Michele Santopietro v. Clayborn HowellMichele Santopietro v. Clayborn Howell
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.
No. 14-16324
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 8, 2016, San Francisco, California
Filed May 24, 2017
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.
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
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
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
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
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.
III. Procedural History
Santopietro sued Howell, Crawford, and Lopez-Rosende, asserting eleven federal and state causes of action. Invoking
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]
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
DISCUSSION
Santopietro asserts that at the time of her arrest she was engaged only in fully First Amendment-protected street performance, which includes the non-coercive solicitation of tips. See Berger, 569 F.3d at 1035, 1050. She further maintains that the Officers had no legal basis for arresting her on the basis of Patrick‘s statements simply because they were performing together. Moreover, Patrick‘s statements, she argues, could not themselves support probable cause under the applicable municipal ordinance because they (1) did not
Taking a similar approach to that of the district court, the Officers argue that they had probable cause to arrest Santopietro for violating
I. Constitutional Violation
We consider first the district court‘s grant of summary judgment to the Officers and conclude it was in error, because it misconceived the scope of the applicable First Amendment protections.
The pivotal role of probable cause analysis in Fourth Amendment jurisprudence is, of course, well-established. As pertinent here, “a warrantless arrest by a law [enforcement] officer is reasonable ... where there is probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may ... arrest the offender.” Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001). But “[police] may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.” Velazquez v. City of Long Beach, 793 F.3d 1010, 1020 (9th Cir. 2015) (quoting Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990)). Where no specific criminal statute validly applies to the facts at hand, an arrest is not supported by probable cause.
Our principal question, then, is whether it is constitutionally permissible under the First Amendment to require that a person hold a business license to conduct the activities in which Santopietro was engaged at the time of her arrest. If not, then it was not objectively reasonable for the Officers to believe Santopietro was violating
A. Street Performance
Performances on public sidewalks and in public parks—both “traditional public fora“—are protected under the First Amendment as expressive activity. See Berger, 569 F.3d at 1035-36. Although street performances are subject to reasonable time, place, and manner restrictions, id. at 1036, we have never upheld a law that subjects individuals or small groups who wish to engage in non-commercial expressive activity in public fora to advance notice and permitting requirements, see id. at 1039. “[T]he significant governmental
The sidewalks along the Las Vegas Strip dedicated to public use are public fora. See Venetian Casino Resort, L.L.C. v. Local Joint Exec. Bd. of Las Vegas, 257 F.3d 937, 943 (9th Cir. 2001). As applied here,
Additionally, the solicitation of tips is “entitled to the same constitutional protections as traditional speech.” ACLU of Nev. v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006). Municipalities accordingly may not ban either “passive” solicitation of tips for street performance (e.g., putting a hat out or saying “thank you“), or “active” solicitation (e.g., encouraging a tip orally or by tipping a hat). See Berger, 569 F.3d at 1052. If only “active” solicitation is banned, “an officer seeking to enforce [that] ban ‘must necessarily examine the content of the message that is conveyed.‘” Id. (quoting Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 134 (1992)). As a content-based regulation of speech in a public forum, such a ban is subject to strict scrutiny, a standard not met by a distinction between active and passive solicitation of voluntary tips. Id. at 1052-53. Metro‘s 2010 MOU appears to incorporate that holding, by recognizing that “non-coercive solicitation of tips[] is not a per se violation” of the County Code‘s business licensing provisions.
If Santopietro‘s activities remained within the scope of protected street performance and protected solicitation of tips, then the Officers could not properly arrest her. So the central dispute is whether Santopietro‘s actions went beyond protected expression and moved into the realm of business activity subject to Chapter 6 regulations. More specifically, the Officers recognize that both Santopietro‘s costumed performance and her reply to Howell‘s inquiry about the cost of a photo—“It doesn‘t cost anything. We just ask for a tip.“—were within the First Amendment‘s protections and so were not regulable commercial activity, as both Berger and the MOU established. But, the Officers contend, those actions provide a basis to associate Santopietro with Patrick and Patrick‘s statements, which they maintain did go beyond the realm of fully protected speech and were regulable under Chapter 6 of the Clark County Code. We turn, therefore, to whether Santopietro could be arrested, consistently with the First Amendment, not for anything she said or did but because of her association with Patrick.
