Michele Santopietro v. Clayborn Howell

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELE SANTOPIETRO, No. 14-16324
Plaintiff-Appellant, D.C. No.
2:12-cv-01648-
v. JCM-PAL
CLAYBORN HOWELL, Las Vegas ORDER AND
Metropolitan Police Department AMENDED
Officer, Badge 9034; KRISTINE OPINION
CRAWFORD, Las Vegas
Metropolitan Police Officer, Badge
10050; FRANCISCO LOPEZ-
ROSENDE, Las Vegas Metropolitan
Police Department Officer, Badge
8864,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted July 8, 2016
San Francisco, California
Filed May 24, 2017
Amended July 18, 2023
2 SANTOPIETRO V. HOWELL
Before: Marsha S. Berzon and N. Randy Smith, Circuit
Judges, and Dana L. Christensen, * District Judge.
Order;
Opinion by Judge Berzon
SUMMARY **
Civil Rights/First Amendment
The panel filed (1) an order denying a petition for panel
rehearing, denying a petition for rehearing en banc, and
amending the opinion filed on May 24, 2017; and (2) an
amended opinion reversing in part the district court’s
summary judgment in favor of Las Vegas Metropolitan
Police Department officers and remanding, in an action
brought by a street performer who alleged she was
unlawfully arrested for conducting business with another
performer without a license on the Las Vegas Strip, in
violation of her First Amendment rights.
Plaintiff and her friend, both dressed in “sexy cop”
costumes, posed with pedestrians on the Strip and accepted
tips in exchange for photos. Defendant police officers,
working a plain-clothes Strip enforcement assignment,
arrested plaintiff and her friend for doing business without a
license after the officers were asked to pay a tip or delete a
*
The Honorable Dana L. Christensen, United States District Judge for
the District of Montana, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SANTOPIETRO V. HOWELL 3
photo. The charges against plaintiff were ultimately
dropped.
Viewing the record most favorably to plaintiff, the panel
assumed that it was plaintiff’s friend who asked that the
officers pay a tip or delete the photo. The panel concluded
that the First Amendment protections accorded to plaintiff’s
own activities did not lapse because of what her friend said
or did without plaintiff’s direct participation. There was no
evidence at all, for example, of a prior agreement between
the women to require a quid-pro-quo payment for posing in
photos, nor of a demonstrated pattern of demanding quid-
pro-quo payments during performances together. The panel
held that plaintiff associated with her friend only for
expressive activity protected under Berger v. City of Seattle,
569 F.3d 1029 (9th Cir. 2009) (en banc), and that the district
court erred by deciding that the officers had probable cause
to arrest plaintiff despite the First Amendment protections
afforded to her expressive association.
As to the denial of partial summary judgment to plaintiff,
the panel remanded for a determination after trial of the
disputed factual issues and for consideration in light of the
panel’s opinion as to whether, on the facts thus determined,
plaintiff was validly arrested for her own statements and
actions.
4 SANTOPIETRO V. HOWELL
COUNSEL
Andrew M. Jacobs (argued), Snell & Wilmer LLP, Phoenix,
Arizona; Kelly H. Dove, Snell & Wilmer LLP, Las Vegas,
Nevada; for Plaintiff-Appellant.
Nicholas Crosby (argued) and Marquis Aurbach Coffing,
Marquis Aurbach Chtd., Las Vegas, Nevada; Thomas
William Stewart, The Powell Law Firm, Las Vegas, Nevada,
for Defendants-Appellees.
ORDER
The opinion filed May 24, 2017, and reported at 857 F.3d
980 (9th Cir. 2017), is hereby amended. An amended
opinion is filed concurrently with this order.
The panel has unanimously voted to deny the petition for
rehearing. The panel unanimously recommends denial of the
petition for rehearing en banc. The full court has been
advised of the petition for rehearing en banc, and no judge
has requested a vote on whether to rehear the matter en banc.
Fed. R. App. P. 35.
The petition for rehearing and the petition for rehearing
en banc are denied. The motion for determination of the
petition is denied as moot. No further petitions for rehearing
or rehearing en banc will be entertained.
SANTOPIETRO V. HOWELL 5
OPINION
BERZON, Circuit Judge:
Las Vegas Metropolitan Police Department (“Metro”)
officers arrested Michele Santopietro, a street performer, for
conducting business without a license on the Las Vegas
Strip. We consider the constitutionality of her arrest.
BACKGROUND
I. Santopietro’s Arrest
The various people involved in the incident that led to
Santopietro’s arrest provided versions of the events that
vary somewhat but, as will appear, are mostly consistent
as they relate to the constitutional issues Santopietro raises
in this litigation. We recount here both the areas of
agreement and those of discord.
