The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHELE SANTOPIETRO, No. 14-16324
Plaintiff-Appellant,
D.C. No.
v. 2:12-cv-01648-
JCM-PAL
CLAYBORN HOWELL, Las Vegas
Metropolitan Police Department
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
2 SANTOPIETRO V. HOWELL
Before: Marsha S. Berzon, and N. Randy Smith, Circuit
Judges, and Dana L. Christensen,* Chief District Judge.
Opinion by Judge Berzon
SUMMARY**
Civil Rights
The panel reversed, in part, the district court’s summary
judgment in favor of Las Vegas Metropolitan Police
Department officers, and remanded in an action brought by a
street performer who alleged that she was unlawfully arrested
for conducting business with another performer without a
license on the Las Vegas Strip, in violation of her First
Amendment rights.
Plaintiff and her friend, both dressed in “sexy cop”
costumes, posed with pedestrians on the Strip and accepted
tips in exchange for photos. Defendant police officers,
working a plain-clothes Strip enforcement assignment,
arrested plaintiff and her friend for doing business without a
license after the officers were asked to pay a tip or delete a
photo. The charges against plaintiff were ultimately dropped.
*
The Honorable Dana L. Christensen, United States Chief 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
The panel held that, on the summary judgment record
viewed most favorably to plaintiff, the panel would assume
that it was plaintiff’s friend who asked that the officers pay a
tip or delete the photo. The panel concluded that the full First
Amendment protections accorded to plaintiff’s own activities
did not lapse because of what her friend said or did without
plaintiff’s direct participation. The panel determined that
there was no evidence at all, for example, of a prior
agreement between the women to require a quid-pro-quo
payment for posing in photos, nor of a demonstrated pattern
of demanding quid-pro-quo payments during performances
together. The panel held that plaintiff associated with her
friend only for expressive activity protected under Berger v.
City of Seattle, 569 F.3d 1029 (9th Cir. 2009) (en banc), and
that the district court erred by deciding that the officers had
probable cause to arrest plaintiff despite the First Amendment
protections afforded to her expressive association.
As to the denial of partial summary judgment to plaintiff,
the panel remanded for a determination after trial of the
disputed factual issues and for consideration in light of the
panel’s opinion as to whether, on the facts thus determined,
plaintiff was validly arrested for her own statements and
actions.
COUNSEL
Andrew M. Jacobs (argued), Snell & Wilmer LLP, Tucson,
Arizona; Kelly H. Dove, Snell & Wilmer LLP, Las Vegas,
Nevada; for Plaintiff-Appellant.
Nicholas Crosby (argued) and Marquis Aurbach Coffing, Las
Vegas, Nevada, for Defendants-Appellees.
4 SANTOPIETRO V. HOWELL
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.
SANTOPIETRO V. HOWELL 5
Howell spoke first, asking Santopietro and Patrick, “How
much does a picture cost?” According to Santopietro, she
replied, “It doesn’t cost anything. We just ask for a tip,” to
which Patrick added, “We pose for tips. Is that okay?”1
Howell responded, “okay,” posed for a picture with
Santopietro and Patrick, and, after Crawford snapped a shot,
told the two “sexy cops,” he was “going to go get the money
for the tip.”2
But he did not. Instead, Howell slowly moved a few steps
away from Santopietro and Patrick, offering no payment.
Although Patrick reminded Howell, “don’t forget the tip,”
none was offered. Patrick reiterated: “You said you would
tip,” whereupon Howell made clear that no gratuity was in
store. At that point, either Patrick or Santopietro asked
Crawford to delete the photo from her camera if Howell was
unhappy with it or, according to the Officers, if he was not
going to tip. The parties dispute the characterization of the
statement, as well as of others assertedly made by Patrick.
Specifically, they disagree as to whether the statements were
made as polite requests or as “demands”—albeit, the Officers
concede, “non-coercive” ones.
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.