B. Expressive Association
Because we are examining the grant of summary judgment to the Officers and so
Under those assumptions, if Patrick‘s actions may be imputed to Santopietro for the purposes of establishing probable cause to arrest, the scope of facts available to justify her arrest widens significantly. We conclude, however, that the full First Amendment protections accorded Santopietro‘s own activities do not lapse because of what Patrick said or did without Santopietro‘s direct participation. Rather, Santopietro and Patrick‘s expressive association may not be the sole basis relied upon to attribute Patrick‘s actions to Santopietro.
Association for the purpose of engaging in protected activity is itself protected by the First Amendment. “[I]mplicit in the right to engage in activities protected by the First Amendment” is “a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984) (collecting cases); see also NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958). This First Amendment right extends only to “expressive association,” that is, to associations “engage[d] in expressive activity that could be impaired” by government action. Boy Scouts of Am. v. Dale, 530 U.S. 640, 655 (2000).
“Government actions that may unconstitutionally burden this [expressive association] freedom may take many forms.” Id. at 648. For example, the First Amendment “restricts the ability of the State to impose liability on an individual solely because of his association with another.” NAACP v. Claiborne Hardware Co., 458 U.S. 886, 918-19 (1982). It has long been “established that ‘guilt by association alone, without [establishing] that an individual‘s association poses the threat feared by the Government,’ is an impermissible basis upon which to deny First Amendment rights.” Healy v. James, 408 U.S. 169, 186 (1972) (alteration in original) (quoting United States v. Robel, 389 U.S. 258, 265 (1967)).
These considerations necessarily factor into whether the First Amendment allows arresting an individual engaged in protected expressive activity in conjunction with another person simply because the second person‘s behavior crossed the line into actions that may be unprotected and unlawful—or, at least, are less clearly protected and lawful, because they involve commercial speech. Even outside the context of protected First Amendment expressive association, “a person‘s mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause.” Ybarra v. Illinois, 444 U.S. 85, 91 (1979). Claiborne Hardware and Healy make lucidly clear that the “more” cannot consist of inferences of possible criminal involvement based solely on an individual‘s First Amendment-protected activities and associations.
The Supreme Court held that First Amendment protections are not lost “merely because some members of the group may have participated in conduct or advocated doctrine that itself is not protected.” Id. at 908. Rather, “the presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to liability and on the persons who may be held accountable.” Id. at 916-17 (emphasis added). More specifically, “[f]or liability to be imposed by reason of association alone, it is necessary to establish that the group itself possessed unlawful goals and that the individual held a specific intent to further those illegal aims.” Id. at 920.
Here, the record indicates the Officers had no evidence before them when they decided to arrest Santopietro that suggested that the “sexy cops” association had any purpose that could have fallen outside the protection of the First Amendment under Berger. Nor was there evidence of Santopietro‘s intent to engage with Patrick in anything other than clearly constitutionally protected expressive activity (which, again, includes active solicitation of voluntary tips). Both “sexy cop” performers were engaging largely, if not entirely, in activity that was not only legitimate but also constitutionally protected. The only evidence offered by the Officers on appeal to demonstrate the two women were “working together” is that they “wore the same costumes, portrayed the same ‘sexy cop’ characters, and posed for pictures together“—i.e., evidence of expressive association to engage in street performance. There is 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. Thus, on the summary judgment record viewed most favorably to Santopietro, Santopietro associated with Patrick only for expressive activity protected under Berger.
Even if Patrick‘s follow-ups to Howell‘s initial statements that he would tip or to his later statements that he would not transformed her actions into regulable commercial activity—again, we do not decide that question—they did not transform the street performance association into an unprotected one, any more than the violent action by some participants in the NAACP-led boycott in Claiborne Hardware transformed the entire boycott effort into unprotected activity.