Michele Santopietro is an actress who occasionally
engages in street performance. On several occasions,
Santopietro and her friend, Lea Patrick, traveled to Las
Vegas from California and performed together as “sexy
cops” on the Las Vegas Strip (the “Strip”).
On May 27, 2011, Santopietro flew to Las Vegas to meet
Patrick. The next day, the two women set about presenting
their “sexy cop” routine. Less than an hour into their
performance they were approached by three Metro
officers—Clayborn Howell, Kristine Crawford, and
Francisco Lopez-Rosende (together, “Officers”)—who were
patrolling the Strip in plain clothes.
Howell spoke first, asking Santopietro and Patrick,
“How much does a picture cost?” According to Santopietro,
she replied, “It doesn’t cost anything. We just ask for a tip,”
6 SANTOPIETRO V. HOWELL
to which Patrick added, “We pose for tips. Is that okay?” 1
Howell responded, “okay,” posed for a picture with
Santopietro and Patrick, and, after Crawford snapped a shot,
told the two “sexy cops” he was “going to go get the money
for the tip.” 2
But he did not. Instead, Howell slowly moved a few steps
away from Santopietro and Patrick, offering no payment.
Although Patrick reminded Howell, “don’t forget the tip,”
none was offered. Patrick reiterated: “You said you would
tip,” whereupon Howell made clear that no gratuity was in
store. At that point, either Patrick or Santopietro asked
Crawford to delete the photo from her camera if Howell was
unhappy with it or, according to the Officers, if he was not
going to tip. The parties dispute the characterization of the
statement, as well as of others assertedly made by Patrick.
Specifically, they disagree as to whether the statements were
made as polite requests or as “demands”—albeit, the
Officers concede, “non- coercive” ones.
Crawford then approached Santopietro and queried,
“And what are you going to do to my camera if I don’t give
you a tip?” Santopietro’s reply was, “I’m not going to do
anything to your camera. I’m not going to touch you. What
exactly are you trying to get me to say?” Meanwhile, Howell
1
Officer Howell’s arrest report states that the “females,” without
differentiating between them, said, “We work for tips. Is that OK?” In
his deposition, Howell clarified that Patrick, not Santopietro, made that
statement. The Officers understood the initial statement(s) regarding
posing or working for tips as requesting voluntary tips.
2
Lopez-Rosende did not believe that Howell affirmatively stated he
would give a tip, and he denied that the three Officers had agreed on such
a communication. Crawford did not know whether Howell agreed to tip
but did not dispute Howell’s testimony that he did.
SANTOPIETRO V. HOWELL 7
told Patrick she could not demand a tip, and Patrick
responded, “You’re absolutely right, I can’t demand a tip. I
just said that you said you would tip.” Patrick also told
Howell he had entered into a “verbal agreement” or “verbal
contract” to tip her.
Either seconds before or immediately after Patrick
mentioned the verbal agreement, Howell lifted his shirt to
reveal his Metro badge to Patrick and Santopietro. One or
more of the Officers then proceeded to handcuff the “sexy
cops.” According to Patrick and Santopietro, just Patrick was
handcuffed at first; Santopietro was handcuffed only after
she said, “You can’t arrest [Patrick]; she hasn’t done
anything wrong.” Crawford agreed with this sequence,
testifying in her deposition that Officer Lopez-Rosende, the
third Metro officer at the scene, took umbrage at
Santopietro’s remark and handcuffed her after she made it.
According to Santopietro, she twice protested, as she was
being placed in handcuffs, that she had not said anything to
the Officers to justify her arrest. Crawford did not recall
Santopietro making such a statement, but she agreed that
Lopez-Rosende said something to the effect of, “I’ll tell you
right now it doesn’t matter. You’re here doing business
together, dressed alike, so you don’t have to say anything.”
Whatever precisely was said and whoever said it, the
Officers arrested Santopietro and Patrick for doing business
without a license in violation of Clark County Code
§ 6.56.030. That section provides: “It 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 . . . .” The charges
against Santopietro eventually were dropped.
8 SANTOPIETRO V. HOWELL
II. 2010 Memorandum of Understanding
Santopietro and Patrick were by no means the first street
performers arrested by Metro officers. Most notably, as a
result of repeated arrests and citations made for street
performance activities, two street performers sued Metro
(and other government entities and officials) in 2009 to
prevent similar future arrests and citations, alleging that such
enforcement of Clark County Code § 6.56.030 and related
ordinances violates the First Amendment.
