Lechner v. LVMPD et al, No. 2:2019cv00638 - Document 150 (D. Nev. 2023)

Court Description: ORDER Granting in part and denying in part 111 Motion for Summary Judgement. See order for details. IT IS FURTHER ORDERED that Plaintiff Gerald R. Lechner's 115 Motion for Partial Summary Judgment is DENIED. IT IS FURTHER ORDERED that the parties shall file a joint pretrial order by October 20, 2023. Signed by Judge Richard F. Boulware, II on 9/30/2023. (Copies have been distributed pursuant to the NEF - AMMi)

Download PDF

Lechner v. LVMPD et al Doc. 150 Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 1 of 49 1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 GERALD R. LECHNER, 8 9 10 Plaintiff, Case No. 2:19-cv-00638-RFB-VCF ORDER v. LVMPD, et al. 11 Defendants. 12 13 I. INTRODUCTION 14 Before the Court are two motions: Defendants Christopher J. Kopf, Las Vegas Metro 15 Police Department (“LVMPD”), Andre A. McFarland, Christopher R. O’Connell, Clint W. 16 Owensby, Jonathan M. Riddle, and Dillon A. Wedewer’s (collectively, “Defendants”) MOTION 17 for Summary Judgment (ECF No. 111) and Plaintiff Gerald R. Lechner’s MOTION for Partial 18 Summary Judgment (ECF No. 115). 19 20 For the foregoing reasons, Defendants’ motion is granted in part and denied in part and Plaintiff’s motion is denied. 21 22 II. PROCEDURAL BACKGROUND 23 Plaintiff filed his original complaint on April 12, 2019. ECF No. 1. The Court then directed 24 him to file an amended complaint. See ECF No. 35. On April 8, 2020, Plaintiff filed the first 25 amended complaint (“FAC”), suing only Defendant LVMPD. ECF No. 37. Plaintiff manually filed 26 exhibits cited in the FAC. ECF No. 40. On July 21, 2020, Plaintiff filed a motion to amend the 27 FAC to name O’Connell, Owensby, Riddle, Kopf, Weder, and McFarland (“Defendant officers”) 28 in their individual and official capacities. On March 22, 2021, the Court denied Defendants’ Dockets.Justia.com Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 2 of 49 1 motion to dismiss Plaintiff’s FAC without prejudice. ECF No. 87. The Court also granted 2 Plaintiff’s motion to amend the FAC to add the Defendant officers. 3 On March 24, 2021, Plaintiff filed a second amended complaint (“SAC”). ECF No. 88. The 4 SAC alleges malicious prosecution against all Defendants (“First Cause of Action”), deprivation 5 of property without due process against all Defendants (“Second Cause of Action”), unreasonable 6 search and seizure against all Defendants (“Third Cause of Action”), and First Amendment 7 retaliation against all Defendants (“Fourth Cause of Action”). Id. The SAC cites to the same 8 exhibits, including the manual filing filed, that are cited to in the FAC. In fact, other than the 9 addition of the Defendant officers as named defendants to this case, the SAC is similar to the FAC 10 in all other respects. 11 On October 4, 2021, Defendants filed a Motion for Summary Judgment. ECF No. 111. 12 Plaintiff filed a Response, and Defendants filed a Reply. ECF Nos. 121, 128. Two days later, 13 Plaintiff filed a Motion for Partial Summary Judgment. ECF No. 115. Defendants filed a Response, 14 and Plaintiff filed a Reply. ECF Nos. 122, 126. 15 16 On July 13, 2022, the Court held a motion hearing regarding these motions. See ECF Nos. 135, 136, 137. This Order follows. 17 18 III. LEGAL STANDARD 19 Summary judgment is appropriate when the pleadings, depositions, answers to 20 interrogatories, and admissions on file, together with the affidavits, if any, show “that there is no 21 genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” 22 Fed. R. Civ. P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). When considering 23 the propriety of summary judgment, the court views all facts and draws all inferences in the light 24 most favorable to the nonmoving party. Gonzalez v. City of Anaheim, 747 F.3d 789, 793 (9th Cir. 25 2014). If the movant has carried its burden, the non-moving party “must do more than simply show 26 that there is some metaphysical doubt as to the material facts . . . . Where the record taken as a 27 whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine 28 issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (alteration in original) (internal quotation -2- Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 3 of 49 1 marks omitted). 2 It is improper for the Court to resolve genuine factual disputes or make credibility 3 determinations at the summary judgment stage. Zetwick v. County of Yolo, 850 F.3d 436, 441 4 (9th Cir. 2017) (citations omitted). 5 6 IV. FACTUAL BACKGROUND 7 Before the Court addresses the factual record undergirding the cross motions for summary 8 judgment, it will first address disputes raised as to the admissibility of evidence relied on by 9 Plaintiff. a. Admissible Evidence Relied on by Plaintiff 10 11 Defendants assert that Plaintiff’s failure to provide admissible evidence in his motion for 12 partial summary judgment and in his opposition to their summary judgment motion is fatal to his 13 filings. Specifically, Defendants contend that Plaintiff’s reliance on citing documents attached to 14 his SAC is insufficient to authenticate the evidence his filings rely on. And authentication, 15 Defendants contend, is a condition precedent to admissibility. Defendants also assert that, during 16 discovery, Plaintiff failed to disclose any of the videos cited in the SAC. This failure, according to 17 the Federal Rules of Civil Procedure, prevents Plaintiff from using them on a motion. Further, 18 Plaintiff has not established for the Court which officer is who in his videos. Thus, it makes it 19 nearly impossible for the Court to discern which of the Defendant officer’s conduct it must assess 20 for the purposes of Plaintiff’s claims. As such, the Court should not consider the exhibits attached 21 to Plaintiff’s SAC. 22 It is true that “[a] trial court can only consider admissible evidence in ruling on a motion 23 for summary judgment,” and that “[a]uthentication is a condition precedent to admissibility.” Orr 24 v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002). “[T]his condition is satisfied by 25 evidence sufficient to support a finding that the matter in question is what its proponent claims.” 26 Id. (quoting Fed. R. Evid. 901(a)). Further, “documents authenticated through personal knowledge 27 must be attached to an affidavit that meets the requirements” of Federal Rule of Civil Procedure 28 56(e), and “the affiant must be a person through whom the exhibits could be admitted into -3- Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 4 of 49 1 evidence.” Id. at 773-74. 2 Further, when a nonmoving party is pro se, a court must “consider as evidence all factual 3 statements made in motions and pleadings that were based on his personal knowledge, admissible 4 in evidence, and attested to under penalty of perjury.” King v. County of Los Angeles, 885 F.3d 5 548, 553 (9th Cir. 2018). For instance, a “verified complaint may serve as an affidavit for purposes 6 of summary judgment if [1] it is based on personal knowledge and if [2] it sets forth the requisite 7 facts with specificity.” California Pro-Life Council, Inc. v. Randolph, 507 F.3d 1172, 1176 (9th 8 Cir. 2007) abrogated on other grounds by John Doe No. 1 v. Reed, 561 U.S. 186 (2010). 9 The Court finds that Plaintiff’s motion and opposition to Defendants’ summary judgment 10 cite to admissible evidence sufficient to support the filings. The Court finds the facts alleged 11 underlying the four incidents at issue in these cross motions are based on Plaintiff’s personal 12 knowledge because he was the subject of the enforcement actions underlying each of these 13 incidents. Further, the facts are alleged with the required specificity. Therefore, Plaintiff’s SAC 14 can be considered as an affidavit in support of his motion and opposition. See California Pro-Life 15 Council, 507 F.3d at 1176. 1 16 Importantly, the SAC cites exhibits identifying body footage camera footage: specifically, 17 along with the exhibit letter, the exhibits identify the name of the Defendant officer who recorded 18 the footage and the relevant date the footage was recorded. The Court has carefully reviewed these 19 exhibits and the pertinent manual filing accompanying the SAC. 2 Specifically, Plaintiff submitted 20 a manual filing on April 17, 2020 including: May 5, 2017 body camera footage from Defendants 21 Owensby and O’Connell, August 12, 2017 body camera footage from Defendant Kopf, and 22 23 24 25 26 27 28 The Court will additionally consider Plaintiff’s factual statements as evidence in these cross motions. See King, 885 F.3d at 553. 1 Because pro se filings are construed liberally, the Court construes the exhibits cited and attached to the FAC, as well as the accompanying manual filing submitted to support it, as if they were filed in support of the SAC. See Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (“In civil rights cases where the plaintiff appears pro se, the court must construe the pleading liberally and must afford plaintiff the benefit of any doubt.”). The Court separately finds that these filings are part of the record for the purpose of considering the parties’ cross motions for summary judgment. See Fed. R. Civ. P. 56(c)(1)(A) (“A party asserting that a fact cannot be or is genuinely disputed must support the assertion by” “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials.”); see also King, 885 F.3d at 553. 2 -4- Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 5 of 49 1 February 3, 2018 body camera footage from Defendant O’Connell. Similarly, in support of his 2 partial motion for summary judgment, Plaintiff submitted a manual filing containing body camera 3 footage from the June 24, 2017 incident from Defendants O’Connell and McFarland. 3 4 The Court finds that Defendants’ authentication-based objection to Plaintiff’s use of this 5 body camera footage lacks merit. As Plaintiff contends, he has personal knowledge that this video 6 footage is what he asserts it to be in both the SAC and his motion for partial summary judgment. 7 He asserts that Defendant LVMPD provided this footage to him—an assertion that has not been 8 substantively rebutted. In turn, he asserts that the videos are of his encounters with the Defendant 9 officers on May 5, 2017, June 24, 2017, August 12, 2017, and February 3, 2018. The Court has 10 carefully reviewed the footage and finds that Plaintiff has authenticated this footage. 4 Further, 11 Defendants have presented no reasonable basis to doubt the authenticity of this body camera 12 footage. 13 Separately, the Court rejects Defendants’ argument that it should not consider the body 14 camera footage because it was not disclosed to them and because the Court is unlikely to be able 15 to ascertain which Defendant officer recorded which video. First, the Court finds that the body 16 camera footage was created by Defendant LVMPD and its employees, including the Defendants 17 officers. Thus, Defendants had control and access to this body camera footage before it was ever 18 provided to Plaintiff to use in this case. Plaintiff also manually filed some of this video footage in 19 April 2020, when this case was still at the pleading stage. Second, Defendants’ concern on the 20 Court’s behalf are unfounded. The Court, construing Plaintiff’s filings liberally, is able to ascertain 21 which Defendant officer recorded which video. 5 22 23 24 25 26 27 28 For Defendants’ motion for summary judgment, Defendants manually filed body camera footage for the following incidents from the following Defendant officers: Defendant Owensby’s footage from May 5, 2017 and Defendant O’Connell’s footage from February 3, 2018. 3 The Court does note that there was some camera footage that was not properly formatted or whose province could not be established. The Court has not relied upon such footage. 4 5 Moreover, “a proper foundation need not be established through personal knowledge but can rest on any manner permitted by Federal Rule of Evidence 901(b) or 902.” Orr, 285 F.3d at 774. Thus, even if Plaintiff’s filings, liberally construed, failed to show he had personal knowledge of the videos, the Court finds that the proper foundation could be established as public records under the Federal Rules of Evidence 901(b)(1) (testimony of a witness with knowledge) and 901(b)(7) (public record). -5- Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 6 of 49 1 Ultimately, “[o]nce the trial judge determines that there is prima facie evidence of 2 genuineness, the evidence is admitted.” Orr, 285 F.3d at 773 n.6. For the reasons discussed above, 3 the Court finds that Plaintiff has properly authenticated the body camera footage for purposes of 4 the cross motions and it is therefore properly admitted. The Court also finds any other objection 5 Defendants raise as to the admissibility of Plaintiff’s other evidence lacks merit. To be sure, to the 6 extent the Court has been unable to determine the admissibility of any evidence, the Court has not 7 considered it in making factual findings for the record. b. Undisputed Facts 8 9 Based on its review of the evidence on file, the Court finds the following undisputed facts. i. 10 May 5, 2017 Citation for Obstruction of a Public Sidewalk 11 Plaintiff is a street performer and operates a costume catering company that rents costumes 12 to other street performers. On Friday, May 5, 2017, Plaintiff, along with at least two other 13 individuals, is street performing in the United Artist Showcase mall between the MGM Grand 14 Hotel and Tropicana Avenue. Plaintiff is dressed as Thor, the Demigod of Thunder, and two others 15 are dressed as Captain America and Lego Batman. They take photographs with tourists and others 16 walking on the Las Vegas Strip, for tips. In doing so, they are standing on the sidewalk. 17 LVMPD officers approach them. Plaintiff and the other street performers move towards a 18 landscape ledge barrier near the sidewalk. Before Defendant Owensby engages Plaintiff, other 19 officers speak to Plaintiff. As Defendant Owensby approaches, and throughout his interaction with 20 Plaintiff, there is a consistent flow of pedestrian traffic. The officers inform Plaintiff that they 21 witnessed him obstructing the flow of pedestrian traffic while he and the other street performers 22 stood on the sidewalk. Defendant O’Connell tells Plaintiff he is not free to leave. Defendant 23 O’Connell orders Plaintiff to provide his identification to Defendant Owensby. Plaintiff complies. 24 After Plaintiff seeks clarification about the obstructive use of the sidewalk ordinance and its 25 relation to street performers, Defendant O’Connell explains he cannot be standing on the Las 26 Vegas Strip as a street performer. 6 After handing Plaintiff the citation, Defendant Owensby 27 28 Specifically, Defendant O’Connell tells Plaintiff that he “cannot be out here on the sidewalk obstructing pedestrian traffic. What you’re doing, you’re obstructing pedestrian traffic when you come out here you stop people for pictures this and that, the crowd gathers.” “You don’t stop [pedestrians], you walk down the sidewalk, and if 6 -6- Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 7 of 49 1 requests, and takes, photographs of Plaintiff without his costume helmet on. After Defendant 2 Owensby takes the photograph, he tells Plaintiff that he is free to go. 3 At the beginning of their interaction, Plaintiff states he owns a costume rental company. 