Indeed, were no First Amendment protections at issue, we still very
In Pringle, police pulled a car over for speeding at 3:16 a.m. and seized $763 from the glove compartment and five plastic baggies containing cocaine from the back seat after the driver consented to a search of the vehicle. Id. at 367-68. In addition to the driver, Pringle and one other passenger were in the car at the time of the stop. Id. When questioned about the drugs and the money, none of the men offered any information. Id. at 372. The inference of a common enterprise was held reasonable in Pringle, because “[t]he quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him.” Id. at 373. Pringle made clear, however, that “[a]ny inference that everyone on the scene of a crime is a party to it must disappear if the Government ... singles out the guilty person.” Id. at 374 (alteration in original) (quoting United States v. Di Re, 332 U.S. 581, 594 (1948)).6
The facts offered to justify the arrests of all three men in the car in Pringle are not present here. At the time of the arrests in this case, the Officers were able to single out who had made the statements they offer as the basis for the arrest. Additionally, unlike inferences that could be drawn from traveling in a vehicle with contraband and evidence of drug dealing, it is unreasonable to assume from the violation at issue here—doing business without a license—that Santopietro would have known about and subscribed to any activity Patrick may have planned or spontaneously decided to undertake.7
In sum, to infer from Santopietro and Patrick‘s shared costumes and joint performance,
C. Santopietro‘s Other Actions
We therefore consider whether there were any actions Santopietro took on her own that fall outside the First Amendment‘s protection under Berger. Viewing Santopietro‘s activities separately from Patrick‘s, we conclude that summary judgment for the Officers was improper as, on the facts most favorable to Santopietro, her actions were entirely protected expression.
The heart of the parties’ disagreement is whether Santopietro engaged only in street performance or also in regulable commercial activity. The evidence presents conflicting accounts regarding (1) which statements Santopietro made, and (2) the nature and tone of the statements she made.
Santopietro made at least two statements to the officers before her arrest. First, when approached by Howell and asked about the cost of a photo, Santopietro said, “It doesn‘t cost anything. We just ask for a tip. We pose for tip[s].” Second, when asked by Crawford what she would do to the camera if Crawford did not delete the photo, Santopietro said, “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?” These statements on their own are, at most, active solicitation of tips by a street performer and so, for the reasons already surveyed, an impermissible basis under Berger for arrest.
A third statement is in dispute. Crawford stated in her deposition that Santopietro indicated she “wanted” the officers to delete the photo if they were unhappy with it, telling Crawford she “had to delete the picture if [the Officers] didn‘t give [the performers] a tip.” (Emphasis added). But Howell stated in his deposition and arrest report that Patrick, not Santopietro, made that demand. Lopez-Rosende deferred to Howell‘s version of those facts. Santopietro also contends that she never made any such statement. Further, she asserts that Patrick made no demand directly linking the picture to a monetary payment, but only quietly queried, “if you‘re unhappy, would you mind deleting it, then, the picture.”
Construing the facts in the light most favorable to Santopietro, Patrick, not Santopietro, made the comment to Crawford regarding the deletion of the photo. Santopietro‘s undisputed statements and actions do not even arguably evidence a business transaction. We need not reach the second factual dispute, regarding the precise import and tone of the statement, to conclude that the district court erred in granting summary judgment to the Officers.8
Because Santopietro has appealed the district court‘s denial of her motion for partial summary judgment as well as the final order granting summary judgment to the Officers, we consider that denial separately. See Jones-Hamilton Co. v. Beazer Materials & Servs., Inc., 973 F.2d 688, 693-94 (9th Cir. 1992). Viewing the facts this time most favorably to the Officers, we conclude that denial of summary judgment to Santopietro was proper, although Santopietro may well prevail after trial.