To settle that suit, the parties, including Metro, agreed to
an Interim Stipulated Memorandum of Understanding
(“MOU”) in 2010. The MOU (1) specified that the sidewalks
and pedestrian bridges along the Strip constitute a traditional
public forum; (2) defined “street performer” as “a member
of the general public who engages in any performing art or
the playing of any musical instrument, singing or vocalizing,
with or without musical accompaniment, and whose
performance is not an official part of a sponsored event”; and
(3) recognized that this court held in Berger v. City of Seattle,
569 F.3d 1029 (9th Cir. 2009) (en banc), “that street
performing is expressive speech or expressive conduct
protected under the First Amendment.” The MOU went on
to provide that “[s]treet performing, including the
acceptance of unsolicited tips and the non-coercive
solicitation of tips, is not a per se violation of any of the
codes or statutes being challenged in [the] action,” which
included Chapter 6 of the Clark County Code. The MOU also
recited that “[t]he entirety of Chapter 6 of the Clark County
Code, the business licensing codes, as written, is
inapplicable to the act of street performing.” At the same
time, the MOU cautioned that “[s]treet performers who are
legitimately in violation of a county code, state statute, or
SANTOPIETRO V. HOWELL 9
other law of general applicability are not immune from
prosecution simply because they are street performers.”
All three of the defendant Officers in this case had
received guidance or training concerning the MOU before
Santopietro was arrested. The Officers reported that their
principal takeaway from the training was that street
performing without a license is not a crime, so long as no
“demands” for compensation are made.
III. Procedural History
Santopietro sued Howell, Crawford, and Lopez-
Rosende, asserting eleven federal and state causes of action.
Invoking 42 U.S.C. § 1983, she alleged violations of her
First Amendment free speech rights; Fourth Amendment
right to be free from unreasonable search and seizure; and
Fourteenth Amendment substantive and procedural due
process and equal protection rights. Santopietro also asserted
several causes of action based on state constitutional rights.
She sought declaratory and injunctive relief, as well as
damages for injuries suffered during detention and
attorney’s fees. After discovery, the Officers filed a motion
for summary judgment. Santopietro filed a cross-motion for
partial summary judgment on her § 1983 claim that the arrest
violated her First Amendment rights.
The district court granted the Officers’ summary
judgment motion and denied Santopietro’s. Concluding that
the Officers had probable cause to arrest Santopietro for
doing business without a license, the district court
maintained that, for that reason, Santopietro’s arrest was in
all respects constitutional. In the district court’s view, “the
[O]fficers did not arrest Santopietro because she was a street
performer who was soliciting tips in a non-coercive
manner,” but because the Officers reasonably had
10 SANTOPIETRO V. HOWELL
determined that “Patrick, and by association, Santopietro[,]
were no longer acting as street performers, but . . . were
conducting business without a license as prohibited by
[Clark Cty. Mun. Code] § 6.56.030.” 3 (Emphasis added).
Without addressing any First Amendment concerns, the
district court held that “the offense of doing business without
a license was completed as soon as Santopietro and her
partner offered to perform a service in exchange for
compensation”; the Officers did not need to wait to “arrest
until a tip was demanded several times.” Rather, the district
court opined, “it is reasonable for an officer to believe that
tipping has become involuntary (and thus coerced) when a
street performer reminds someone to tip, demands a tip, and
asserts that a verbal contract exists that necessitates payment
of a tip.” As the district court recognized, however, none of
those actions were completed by Santopietro; only “Patrick
engaged in . . . [that] kind of conduct.”
3
Chapter 6 of the Clark County Code defines peddlers as:
All hawkers, street vendors, and door-to-door sellers
of goods, wares, merchandise, or services for
immediate performance or delivery, sellers of
entertainment or sporting event tickets, mobile food
vendors (Chapter 6.130) and traveling
manufacturers, but not solicitors or canvassers. . . .
Peddling is complete when offer is communicated to
any individual then located within the
unincorporated area of Clark County.
Clark Cty. Mun. Code § 6.56.010. A later subsection makes it “unlawful
for any person, in the unincorporated areas of the county to operate or
conduct business as a . . . peddler, solicitor or canvasser without first
having procured a license for the same . . . .” Id. § 6.56.030
SANTOPIETRO V. HOWELL 11
Santopietro timely appealed both the grant of summary
judgment to the Officers and the denial of her motion for
partial summary judgment. 4
DISCUSSION
Santopietro asserts that at the time of her arrest she was
engaged only in fully First Amendment-protected street
performance, which includes the non- coercive solicitation
of tips. See Berger, 569 F.3d at 1035, 1050. She further
maintains that the Officers had no legal basis for arresting
her on the basis of Patrick’s statements simply because they
were performing together. Moreover, Patrick’s statements,
she argues, could not themselves support probable cause
under the applicable municipal ordinance because they (1)
did not constitute an “offer” to perform a service, and (2)
were constitutionally protected as part of her street
performance. For all those reasons, Santopietro contends, the
Officers violated her constitutional rights by arresting her.