4 During the interaction, Defendant Owensby learns that Plaintiff is soliciting tips as a street 5 performer, and Defendant Owensby states that any kind of solicitation without a business license 6 is unlawful. For that reason, Defendant Owensby threatens to cite Plaintiff multiple times for 7 conducting business without a license. He ultimately does not. 8 In the end, Defendant Owensby cites Plaintiff for obstructive use of the sidewalk pursuant 9 to Clark County Code (“CCC”) § 16.11.035. The citation states that Plaintiff “did obstruct, block, 10 hinder, or interfere with pedestrian passage on any public sidewalk in the resort, corridor, which 11 resulted in a threat or” “degradation to the safety of the pedestrians.” ECF No. 111-3 at 6. The 12 citation orders Plaintiff to appear at the Las Vegas Justice Court address of 200 Lewis Avenue Las 13 Vegas Nevada, Nevada 89155 on May 25, 2017 at 8:00 am. Moreover, the declaration of arrest 14 states, “Prosecution please Subpoena LVMPD Officers” Defendants Owensby and O’Connell. 15 ECF No. 111-3 at 7. Ultimately, Plaintiff is directed to the Las Vegas Community Impact Center, 16 where he goes before a judge and is offered a community court option as an alternative to 17 proceedings through the Justice Court of Clark County. Plaintiff, believing he did not obstruct the 18 sidewalk, foregoes the community court option. After his case is transferred to the Justice Court, 19 the case proceeds to trial. At trial, the State fails to satisfy its burden that Plaintiff obstructed the 20 sidewalk consistent with Clark County Code Chapter 16.11 beyond a reasonable doubt. The case 21 is dismissed. 22 ii. June 24, 2017 Detention for Obstruction of a Public Sidewalk 23 On Saturday, June 24, 2017, Plaintiff, and two to six other street performers are once again 24 in the United Artists Showcase Mall, this time near the Marshalls’ escalators. Once again, they are 25 taking pictures with tourists and other individuals walking on the strip. Once more, LVMPD 26 officers, including Defendants O’Connell and McFarland, approach them. At the beginning of the 27 interaction, Plaintiff asserts that he has a right to have his street performer union representative, 28 someone wants a picture . . ., take the picture and keep on moving.” -7- Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 8 of 49 1 Michael Moore, be present during this interaction. Defendant O’Connell orders Plaintiff to provide 2 his identification or he will put him in handcuffs. Plaintiff is not free to leave. Plaintiff complies 3 and sits down on the landscape ledge barrier near the sidewalk. Plaintiff asks the Defendant officers 4 questions about how the obstruction of a public sidewalk ordinance applies to street performers in 5 that area. While Defendant O’Connell is conducting background checks on them, he stops and 6 orders Defendant McFarland to handcuff Plaintiff. 7 Defendants O’Connell and McFarland continue their investigation. During this time, the 8 Defendant officers learn from Plaintiff that his understanding of this ordinance stems, in part, from 9 information prepared by Moore, as shown by a card Defendant McFarland obtains through a 10 consensual search of Plaintiff’s pockets. After approximately five minutes of being handcuffed, 11 Defendant O’Connell tells Plaintiff they have had prior interactions with Moore and have reason 12 to believe he is “taking their money” without providing them a benefit. In addition to Plaintiff, 13 Defendant O’Connell asks another detained, street performer if he is paying Moore too. The 14 individual nods yes. Defendant O’Connell requests and Plaintiff agrees to provide him with 15 Moore’s contact information. Defendant O’Connell also explains to Plaintiff that he was 16 handcuffed because of his record. He further explains that he believes that Plaintiff was initially 17 not cooperating, he did not trust Plaintiff, and he was “too animated.” Defendant O’Connell takes 18 a photograph of Plaintiff’s identification card and other cards provided by Plaintiff. After 19 approximately nine minutes more of investigating, Defendant O’Connell tells Plaintiff he will 20 uncuff him and set him free, if Plaintiff provides him with Moore’s phone number. After agreeing 21 once again to do so and providing the information, Plaintiff is uncuffed and allowed to go free. He 22 is neither cited nor taken into custody for any violation. 23 24 iii. August 12, 2017 Arrest and Citation for Doing Business Without a License 25 On Saturday, August 12, 2017, Plaintiff is in the United Artists Showcase Mall’s parking 26 garage meeting with potential clients, as part of his costume catering company. Plaintiff’s 27 costumes for rent are inside his van. While he conducts his business, LVMPD officers surround 28 Plaintiff and his customers. Defendant Kopf then arrests Plaintiff for conducting business without -8- Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 9 of 49 1 a license. LVMPD officers then search Plaintiff’s van and impound the costumes they find in it. 2 Defendant Kopf cites Plaintiff for conducting business without a license in violation of 3 CCC § 6.04.130 and marketing false trademark goods in violation of Nevada Revised Statute 4 (“NRS”) § 205.210. According to the citation, Plaintiff “engage[d] in business by renting out 5 costumes without having the appropriate permit or license at 3785 Las Vegas parking” and “did 6 market, rent costumes w/o written authority of person, corporation, association or union at 3785 7 S. Las Vegas Blvd.” ECF No. 111-3 at 19. A criminal proceeding is initiated against Plaintiff based 8 on this incident. The State, however, dismisses the complaint. iv. 9 February 3, 2018 Arrest and Citation for Obstruction of a Public Sidewalk and for Doing Business Without a License 10 11 On Saturday, February 3, 2018, Plaintiff, and other street performers, participate in a street 12 performer related protest. When the protest concludes, they are once again located near the United 13 Artists Showcase Mall, near the Marshalls’ escalator. Defendant O’Connell arrests Plaintiff who, 14 at the time he is arrested, is holding a protest sign. While another officer escorts one of the street 15 performers to a police car, the street performer explains to the officer that they rented the costume 16 they have on from Plaintiff. Defendant O’Connell confirms that the other street performers also 17 rented costumes from Plaintiff. The officers cite Plaintiff for obstructing a public sidewalk by 18 causing a threat or degradation to the safety of the pedestrians, as well as conducting business 19 without a license. Although Plaintiff is arrested, spends hours in custody, and is released on his 20 own recognizance, the District Attorney’s Office does not file criminal charges against him. c. Disputed Facts 21 i. 22 May 5, 2017 23 The parties dispute whether the sidewalk, where Plaintiff and the other street performers 24 were cited at for taking photos with tourists and others, is busy with pedestrian traffic. They also 25 dispute whether Defendant O’Connell participates at all in Plaintiff’s citation being issued. They 26 also dispute whether the Defendant officers played any role in prosecuting Plaintiff in relation to 27 this citation. 28 /// -9- Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 10 of 49 ii. 1 June 24, 2017 2 The parties dispute the Defendant officers’ basis for detaining Plaintiff. The parties also 3 dispute whether Defendant O’Connell handcuffs Plaintiff. Additionally, they dispute whether 4 Defendant McFarland is personally involved in Plaintiff’s detention. iii. 5 August 12, 2017 6 The parties dispute whether Plaintiff had a license to conduct business. They dispute 7 whether any of the officers destroy property in his van when his van is searched after his arrest. 8 Separately, the parties dispute whether Defendant Riddle is personally involved with arresting or 9 citing Plaintiff on this date. iv. 10 February 3, 2018 11 The parties dispute whether Plaintiff is street performing at the time he is arrested. The 12 parties dispute whether Plaintiff is obstructing the sidewalk he is standing on when he encounters 13 the Defendant officers. The parties dispute whether, on this date, Plaintiff is licensed to conduct 14 his costume catering company business. 15 16 V. DISCUSSION 17 The Court now addresses the motion cross motions for summary judgment. Defendants 18 move for summary judgment against all Plaintiff’s causes of action, including his Monell claim, 19 which in turn are all brought pursuant to 42 U.S.C. § 1983. Conversely, Plaintiff moves for partial 20 summary judgment as to his first and third causes of action against Defendant O’Connell and 21 against Defendant LVMPD for Monell liability because of Defendant O’Connell’s official 22 capacity conduct against Plaintiff. 23 a. Applicable Law 24 To make out a prima facie case under § 1983, a plaintiff must show that a defendant: (1) 25 acted under color of law, and (2) deprived the plaintiff of a constitutional right. Borunda v. 26 Richmond, 885 F.2d 1384, 1391 (9th Cir. 1989). “Liability under [§] 1983 arises only upon a 27 showing of personal participation by the defendant.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 28 1989) (citations omitted). Additionally, “[a] supervisor is only liable for the constitutional - 10 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 11 of 49 1 violations of . . . subordinates if the supervisor participated in or directed the violations, or knew 2 of the violations and failed to act to prevent them. There is no respondeat superior liability under 3 [§] 1983.” Id. (citations omitted). 4 In addition, a municipal entity may also be sued under § 1983 for “their own illegal acts.” 5 Connick v. Thompson, 563 U.S. 51, 60 (2011). “They are not vicariously liable under § 1983 for 6 their employees’ actions.” Id. Under Monell, when a municipal policy of some nature is the 7 “driving force” behind an unconstitutional action taken by municipal employees, the municipality 8 will be liable. Monell v. Dep’t of Social Services of New York, 436 U.S. 658 (1978). Further, 9 under Monell, a plaintiff can recover based on three different theories: a.)“commission,” a local 10 government implementing its official policies or established customs, such as inadequate training 11 of governmental officials; b.) “omission,” the government’s omission to an official policy, such as 12 a failure to train; or c.)“ratification,” a policymaker’s purposeful approval of an employee’s 13 unconstitutional conduct. Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249-50 (9th Cir. 14 2010). 15 Lastly, § 1983 claims may be subject to a qualified immunity defense. Qualified immunity 16 “protects government officials from liability for civil damages insofar as their conduct does not 17 violate clearly established statutory or constitutional rights of which a reasonable person would 18 have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). It is an immunity from suit rather 19 than a defense to liability, and it “ensures that officers are on notice their conduct is unlawful 20 before being subjected to suit.” Tarabochia v. Adkins, 766 F.3d 1115, 1121 (9th Cir. 2014). 21 “Qualified immunity does not shield municipalities from liability.” Dougherty, 654 F.3d at 900. i. State and Local Statutes at Issue 22 1. Obstructing a Public Sidewalk 23 24 Pursuant to CCC § 16.11.035, 7 “[i]t is the policy of Clark County that no obstructive use, 25 26 27 28 7 When the Board of Clark County Commissioners enacted this chapter, they made following findings: [D]ue to vehicle congestion, long delays and increasing costs, it has become increasingly more attractive for residents and visitors to use the public sidewalks on Las Vegas Boulevard South (the Strip) rather than to drive or to ride. Since, traditionally, the major emphasis along the Strip has been on automobile transportation and not on pedestrians, the existing pedestrian environment is - 11 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 12 of 49 1 other than a permitted obstructive use, shall be permitted upon any public sidewalk of the resort 2 district of the Las Vegas Valley if the obstructive use, if allowed to occur, would: (a) Cause the 3 LOS for the sidewalk to decline below LOS C; or (b) Result in a significant threat to or degradation 4 of the safety of pedestrians.” “Obstructive use” means, inter alia, “[o]bstructing, delaying, 5 hindering, blocking, hampering or interfering with pedestrian passage, including passage to or 6 from private property.” Id. at § 16.11.020(e)(7). “Any person who violates any of the provisions 7 of this chapter is guilty of a misdemeanor and upon conviction shall be punished by imprisonment 8 in the county jail for a term not to exceed six months or by a fine not to exceed one thousand 9 dollars, or by both such fine and imprisonment.” Id. at § 16.11.090. 2. Operating a Business On Public Right-Of-Way 10 11 12 13 14 15 16 17 18 Under CCC § 6.04.130, [i]t is unlawful for any person to sell, peddle, offer to sell or solicit for sale by offering or displaying any merchandise, goods, items, wares, or services on any improved or unimproved portion of a public right-of-way, including private property upon which a limited easement of public access has been granted, in the unincorporated area of Clark County except that which is otherwise expressly permitted by this code or state statute. This prohibition restricts only sales actually occurring or proposed to occur on the aforementioned public right-of-way, and does not prohibit any person from distributing advertisements or other promotional materials designed to encourage commercial transactions at licensed business locations. 19 20 21 22 23 24 25 26 27 28 Furthermore, under id. at § 6.56.030(a), [i]t 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 as hereinafter provided, or inadequate as a transportation system and lacking in many safety features. Moreover, a great number of persons are engaged in uses of the public sidewalks which create undue obstruction, hindrance, blockage, hampering, and interference with pedestrian travel. Large numbers of pedestrians are walking in the streets when the public sidewalks become congested and many pedestrians are crossing against the traffic signal indications. In recognition of the need for improvement of the pedestrian environment and the need for accessible public sidewalks, it is necessary to enact the following regulations. CCC § 16.11.010. - 12 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 13 of 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conduct business through the use or employment of peddlers, operators, managers, employees, solicitors or canvassers without first having procured a license as hereinafter provided. Exempted from licese required herein are peddlers, operators, managers, employees, solicitors, and canvassers who are employed by a licensed temporary store or professional promoter. That for the purpose of this section, "employed" means that applicable state and federal income and FICA taxes are deducted from the pay and are paid to the Internal Revenue Service by that professional promoter or temporary store. Further, pursuant to NRS § 205.210(1), A person shall not knowingly sell, display or advertise, or have in his or her possession with intent to sell, any goods, wares, merchandise, mixture, preparation or compound having affixed thereto any label, trademark, term, design, device or form of advertisement lawfully filed for record in the Office of the Secretary of State by any person, corporation, association or union, or the exclusive right to the use of which is guaranteed to the person, corporation, association or union under the laws of the United States, if the label, trademark, term, design, device or form of advertisement has been used or affixed thereto without the written authority of the person, corporation, association or union, or having affixed thereto any forged or counterfeit representation, likeness, similitude, copy or imitation thereof. ii. Malicious Prosecution Generally, “a claim of malicious prosecution is not cognizable under 42 U.S.C. § 1983 if process is available within the state judicial system to provide a remedy.” Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). An exception to this rule exists, however, when a plaintiff shows that the “defendants prosecuted [him] with malice and without probable cause, and that they did so for the purpose of denying [him] equal protection or another specific constitutional right.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). In Section 1983 based malicious prosecution cases, courts apply the state law elements of a malicious prosecution claim. See Usher, 773 F.2d at 562. Accordingly, to prevail on a claim for malicious prosecution in Nevada and under state law, the plaintiff must show that: 1) the defendants lacked probable cause to initiate the prosecution; 2) malice; 3) the prior criminal proceedings were terminated in his favor; and 4) he suffered damages. LaMantia v. Redisi, 38 P.3d - 13 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 14 of 49 1 877, 879 (Nev. 2002). Probable cause “exists when officers have knowledge or reasonably 2 trustworthy information sufficient to lead a person of reasonable caution to believe that an offense 3 has been or is being committed by the person being arrested.” Ramirez v. City of Buena Park, 560 4 F.3d 1012, 1023 (9th Cir. 2009) (internal quotation marks omitted). Probable cause does not 5 require evidence that is conclusive of guilt, but it does require “a fair probability, given the totality 6 of the evidence,” that a suspect has committed a crime. Garcia v. County of Merced, 639 F.3d 7 1206, 1209 (9th Cir. 2011) (internal quotation marks omitted). 8 iii. Deprivation of Property Without Due Process 9 “The Fourteenth Amendment provides that no State shall “deprive any person of life, 10 liberty, or property, without due process of law.” Lavan v. City of Los Angeles, 693 F.3d 1022, 11 1031 (9th Cir. 2012) (quoting U.S. Const. amend. XIV, § 1). “At the threshold, a claim under § 12 1983 for an unconstitutional deprivation of property must show (1) a deprivation (2) of property 13 (3) under color of state law.” Newman v. Sathyavaglswaran, 287 F.3d 786, 789 (9th Cir. 2002). 14 “If these elements are met, the question becomes whether the state afforded constitutionally 15 adequate process for the deprivation.” Id. Of course, the Fourteenth Amendment generally requires 16 individuals to receive notice and an opportunity to be heard prior to the government depriving 17 them of their property. Lavan, 693 F.3d at 1032. That said, “[w]here a particular Amendment 18 ‘provides an explicit textual source of constitutional protection’ against a particular sort of 19 government behavior, ‘that Amendment, not the more generalized notion of substantive due 20 process, must be the guide for analyzing these claims.” Albright v. Oliver, 510 U.S. 266, 273 21 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)). 22 iv. Unreasonable Search and Seizure 23 Plaintiff’s Third Cause of Action alleges that (1) “Defendant LVMPD’s officers lacked 24 probable cause on all occasions,” (2) following his May 5, 2017 citation, “Defendant LVMPD’s 25 officers [] proceed[ed] to continually unreasonably seize and search Plaintiff’s person on June 24, 26 2017, August 12, 2017 and February 3, 2018,” and (3) the officers “proceed[ed] to unreasonably 27 search Plaintiff’s van on August 12, 2017 absent a warrant, permission or probable cause, and 28 unreasonably seize all of Plaintiff’s costumes located therein.” The Court construes the Third - 14 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 15 of 49 1 Cause of Action as alleging that Defendants violated three specific rights protected by the Fourth 2 Amendment: freedom from (1) destruction of property, (2) citation without probable cause, and 3 (3) false arrest. 4 1. Warrantless Searches and Seizures 5 The Fourth Amendment provides that “[t]he right of the people to be secure in their 6 persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be 7 violated.” U.S. Const. amend. IV. “[A] person has been ‘seized’ within the meaning of the Fourth 8 Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable 9 person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 10 544, 554 (1980). Circumstances that may indicate a seizure has occurred, “even where the person 11 did not attempt to leave,” include “the threatening presence of several officers, the display of a 12 weapon by an officer, some physical touching of the person of the citizen, or the use of language 13 or tone of voice indicating that compliance with the officer’s request might be compelled.” Id. 14 Still, officers do not violate the Fourth Amendment when they conduct a warrantless 15 investigatory stop or encounter, if they have “reasonable suspicion supported by articulable facts 16 that criminal activity ‘may be afoot.’” United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting 17 Terry v. Ohio, 392 U.S. 1, 30 (1968)). In fact, “so long as [officers] have an articulable basis for 18 suspecting criminal activity,” they may effectuate such detentions “on less than probable cause.” 19 Michigan v. Summers, 452 U.S. 692, 698-99 (1981). In such circumstances, “the court must 20 consider whether in light of the totality of the circumstances, the officer [indeed] had a 21 particularized and objective basis for suspecting the particular person stopped of criminal activity.” 22 United States v. Basher, 629 F.3d 1161, 1165 (9th Cir. 2011). 23 That said, an investigative detention “must be temporary and last no longer than is 24 necessary to effectuate the purpose of the stop.” Florida v. Royer, 460 U.S. 491, 500 (1983). 25 Additionally, “the investigative methods employed should be the least intrusive means reasonably 26 available to verify or dispel the officer’s suspicion in a short period of time.” Id. Consequently, to 27 determine whether a seizure is unreasonable, courts consider both “whether the officer’s action 28 was justified at its inception, and whether it was reasonably related in scope to the circumstances - 15 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 16 of 49 1 which justified the interference in the first place.” Terry, 392 U.S. at 19-20. The government bears 2 the burden of showing that “the seizure it seeks to justify on the basis of a reasonable suspicion 3 was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.” 4 Royer, 460 U.S. at 500. That seizure becomes a de facto arrest that requires probable cause, if it 5 exceeds the scope of a permissible detention, i.e., it becomes something more than “a brief stop, 6 interrogation, and under the proper circumstances, a brief check for weapons.” United States v. 7 Miles, 247 F.3d 1009, 1012 (9th Cir. 2001). “There has been an arrest if, under the circumstances, 8 a reasonable person would conclude that he was not free to leave after brief questioning.” Id. 9 Additionally, the Fourth Amendment provides that “no Warrants shall issue, but upon 10 probable cause, supported by Oath or affirmation, and particularly describing the place to be 11 searched, and the persons or things to be seized.” U.S. Const. amend. IV. Thus, warrantless 12 searches are generally unconstitutional unless they fit into one of several exceptions. Riley v. 13 California, 573 U.S. 373, 382 (2014) (citation omitted). Among these exceptions is the “search 14 incident to a lawful arrest” exception. Arizona v. Gant, 556 U.S. 332, 338 (2009). “Because 15 warrantless . . . seizures are per se unreasonable, the government bears the burden of showing that 16 a warrantless . . . seizure falls within an exception to the Fourth Amendment’s warrant 17 requirement.” Garcia v. City of Los Angeles, 11 F.4th 1113, 1118 (9th Cir. 2021). 18 Finally, the destruction of property by state officials constitutes a “seizure” under the 19 Fourth Amendment. Fuller v. Vines, 36 F.3d 65, 68 (9th Cir. 1994), overruled on other grounds 20 by Robinson v. Solano County, 278 F.3d 1007, 1013 (9th Cir. 2002). As with any seizure under 21 the Fourth Amendment, “[r]easonableness is the touchstone”: thus, courts must “look to the totality 22 of the circumstances to determine whether the destruction of property was reasonably necessary 23 to effectuate the performance of the law enforcement officer’s duties.” San Jose Charter of Hells 24 Angels Motorcycle Club v. City of San Jose, 402 F.3d 962, 975 (9th Cir. 2005). 25 2. Citation Without Probable Cause and False Arrest 26 The Court has not found any authority establishing a separate cause of action under the 27 Fourth Amendment for “citation without probable cause” that does not also reflect an analysis 28 under the false arrest inquiry. See, e.g., Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, - 16 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 17 of 49 1 1498-1502 (9th Cir. 1996) (analyzing improper issuance of citation theory as claim for false arrest 2 since the issuance of a citation under California law is equivalent to an arrest); Reed v. Lieurance, 3 863 F.3d 1196, 1205 (9th Cir. 2017) (concluding that there was a Fourth Amendment seizure where 4 defendant officer “issued the citation for obstruction and subsequently forced [the plaintiff] to go 5 to a different location under threat of being taken into physical custody,” and thus the operative 6 question was whether the officer “had probable cause to believe that [the plaintiff] had committed 7 or was committing obstruction”). As Plaintiff’s claims for citation without probable cause and 8 false arrest can be legally understood as raising the same claim—false arrest without probable 9 cause—they are analyzed together under this legal rubric. 10 Accordingly, to establish a false arrest claim, a plaintiff must demonstrate that his arrest 11 was made “without probable cause or other justification.” Dubner v. City & County of San 12 Francisco, 266 F.3d 959, 964-65 (9th Cir.2001); see also Caballero v. City of Concord, 956 F.2d 13 204, 206 (9th Cir. 1992). For Fourth Amendment purposes, an “arrest” is equivalent to a seizure 14 of the person and may be effected by the application of physical force on the arrestee accompanied 15 by the lawful authority to do so “or, where that is absent, submission to the assertion of authority.” 16 California v. Hodari D., 499 U.S. 621, 624, 626 (1991). Nevada’s definition of arrest is similar: 17 “an arrest is defined as ‘the taking of a person into custody, in a case and in the manner authorized 18 by law.’” Minor Boy v. State, 537 P.2d 477, 463 (Nev. 1975) (quoting NRS 171.104). “It is 19 sufficient if the person arrested understands that he is in the power of the one arresting, and submits 20 in consequence.” Id. As with malicious prosecution claims, the absence of probable cause is 21 required to assert a false arrest claim. See United States v. McCarty, 648 F.3d 820, 838 (9th Cir. 22 2011), as amended (Sept. 9, 2011) (internal quotation marks omitted); see also Devenpeck v. 23 Alford, 543 U.S. 146, 152 (2004). 24 v. First Amendment Retaliation 25 “As a general matter the First Amendment prohibits government officials from subjecting 26 an individual to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 139 S. Ct. 27 1715, 1722 (2019) (citations, brackets, and internal quotation marks omitted). To succeed on a 28 claim for First Amendment Retaliation under § 1983, the plaintiff must show (1) “he engaged in - 17 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 18 of 49 1 constitutionally protected activity,” (2) “as a result, he was subjected to adverse action by the 2 defendant that would chill a person of ordinary firmness from continuing to engage in the protected 3 activity,” and (3) “there was a substantial causal relationship between the constitutionally protected 4 activity and the adverse action.” Ballentine v. Tucker, 28 F.4th 54, 61 (9th Cir. 2022). To 5 demonstrate the third element, the “plaintiff must show that the retaliation was a substantial or 6 motivating factor behind the [arrest].” Id. at 63. But, like malicious prosecution and false arrest 7 claims, a claim for retaliatory arrest generally fails if the arresting officer had probable cause. See 8 Nieves, 139 S. Ct. at 1724-25. 9 “The sidewalks along the Las Vegas Strip dedicated to public use are public fora.” 10 Santopietro v. Howell, 73 F.4th 1016, 1024 (9th Cir. 2023). “[S]treet performing is expressive 11 speech or expressive conduct protected under the First Amendment.” Id. at 1021. “[T]he 12 solicitation of tips is entitled to the same constitutional protections as traditional speech.” Id. at 13 1024. “Municipalities accordingly may not ban either ‘passive’ solicitation of tips for street 14 performance (e.g., putting a hat out or saying ‘thank you’), or ‘active’ solicitation (e.g., 15 encouraging a tip orally or by tipping a hat).” Id. vi. Monell Liability 16 17 Generally, a “suit against a governmental official in his official capacity is equivalent to a 18 suit against the governmental entity itself.” Larez v. Los Angeles, 946 F.2d 630, 645 (9th Cir. 19 1991). Therefore, the official capacity claims against the individually named Defendants under § 20 1983 will be analyzed together with Plaintiff’s claims against Defendant LVMPD as a Monell 21 claim. To prevail against the municipal entity, the plaintiff must show “(1) that [the plaintiff] 22 possessed a constitutional right of which [s]he was deprived; (2) that the municipality had a policy; 23 (3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional right; and, (4) 24 that the policy is the moving force behind the constitutional violation.” Dougherty v. City of 25 Covina, 654 F.3d 892, 900 (9th Cir. 2011). 26 /// 27 /// 28 - 18 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 19 of 49 1 2 3 b. Defendants’ Motion for Summary Judgment i. Deprivation of Property Without Due Process (Second Cause of Action) 4 To begin, the Court addresses Plaintiff’s Second Cause of Action, which concerns the 5 alleged deprivation of property without due process, during the August 12, 2017 and February 3, 6 2018 incidents. Plaintiff contends that Defendants’ illegal search of Plaintiff’s van on August 12, 7 2017 resulted in the destruction of certain costumes and storage containers seized from the van. 8 Moreover, he received an inaccurate inventory of his seized property. Plaintiff similarly asserts 9 that Defendants also “deteriorated” certain costumes seized as a result of the February 3, 2018 10 incident. He contends that in both incidents he was entitled to notice and a hearing before his 11 interest in his personal property was permanently removed. 12 Defendants argue that Plaintiff’s cause of action fails because his Third Cause of Action 13 for unreasonable search and seizure, as discussed below, already provides him with an adequate 14 constitutional amendment which addresses the alleged violation. Plaintiff did not respond to this 15 argument. The Court agrees with Defendants, finding that the Fourth Amendment provides 16 Plaintiff with the appropriate basis for his constitutional protection regarding the seizure of his 17 property. See Albright, 510 U.S. at 273; San Jose Charter, 402 F.3d at 975. 18 19 20 Therefore, summary judgment is granted in Defendants’ favor on this cause of action for the August 12, 2017 and February 3, 2018 incidents. ii. May 5, 2017 21 Defendants move for summary judgment against all the remaining causes of action 22 underlying the May 5, 2017 incident, including for malicious prosecution, unreasonable search 23 and seizure, and First Amendment retaliation. The Court finds that the only Defendant officers 24 these cause of actions are asserted against are Defendants Owensby and O’Connell. 25 1. Malicious Prosecution (First Cause of Action) 26 Defendants argue summary judgment is warranted in their favor on this cause of action. 