Jason the trespass statute three times and Jason still refused to leave, Bronson told Lovegren to bring Jason to the back of the hotel. (VMSJ, Ex. 10 at 58–60.) Jason states that after he told the security guards to call the police, they placed him in handcuffs. (VMSJ, Ex. 3 at 1.) Although there is some dispute in the record as to who made the decision to place Jason in handcuffs,¹ Lovegren and Castro put Jason in handcuffs. (VMSJ, Ex. 10 at 61; Notice of Manual Filing.)

As the security guards were placing Jason in handcuffs, Sebastian approached Hagenmaier and asked what Jason had done wrong. (VMSJ, Ex. 3 at 1, Ex. 6 at 1.) Sebastian had a cigarette in one hand and a soda bottle in the other hand. (Opp'n to VMSJ, Ex. 4 at 63.) Hagenmaier told Sebastian to leave or she would arrest him, but he did not leave, instead he asked her why she did not call the police. (VMSJ, Ex. 3 at 1, Ex. 6 at 4, Ex. 7 at 25; Opp'n to VMSJ, Ex. 1 at 60.) Hagenmaier and Neanover then placed Sebastian in handcuffs as well. (VMSJ, Ex. 3 at 1, Ex. 6 at 4, Ex. 7 at 25; Opp'n to VMSJ, Ex. 1 at 60; Notice of Manual Filing.)

The security guards walked Jason and Sebastian across Venetian property and into the Venetian casino security office holding area. (VMSJ, Ex. 3 at 2; Notice of Manual Filing.) In the office, Jason continued to tell the officers that he had done nothing wrong and they were violating his First and Fourteenth Amendment constitutional rights. (VMSJ, Ex. 3 at 2–3.) Lovegren searched Jason, removed objects from his bag, and asked Jason for his identification. ( Id.) Jason avers he refused to give his identification, and demanded to talk to a police officer and an attorney. ( Id.) After searching him, the security guards fastened Jason to a bench with a seatbelt while he was still in handcuffs. ( Id.; Notice of Manual Filing.) Sebastian also was searched and left in handcuffs. (Opp'n to VMSJ, Ex. 24 at 2; Notice of Manual Filing.)

Approximately twenty minutes after the security guards brought Jason and Sebastian to the holding area, two LVMPD officers, Defendants Scott Schaier (“Schaier”) and Terry Scott (“Scott”), arrived. (Notice of Manual Filing.) Schaier took off the Venetian's handcuffs and put his own handcuffs on Jason. ( Id.; VMSJ, Ex. 3 at 3.) Schaier requested Jason's consent to search Jason's satchel, and Jason consented, but indicated the Venetian security officers did not request a consent to search him. (Notice of Manual Filing.) According to Jason, Schaier responded that the security guards could “do whatever they wanted because [Plaintiffs] were on private property.” (VMSJ, Ex. 3 at 3; see also Notice of Manual Filing.)

Scott subsequently advised Jason and Sebastian that the police were not going to arrest them, but that the officers were going to give them a trespass warning to sign.² (VMSJ, Ex. 3 at 3–4.) Sebastian did not want to sign the warning because it said he was trespassing on private property and Sebastian believed that was not true. (VMSJ, Ex. 7 at 30.) However, Sebastian eventually signed the warning. ( Id.)

Jason refused to sign the warning because he contended he was on a public sidewalk and he believed he had not been trespassing. (VMSJ, Ex. 3 at 4.) Schaier told Jason that if he did not sign the warning, Schaier would take him to jail and he could talk to a judge about it. ( Id.) Scott then called Schaier away, and when they returned to the holding room, Schaier removed the handcuffs and told Jason to sit with his hands above his head. ( Id.) The officers did not require Jason to sign the warning, but advised him that it did not matter if he refused to sign, he still was not welcome on the Venetian's property. (Notice of Manual Filing.)

Venetian security officers re-read trespass cards to Plaintiffs. (VMSJ, Ex. 3 at 4.) The security officers also advised Plaintiffs not to come back to the Venetian or the Palazzo or they would be arrested. ( Id.) When asked whether Plaintiffs could use the public sidewalk in front of the...