Taking a similar approach to that of the district court, the
Officers argue that they had probable cause to arrest
Santopietro for violating section 6.56.030 of the Clark
County Code, primarily because of her association with
Patrick. It was reasonable to conclude, the Officers maintain,
that the two women were engaged in the business of peddling
without a license to do so.
4
In her complaint, Santopietro claimed the arrest violated not only her
First Amendment rights but also her Fourth Amendment rights to be free
from unreasonable seizure. On appeal, she argues only that the arrest
violated her rights under the First Amendment, so we limit this opinion
to that issue.
12 SANTOPIETRO V. HOWELL
I. Constitutional Violation
We consider first the district court’s grant of summary
judgment to the Officers and conclude it was in error,
because it misconceived the scope of the applicable First
Amendment protections.
The pivotal role of probable cause analysis in Fourth
Amendment jurisprudence is, of course, well-established. As
pertinent here, “a warrantless arrest by a law [enforcement]
officer is reasonable . . . where there is probable cause to
believe that a criminal offense has been or is being
committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004).
“If an officer has probable cause to believe that an individual
has committed even a very minor criminal offense in his
presence, he may . . . arrest the offender.” Atwater v. City of
Lago Vista, 532 U.S. 318, 354 (2001). But “[police] may not
exercise the awesome power at their disposal to punish
individuals for conduct that is not merely lawful, but
protected by the First Amendment.” Velazquez v. City of
Long Beach, 793 F.3d 1010, 1020 (9th Cir. 2015) (quoting
Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir.
1990)). Where no specific criminal statute validly applies to
the facts at hand, an arrest is not supported by probable
cause.
Our principal question, then, is whether it is
constitutionally permissible under the First Amendment to
require that a person hold a business license to conduct the
activities in which Santopietro was engaged at the time of her
arrest. If not, then it was not objectively reasonable for the
Officers to believe Santopietro was violating section
6.56.030, as the ordinance did not validly apply to her
actions. See Mackinney v. Nielsen, 69 F.3d 1002, 1008 (9th
Cir. 1995). We turn now to that question. We review the
SANTOPIETRO V. HOWELL 13
district court’s grant of summary judgment to the Officers de
novo and construe the facts in the light most favorable to
Santopietro. See Fogel v. Collins, 531 F.3d 824, 829 (9th Cir.
2008). 5 In conducting this inquiry, it is helpful to break the
relevant facts into digestible parts. The facts available to the
Metro Officers at the time of the arrest fall into three
categories: Santopietro’s street performance activities; her
association with Patrick and Patrick’s acts; and, finally, any
other actions Santopietro took in the lead-up to the arrest.
A. Street Performance
Performances on public sidewalks and in public parks—
both “traditional public fora”—are protected under the First
Amendment as expressive activity. See Berger, 569 F.3d at1035–36. Although street performances are subject to
reasonable time, place, and manner restrictions, id. at 1036,
we have never upheld a law that subjects individuals or small
groups who wish to engage in non- commercial expressive
activity in public fora to advance notice and permitting
requirements, see id. at 1039. “[T]he significant
governmental interest justifying the unusual step of
requiring citizens to inform the government in advance of
expressive activity has always been understood to arise only
when large groups of people travel together on streets and
sidewalks.” Santa Monica Food Not Bombs v. City of Santa
Monica, 450 F.3d 1022, 1039 (9th Cir. 2006); see also Long
Beach Area Peace Network v. City of Long Beach, 574 F.3d
1011, 1034 (9th Cir. 2009).
5
We later consider whether partial summary judgment should have been
entered for Santopietro on her First Amendment claim, as she requested.
See Part II, infra.
14 SANTOPIETRO V. HOWELL
The sidewalks along the Las Vegas Strip dedicated to
public use are public fora. See Venetian Casino Resort,
L.L.C. v. Local Joint Exec. Bd. of Las Vegas, 257 F.3d 937,
943 (9th Cir. 2001). As applied here, Clark County Code
§ 6.56.030 would have required Santopietro to obtain an
individual license or be employed by a licensed business
before engaging in her activities on the sidewalks of the Las
Vegas Strip. But any such requirement would run squarely
afoul of Berger’s central holding, that a permitting scheme
that “requires single individuals to inform the government of
their intent to engage in expressive activity in a public
forum, a requirement that neither we nor the Supreme Court
has ever countenanced,” is not permissible. 569 F.3d at
1048. The Clark County ordinance is thus indubitably
invalid as applied to Santopietro’s performance as a “sexy
cop.” Because of their training regarding the MOU, the
Officers understood that.
Additionally, the solicitation of tips is “entitled to the
same constitutional protections as traditional speech.”