27 First, Plaintiff fails to show that either Defendants Owensby or O’Connell personally participated 28 in any malicious prosecution. He admitted that he does not know who made the decision to initiate - 19 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 20 of 49 1 the prosecution against him. Second, the citation did not initiate criminal proceedings in the Justice 2 Court of Clark County. Rather, the ticket referred Plaintiff’s case to appear before the Community 3 Impact Center, and the Community Impact Center does not entertain criminal proceedings. Third, 4 the officers had probable cause to cite Plaintiff for obstructing the sidewalk. Finally, Plaintiff has 5 failed to provide any evidence that Defendants Owensby or O’Connell acted with malice. Plaintiff 6 contends that the Defendant officers acted with malice when they baselessly seized, cited, and 7 prosecuted him for engaging in constitutionally protected First Amendment activity, such as 8 soliciting tips as a street performer. 9 The Court denies Defendants’ motion for summary judgment on this claim. “A malicious 10 prosecution claim requires that the defendant initiated, procured the institution of, or actively 11 participated in the continuation of a criminal proceeding against the plaintiff.” LaMantia v. Redisi, 12 38 P.3d 877, 879-80 (Nev. 2002). Here, the Court finds the citation and declaration of arrest show 13 that Defendants Owensby and O’Connell initiated or procured the institution of criminal 14 proceedings against Plaintiff. Further, Defendants rely on the Restatement (Second) of Torts § 654 15 (1977)’s definition of what constitutes a criminal proceeding to argue that Plaintiff’s citation did 16 not lead to automatic criminal prosecution because it was referred to community court. Defendants, 17 however, fail to provide any Nevada law adopting the Restatement’s definition of what does not 18 constitute a criminal proceeding. Additionally, the mere fact that he might have been offered a 19 form of diversion from the criminal proceeding does not render the entire proceeding civil or make 20 it less of criminal proceeding. Moreover, assuming the facts in Plaintiff’s favor, even if he were to 21 have participated in the community court option, he would have still been found guilty of violating 22 the obstruction of public sidewalk ordinance. Lacey v. Maricopa County, 693 F.3d 896, 919-20 23 (9th Cir. 2012) (explaining that “[a]lthough being lawfully arrested on a criminal charge may be 24 considered the institution of a criminal proceeding, where the arrest is not a valid one, an action 25 for malicious prosecution will not lie unless some further step is taken, such as bringing the 26 accused before a magistrate for determination whether he is to be held. If there is nothing more 27 than the false arrest and the accused is released without any further proceeding, the remedy is 28 limited to damages for the false arrest.”). The facts show that Plaintiff chose to forego the - 20 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 21 of 49 1 community court option because he believed he was not allowed to plead, nor would his 2 participation allow him to be found, not guilty of obstructing a public sidewalk on May 5, 2017. 3 Finally, Defendants’ counsel conceded that issues of fact existed as to whether the Defendant 4 officers had probable cause to cite Plaintiff for obstructing the sidewalk. 5 6 7 Therefore, the Court denies Defendants Owensby and O’Connell summary judgment in their favor on this claim for this incident. 2. Unreasonable Search and Seizure (Third Cause of Action) 8 Defendants argue that summary judgment should be granted in their favor against this 9 cause of action because citations, like the one issued to Plaintiff on this date, do not constitute a 10 seizure under the Fourth Amendment. And, even if a citation constituted a seizure, probable cause 11 existed to issue the citation in the first place. 12 Plaintiff responds that the undisputed facts show that Defendants Owensby’s and 13 O’Connell’s conduct made it clear that he was detained and not free to leave. Further, Defendants 14 have failed to show that they had reasonable suspicion or probable cause to detain him. This is 15 because according to the ordinance, the facts stipulated, and the body camera footage, there was 16 no actual obstruction of the sidewalk. Plaintiff argues that state court’s finding of no probable 17 cause or reasonable suspicion, pursuant to the doctrine of issue preclusion, bars Defendants from 18 asserting that they had any reasonable suspicion to suspect, or probable cause to cite, Plaintiff for 19 violating CCC § 16.11.035. Defendants disagree, arguing the issues litigated in the criminal 20 proceeding are not identical to the ones at issue in this case, and neither Defendants LVMPD, 21 Owensby, or O’Connell had a full and fair opportunity to litigate the issues now before this Court. 22 As an initial matter, the Court addresses Plaintiff’s contention that issue preclusion bars 23 Defendants from arguing they had reasonable suspicion to detain or probable cause to cite Plaintiff. 24 The Court finds that issue preclusion does not bar Defendants from arguing reasonable suspicion 25 or probable cause existed. “A federal court must give to a state court judgment the same preclusive 26 effect as would be given that judgment under the law of the State in which the judgment was 27 rendered.” Migra v. Warren City School Dist. Bd. Of Educ., 465 U.S. 75, 81 (1984). Under Nevada 28 law, issue preclusion applies if (1) the issue decided in the prior litigation is identical to the issue - 21 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 22 of 49 1 presented in the current action; (2) the initial ruling was on the merits and has become final; (3) 2 the party against whom the judgment was asserted is the party or is in privity with a party to the 3 prior litigation; and (4) the issue was actually and necessarily litigated. Five Star Capital Corp. v. 4 Ruby, 194 P.3d 709, 713 (Nev. 2008). 5 The Court does not find that the Justice Court of Clark County’s finding meets all the 6 elements of issue preclusion, in that the issue necessarily decided at the criminal trial was not 7 identical to the one being litigated in the instant case. The reasonable doubt standard applied in the 8 criminal trial is substantively different from the reasonable suspicion or probable cause standard 9 at issue now. Compare NRS 175.191 (describing reasonable doubt standard); Harrison v. State, 10 608 P.2d 1107, 1109 (Nev. 1980) (“the state had the burden of proving each element of the offense 11 beyond a reasonable doubt”) with Sokolow, 490 U.S. at 7; McCarty, 648 F.3d at 838. Plaintiff fails 12 to demonstrate that the issues of reasonable suspicion or probable cause separate from the 13 determination of guilt were actually litigated by the parties at the criminal trial. Therefore, the 14 Court rejects Plaintiff’s issue preclusion argument. 15 Next, the Court finds that based on the undisputed facts, and disputed facts assumed in 16 Plaintiff’s favor, the Defendant officers had reasonable suspicion to detain Plaintiff. Clark County 17 prohibits obstructive use of any public sidewalk if the obstructive use would result in a significant 18 threat to or degradation of the safety of pedestrians. CCC § 16.11.035. Plaintiff and at least two 19 other street performers were performing in the United Artist Showcase mall between the MGM 20 Grand and Tropicana Avenue. They were taking photographs with tourists and others walking on 21 the sidewalk. When LVMPD officers approached them, they moved towards a landscape, ledge 22 barrier near the sidewalk. As Defendant Owensby approached Plaintiff, and throughout their 23 interaction, there was a consistent flow of pedestrian traffic. The Defendant officers, including 24 Defendant O’Connell, informed Plaintiff that they witnessed him obstructing the flow of 25 pedestrian traffic while he and the other street performers stood on the sidewalk. The Court finds 26 that, under the totality of the circumstances, the Defendant officers had reasonable suspicion to 27 detain Plaintiff for obstructing a public sidewalk. See Summers, 452 U.S. at 698-99; Basher, 629 28 F.3d at 1165. Plaintiff’s Fourth Amendment claim must fail insofar as it is based on the theory that - 22 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 23 of 49 1 he was seized without reasonable suspicion. 2 Taking the facts in the light most favorable to Plaintiff, however, a jury could find that 3 Plaintiff was issued a citation without probable cause in violation of the Fourth Amendment. First, 4 as conceded by Defendants’ counsel, issues of fact exist as to whether the Defendants officers had 5 probable cause to cite Plaintiff for obstructing a public sidewalk. The Court assumes for this 6 analysis they did not. Second, it is true that the issuance of a citation in and of itself may not 7 constitute a seizure under the Fourth Amendment. See, e.g., Stilwell v. Clark County, No. 2:11- 8 CV-01549-RFB-VCF, 2016 WL 4033959, at *5 (D. Nev. July 26, 2016) (no seizure during stop 9 and citation because the plaintiff failed to allege “they were seized through the application of 10 physical force or that they were otherwise taken into custody”). Something more is needed. For 11 example, in Reed, the Ninth Circuit considered whether the defendant officers had probable cause 12 to arrest and cite the plaintiff for obstructing a peace officer, a misdemeanor pursuant to Montana 13 law. 863 F.3d at 1202. The court found first that issues of fact existed as to whether there was 14 probable cause to believe that the plaintiff presented any risk of obstructing, or that they had reason 15 to believe he was obstructing. Id. at 1205-06. Importantly though, it found that it was undisputed 16 that “there was a Fourth Amendment seizure when [the defendant officer] issued the citation for 17 obstruction and subsequently forced [plaintiff] to go to a different location under threat of being 18 taken into physical custody.” Id. at 1205 n.3. The Court finds whether that type of seizure existed 19 here to be central to the dispute at hand. 20 Here, the undisputed facts show that, even though the Defendant officers did not apply 21 physical force to arrest Plaintiff, Plaintiff still submitted to the Defendant officers’ authority as 22 part of being issued a citation, constituting a Fourth Amendment seizure. See Hodari D., 499 U.S. 23 at 624, 626. The undisputed facts show that Defendant O’Connell told Plaintiff he was not free to 24 leave. Defendant O’Connell ordered Plaintiff to provide his identification to Defendant Owensby 25 to which Plaintiff complied. After inputting Plaintiff’s information, Defendant Owensby handed 26 Plaintiff the citation. Before he was told that he was free to leave, however, Defendant Owensby 27 required Plaintiff take a photograph, including complying with an order that Plaintiff take his 28 costume helmet off. Further, it is only after the photograph is taken that Defendant Owensby states - 23 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 24 of 49 1 that Plaintiff is free to go. The Court finds the undisputed facts show that Plaintiff was seized. See 2 Reed, 863 F.3d at 1205 n.3. 8 3 The Court separately finds Defendants’ reliance on Karam v. City of Burbank, 352 F.3d 4 1188, 1192 (9th Cir. 2003), misplaced. Defendants argue that this case supports the conclusion 5 that a citation, as a matter of law, does not constitute a seizure. The Court, however, finds Karam 6 distinguishable. First, unlike Plaintiff here, the plaintiff in Karam did not submit to the defendant 7 officer’s authority after being told to leave the city council chambers; she stayed and addressed the 8 council. Id. at 1191. Moreover, the defendant officer never arrested the plaintiff let alone detained 9 her. Id. Further, it was not until a few days after the incident that the plaintiff in Karam was even 10 issued the citation. Id. Finally, and most importantly, the seizure in Karam concerned the 11 conditions of a plaintiff’s own recognizance release, including whether court appearances and 12 obtaining permission to leave the state amounted to a Fourth Amendment seizure, not whether the 13 officer submitted to the defendant officer’s authority like in Reed. Id. at 1192. The Ninth Circuit 14 ultimately determined that being subject to these conditions was de minimus. Id. at 1194. The 15 undisputed facts in this case show that Plaintiff’s seizure was not. Lastly, the Court rejects 16 Defendants’ reliance on out of circuit case law and district court cases. Those cases are not binding 17 on, or persuasive to, this Court’s analysis. 18 Finally, Defendants argue that Defendant O’Connell is separately entitled to summary 19 judgment because he did not interact with or issue Plaintiff any citation on this day. “[P]ersonal 20 participation is not the only predicate for section 1983 liability.” Johnson v. Duffy, 588 F.2d 740, 21 743 (9th Cir. 1978). Indeed, “[a]nyone who causes any citizen to be subjected to a constitutional 22 deprivation is . . . liable . . . by setting in motion a series of acts by others which the actor knows 23 or reasonably should know would cause others to inflict the constitutional injury.” Id. at 743–44. 24 Here, it is undisputed that Defendant O’Connell told Plaintiff he was not free to leave after he and 25 26 27 28 To be sure, this photograph was requested after Plaintiff had already provided Defendant Owensby his identification card to investigate and cite Plaintiff. Thus, the Court cannot find, nor do Defendants provide, any reasonable basis for why Defendant Owensby required a photograph of Plaintiff. Cf. United States v. Roberts, 928 F. Supp. 910, 939 (W.D. Mo. 1996) (“Incarcerating someone for the sole purpose of coercing her into giving a photograph for use in a photo lineup is a violation of her right to be free from unreasonable seizure of her person. . . . . [D]efendant’s ‘consent’ to being photographed was coerced and that the coercion resulted in a photograph which, placed in a lineup with other photographs, was obviously unduly suggestive.”). 8 - 24 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 25 of 49 1 Defendant Owensby stopped the street performers. Defendant O’Connell also ordered that Plaintiff 2 provide Defendant Owensby identification. Moreover, when Plaintiff questioned how he violated 3 the obstruction of a public sidewalk ordinance, Defendant O’Connell told Plaintiff his seizure was 4 justified because he could not stand on the Strip’s sidewalk as a street performer anymore. 9 5 Defendant O’Connell’s acts supported Defendant Owensby’s conduct issuing a citation to Plaintiff 6 for violating the public sidewalk ordinance, the conduct at the center of Plaintiff’s Fourth 7 Amendment claim. Lastly, the declaration of arrest arising from Plaintiff’s arrest provides 8 Defendant O’Connell’s name as someone the prosecution could subpoena. Thus, assuming the 9 facts in Plaintiff’s favor, it does not matter whether Defendant O’Connell issued the citation, he 10 knew or should have known that his conduct would cause Plaintiff to be cited without probable 11 cause. 12 Therefore, the Court finds, assuming the facts in Plaintiff’s favor, that Defendant’s 13 Owensby and O’Connell violated Plaintiff’s Fourth Amendment rights against unreasonable 14 searches and seizures by citing him without probable cause on May 5, 2017. 3. First Amendment Retaliation (Fourth Cause of Action) 15 16 Defendants assert that Plaintiff’s First Amendment Retaliation claim fails because 17 Defendants Owensby and O’Connell had probable cause to stop and cite Plaintiff on May 5, 2017. 18 Moreover, Plaintiff fails to present any evidence that his street performance motivated Defendants 19 Owensby and O’Connell’s conduct. And Plaintiff’s reliance on statements heard on Defendant 20 Owensby’s body camera footage stating Plaintiff did not have a right as a street performer to stand 21 on the Strip because he was obstructing the sidewalk were not made by Defendant Owensby. 