Santopietro v. Howell, No. 14-16324 (9th Cir. 2017)
Annotate this CasePlaintiff is a street performer. She and her friend were arrested and charged with conducting business without a license, because they were dressed in "sexy cop" outfits on the Las Vegas strip and posed for photos with the officers in exchange for a tip. After the charges were dropped, plaintiff filed suit against the officers, alleging eleven federal and state causes of action. The Ninth Circuit held that the district court erred in granting summary judgment for the officers because the district court misconceived the scope of the applicable First Amendment protections. The record indicated the officers had no evidence before them when they decided to arrest plaintiff that suggested that the "sexy cops" association had any purpose that could have fallen outside the protection of the First Amendment under Berger v. City of Seattle. To infer from plaintiff and her friend's shared costumes and joint performance, alone, an agreement to engage in a regulable transaction impermissibly burdens the right to engage in purely expressive activity and association. The panel held that something more than that constitutionally protected activity is required to justify plaintiff's arrest. Viewing plaintiff's activities separately from her friend's, the panel held that summary judgment for the officers was improper because plaintiff's actions were entirely protected speech. The panel reversed in part and remanded in part.
Court Description: 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. SANTOPIETRO V. HOWELL 3 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.
The court issued a subsequent related opinion or order on July 18, 2023.
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