ACLU of Nev. v. City of Las Vegas, 466 F.3d 784, 792 (9th
Cir. 2006). Municipalities accordingly may not ban either
“passive” solicitation of tips for street performance (e.g.,
putting a hat out or saying “thank you”), or “active”
solicitation (e.g., encouraging a tip orally or by tipping a
hat). See Berger, 569 F.3d at 1052. If only “active”
solicitation is banned, “an officer seeking to enforce [that]
ban ‘must necessarily examine the content of the message
that is conveyed.’” Id. (quoting Forsyth Cty. v. Nationalist
Movement, 505 U.S. 123, 134 (1992)). As a content-based
regulation of speech in a public forum, such a ban is
subject to strict scrutiny, a standard not met by a
distinction between active and passive solicitation of
voluntary tips. Id. at 1052–53. Metro’s 2010 MOU
SANTOPIETRO V. HOWELL 15
appears to incorporate that holding, by recognizing that
“non-coercive solicitation of tips[] is not a per se
violation” of the County Code’s business licensing
provisions.
If Santopietro’s activities remained within the scope of
protected street performance and protected solicitation of
tips, then the Officers could not properly arrest her. So the
central dispute is whether Santopietro’s actions went
beyond protected expression and moved into the realm of
business activity subject to Chapter 6 regulations. More
specifically, the Officers recognize that both Santopietro’s
costumed performance and her reply to Howell’s inquiry
about the cost of a photo—“It doesn’t cost anything. We just
ask for a tip.”—were within the First Amendment’s
protections and so were not regulable commercial activity,
as both Berger and the MOU established. But, the Officers
contend, those actions provide a basis to associate
Santopietro with Patrick and Patrick’s statements, which
they maintain did go beyond the realm of speech protected
under Berger and were regulable under Chapter 6 of the
Clark County Code. We turn, therefore, to whether
Santopietro could be arrested, consistently with the First
Amendment, not for anything she said or did but because of
her association with Patrick.
B. Expressive Association
Because we are examining the grant of summary
judgment to the Officers and so construe the facts in the light
most favorable to Santopietro, we assume here that Patrick,
not Santopietro, asked for the photo to be deleted. We shall
also assume for present purposes, without deciding, that
Patrick’s alleged “verbal agreement” statement, and perhaps
her request that Crawford delete the photograph, established
16 SANTOPIETRO V. HOWELL
probable cause to believe that Patrick was demanding a fee
for service, not a voluntary tip. And we shall finally assume
for present purposes, also without deciding, that such a
demand, although not coercive in the ordinary sense of that
word, would take the quid-pro-quo exchange outside the
ambit of the protected First Amendment expression we
addressed in Berger, such that the exchange itself could
potentially be covered by Clark County Code § 6.56.030.
Under those assumptions, if Patrick’s actions may be
imputed to Santopietro for the purposes of establishing
probable cause to arrest, the scope of facts available to
justify her arrest widens significantly. We conclude,
however, that the First Amendment protections accorded
Santopietro’s own activities do not lapse because of what
Patrick said or did without Santopietro’s direct participation.
Rather, Santopietro and Patrick’s expressive association
may not be the sole basis relied upon to attribute Patrick’s
actions to Santopietro.
Association for the purpose of engaging in protected
activity is itself protected by the First Amendment.
“[I]mplicit in the right to engage in activities protected by
the First Amendment” is “a corresponding right to associate
with others in pursuit of a wide variety of political, social,
economic, educational, religious, and cultural ends.” Roberts
v. U.S. Jaycees, 468 U.S. 609, 622 (1984) (collecting cases);
see also NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,
460 (1958). This First Amendment right extends only to
“expressive association,” that is, to associations “engage[d]
in expressive activity that could be impaired” by government
action. Boy Scouts of Am. v. Dale, 530 U.S. 640, 655 (2000).
“Government actions that may unconstitutionally burden
this [expressive association] freedom may take many
SANTOPIETRO V. HOWELL 17
forms.” Id. at 648. For example, the First Amendment
“restricts the ability of the State to impose liability on an
individual solely because of his association with another.”
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 918–19
(1982). It has long been “established that ‘guilt by
association alone, without [establishing] that an individual’s
association poses the threat feared by the Government,’ is an
impermissible basis upon which to deny First Amendment
rights.” Healy v. James, 408 U.S. 169, 186 (1972) (alteration
in original) (quoting United States v. Robel, 389 U.S. 258,
265 (1967)).
These considerations necessarily factor into whether the
First Amendment allows arresting an individual engaged in
protected expressive activity in conjunction with another
person simply because the second person’s behavior crossed
the line into actions that may be subject to a valid regulation
of commercial activity. Even outside the context of protected
First Amendment expressive association, “a person’s mere
propinquity to others independently suspected of criminal
activity does not, without more, give rise to probable cause.”