22 Rather, Defendant Owensby clarified that he could stop and take pictures so long as he was not 23 hindering the flow of traffic. 24 The Court finds that Defendants Owensby and O’Connell are not entitled to summary 25 judgment in their favor against Plaintiff’s First Amendment Retaliation claim for the May 5, 2017 26 incident. First, Defendants’ counsel conceded at the motion hearing that genuine issues of fact 27 existed as to whether there was probable cause to believe a significant threat or degradation existed 28 9 As he told the other detained street performers, there was “zero tolerance” for it. - 25 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 26 of 49 1 to pedestrian safety, based on Plaintiff’s May 5, 2017 street performing conduct. Therefore, at this 2 stage, Plaintiff’s claim overcomes the First Amendment Retaliation claim probable cause hurdle. 3 See Nieves, 139 S. Ct. at 1724-25. 4 Next, the Court addressees Defendants’ argument that Plaintiff has not provided evidence 5 to create genuine issues of fact as to the third element of a First Amendment Retaliation Claim. 6 The Court finds he has. Indeed, Plaintiff must show a substantial causal relationship between the 7 protected activity and the adverse action. Retaliatory motive may be established “using direct or 8 circumstantial evidence.” Arizona Students’ Ass’n v. Arizona Bd. of Regents, 824 F.3d 858, 870 9 (9th Cir. 2016). Further, “a plaintiff may rely on evidence of temporal proximity between the 10 protected activity and alleged retaliatory conduct to demonstrate that the defendant’s purported 11 reasons for its conduct are pretextual or false.” Id. Here, evidence of retaliatory motives in the 12 record goes beyond the officer overheard on Defendant Owensby’s body camera footage. In fact, 13 as part of seizing and citing them, Defendant Owensby took photographs of Plaintiff. Assuming 14 facts in Plaintiff’s favor, they only did this because he was a street performer. Defendant O’Connell 15 also told Plaintiff he cannot be standing on the Strip’s sidewalks street performing anymore. Before 16 and after he tells Plaintiff this, he repeatedly tells the other street performers that there was “zero 17 tolerance” for them standing on the Strip. Defendant Owensby also repeatedly threatens to cite 18 Plaintiff for conducting a business without license after he learns that Plaintiff is soliciting tips 19 while street performing. Thus, the Defendant officers made clear that any street performer that was 20 not moving with the crowd or licensed to solicit tips would be subject to adverse action, i.e., being 21 stopped, arrested, and cited. Indeed, the record does not show that any street performers thereafter 22 attempted to walk with the pedestrian traffic to street perform. A jury could find that there is a 23 substantial causal relationship between the protected activity and the adverse action. 24 Of course, the officers argue that they stopped and detained the street performers because 25 they were obstructing the public sidewalk in violation of a county ordinance. But, if Plaintiff shows 26 that Defendants Owensby and O’Connell “lacked probable cause, that showing bridges the causal 27 gap by reinforc[ing] the retaliation evidence and show[ing] that retaliation was the but-for basis” 28 of their official’s actions. Capp v. County of San Diego, 940 F.3d 1046, 1056 (9th Cir. 2019). - 26 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 27 of 49 1 Here, as stated above, there are questions of disputed fact as to what basis Plaintiff was cited for: 2 obstructing a public sidewalk or for street performing. Assuming the facts in the light most 3 favorable to Plaintiff, as the Court must do for the analysis at hand, it was the latter. A jury could 4 therefore find that Plaintiff’s conduct street performing was the but-for cause of Defendants 5 Owensby and O’Connell’s conduct on May 5, 2017. 10 6 Lastly, the Court addresses Defendants’ contention that the officers, including Defendant 7 Owensby, did not prohibit Plaintiff from street performing because they maintained he could still 8 stop and take pictures with tourists and other observers so long as he was not hindering the flow 9 of traffic. The Court finds this to be a distinction without a difference. Chapter 16 defines a street 10 performer as a “member of the general public who engages in any performing act or the playing 11 of any musical instrument, singing or vocalizing, with or without musical accompaniment, and 12 whose performance is not an official part of a sponsored event.” CCC § 16.11.020(i); see also 13 Santopietro, 73 F.4th at 1021 (a street performer is “a member of the general public who engages 14 in any performing art or the playing of any musical instrument, singing or vocalizing, with or 15 without musical accompaniment, and whose performance is not an official part of a sponsored 16 event”). While it may not be an outright prohibition, the condition that Plaintiff and other street 17 performers walk with the crowd to perform would undoubtedly restrict a street performer’s ability 18 to perform. And such restrictions do not escape First Amendment scrutiny. A jury could find the 19 Defendant officers’ conditions conflict with and in effect prohibit a street performer’s ability to 20 perform on the Strip. Separately, it is factually disputed whether Plaintiff was even hindering 21 pedestrian traffic to justify imposing this type of condition. Ultimately, assuming the facts in the 22 light most favorable to Plaintiff, there was no hinderance, therefore there was no need to subject 23 his street performing to such a condition. 24 Therefore, the Court finds, assuming the facts in Plaintiff’s favor, that Defendant’s 25 Owensby and O’Connell violated Plaintiff’s First Amendment rights by retaliating against him for 26 27 28 10 There is no dispute that Defendant Owensby repeatedly threatened to cite Plaintiff for conducting business without a license, including after he learned that Plaintiff was soliciting tips as a street performer. But see Santopietro, 73 F.4th at 1024; see also Mulligan v. Nichols, 835 F.3d 983, 990 (9th Cir. 2016) (First Amendment rights may be violated where “retaliation is in the form of speech” and is a “threat, coercion, or intimidation intimating that punishment, sanction, or adverse regulatory action will imminently follow”). - 27 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 28 of 49 1 street performing on May 5, 2017. iii. June 24, 2017 2 3 Defendants move for summary judgment against all the remaining causes of action 4 underlying the June 24, 2017 incident, including for unreasonable search and seizure and First 5 Amendment retaliation. 11 The Court finds the only Defendant officers these cause of actions are 6 asserted against are Defendants O’Connell and McFarland. 1. Unreasonable Search and Seizure (Third Cause of Action) 7 8 Defendants contend that Defendant O’Connell had reasonable suspicion to conduct an 9 investigative detention of Plaintiff on June 24, 2017. This is because Plaintiff and two to five other 10 street performers were found in the same general area of the United Artists Showcase Mall near 11 the same area from the May 5, 2017 incident. Like the last incident, Plaintiff and the other street 12 performers were taking pictures with tourists and other individuals walking the strip just south of 13 the Marshalls’ escalators. Moreover, there was a lot of pedestrian foot traffic where the street 14 performers were located, as it was a Saturday during the summer. In fact, there was more traffic 15 on this day than during the May 5, 2017 incident. 12 Plaintiff also fails to show that Defendant 16 O’Connell handcuffed Plaintiff or that Defendant McFarland was even involved in the detention. 17 Plaintiff disagrees, disputing that the officers had reasonable suspicion to believe he was 18 violating Clark County Code Chapter 16. First, Plaintiff argues that Defendants’ basis for stopping 19 him was pretextual: Defendants O’Connell and McFarland detained Plaintiff, not because he was 20 street performing, but for him to provide his union representative’s contact information. Second, 21 Plaintiff contends that Defendants reliance on the fact that he was standing in the general area of 22 an escalator does not by itself constitute obstruction of pedestrian traffic—Defendants need to 23 24 25 26 27 28 Although Defendants contend they are entitled to summary judgment on any malicious prosecution claim against them in relation to this incident, the Court does not find that Plaintiff’s SAC alleges such a claim for this date. Therefore, it does not address arguments related to malicious prosecution for this incident. 11 12 Defendants cite and rely on a 2015 updated study titled “Clark County Pedestrian Study, Las Vegas Boulevard: Russell Road to Sahara Avenue” presented to the Clark County Department of Public Works. The study highlights the importance of ensuring that the spaces near the escalators are clear of all obstructions and recommends that the escalators be deemed a no obstructive use zone. The Court, however, does not find that it is appropriate to consider this study in this analysis. It is not clear to what extent, if any, the Defendant officers relied on this study to formulate their legal basis for detaining Plaintiff. - 28 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 29 of 49 1 show he was standing at an escalator “buffer zone.” Third, Plaintiff appears to argue that the 2 Defendant officers exceeded the scope of any permissible detention, including by handcuffing him 3 to obtain his union representative’s contact information. 4 To warrant summary judgment in their favor, Defendants must show no genuine issues of 5 fact exist that they had a reasonable basis for detaining Plaintiff for suspicion of violating CCC § 6 16.11.035(b). Put differently, that the Defendant officers had an articulable basis that Plaintiff may 7 be “[o]bstructing, delaying, hindering, blocking, hampering or interfering with pedestrian passage” 8 on a public sidewalk resulting “in a significant threat to or degradation of the safety of pedestrians.” 9 Id. at § 16.11.020(e)(7); Id. § 16.11.035(b); see Summers, 452 U.S. at 698-99. 13 In turn, for 10 Plaintiff’s pretextual argument to warrant denial of summary judgment against him, he must show 11 issues of fact exist as to the facts known to the Defendant officers at the time of the stop. United 12 States v. Magallon-Lopez, 817 F.3d 671, 675 (9th Cir. 2016) (discussing standard for reasonable 13 basis and concluding that, “although [the] focus is on the objectively reasonable basis for the stop, 14 not the officers’ subjective intentions or beliefs, the facts justifying the stop must be known to 15 officers at the time of the stop”). 16 The Court finds that the undisputed facts and disputed facts, assumed in Plaintiff’s favor, 17 demonstrate that Defendant officers had a reasonable basis for stopping Plaintiff for violating CCC 18 § 16.11.035(b) on June 24, 2017. On that day, Plaintiff and others were street performing at the 19 United Artists Showcase Mall—around the same area he was previously issued citation for public 20 obstruction of a public sidewalk. Once again, they were taking pictures with tourists and other 21 individuals walking in that area. Once more, LVMPD officers, including Defendant McFarland 22 and Defendant O’Connell, who was also involved in the May 5, 2017 incident, approach them. 23 The Court finds that they indeed had an articulable basis for suspecting Plaintiff may be interfering 24 with the pedestrian passage. Therefore, Plaintiff’s pretext-based argument fails. The inquiry does 25 not end here however. 26 27 28 The Court rejects Plaintiff’s argument that Defendants need to show the officers encountered him in an escalator “buffer zone” to justify their suspicion as opposed to an area that could be reasonably believed to be a pedestrian passage on a public sidewalk. The Court cannot find such requirement in the ordinance nor does Plaintiff to cite one. 13 - 29 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 30 of 49 1 Defendants also must demonstrate that these officers did not exceed the scope or duration 2 of their permissible detention. Certainly, during a Terry stop motivated by reasonable suspicion, 3 the officer may ask investigatory questions, but the “scope of the detention must be carefully 4 tailored to its underlying justification.” Royer, 460 U.S. at 500. The detention “must be temporary 5 and last no longer than is necessary to effectuate the purpose of the stop.” Id. First, the Court finds 6 that the Defendant officers asked Plaintiff questions regarding Moore that did not cause the 7 detention to exceed its justified scope. Indeed, several minutes of additional questions during a 8 stop are permissible so long as they are “(1) part of the stop’s mission or (2) supported by 9 independent reasonable suspicion.” United States v. Landeros, 913 F.3d 862, 867-68 (9th Cir. 10 2019). 11 Here, it is undisputed that, at the beginning of the detention, Plaintiff asserted that he was 12 entitled to have his union representative, Moore, be present during this detention. Further, 13 throughout the detention, Plaintiff questioned how CCC § 16.11.035 applied to street performers. 14 Indeed, Plaintiff’s understanding of this ordinance stemmed, in part, from information prepared 15 by Moore, as shown by a card Plaintiff presented to the officers. The officers also told Plaintiff 16 that they had prior interactions with Moore and believed he was taking union members’ money 17 without providing any benefit. During the detention, Defendant O’Connell also asked another 18 detained street performer if he was paying Moore too. Accordingly, the Court finds that these 19 additional questions were part of this detention’s mission: enforcing the public sidewalk ordinance. 20 However the Court does not find that the use of handcuffs throughout the detention 21 constituted “the least intrusive means reasonably available to verify or dispel the officer’s 22 suspicion in a short period of time.” Royer, 460 U.S. at 500. Based on the undisputed facts, the 23 Court finds that the especially intrusive means of handcuffing was not permissible under the 24 circumstances and therefore the detention transformed into a de facto arrest requiring probable 25 cause. 26 Although handcuffing an individual to detain them “does not automatically escalate a stop 27 into an arrest, it “substantially aggravates the intrusiveness of an otherwise routine investigatory 28 detention and is not part of a typical Terry stop.” Reynaga Hernandez v skinner, 969 F.3d 930, 941 - 30 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 31 of 49 1 (9th Cir. 2020). The use of the especially intrusive means of handcuffing has been held permissible 2 “where the suspect is uncooperative or takes action at the scene that raises a reasonable possibility 3 of danger or flight, where the police have information that the suspect is currently armed, where 4 the stop closely follows a violent crime, and where the police have information that a crime 5 [involving] violence is about to occur.” Id. at 940. 6 At the time Defendant McFarland handcuffed Plaintiff, there was no evidence suggesting 7 Plaintiff was armed, dangerous, or a flight risk. When the officers first approached Plaintiff, he 8 was taking pictures with tourists and other individuals walking the strip. Defendant O’Connell 9 ordered Plaintiff to provide his identification or he would put him in handcuffs. Plaintiff complied 10 and sat down on the landscape ledge barrier near the sidewalk. While Plaintiff was seated, he asked 11 the Defendant officers questions about how the obstruction of a public sidewalk ordinance applies 12 to street performers. At this point, Defendant O’Connell directed Defendant McFarland to 13 handcuff Plaintiff. A reasonable person in Plaintiff’s position would not have felt free to leave 14 after being handcuffed while seated and in the presence of two law enforcement officers. 