6 SANTOPIETRO V. HOWELL
Crawford then approached Santopietro and queried, “And
what are you going to do to my camera if I don’t give you a
tip?” Santopietro’s reply was, “I’m not going to do anything
to your camera. I’m not going to touch you. What exactly are
you trying to get me to say?” Meanwhile, Howell told Patrick
she could not demand a tip, and Patrick responded, “You’re
absolutely right, I can’t demand a tip. I just said that you said
you would tip.” Patrick also told Howell he had entered into
a “verbal agreement” or “verbal contract” to tip her.
Either seconds before or immediately after Patrick
mentioned the verbal agreement, Howell lifted his shirt to
reveal his Metro badge to Patrick and Santopietro. One or
more of the Officers then proceeded to handcuff the “sexy
cops.” According to Patrick and Santopietro, just Patrick was
handcuffed at first; Santopietro was handcuffed only after she
said, “You can’t arrest [Patrick]; she hasn’t done anything
wrong.” Crawford agreed with this sequence, testifying in her
deposition that Officer Lopez-Rosende, the third Metro
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
SANTOPIETRO V. HOWELL 7
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.
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
8 SANTOPIETRO V. HOWELL
Clark County Code. The MOU also recited that “[t]he entirety
of Chapter 6 of the Clark County Code, the business licensing
codes, as written, is inapplicable to the act of street
performing.” At the same time, the MOU cautioned that
“[s]treet performers who are legitimately in violation of a
county code, state statute, or other law of general
applicability are not immune from prosecution simply
because they are street performers.”
All three of the defendant Officers in this case had
received guidance or training concerning the MOU before
Santopietro was arrested. The Officers reported that their
principal takeaway from the training was that street
performing without a license is not a crime, so long as no
“demands” for compensation are made.
III. Procedural History
Santopietro sued Howell, Crawford, and Lopez-Rosende,
asserting eleven federal and state causes of action. Invoking
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.
SANTOPIETRO V. HOWELL 9
The district court granted the Officers’ summary
judgment motion and denied Santopietro’s. Concluding that
the Officers had probable cause to arrest Santopietro for
doing business without a license, the district court maintained
that, for that reason, Santopietro’s arrest was in all respects
constitutional. In the district court’s view, “the [O]fficers did
not arrest Santopietro because she was a street performer who
was soliciting tips in a non-coercive manner,” but because the
Officers reasonably had determined that “Patrick, and by
association, Santopietro[,] were no longer acting as street
performers, but . . . were conducting business without a
license as prohibited by [Clark Cty. Mun. Code] § 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
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
10 SANTOPIETRO V. HOWELL
court opined, “it is reasonable for an officer to believe that
tipping has become involuntary (and thus coerced) when a
street performer reminds someone to tip, demands a tip, and
asserts that a verbal contract exists that necessitates payment
of a tip.” As the district court recognized, however, none of
those actions were completed by Santopietro; only “Patrick
engaged in . . . [that] kind of conduct.”
Santopietro timely appealed both the grant of summary
judgment to the Officers and the denial of her motion for
partial summary judgment.4
DISCUSSION
Santopietro asserts that at the time of her arrest she was
engaged only in fully First Amendment-protected street
performance, which includes the non-coercive solicitation of
tips. See Berger, 569 F.3d at 1035, 1050. She further
maintains that the Officers had no legal basis for arresting her
on the basis of Patrick’s statements simply because they were
performing together. Moreover, Patrick’s statements, she
argues, could not themselves support probable cause under
the applicable municipal ordinance because they (1) did not
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.
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.
SANTOPIETRO V. HOWELL 11
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.
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.
12 SANTOPIETRO V. HOWELL
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
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 at 1035–36. Although street performances are
subject to reasonable time, place, and manner restrictions, id.
at 1036, we have never upheld a law that subjects individuals
or small groups who wish to engage in non-commercial
expressive activity in public fora to advance notice and
permitting requirements, see id. at 1039. “[T]he significant
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.
SANTOPIETRO V. HOWELL 13
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).
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).