Ybarra v. Illinois, 444 U.S. 85, 91 (1979). Claiborne
Hardware and Healy make lucidly clear that the “more”
cannot consist of inferences of possible criminal
involvement based solely on an individual’s First
Amendment-protected activities and associations.
In Claiborne Hardware, for example, a local NAACP
chapter in Claiborne County, Mississippi, voted to boycott
white-owned stores in an effort to put pressure on local
elected officials to implement racial justice reforms. 458
U.S. at 889. Boycott activities occurred between 1966 and
1972. Id. at 893. Local NAACP leaders encouraged stronger
enforcement of the boycott in the wake of a few significant
events, including the assassination of Dr. Martin Luther
18 SANTOPIETRO V. HOWELL
King, Jr., in 1968, and a police shooting of a local black man
in his home in 1969. Id. at 901–02, 902 n.31. Some of the
leaders’ words of encouragement included threatening
language. Id. at 902. Additionally, a handful of enforcement
actions taken by individual participants in the first year of
the boycott had involved violent acts, such as throwing a
brick through the window of a car owned by a boycott
violator. Id. at 903–06. In an action brought by white
business owners against the NAACP, its local leaders, and
more than 100 boycott participants, the Mississippi state
courts rejected the defendants’ arguments that their conduct
was protected by the First Amendment. Id. at 890–91, 895.
The Supreme Court held that First Amendment
protections are not lost “merely because some members of
the group may have participated in conduct or advocated
doctrine that itself is not protected.” Id. at 908. Rather, “the
presence of activity protected by the First Amendment
imposes restraints on the grounds that may give rise to . . .
liability and on the persons who may be held accountable.”
Id. at 916–17 (emphasis added). More specifically, “[f]or
liability to be imposed by reason of association alone, it is
necessary to establish that the group itself possessed
unlawful goals and that the individual held a specific intent
to further those illegal aims.” Id. at 920.
Here, the record indicates the Officers had no evidence
before them when they decided to arrest Santopietro that
suggested that the “sexy cops” association had any purpose
that could have fallen outside the protection of the First
Amendment under Berger. Nor was there evidence of
Santopietro’s intent to engage with Patrick in anything other
than clearly constitutionally protected expressive activity
(which, again, includes active solicitation of voluntary tips).
Both “sexy cop” performers were engaging largely, if not
SANTOPIETRO V. HOWELL 19
entirely, in activity that was not only legitimate but also
constitutionally protected. The only evidence offered by the
Officers on appeal to demonstrate the two women were
“working together” is that they “wore the same costumes,
portrayed the same ‘sexy cop’ characters, and posed for
pictures together”—i.e., evidence of expressive association
to engage in street performance. There is no evidence at all,
for example, of a prior agreement between the women to
require a quid-pro-quo payment for posing in photos, nor of
a demonstrated pattern of demanding quid- pro-quo
payments during performances together. Thus, on the
summary judgment record viewed most favorably to
Santopietro, Santopietro associated with Patrick only for
expressive activity protected under Berger.
Even if Patrick’s follow-ups to Howell’s initial
statements that he would tip or to his later statements that he
would not transformed her actions into regulable
commercial activity—again, we do not decide that
question—they did not transform the street performance
association into an unprotected one, any more than the
violent action by some participants in the NAACP-led
boycott in Claiborne Hardware transformed the entire
boycott effort into unprotected activity.
Indeed, were no First Amendment protections at issue,
we still very much doubt that a “common enterprise”
between Santopietro and Patrick could reasonably be
inferred for the purposes of establishing criminal liability.
“Individualized suspicion” can, under certain circumstances,
be based on an inference of a “common enterprise,” see
Maryland v. Pringle, 540 U.S. 366, 372–73 (2003), but
reliance on such an inference would not be reasonable under
the facts here.
20 SANTOPIETRO V. HOWELL
In Pringle, police pulled a car over for speeding at 3:16
a.m. and seized $763 from the glove compartment and five
plastic baggies containing cocaine from the back seat after
the driver consented to a search of the vehicle. Id. at 367–68.