15 Defendant O’Connell explained to Plaintiff that he was handcuffed because of his record, 16 he was initially not cooperating, he did not trust Plaintiff, and he was “too animated.” But this 17 explanation is belied by the fact that Plaintiff cooperated and sat down on the ledge next to the 18 sidewalk shortly after being asked for his identification and had been sitting for five minutes prior 19 to being handcuffed. Moreover, Plaintiff continued to cooperate while in handcuffs. He agreed to 20 provide O’Connell with Moore’s contact information after being asked for it the first time. 21 Inexplicably, O’Connell told Plaintiff nine minutes later that he would uncuff him if he gave 22 O’Connell Moore’s number, which Plaintiff had already agreed to provide. Further, Plaintiff’s 23 questions regarding the officers’ basis for investigating him and the other street performers did not 24 justify detaining him in handcuffs. See Meredith v. Erath, 342 F.3d 1057, 1063 (9th Cir. 2003) 25 (finding officers violated the Fourth Amendment by handcuffing resident who asked “loudly and 26 several times” to see a search warrant). 27 Having found that Plaintiff was arrested, the Court now turns to assess whether there was 28 probable cause. Taking the facts in the light most favorable to the Plaintiff, the Court concludes - 31 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 32 of 49 1 that a jury could find that Plaintiff was arrested without probable cause in violation of the Fourth 2 Amendment. Similar to the May 5, 2017 event, Defendants’ counsel conceded at the motion 3 hearing that issues of fact exist as to whether the Defendant officers had probable cause to believe 4 a significant threat or degradation existed to pedestrian safety, based on Plaintiff’s June 24, 2017 5 street performing conduct. Thus, for the same reasons discussed above in relation to the May 5, 6 2017 event, the Court also finds that the Defendant officers lacked probable causes to effectuate a 7 de facto arrest of Plaintiff on June 24, 2017. 8 Accordingly, assuming facts in Plaintiff’s favor, the Court finds that Defendants’ violated 9 Plaintiff’s Fourth Amendment rights by handcuffing him, which transformed the investigative stop 10 11 into a de facto arrest that lacked probable cause on June 24, 2017. 2. First Amendment Retaliation (Fourth Cause of Action) 12 Defendants assert that Plaintiff’s First Amendment Retaliation claim fails because he has 13 not presented any evidence that his street performance was the basis of the detention. The Court 14 finds that Plaintiff has failed to address Defendants’ opposition to this claim. The Court 15 nevertheless addresses whether the evidence in the record supports Plaintiff’s First Amendment 16 Retaliation claim for the June 24, 2017 incident. 17 The Court addresses Defendants’ argument that Plaintiff has not provided evidence to 18 create genuine issues of fact as to the third element of a First Amendment Retaliation Claim. 19 Motive may be established “using direct or circumstantial evidence.” Arizona Students’ Ass’n, 20 824 F.3d at 870. Further, “a plaintiff may rely on evidence of temporal proximity between the 21 protected activity and alleged retaliatory conduct to demonstrate that the defendant’s purported 22 reasons for its conduct are pretextual or false.” Id. 23 The Court finds that Plaintiff has demonstrated that genuine issues of fact exist for a jury 24 to resolve over whether there was a substantial causal relationship between his protected activity 25 and the Defendants’ adverse action. Plaintiff’s temporary detention, which included being 26 handcuffed, as discussed above, constitutes an adverse action “that would chill a person of ordinary 27 firmness from continuing to engage” in street performing. See Ford, 706 F.3d at 1193 (“This Court 28 has recognized that a retaliatory police action such as an arrest or search and seizure would chill a - 32 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 33 of 49 1 person of ordinary firmness from engaging in future First Amendment activity.”). Next, the Court 2 incorporates by reference its analysis of Plaintiff’s Third Cause of Action for unreasonable search 3 and seizure stemming from this incident. It finds that, rather than a retaliatory basis, Defendants 4 had a reasonable basis for detaining and investigating Plaintiff over whether he was “[o]bstructing, 5 delaying, hindering, blocking, hampering or interfering with pedestrian passage” on a public 6 sidewalk resulting “in a significant threat to or degradation of the safety of pedestrians.” CCC § 7 16.11.020(e)(7); Id. § 16.11.035(b). There is no genuine issue that Defendants had a reasonable 8 basis to suspect that Plaintiff was violating CCC § 16.11.035. This, however, does not end the 9 Court’s First Amendment Retaliation claim inquiry. 10 Here, Plaintiff was suspected of committing the same CCC § 16.11.035 violation for the 11 June 24, 2017 incident, as that which Defendant Owensby actually cited Plaintiff for violating 12 during the May 5, 2017 incident. And it is undisputed that during the June 24, 2017 incident, 13 Defendant O’Connell conducted a background check on him, and questioned Plaintiff, including 14 about his street performer union membership. Just the month before, Defendant O’Connell was 15 also involved in the May 5, 2017 incident. There too, he engaged in a back and forth with Plaintiff 16 about the law regarding obstructing the public sidewalk and asked Plaintiff questions regarding 17 his union membership. Defendant Owensby also took a photograph of Plaintiff, and Defendant 18 O’Connell notified the street performers that there was “zero tolerance” for them standing on the 19 Strip. Assuming the facts in the light most favorable to Plaintiff, the Court finds that this 20 circumstantial and temporal evidence create a genuine issue of fact as to whether Plaintiff’s street 21 performing conduct was the but-for cause of Defendant O’Connell’s conduct on June 24, 2017. 22 Cf. While v. County of San Bernardino, 503 F. App’x 551, 553 (concluding that, on balance, no 23 reasonable jury could conclude the officers’ decision to conduct the pat-down was caused by 24 retaliatory motive as opposed to the multiple pieces of evidence that supported reasonable 25 suspicion). 26 Therefore, the Court finds, assuming the facts in Plaintiff’s favor, that Defendants 27 O’Connell and McFarland violated Plaintiff’s First Amendment rights by retaliating against him 28 for street performing on June 24, 2017. - 33 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 34 of 49 1 iv. August 12, 2017 2 Defendants move for summary judgment against all the remaining causes of action 3 underlying the August 12, 2017 incident, including malicious prosecution, unreasonable search 4 and seizure, and First Amendment retaliation. The Court finds that Plaintiff asserts these causes of 5 actions for this incident against Defendants Kopf and Riddle. 1. Malicious Prosecution (First Cause of Action) 6 7 Defendants contend that Plaintiff’s malicious prosecution cause of action fails because he 8 is unable to identify which Defendant officer was responsible for initiating the criminal 9 prosecution against him following his arrest for doing business without a license. Defendants assert 10 that when approached by Defendant Kopf, Plaintiff failed to provide evidence of a license 11 permitting him to conduct business within Clark County. Plaintiff appears to concede that, at that 12 time of this incident, he did not have a business license for the particular area he was renting out 13 costumes when he was arrested. 14 The Court agrees that Plaintiff has failed to provide evidence creating a genuine issue of 15 fact to support denying summary judgment on his claim that he was maliciously prosecuted for 16 renting costumes out of his van in the United Artists Showcase Mall’s parking garage. The 17 undisputed evidence shows that Defendants Kopf and Riddle were involved in citing and arresting 18 Plaintiff that day. Defendant Kopf issued the citation that led to his arrest. Plaintiff’s verified SAC 19 asserts that he showed Defendant Kopf his business license on his phone. Yet, Plaintiff’s response 20 in opposition to Defendants’ summary judgment concedes that he was not properly licensed to 21 conduct his business when he was arrested. The Court construes this response as effectively 22 conceding that there is no evidence in the record creating a genuine issue of fact that Plaintiff failed 23 to provide the arresting officers with a valid business license for renting costumes that day. See 24 Ramirez 560 F.3d at 1023; Garcia, 639 F.3d at 1209. Thus, even viewing the evidence in the light 25 most favorable to and making all reasonable inferences in Plaintiff’s favor, the Court finds that 26 Plaintiff has failed to satisfy his burden of showing that the Defendant officers lacked probable 27 cause to arrest and cite him. See LaMantia, 38 P.3d at 879; Brown v. Selfridge, 224 U.S. 189, 192 28 (1912) (explaining plaintiff bears the burden of proving malice and lack of probable cause). - 34 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 35 of 49 1 2 3 Thus, summary judgment is granted in Defendants’ favor on this cause of action in relation to the August 12, 2017 incident. 2. Unreasonable Search and Seizure (Third Cause of Action) 4 The Court construes this cause of action for this incident to be for the (1) unreasonable 5 search and seizure of the property in his van, and (2) citation without probable cause and false 6 arrest in relation to being cited and arrested for operating his costume business without license in 7 the parking lot of the United Artists Showcase Mall’s parking garage. 8 First, Defendants contend that, because Plaintiff did not maintain a license to conduct 9 business within Clark County, the Defendant officers had probable cause to arrest Plaintiff on 10 August 12, 2017. For the reasons discussed in its malicious prosecution analysis for this incident 11 above, the Court agrees. See McCarty, 648 F.3d at 838. 12 Next, Defendants dispute Plaintiff’s claim that, during this arrest, the Defendant officers 13 unlawfully searched his van and subsequently destroyed the property in violation of the Fourth 14 Amendment. They contend first that the search of Plaintiff’s van fell within the search incident to 15 a lawful arrest exception to the warrant requirement. Second, they contend that the destruction of 16 property claim fails because Plaintiff does not provide any evidence that his property was 17 destroyed, nor has he identified the specific officers that destroyed his property. 18 The Court agrees with Defendants that the search of his vehicle was lawful pursuant to the 19 search incident to a lawful arrest exception. Indeed, “circumstances unique to the vehicle context 20 justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to 21 the crime of arrest might be found in the vehicle.” Gant, 556 U.S. at 343; see also Menotti v. City 22 of Seattle, 409 F.3d 1113, 1153 (9th Cir. 2005) (“ample precedent would permit a search or seizure 23 incident to arrest”). It is undisputed that, on August 12, 2017, Plaintiff was using his van to rent 24 costumes to other street performers in the United Artists Showcase Mall’s parking garage. Thus, 25 it was reasonable for the arresting officers to believe that the van and the costumes within it, were 26 evidence of an alleged crime for which Plaintiff was arrested for, operating a costume rental 27 business without the appropriate license issued by Clark County. Thus, the search of Plaintiff’s 28 van was valid under the Fourth Amendment precedent. - 35 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 36 of 49 1 The Court disagrees, however, that there is no evidence Plaintiff has presented that creates 2 genuine issues of fact that preclude granting summary judgment in their favor on Plaintiff’s 3 destruction of property claim. Specifically, Plaintiff’s verified SAC asserts that, after arresting 4 him, LVMPD officers entered and searched his van. In doing so, they kicked and dropped certain 5 of Plaintiff’s “costumes, equipment, boxes,” and destroyed “customized shelving and personal 6 belongings.” ECF No. 88 at 10; see California Pro-Life Council, Inc., 507 F.3d at 1176 (“a verified 7 complaint may serve as an affidavit for purposes of summary judgment”). Multiple pieces of 8 “custom made costumes were substantially deteriorated and destroyed.” ECF No. 88 at 23. Further, 9 not all his property was returned to him after the incident. Finally, the SAC asserts that Defendants 10 Kopf and Riddle personally engaged in this search. 11 Assuming facts in Plaintiff’s favor, a jury could find that Defendants Kopf and Riddle 12 engaged in unnecessarily destructive behavior while they searched his van by damaging his 13 property, constituting unlawful behavior in violation of the Fourth Amendment. See United States 14 v. Ramirez, 523 U.S. 65, 71 (1998) (“Excessive or unnecessary destruction of property in the 15 course of a search may violate the Fourth Amendment, even though the entry itself is lawful.”); 16 see also United States v. Jacobsen, 466 U.S. 109, 124 (1984) (providing that “at its inception,” an 17 otherwise lawful seizure “can nevertheless violate the Fourth Amendment because its manner of 18 execution unreasonably infringes possessory interests protected by the Fourth Amendment’s 19 prohibition on unreasonable seizures”). Indeed, a jury could find that the destruction of Plaintiff’s 20 property was not “reasonably necessary to effectuate the performance” of Defendants’ law 21 enforcement duties. San Jose Charter, 402 F.3d at 975. 22 Therefore, Defendants are granted summary judgment against Plaintiff’s unreasonable 23 search and seizure cause of action as it relates to any citation and arrest without probable cause 24 claim. Yet, summary judgment is denied as to Plaintiff’s destruction of property claim against 25 Defendants Kopf and Riddle. 26 3. First Amendment Retaliation (Fourth Cause of Action) 27 The Court finds that Plaintiff’s First Amendment Retaliation claim for the August 12, 2017 28 incident fails. The undisputed facts show that he was renting out costumes, and that he was cited - 36 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 37 of 49 1 and arrested for doing so without a license. Plaintiff fails to show how this conduct is protected by 2 the First Amendment. See Santopietro, 2023 WL 4568747, at *3; Nieves, 139 S. Ct. at 1722. Thus, 3 Defendants are granted summary judgment in their favor on this claim for this incident as well. 4 v. February 3, 2018 5 Defendants move for summary judgment against all the remaining causes of action 6 underlying the February 3, 2018 incident, including malicious prosecution, unreasonable search 7 and seizure, and First Amendment retaliation. The Court finds that Plaintiff only asserts these 8 causes of action for this incident against Defendants O’Connell, McFarland, and Wedewer. 9 1. Malicious Prosecution (First Cause of Action) 10 Defendants argue that Plaintiff’s malicious prosecution claim fails for this incident because 11 it is undisputed that there were no criminal charges brought against Plaintiff. And without a 12 criminal proceeding, Plaintiff’s malicious prosecution cause of action cannot move forward. The 13 Court agrees. As previously stated, the institution of criminal proceedings against another who is 14 not guilty of the offense charged is a prerequisite to a malicious prosecution claim. See LaMantia, 15 38 P.3d at 879-80. Otherwise, the claim becomes one for false arrest. See Lacey, 693 F.3d at 919- 16 20. Here, it is undisputed that the District Attorney’s Office did not file any criminal charges 17 against Plaintiff stemming from the February 3, 2018 incident. Thus, because no criminal 18 proceedings were instituted against him, this cause of action fails as a matter of law. 19 20 21 22 Summary judgment is therefore granted in Defendants O’Connell, McFarland, and Wedewer’s favor on this cause of action. 