14 SANTOPIETRO V. HOWELL
See Berger, 569 F.3d at 1052. If only “active” solicitation is
banned, “an officer seeking to enforce [that] ban ‘must
necessarily examine the content of the message that is
conveyed.’” Id. (quoting Forsyth Cty. v. Nationalist
Movement, 505 U.S. 123, 134 (1992)). As a content-based
regulation of speech in a public forum, such a ban is subject
to strict scrutiny, a standard not met by a distinction between
active and passive solicitation of voluntary tips. Id. at
1052–53. Metro’s 2010 MOU appears to incorporate that
holding, by recognizing that “non-coercive solicitation of
tips[] is not a per se violation” of the County Code’s business
licensing provisions.
If Santopietro’s activities remained within the scope of
protected street performance and protected solicitation of tips,
then the Officers could not properly arrest her. So the central
dispute is whether Santopietro’s actions went beyond
protected expression and moved into the realm of business
activity subject to Chapter 6 regulations. More specifically,
the Officers recognize that both Santopietro’s costumed
performance and her reply to Howell’s inquiry about the cost
of a photo—“It doesn’t cost anything. We just ask for a
tip.”—were within the First Amendment’s protections and so
were not regulable commercial activity, as both Berger and
the MOU established. But, the Officers contend, those actions
provide a basis to associate Santopietro with Patrick and
Patrick’s statements, which they maintain did go beyond the
realm of fully protected speech and were regulable under
Chapter 6 of the Clark County Code. We turn, therefore, to
whether Santopietro could be arrested, consistently with the
First Amendment, not for anything she said or did but
because of her association with Patrick.
SANTOPIETRO V. HOWELL 15
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
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 fully protected First Amendment expression, such
that the exchange itself could be regulated under Clark
County Code § 6.56 as commercial speech. Such speech,
which “does no more than propose a commercial
transaction,” would be subject to the more forgiving First
Amendment analysis laid out in Central Hudson Gas &
Electric Corp. v. Public Service Commission of N.Y.,
447 U.S. 557 (1980). See Hunt v. City of Los Angeles,
638 F.3d 703, 715–17 (9th Cir. 2011) (quoting United States
v. United Foods, Inc., 533 U.S. 405, 409 (2001)).
Under those assumptions, if Patrick’s actions may be
imputed to Santopietro for the purposes of establishing
probable cause to arrest, the scope of facts available to justify
her arrest widens significantly. We conclude, however, that
the full First Amendment protections accorded Santopietro’s
own activities do not lapse because of what Patrick said or
did without Santopietro’s direct participation. Rather,
16 SANTOPIETRO V. HOWELL
Santopietro and Patrick’s expressive association may not be
the sole basis relied upon to attribute Patrick’s actions to
Santopietro.
Association for the purpose of engaging in protected
activity is itself protected by the First Amendment.
“[I]mplicit in the right to engage in activities protected by the
First Amendment” is “a corresponding right to associate with
others in pursuit of a wide variety of political, social,
economic, educational, religious, and cultural ends.” Roberts
v. U.S. Jaycees, 468 U.S. 609, 622 (1984) (collecting cases);
see also NAACP v. Alabama ex rel. Patterson, 357 U.S. 449,
460 (1958). This First Amendment right extends only to
“expressive association,” that is, to associations “engage[d]
in expressive activity that could be impaired” by government
action. Boy Scouts of Am. v. Dale, 530 U.S. 640, 655 (2000).
“Government actions that may unconstitutionally burden
this [expressive association] freedom may take many forms.”
Id. at 648. For example, the First Amendment “restricts the
ability of the State to impose liability on an individual solely
because of his association with another.” NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 918–19 (1982). It
has long been “established that ‘guilt by association alone,
without [establishing] that an individual’s association poses
the threat feared by the Government,’ is an impermissible
basis upon which to deny First Amendment rights.” Healy v.
James, 408 U.S. 169, 186 (1972) (alteration in original)
(quoting United States v. Robel, 389 U.S. 258, 265 (1967)).