In addition to the driver, Pringle and one other passenger
were in the car at the time of the stop. Id. When questioned
about the drugs and the money, none of the men offered any
information. Id. at 372. The inference of a common
enterprise was held reasonable in Pringle, because “[t]he
quantity of drugs and cash in the car indicated the likelihood
of drug dealing, an enterprise to which a dealer would be
unlikely to admit an innocent person with the potential to
furnish evidence against him.” Id. at 373. Pringle made
clear, however, that “[a]ny inference that everyone on the
scene of a crime is a party to it must disappear if the
Government . . . singles out the guilty person.” Id. at 374(alteration in original) (quoting United States v. Di Re, 332
U.S. 581, 594 (1948)). 6
The facts offered to justify the arrests of all three men in
the car in Pringle are not present here. At the time of the
6
Similarly, in ruling that the district court did not misstate the law by
instructing the jury that, under certain circumstances, the Fourth
Amendment’s reasonableness requirement could be satisfied without
individualized suspicion, we held in Lyall v. City of Los Angeles, 807
F.3d 1178, 1194 (9th Cir. 2015), that “[i]f a group or crowd of people is
behaving as a unit and it is not possible (as it was in Ybarra) for the police
to tell who is armed and dangerous or engaging in criminal acts and who
is not, the police can have reasonable suspicion as to the members of the
group,” id. at 1195. Here, no one was armed and dangerous, the street
performers were not part of a crowd, and the police, who were directly
dealing with the two individuals involved, directly observed thebehavior
of each one.
SANTOPIETRO V. HOWELL 21
arrests in this case, the Officers were able to single out who
had made the statements they offer as the basis for the arrest.
Additionally, unlike inferences that could be drawn from
traveling in a vehicle with contraband and evidence of drug
dealing, it is unreasonable to assume from the violation at
issue here—doing business without a license—that
Santopietro would have known about and subscribed to any
activity Patrick may have planned or spontaneously decided
to undertake. 7
In sum, to infer from Santopietro and Patrick’s shared
costumes and joint performance, alone, an agreement to
7
We have held that an association may establish more than “mere
propinquity” if there are “some additional circumstances from which it
is reasonable to infer participation in criminal enterprise.” United States
v. Hillison, 733 F.2d 692, 697 (9th Cir. 1984). In making such
determinations, important considerations include, (1) whether the
association is with someone who is known to be engaging in criminal
activity and coincides with that criminal activity, and (2) “whether the
nature of the criminal activity is such that it could not normally be
carried on without the knowledge of all persons present.” Id.The considerations relied upon in Hillison do not justify an arrest
here. The Officers do not maintain that, prior to initiating interaction
with the women, they had formed any individualized suspicion that
either “sexy cop,” whether alone or in association with the other, was
engaged in unlawful activity. Rather, the only facts the Officers
presented to support Santopietro’s arrest were obtained during the
Officers’ interactions with the women immediately preceding their
arrests.
Also, upon approaching the women, the Officers first witnessed the
“sexy cops” engage only in First Amendment protected street
performance, which included their solicitations of tips. Nothing about the
ensuing events suggested any prior agreement or understanding between
the women to associate for anything beyond the carrying out of those
protected activities.
22 SANTOPIETRO V. HOWELL
engage in a regulable transaction impermissibly burdens the
right to engage in purely expressive activity and association.
We hold that something more than that constitutionally
protected activity is required to justify Santopietro’s arrest.
C. Santopietro’s Other Actions
We therefore consider whether there were any actions
Santopietro took on her own that fall outside the First
Amendment’s protection under Berger. Viewing
Santopietro’s activities separately from Patrick’s, we
conclude that summary judgment for the Officers was
improper as, on the facts most favorable to Santopietro, her
actions were entirely protected expression.
The heart of the parties’ disagreement is whether
Santopietro engaged only in street performance or also in
regulable commercial activity. The evidence presents
conflicting accounts regarding (1) which statements
Santopietro made, and (2) the nature and tone of the
statements she made. Santopietro made at least two
statements to the officers before her arrest.
First, when approached by Howell and asked about the
cost of a photo, Santopietro said, “It doesn’t cost anything.
We just ask for a tip. We pose for tip[s].” Second, when
asked by Crawford what she would do to the camera if
Crawford did not delete the photo, Santopietro said, “I’m not
going to do anything to your camera. I’m not going to touch
you. What exactly are you trying to get me to say?” These
statements on their own are, at most, active solicitation of tips
by a street performer and so, for the reasons already
surveyed, an impermissible basis under Berger for arrest.
A third statement is in dispute. Crawford stated in her
deposition that Santopietro indicated she “wanted” the
SANTOPIETRO V. HOWELL 23
officers to delete the photo if they were unhappy with it,
telling Crawford she “had to delete the picture if [the
Officers] didn’t give [the performers] a tip.” (Emphasis
added). But Howell stated in his deposition and arrest report
that Patrick, not Santopietro, made that demand.
Lopez-Rosende deferred to Howell’s version of those
facts. Santopietro also contends that she never made any
such statement. Further, she asserts that Patrick made no
demand directly linking the picture to a monetary payment,
but only quietly queried, “if you’re unhappy, would you
mind deleting it, then, the picture.”