2. Unreasonable Search and Seizure (Third Cause of Action) a. Obstruction of a Public Sidewalk 23 Defendants argue that summary judgment is warranted on this claim for this day because 24 the officers had probable cause to believe that Plaintiff and the other street performers were 25 interfering with pedestrian traffic. They observed the street performers standing on the sidewalk 26 for nearly twenty minutes and thus interfering with pedestrian passage. They were also near 27 escalators, and the body camera footage depicts a heavy flow of pedestrian traffic. In return, 28 Plaintiff argues he was street performing when he was seized. In fact, he was seized pursuant to - 37 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 38 of 49 1 Defendant LVMPD’s “Zero Tolerance” for street performers policy. Additionally, like the June 2 24, 2017 incident, Plaintiff contends that Defendants’ reliance on the fact that he was standing in 3 the general area of an escalator does not by itself constitute obstruction of pedestrian traffic— 4 Defendants need to show he was standing at an escalator “buffer zone.” The Defendant officers 5 fail to show this was the case. 6 Assuming the facts in the light most favorable to Plaintiff, a jury could find that Plaintiff 7 was arrested without probable cause for obstructing a public sidewalk. Plaintiff was standing on 8 the sidewalk following the conclusion of a street performer protest. And where he and the other 9 street performers were standing, according to Plaintiff’s verified SAC, they were not obstructing 10 the public sidewalk. In contrast, Defendants provide the testimony of officers who assert that 11 Plaintiff and the other street performers were indeed causing a significant threat to or degradation 12 of the safety of pedestrians. The Court, however, will not weigh the credibility of either parties’ 13 testimony. Zetwick, 850 F.3d at 441. 14 This is a task for the jury. 14 Therefore, the Court finds, assuming the facts in Plaintiff’s favor, that Defendants 15 O’Connell, McFarland, and Wedewer violated Plaintiff’s Fourth Amendment rights against being 16 arrested and cited without probable cause for obstructing a public sidewalk on February 3, 2018. b. Conducting Business Without License 17 18 Separately, Defendants argue that the Defendant officers had probable cause to arrest 19 Plaintiff for conducting business without a license after they learned from other street performers, 20 and Plaintiff confirmed, that he had rented out costumes to them. Plaintiff also failed to provide 21 the officers with a business license. Finally, because Plaintiff was placed under arrest for this 22 conduct, the Defendant officers properly performed a search incident to lawful arrest. Plaintiff 23 responds that, within ten days of the August 12, 2017 incident, Plaintiff obtained the necessary 24 business license to conduct his costume catering business. And Plaintiff indeed presented a copy 25 of this license to Defendant O’Connell on that day. 26 Assuming the facts in the light most favorable to Plaintiff, a jury could find that Plaintiff 27 28 Separately, Defendant O’Connell’s body camera footage only shows the moments immediately leading up to, and after, Plaintiff’s arrest that day, i.e., Defendant O’Connell approaching Plaintiff from behind and handcuffing him. 14 - 38 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 39 of 49 1 was arrested and cited without probable cause for conducting a business without a license. It is 2 undisputed that Plaintiff was arrested and cited for conducting business without a license on this 3 day. Further, Plaintiff’s verified SAC, construed liberally, asserts that he had a valid business 4 license for his costume catering business on this date, and that Defendant O’Connell falsely stated 5 he did not. See California Pro-Life Council, 507 F.3d at 1176. The Court finds, assuming the facts 6 in Plaintiff’s favor, that Defendants O’Connell, McFarland, and Wedewer violated Plaintiff’s 7 Fourth Amendment rights against being arrested and cited without probable cause for conducting 8 a business without a license on February 3, 2018. 15 9 Therefore, the Court denies Defendants summary judgment on this cause of action in 10 Defendants O’Connell, McFarland, and Wedewer’s favor for citing and arresting Plaintiff for 11 conducting business without a license. 16 3. First Amendment Retaliation (Fourth Cause of Action) 12 13 Defendants argue next that summary judgment is appropriate on this cause of action 14 because Plaintiff fails to provide any facts that he was engaged in any protected activity during 15 this incident. He was not dressed in costume and admitted that he had not yet begun his street 16 performance. Further, even if he was engaging in First Amendment protected activity, the officers 17 still had probable cause to arrest him. Plaintiff disagrees, asserting that he was street performing 18 when he was seized. In fact, he was seized pursuant to Defendant LVMPD’s “Zero Tolerance” for 19 street performers policy. 20 The Court finds granting summary judgment on this claim in Defendants’ favor on this 21 cause of action is improper. Assuming the facts in Plaintiff’s favor, a jury could find that he was 22 23 24 25 26 27 28 Plaintiff’s verified SAC states that “certain of Plaintiff’s costumes and inventory were also deteriorated regarding the February 3, 2018 incident.” The Court construes this a separate Fourth Amendment claim for the destruction of his property. See Fuller, 36 F.3d at 68; San Jose Charter, 402 F.3d at 975. Other than this assertion, Plaintiff fails to provide any other facts or evidence to support this claim. Therefore, the Court finds that Plaintiff’s destruction of property claim under the Fourth Amendment fails. 15 16 The Court construes Defendants’ arguments, discussed below, for why they are entitled to qualified immunity for the Defendant officers’ conduct underlying the Third Cause of Action asserted for this date to only apply to their enforcement of the obstructive use of a public sidewalk ordinance, and not for citing Plaintiff for conducting a business without a license. Even if this was not the case, the Court finds that its Fourth Amendment, qualified immunity analysis would apply to this conducting a business without a license citation with equal force. The Court would thus, for the reasons discussed below, deny qualified immunity to the Defendants for this conduct too. - 39 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 40 of 49 1 engaged in a protected activity during the incident. Plaintiff was about to begin street performing 2 when Defendant O’Connell, with help from Defendants McFarland and Wedewer, placed him 3 under arrest. When he was arrested, Plaintiff was dressed as “Logan -- the Wolfy guy with the 4 claws.” Further, months earlier, in two prior incidents—May 5, 2017 and June 24, 2017—Plaintiff 5 was undisputedly street performing when Defendant O’Connell detained him for obstructing a 6 public sidewalk in that area. Defendant O’Connell was therefore familiar with Plaintiff and what 7 Plaintiff did in that area when he observed Plaintiff. A reasonable jury could infer that, when 8 Defendant O’Connell arrested Plaintiff on February 3, 2018, it was to retaliate against Plaintiff for 9 street performing in these earlier incidents and to prevent him from doing so in this instance. 17 10 Second, for the reasons provided above, there are genuine issues of fact as to whether the 11 Defendant officers had probable cause to arrest Plaintiff, either for obstructing a public sidewalk 12 or conducting a business without a license, on that date as well. Moreover, the Defendant officers 13 detained other street performers who rented costumes from Plaintiff. They, however, were not 14 cited and were set free only after they provided the Defendant officers with information on 15 Plaintiff’s costume catering business. Conversely, Plaintiff was arrested, cited, and taken to CCDC 16 for a few hours until he was released on his own recognizance. He was also stopped and cited on 17 the prior dates mentioned above. In the absence of probable cause to arrest Plaintiff, a jury could 18 find that the Defendant officers’ conduct that day was motivated by a desire to retaliate against 19 Plaintiff for street performing. 20 Therefore, the Court finds, assuming the facts in Plaintiff’s favor, that Defendants 21 O’Connell, McFarland, and Wedewer violated Plaintiff’s First Amendment rights by retaliating 22 against him for street performing on February 3, 2018. 23 /// 24 25 26 27 28 Plaintiff asserts that Defendant O’Connell arrested him only minutes after Fox Channel 5 News and independent filmmakers covering the street performer protest left the area. While Plaintiff does not appear to assert that he was arrested for engaging in this protest, the Court notes that protesting is First Amendment protected activity. Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996) (“Activities such as demonstrations, protest marches, and picketing are clearly protected by the First Amendment.”). The inference Plaintiff appears to wish the Court draw from this is that the Defendant officers waited to arrest him for being a street performer until after the new reporters and filmmakers left the area. To be sure, Plaintiff’s SAC does not assert a First Amendment claim based on his right to protest for that date. 17 - 40 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 41 of 49 vi. Qualified Immunity 1 2 Defendants seek qualified immunity in relation to all but the August 12, 2017 incidents. 1. Clearly Established Law 3 4 In deciding whether officers are entitled to qualified immunity, courts, taking the facts in 5 the light most favorable to the nonmoving party, consider whether (1) the facts show that the 6 officer’s conduct violated a constitutional right, and (2) if so, whether that right was clearly 7 established at the time. Tarabochia, 766 F.3d at 1121. As discussed above, Plaintiff has already 8 demonstrated issues of fact as to whether the Defendants officers violated his Fourth and First 9 Amendment rights on May 5, 2017, June 24, 2017, and February 3, 2018. Assuming the disputed 10 facts underlying those dates in Plaintiff’s favor, the Defendant officers’ conduct violated his 11 constitutional rights. 12 Nevertheless, Defendants assert that the Defendant officers are entitled to qualified 13 immunity for their conduct against Plaintiff on these dates. First, Plaintiff cannot demonstrate that 14 the Defendants officers violated any clearly established Fourth or First Amendments rights. 15 Alternatively, the Defendants officers are entitled to qualified immunity for their reliance on 16 Chapter 16.11 of the Clark County Code, which they relied on to detain, cite, and arrest Plaintiff 17 for his presence on the Las Vegas Strip. In turn, Plaintiff asserts that the right to street perform 18 was clearly established by the time he interacted with any of the Defendant officers during these 19 incidents. The Defendant officers, Plaintiff asserts, constantly violated his clearly established right 20 to communicate with the public on the Strip, a public forum. 21 Under the clearly established prong, a court “consider[s] whether a reasonable officer 22 would have had fair notice that the action was unlawful.” Id. at 1125 (internal quotation marks 23 omitted). “This requires two separate determinations: (1) whether the law governing the conduct 24 at issue was clearly established and (2) whether the facts as alleged could support a reasonable 25 belief that the conduct in question conformed to the established law.” Green v. City & County of 26 San Francisco, 751 F.3d 1039, 1052 (9th Cir. 2014). While a case directly on point is not required 27 for a right to be clearly established, “existing precedent must have placed the statutory or 28 constitutional question beyond debate.” Ashcroft v. al–Kidd, 563 U.S. at 731, 741 (2011). Further, - 41 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 42 of 49 1 while the right must be defined at “the appropriate level of generality[, a court] . . . must not allow 2 an overly generalized or excessively specific construction of the right to guide [its] analysis.” 3 Cunningham v. Gates, 229 F.3d 1271, 1288 (9th Cir. 2000). 4 Here, Defendants argue that there was no clearly established right against officers 5 conducting investigatory stops for suspected violation of the obstruction ordinance, the issuance 6 of an obstruction citation, or arrest for obstruction. In fact, there is no state or federal case law 7 addressing the application of an obstructive use ordinance. The Court rejects Defendants’ 8 excessively specific construction of clearly established law in this case. 9 First, the Defendant officers had fair notice by May 5, 2017 that the warrantless arrest of 10 an individual requires probable cause. Blankenhorn v. City of Orange, 485 F.3d 463, 470-71 (9th 11 Cir. 2007). Further, police “‘may not exercise the awesome power at their disposal to punish 12 individuals for conduct that is not merely lawful, but protected by the First Amendment.’” 13 Santopietro, 2023 WL 4568747, at *5 (quoting Velazquez v. City of Long Beach, 793 F.3d 1010, 14 1020 (9th Cir. 2015)). And finally, it was clearly established by November 2006 that there was a 15 “First Amendment right to be free from retaliatory law enforcement action even where probable 16 cause exists.” Ballentine 28 F.4th at 66 (citing Skoog v. County of Clackamas, 469 F.3d 1221, 17 1235 (9th Cir. 2006) and Ford v. City of Yakima, 706 F.3d 1188, 1195-96 (9th Cir. 2013)). 18 Thus, 18 the Defendant officers had fair notice too that the First Amendment prohibited them from detaining 19 Plaintiff in retaliation for his protected speech, as detailed above, notwithstanding the existence of 20 probable cause. 21 Ultimately, the factual disputes underlying May 5, 2017, June 24, 2017, and February 3, 22 2018 incidents discussed above preclude a finding that the Defendants officers: (1) acted 23 reasonably stopping, arresting, and citing Plaintiff on these dates and (2) did not retaliate against 24 25 26 27 28 In 2019, the U.S. Supreme Court abrogated Skoog and Ford but only to the extent they “held that a plaintiff can prevail on a First Amendment retaliatory arrest claim regardless of whether probable cause existed for the arrest.” Ballentine, 28 F.4th at 65 n.1. “A plaintiff either ‘must plead and prove the absence of probable cause for the arrest’ or that the offense at issue is one for which ‘officers have probable cause to make arrests, but typically exercise their discretion not to do so.’” Id. Even then, it was of no moment in Ballentine that an incident was thoroughly investigated, presented to a neutral magistrate, and supported by probable cause. 