These considerations necessarily factor into whether the
First Amendment allows arresting an individual engaged in
protected expressive activity in conjunction with another
person simply because the second person’s behavior crossed
SANTOPIETRO V. HOWELL 17
the line into actions that may be unprotected and
unlawful—or, at least, are less clearly protected and lawful,
because they involve commercial speech. Even outside the
context of protected First Amendment expressive association,
“a person’s mere propinquity to others independently
suspected of criminal activity does not, without more, give
rise to probable cause.” Ybarra v. Illinois, 444 U.S. 85, 91
(1979). Claiborne Hardware and Healy make lucidly clear
that the “more” cannot consist of inferences of possible
criminal involvement based solely on an individual’s First
Amendment-protected activities and associations.
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 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
First Amendment. Id. at 890–91, 895.
18 SANTOPIETRO V. HOWELL
The Supreme Court held that First Amendment
protections are not lost “merely because some members of the
group may have participated in conduct or advocated doctrine
that itself is not protected.” Id. at 908. Rather, “the presence
of activity protected by the First Amendment imposes
restraints on the grounds that may give rise to . . . liability
and on the persons who may be held accountable.” Id. at
916–17 (emphasis added). More specifically, “[f]or liability
to be imposed by reason of association alone, it is necessary
to establish that the group itself possessed unlawful goals and
that the individual held a specific intent to further those
illegal aims.” Id. at 920.
Here, the record indicates the Officers had no evidence
before them when they decided to arrest Santopietro that
suggested that the “sexy cops” association had any purpose
that could have fallen outside the protection of the First
Amendment under Berger. Nor was there evidence of
Santopietro’s intent to engage with Patrick in anything other
than clearly constitutionally protected expressive activity
(which, again, includes active solicitation of voluntary tips).
Both “sexy cop” performers were engaging largely, if not
entirely, in activity that was not only legitimate but also
constitutionally protected. The only evidence offered by the
Officers on appeal to demonstrate the two women were
“working together” is that they “wore the same costumes,
portrayed the same ‘sexy cop’ characters, and posed for
pictures together”—i.e., evidence of expressive association to
engage in street performance. There is no evidence at all, for
example, of a prior agreement between the women to require
a quid-pro-quo payment for posing in photos, nor of a
demonstrated pattern of demanding quid-pro-quo payments
during performances together. Thus, on the summary
judgment record viewed most favorably to Santopietro,
SANTOPIETRO V. HOWELL 19
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.
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
20 SANTOPIETRO V. HOWELL
evidence against him.” Id. at 373. Pringle made clear,
however, that “[a]ny inference that everyone on the scene of
a crime is a party to it must disappear if the Government . . .
singles out the guilty person.” Id. at 374 (alteration in
original) (quoting United States v. Di Re, 332 U.S. 581, 594
(1948)).6
The facts offered to justify the arrests of all three men in
the car in Pringle are not present here. At the time of the
arrests in this case, the Officers were able to single out who
had made the statements they offer as the basis for the arrest.
Additionally, unlike inferences that could be drawn from
traveling in a vehicle with contraband and evidence of drug
dealing, it is unreasonable to assume from the violation at
issue here—doing business without a license—that
Santopietro would have known about and subscribed to any
activity Patrick may have planned or spontaneously decided
to undertake.7
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 the behavior
of each one.
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
SANTOPIETRO V. HOWELL 21
In sum, to infer from Santopietro and Patrick’s shared
costumes and joint performance, alone, an agreement to
engage in a regulable transaction impermissibly burdens the
right to engage in purely expressive activity and association.
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.
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
The heart of the parties’ disagreement is whether
Santopietro engaged only in street performance or also in
regulable commercial activity. The evidence presents
conflicting accounts regarding (1) which statements
Santopietro made, and (2) the nature and tone of the
statements she made.
Santopietro made at least two statements to the officers
before her arrest. First, when approached by Howell and
asked about the cost of a photo, Santopietro said, “It doesn’t
cost anything. We just ask for a tip. We pose for tip[s].”
Second, when asked by Crawford what she would do to the
camera if Crawford did not delete the photo, Santopietro said,
“I’m not going to do anything to your camera. I’m not going
to touch you. What exactly are you trying to get me to say?”
These statements on their own are, at most, active solicitation
of tips by a street performer and so, for the reasons already
surveyed, an impermissible basis under Berger for arrest.