Construing the facts in the light most favorable to
Santopietro, Patrick, not Santopietro, made the comment to
Crawford regarding the deletion of the photo. Santopietro’s
undisputed statements and actions do not even arguably
evidence a business transaction. We need not reach the
second factual dispute, regarding the precise import and tone
of the statement, to conclude that the district court erred in
granting summary judgment to the Officers. 8
8
Alternatively, the Officers contended below and, briefly, on appeal that
they are entitled to qualified immunity. We determine whether qualified
immunity should be granted by construing the facts in the light most
favorable to the non- moving party. See Jeffers v. Gomez, 267 F.3d 895,
903 (9th Cir. 2001) (per curiam). As we have explained, viewing the
facts in the light most favorable to Santopietro, it is plain under Berger,
569 F.3d 1029, and the Court’s longstanding freedom of association
precedent, that her activities on the record as so construed were fully
protected under the First Amendment. No reasonable officer could have
inferred otherwise. See Ashcroft v. al-Kidd, 563 U.S. 731, 741–42
(2011).
24 SANTOPIETRO V. HOWELL
II. Santopietro’s Motion for Summary Judgment
Because Santopietro has appealed the district court’s
denial of her motion for partial summary judgment as well
as the final order granting summary judgment to the
Officers, we consider that denial separately. See Jones-
Hamilton Co. v. Beazer Materials & Servs., Inc., 973 F.2d
688, 693–94 (9th Cir. 1992). Viewing the facts this time
most favorably to the Officers, we conclude that denial of
summary judgment to Santopietro was proper, although
Santopietro may well prevail after trial.
Again, genuine disputes of fact remain as to (1) which
statements Santopietro made, and (2) the nature of the
statements made. Resolving the first question in the light
most favorable to the Officers, it was Santopietro, not
Patrick, who either asked Crawford to delete the photograph
if Howell did not like it, or demanded that she do so if the
Officers refused to provide a tip. As to the nature of that
statement, on the evidence before us, a reasonable jury could
conclude that Santopietro instigated a quid-pro-quo
transaction by demanding that Crawford disgorge the
photograph if the officers refused to fulfill their end of the
bargain. If Santopietro’s words or actions demonstrated that
she was selling her performance, the sale would still likely
warrant First Amendment protection. See Anderson v. City
of Hermosa Beach, 621 F.3d 1051, 1063 (9th Cir. 2010)
(“[E]ven ‘an artist’s sale of his original artwork constitutes
speech protected under the First Amendment.’” (quoting
White v. City of Sparks, 500 F.3d 953, 954 (9th Cir. 2007)).
But, as Anderson went on to hold, the “business” of selling
protected expression can be “subject to reasonable time,
place, or manner restrictions.” Id. Determining whether
Clark County Code § 6.56.030 as applied to a quid-pro-quo
exchange of a photograph is a reasonable “time, place, or
SANTOPIETRO V. HOWELL 25
manner” restriction “requires an inquiry into whether the
restriction: (1) is justified without reference to the content of
the regulated speech; (2) is narrowly tailored to serve a
significant governmental interest; and (3) leaves open ample
alternative channels for communication of the information.”
Id. at 1064 (internal quotation marks and alteration omitted).
Because the parties have not addressed whether the peddling
licensing ordinance as applied to sales by, rather than
voluntary tips to, a street artist is a valid time, place, or
manner restriction, we leave the resolution of that question,
if it proves necessary, to the district court on remand.
Given that genuine disputes of material fact persist in the
record, the district court should not have granted summary
judgment to either party. See Simo v. Union of Needletrades,
322 F.3d 602, 610 (9th Cir. 2003). On remand to the district
court to review the validity of Santopietro’s arrest under the
appropriate First Amendment constraints, the district
court—by a jury trial, of course, if properly requested—
should first resolve the factual dispute concerning whether
Santopietro made the statement regarding deletion of the
photo. If she did, the trier of fact should additionally resolve
the factual disputes as to the nature of her statement and then
determine whether Santopietro’s actions demonstrate a quid-
pro-quo offer for services properly subject to analysis as a
sale of her performance. If so, the district court should decide
whether the licensing requirement under Clark County Code
§ 6.56.030 is a valid time, place, or manner restriction as
applied to the facts as determined.
CONCLUSION
The district court erred by deciding that the Officers had
probable cause to arrest Santopietro despite the First
Amendment protections afforded to her expressive
26 SANTOPIETRO V. HOWELL
association with Patrick. We therefore reverse the grant of
summary judgment to the Officers. As to the denial of partial
summary judgment to Santopietro, we remand for a
determination after trial of the disputed factual issues and for
consideration in light of this opinion as to whether, on the
facts thus determined, Santopietro was validly arrested for
her own statements and actions.
REVERSED, IN PART, AND REMANDED FOR
FURTHER PROCEEDINGS.