28 F.4th at 67. Instead, by that time, in 2013, a reasonable officer would have had fair notice that taking adverse action against the plaintiffs for the content of their speech was prohibited, notwithstanding probable cause. Id. 18 - 42 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 43 of 49 1 Plaintiff in violation of his First Amendment rights in stopping, arresting, or citing him 2 notwithstanding the existence of probable cause. “Whether the defendants violated a constitutional 3 right and whether the right was clearly established at the time of the violation are questions of law. 4 If genuine issue[s] of material fact exist[ ] that prevent [ ] a determination of qualified immunity 5 at summary judgment, the case must proceed to trial.” Sandoval v. Las Vegas Metro. Police Dep’t, 6 756 F.3d 1154, 1160 (9th Cir. 2014). Thus, these factual disputes prevent the Court from, at this 7 stage, deciding whether qualified immunity is appropriate. Reed, 863 F.3d at 1207 n.4; Sandoval, 8 756 F.3d at 1166 (overruling a district court’s finding of qualified immunity because by “weighing 9 the evidence in favor of the officers . . . the district court unfairly tipped the reasonableness inquiry 10 11 12 13 in the officer’s favor.”). 2. Reliance on Clark County Code 16.11 In any event, Defendants argue that the Defendant officers reasonably relied on Clark County Code to stop, arrest, and cite Plaintiff. 14 It is certainly true that “an officer who acts in reliance on a duly-enacted statute or 15 ordinance is ordinarily entitled to qualified immunity.” Grossman v. City of Portland, 33 F.3d 16 1200, 1209 (9th Cir. 1994). But as Defendants acknowledge, Plaintiff does not challenge the 17 constitutionality of Clark County Code 16.11. Rather, he challenges the unconstitutional conduct 18 and basis underlying the Defendant officers’ enforcement of Clark County Code 16.11 against 19 him. As Grossman plainly puts it, where “an officer who unlawfully enforces an ordinance in a 20 particularly egregious manner, or in a manner which a reasonable officer would recognize exceeds 21 the bounds of the ordinance,” that officer is not “entitled to immunity even if there is no clear case 22 law declaring the ordinance or the officer’s particular conduct unconstitutional.” Id. at 1210. 23 Here, assuming facts in Plaintiff’s favor, the Defendant officers enforced Clark County 24 Code 16.11 in a particularly egregious way and exceeded its bounds when they stopped, arrested, 25 and cited him on May 5, 2017 and February 3, 2018 in violation of his clearly established Fourth 26 Amendment rights, as described above. Further, assuming the facts in the light most favorable to 27 Plaintiff, the Defendant officers also enforced Clark County Code in a particularly egregious way 28 and exceeded its bounds on May 5, 2017, June 24, 2017 and February 3, 2018 when they used - 43 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 44 of 49 1 Chapter 16.11 to retaliate against him for street performing in violation of his clearly established 2 First Amendment rights notwithstanding the existence of probable cause. 3 Therefore, the Court: (1) denies Defendants Owensby and O’Connell summary judgment 4 in their favor on Plaintiff’s Third Cause of Action premised on a citation without probable cause 5 claim on May 5, 2017; and (2) denies Defendants O’Connell, McFarland, and Wedewer summary 6 judgment on the Third Cause of Action in their favor for citing and arresting Plaintiff for 7 obstructing a public sidewalk on February 3, 2018. Additionally, it (1) denies Defendants’ motion 8 for summary judgment in their favor as to Plaintiff’s Fourth Cause of Action for First Amendment 9 Retaliation against Defendants Owensby and O’Connell for the May 5, 2017 incident; (2) denies 10 Defendants’ motion for summary judgment in their favor as to Plaintiff’s Fourth Cause of Action 11 for First Amendment Retaliation against Defendants O’Connell and McFarland for the June 24, 12 2017 incident; and (3) denies Defendants O’Connell, McFarland, and Wedewer summary 13 judgment in their favor on Plaintiff’s First Amendment Retaliation claim stemming from the 14 February 3, 2017 incident. 15 v. Monell Liability 16 The Court now addresses whether there are no genuine issues of fact that warrant 17 dismissing Plaintiff’s Monell claim against Defendant LVMPD. Defendants seek summary 18 judgment against Plaintiff’s Monell liability claim. This claim is based on the alleged conduct that 19 the Defendant officers engaged in during these incidents. First, they argue that, if the Court finds 20 no constitutional violation, then Plaintiff’s Monell claim fails. Second, even if there was a 21 constitutional violation, Defendants contend Plaintiff has no evidence Defendant LVMPD 22 maintains an unconstitutional policy that resulted in these constitutional violations. Contrary to 23 Plaintiff’s assertions in the SAC, he provides no evidence that LVMPD officers have a “Zero- 24 Tolerance” policy of street performers. Nor does he provide any other evidence of a policy, 25 widespread practice or custom, or that his injuries were caused by a person with final policymaking 26 authority. In fact, some street performers had never, prior to the February 3, 2018 incident, had 27 encounters with law enforcement while street performing on the Strip. 28 The Court rejects both of Defendants’ arguments. First, the Court finds that, assuming the - 44 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 45 of 49 1 facts in Plaintiff’s favor, Plaintiff was subject to constitutional rights violations, namely his First 2 Amendment right to street perform, pursuant to the Defendant officers’ conduct on May 5, 2017, 3 June 24, 2017, and February 3, 2018. 4 Second, the Court finds that there is evidence in the record creating genuine issues of fact 5 that Defendant LVMPD has official policies or established customs that make it liable for these 6 violations. Plaintiff asserts that there is evidence that Defendant LVMPD has commissioned a 7 “Zero-Tolerance” policy for street performers on the Strip which caused him to suffer 8 constitutional violations. This is because on May 5, 2017, Defendant O’Connell stated there was 9 zero tolerance for street performers. If a street performer is not constantly moving with pedestrian 10 traffic on the Strip, LVMPD officers will cite them, and if they continue to “obstruct,” they will 11 be arrested. It was this policy, Plaintiff asserts, that resulted in his First Amendment rights being 12 deprived. 13 Here, there are genuine issues of fact as to whether Defendant LVMPD has a policy of 14 stopping, arresting, and citing street performers who street perform on the Strip. First, it is 15 undisputed that on May 5, 2017, Defendant O’Connell told Plaintiff that he “cannot be out here 16 on the sidewalk obstructing pedestrian traffic”; that what he was doing—street performing—was 17 “obstructing pedestrian traffic”; that Plaintiff could not stop pedestrians on the Strip; and that “if 18 someone wants a picture . . ., take the picture and keep on moving.” It is also undisputed that he 19 told the other detained street performers, that there was “zero tolerance” for them standing on the 20 sidewalk. Furthermore, while Defendant Owensby may have told Plaintiff he was cited for 21 obstructing the public sidewalk, neither he nor the other officers on the scene objected to Defendant 22 O’Connell’s restrictions on street performing behavior on the Strip. In fact, other officers are heard 23 on Defendants Owensby’s body camera informing Plaintiff of this policy. 24 Yet, it is well known that the Las Vegas Strip’s sidewalks “are public fora,” and that street 25 performing, including soliciting tips, on the Strip is protected under the First Amendment. See 26 Santopietro, 73 F.4th at 1024-25; see also id. at 1021 (finding that Defendant LVMPD entered into 27 a 2010 “an Interim Stipulated Memorandum of Understanding” with other street performers where 28 it agreed that, inter alia, “[s]treet performing . . . is not a per se violation of any of the codes or - 45 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 46 of 49 1 statutes being challenged in [the] action,” and “[t]he entirety of Chapter 6 of the Clark County 2 Code, the business licensing codes, as written, is inapplicable to the act of street performing.”). 19 3 Assuming the facts in Plaintiff’s favor, moving with traffic would severely restrict Plaintiff’s 4 ability to street perform. Not to mention that Defendant Owensby told him that soliciting tips as a 5 street performer was not allowed without a business license. A jury could find that these 6 restrictions would severely infringe on his First Amendment right to street perform on the Strip. 7 Indeed, Plaintiff and the other street performers were similarly stopped, arrested, or cited 8 on June 24, 2017 and February 3, 2018 for street performing related conduct. And Plaintiff’s 9 verified SAC asserts that he has not returned to street perform on the Strip out of concern of being 10 targeted by LVMPD officers. A jury could thus find that it was Defendant LVMPD’s policy to 11 remove street performers from the Strip that caused Plaintiff to suffer the constitutional violations 12 discussed above, and not any reasonable or constitutional enforcement of the obstruction of a 13 public sidewalk ordinance against him and the other street performers. See Trevino v. Gates, 99 14 F.3d 911, 918 (9th Cir. 1996) (“Liability for improper custom may not be predicated on isolated 15 or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and 16 consistency that the conduct has become a traditional method of carrying out policy.”). 17 In sum, a jury could find that the officers’ conduct during the May 5, 2017, June 24, 2017, 18 and February 3, 2018 incidents stemmed from an unconstitutional LVMPD policy or custom 19 targeting street performers on the Strip. c. Plaintiff’s Motion for Partial Summary Judgment 20 21 Plaintiff seeks summary judgment against Defendant O’Connell for (1) malicious 22 prosecution for his conduct on May 5, 2017 and February 3, 2018 and for (2) unreasonable searches 23 and seizures for his conduct on June 24, 2017, August 12, 2017, and February 3, 2018. Separately, 24 Plaintiff seeks summary judgment against Defendant LVMPD for Monell liability due to 25 Defendant O’Connell’s conduct on these dates. i. May 5, 2017, June 24, 2017, August 12, 2017, and February 3, 2018 26 27 28 The record before the Court does not indicate whether this interim MOU is still in force or whether the Defendant officers received any training based on this MOU or subsequently related MOU. 19 - 46 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 47 of 49 1 The Court denies Plaintiff’s motion for summary judgment in his favor as to his malicious 2 prosecution cause of action against Defendant O’Connell. First, the Court finds that, for the reasons 3 discussed above, genuine issues of fact exist as to whether Defendant O’Connell maliciously 4 prosecuted Plaintiff for his street performing conduct on May 5, 2017. Second, as discussed above, 5 Plaintiff’s malicious prosecution claim fails as a matter of law for the February 3, 2018 incident 6 because criminal proceedings were not instituted against Plaintiff after the incident. 7 The Court next denies Plaintiff’s motion for summary judgment in his favor as to his 8 unreasonable search and seizure cause of action against Defendant O’Connell. First, for the reasons 9 discussed above, the Court finds that there are issues of disputed fact related to whether the officers 10 had probable cause to arrest Plaintiff on June 24, 2017. Second, the Court denies summary 11 judgment in Plaintiff’s favor as to the August 12, 2017 incident. Other than stating in conclusory 12 fashion that an unreasonable search and seizure occurred that day, Plaintiff fails to raise any basis 13 as to why he is entitled to summary judgment on this claim for that date. Lastly, for the reasons 14 discussed above, the Court denies Plaintiff summary judgment in his favor as to his claim for 15 unreasonable search and seizure for the Defendant officers’ conduct on February 3, 2018. ii. Monell Liability 16 17 Plaintiff asserts he is entitled to summary judgment against Defendant LVMPD for 18 Defendant O’Connell’s official capacity conduct of acting pursuant to a “policy to cite and then 19 arrest street performers who don’t ‘keep moving’ which is a wide spread custom practice” 20 LVMPD. Defendants raise similar arguments against granting summary judgment in Plaintiff’s 21 favor as they do in their motion for summary judgment against this claim. For the reasons discussed 22 above, the Court finds that factual disputes undergird Plaintiff’s Monell claim that prohibit this 23 Court from deciding the Monell claim at this stage. 24 /// 25 /// 26 /// 27 /// 28 /// - 47 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 48 of 49 1 VI. CONCLUSION 2 IT IS ORDERED that Defendants Christopher J. Kopf, Las Vegas Metro Police 3 Department, Andre A. McFarland, Christopher R. O’Connell, Clint W. Owensby, Jonathan M. 4 Riddle, and Dillon A. Wedewer’s MOTION for Summary Judgment (ECF No. 111) is GRANTED 5 in part and DENIED in part. 6 It is GRANTED as to the Second Cause of Action for Deprivation of Property Without 7 Due Process as to the May 5, 2017, June 24, 2017, August 12, 2017, and February 3, 2018 8 incidents. 9 It is DENIED as to Plaintiff’s Monell claim against Defendant LVMPD. Further: 10 11 • 12 As to the First Cause of Action for Malicious Prosecution: • It is DENIED as to the May 5, 2017 Incident against Defendants Owensby and 13 O’Connell. It is GRANTED as to the May 5, 2017 Incident against all other 14 Defendants. 15 16 17 • • It is GRANTED as to the August 12, 2017 and February 3, 2018 incidents. As to the Third Cause of Action for Unreasonable Search and Seizure: • It is GRANTED as to the May 5, 2017 Incident against all Defendants for detaining 18 him under the basis of reasonable suspicion. It is DENIED as to the May 5, 2017 19 Incident against Defendants Owensby and O’Connell for citing him without 20 probable cause. 21 • It is DENIED as to the June 24, 2017 Incident against Defendants O’Connell and 22 McFarland for arresting Plaintiff without probable cause. It is GRANTED as to the 23 June 24, 2017 against all other Defendants. 24 • on citation without probable cause. 25 26 It is GRANTED as to the August 12, 2017 Incident against all Defendants based • It is DENIED as to the August 12, 2017 Incident against Defendants Kopf and 27 Riddle based on the destruction of Plaintiff’s property. It is GRANTED as to the 28 August 12, 2017 Incident against all other Defendants based on the destruction of - 48 - Case 2:19-cv-00638-RFB-VCF Document 150 Filed 09/30/23 Page 49 of 49 Plaintiff’s property. 1 2 • It is GRANTED as to the February 3, 2018 Incident against all Defendants based on the destruction of Plaintiff’s property. 3 4 • It is DENIED as to the February 3, 2018 Incident against Defendants O’Connell, 5 McFarland, and Wedewer for arresting and citing Plaintiff for obstructing a public 6 sidewalk and for conducting a business without a license. It is GRANTED as to 7 the February 3, 2018 Incident against all the other Defendants based on arresting 8 and citing Plaintiff. 9 • As to the Fourth Cause of Action for First Amendment Retaliation 10 • It is DENIED as to the May 5, 2017 Incident against Defendants Owensby and 11 O’Connell. It is GRANTED as to the May 5, 2017 Incident against all other 12 Defendants. 13 • It is DENIED as to the June 24, 2017 Incident against Defendants O’Connell and 14 McFarland. It is GRANTED as to the June 24, 2017 Incident against all other 15 Defendants. 16 • It is GRANTED as to the August 12, 2017 Incident against all Defendants. 17 • It is DENIED as to the February 3, 2018 Incident against Defendants O’Connell, 18 McFarland, and Wedewer. It is GRANTED as to the February 3, 2018 Incident 19 against all the other Defendants. 20 21 22 23 IT IS FURTHER ORDERED that Plaintiff Gerald R Lechner’s MOTION for Partial Summary Judgment’s (ECF No. 115) is DENIED. IT IS FURTHER ORDERED that the parties shall file a joint pretrial order by October 20, 2023. 24 25 DATED: September 30, 2023. 26 __________________________________ RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE 27 28 - 49 -

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.