Michele Santopietro v. Clayborn Howell
2017 U.S. App. LEXIS 9028
| 9th Cir. | 2017Background
- Michele Santopietro and Lea Patrick performed as costumed "sexy cops" on the Las Vegas Strip and solicited tips; Metro officers approached while on patrol.
- An officer asked the cost of a photo; Santopietro responded it was free and they asked for tips. Disputed follow-up statements (who said them and their tone) concerned deleting a photo if no tip was given.
- Officers handcuffed and arrested both women for doing business without a license under Clark Cty. Mun. Code § 6.56.030; charges were later dropped.
- A 2010 MOU (resulting from prior litigation) recognized Strip sidewalks as traditional public fora and stated non-coercive solicitation of tips by street performers is not per se a code violation. Officers had been trained on the MOU.
- District court granted summary judgment for officers, finding probable cause to arrest Santopietro based on association with Patrick; Santopietro appealed alleging First Amendment protection for her expressive activity and association.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether requiring a license applied to Santopietro's street performance and tip-solicitation | Santopietro: her performance and non‑coercive solicitation of tips are First Amendment protected and not subject to licensing | Officers: conduct (or Patrick's statements) constituted unlicensed peddling under §6.56.030 | Licensing requirement cannot be applied to protected solo street performance/tip solicitation under Berger; ordinance invalid as applied to her protected activity |
| Whether Patrick's statements could be imputed to Santopietro to create probable cause | Santopietro: expressive association is protected; guilt-by-association is insufficient without evidence of shared unlawful intent | Officers: association, identical costumes and joint posing justify treating them as a common enterprise supporting probable cause | Court: cannot arrest solely for expressive association; association alone did not supply probable cause absent evidence of agreement or intent to engage in unprotected commercial activity |
| Whether Santopietro’s own statements justified arrest as unprotected commercial speech | Santopietro: her individual statements (‘‘we just ask for a tip,’’ denials of wrongdoing) are protected solicitation/expression | Officers: disputed testimonial evidence that Santopietro demanded payment/tied deletion to payment, which could be quid-pro-quo | Court: genuine factual dispute exists about whether Santopietro made a quid‑pro‑quo demand; summary judgment for officers was improper and facts must be resolved at trial |
| Qualified immunity for officers | Officers: reasonable belief of probable cause and reliance on statute/MOU training | Santopietro: the law was clearly established by Berger and association precedents; no reasonable officer could have believed arrest lawful | Court: under facts construed for plaintiff, no reasonable officer could have thought arrest lawful; qualified immunity not resolved for officers at summary judgment in their favor |
Key Cases Cited
- Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) (street performing and non‑coercive solicitation of tips are First Amendment protected)
- Devenpeck v. Alford, 543 U.S. 146 (2004) (probable cause standard for warrantless arrests)
- Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (officer may arrest for minor criminal offense committed in presence)
- NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (association not liable solely because some members engaged in unprotected conduct; liability requires intent to further unlawful aims)
- Healy v. James, 408 U.S. 169 (1972) (guilt by association impermissible basis to deny First Amendment rights)
- Maryland v. Pringle, 540 U.S. 366 (2003) (permitting inference of common enterprise where facts support it)
- Central Hudson Gas & Electric Corp. v. Public Service Commission of N.Y., 447 U.S. 557 (1980) (commercial speech intermediate scrutiny framework)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) (distinguishing regulations of speech from regulations of commerce)