A third statement is in dispute. Crawford stated in her
deposition that Santopietro indicated she “wanted” the
officers to delete the photo if they were unhappy with it,
telling Crawford she “had to delete the picture if [the
Officers] didn’t give [the performers] a tip.” (Emphasis
added). But Howell stated in his deposition and arrest report
that Patrick, not Santopietro, made that demand. Lopez-
Rosende deferred to Howell’s version of those facts.
Santopietro also contends that she never made any such
statement. Further, she asserts that Patrick made no demand
directly linking the picture to a monetary payment, but only
quietly queried, “if you’re unhappy, would you mind deleting
it, then, the picture.”
SANTOPIETRO V. HOWELL 23
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
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
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
most favorable to the Officers, it was Santopietro, not Patrick,
who either asked Crawford to delete the photograph if Howell
did not like it, or demanded that she do so if the Officers
refused to provide a tip. As to the nature of that statement, on
the evidence before us, a reasonable jury could conclude that
Santopietro made a “demand” rather than a polite request. If
determined to be sufficiently assertive or forceful, and also to
link directly to monetary payment, such a quid-pro-quo
demand could fall outside protected noncommercial First
Amendment activity and support the validity of the arrest
based on Santopietro’s actions alone.
We note that, like the sale of an artist’s paintings in White
v. City of Sparks, 500 F.3d 953, 956 (9th Cir. 2007), the sale
of a snapshot of a performer’s protected street performance
is likely protected in itself. Although the “customer” is
involved in the process of creating the work at issue here
because Crawford took the photo of Howell interacting with
the “sexy cops,” there is no dispute that Santopietro and
Patrick “applie[d their] creative talents,” Anderson v. City of
Hermosa Beach, 621 F.3d 1051, 1062 (9th Cir. 2010), to help
create the picture. Thus, assuming full First Amendment
protection extends to the expressive work—i.e., to
Crawford’s picture of Howell with the “sexy cops” in their
performance personae—such protection also applies to the
sale of that work. Id. at 1063.
Commercial activities, including quid-pro-quo
transactions, however, are not inherently protected under the
First Amendment. Rather, “restrictions on protected
expression are distinct from restrictions on economic activity
or, more generally, on nonexpressive conduct,” and “the First
Amendment does not prevent restrictions directed at
commerce or conduct from imposing incidental burdens on
SANTOPIETRO V. HOWELL 25
speech.” Sorrell v. IMS Health Inc., 564 U.S. 552, 567
(2011). For instance, ordinances “that ban certain conduct
associated with solicitation,” such as the physical exchange
of money, “do not violate the prohibition on content-based
regulation of speech,” even though the solicitation itself is
fully protected speech. Berger, 569 F.3d at 1051 (emphasis
omitted).9
Given that genuine disputes of material fact persist in the
record, the district court should not have granted summary
judgment to either party. See Simo v. Union of Needletrades,
322 F.3d 602, 610 (9th Cir. 2003). On remand to the district
court to review the validity of Santopietro’s arrest under the
appropriate First Amendment constraints, the district
court—by a jury trial, of course, if properly
requested—should first resolve the factual dispute concerning
whether Santopietro made the statement regarding deletion of
the photo. If she did, the trier of fact should additionally
resolve the factual disputes as to the nature of her statement
and then determine whether Santopietro’s actions
demonstrate a quid-pro-quo offer for services properly
subject to analysis as a commercial speech regulation. If so,
the district court should conduct that analysis and decide
whether the licensing requirement under Clark County Code
§ 6.56.030 validly applies to the facts as determined.
9
The license requirement imposed on Santopietro’s alleged
communication of an offer for the sale of goods or services, see Clark Cty.
Mun. Code § 6.56.010–030, may be a valid regulation of commercial
speech. See Sorrell, 564 U.S. at 571–72, 579. As the parties have not
addressed whether the peddling ordinance is a valid regulation of
commercial speech as applied to the statements made by either “sexy
cop,” we do not address the issue.
26 SANTOPIETRO V. HOWELL
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
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.