Again, genuine disputes of fact remain as to (1) which statements Santopietro made, and (2) the nature of the statements made. Resolving the first question in the light most favorable to the Officers, it was Santopietro, not Patrick, who either asked Crawford to delete the photograph if Howell did not like it, or demanded that she do so if the Officers refused to provide a tip. As to the nature of that statement, on the evidence before us, a reasonable jury could conclude that Santopietro made a “demand” rather than a polite request. If determined to be sufficiently assertive or forceful, and also to link directly to monetary payment, such a quid-pro-quo demand could fall outside protected noncommercial First Amendment activity and support the validity of the arrest based on Santopietro‘s actions alone.
We note that, like the sale of an artist‘s paintings in White v. City of Sparks, 500 F.3d 953, 956 (9th Cir. 2007), the sale of a snapshot of a performer‘s protected street performance is likely protected in itself. Although the “customer” is involved in the process of creating the work at issue here because Crawford took the photo of Howell interacting with the “sexy cops,” there is no dispute that Santopietro and Patrick “applied [their] creative talents,” Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1062 (9th Cir. 2010), to help create the picture. Thus, assuming full First Amendment protection extends to the expressive work—i.e., to Crawford‘s picture of Howell with the “sexy cops” in their performance personae—such protection also applies to the sale of that work. Id. at 1063.
Commercial activities, including quid-pro-quo transactions, however, are not inherently protected under the First Amendment. Rather, “restrictions on protected expression are distinct from restrictions on economic activity or, more generally, on nonexpressive conduct,” and “the First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.” Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011). For instance, ordinances “that ban certain conduct associated with solicitation,” such as the physical exchange of money, “do not violate the prohibition on content-based regulation of speech,” even though the solicitation itself is fully protected speech. Berger, 569 F.3d at 1051 (emphasis omitted).9
Given that genuine disputes of material fact persist in the record, the district court should not have granted summary judgment to either party. See Simo v. Union of Needletrades, 322 F.3d 602, 610 (9th Cir. 2003). On remand to the district court to review the validity of Santopietro‘s arrest under the appropriate First Amendment constraints, the district court—by a jury trial, of course, if properly requested—should first resolve the factual dispute concerning whether Santopietro made the statement regarding deletion of the photo. If she did, the trier of fact should additionally resolve the factual disputes as to the nature of her statement and then determine whether Santopietro‘s actions demonstrate a quid-pro-quo offer for services properly subject to analysis as a commercial speech regulation. If so, the district court should conduct that analysis and decide whether the licensing requirement under
The district court erred by deciding that the Officers had probable cause to arrest Santopietro despite the First Amendment protections afforded to her expressive association with Patrick. We therefore reverse the grant of summary judgment to the Officers. As to the denial of partial summary judgment to Santopietro, we remand for a determination after trial of the disputed factual issues and for consideration in light of this opinion as to whether, on the facts thus determined, Santopietro was validly arrested for her own statements and actions.
REVERSED, IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.
MARSHA S. BERZON
UNITED STATES CIRCUIT JUDGE
Notes
All hawkers, street vendors, and door-to-door sellers of goods, wares, merchandise, or services for immediate performance or delivery, sellers of entertainment or sporting event tickets, mobile food vendors (Chapter 6.130) and traveling manufacturers, but not solicitors or canvassers.... Peddling is complete when offer is communicated to any individual then located within the unincorporated area of Clark County.
The considerations relied upon in Hillison do not justify an arrest here. The Officers do not maintain that, prior to initiating interaction with the women, they had formed any individualized suspicion that either “sexy cop,” whether alone or in association with the other, was engaged in unlawful activity. Rather, the only facts the Officers presented to support Santopietro‘s arrest were obtained during the Officers’ interactions with the women immediately preceding their arrests. Also, upon approaching the women, the Officers first witnessed the “sexy cops” engage only in First Amendment protected street performance, which included their solicitations of tips. Nothing about the ensuing events suggested any prior agreement or understanding between the women to associate for anything beyond the carrying out of those protected activities.