SAN FRANCISCO (CN) — Three Las Vegas police officers must stand trial for arresting a woman dressed as a “sexy cop” and seeking tips from tourists, the Ninth Circuit ruled Wednesday.
The panel reversed and remanded summary judgment for the three police officers who arrested plaintiff Michele Santopietro, who claims Las Vegas Metropolitan police Officers Clayborn Howell, Kristine Crawford and Francisco Lopez-Rosende violated her right to free speech.
The plainclothes officers arrested Santopietro and Lea Patrick on Las Vegas Strip on May 28, 2011, and charged them with seeking payment for services without a business license.
The two California women were dressed as “sexy cops” and sought tips for tourists to take a photo with them.
Officer Howell had Officer Crawford take a photo of him with the two women.
Santopietro told the plainclothes officers it did not cost anything to take a photo with her and her partner, but they accept tips, Ninth Circuit Judge Marsha Berzon wrote for the panel.
When they refused to tip, Patrick told them to delete the photo, and they were arrested.
The case was dismissed, but Santopietro sued the officers in Federal Court.
U.S. District Judge James Mahan granted the officers summary judgment, finding they had probable cause to arrest her and were not liable for civil rights violations. Santopietro appealed.
“The central dispute is whether Santopietro’s actions went beyond protected expression and moved into the realm of business activity,” Berzon wrote for the unanimous three-judge panel.
“Like the sale of an artist’s paintings, 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.’” (Citations omitted.)
Commercial activities are not inherently protected by the First Amendment, so the facts of the case are disputed, and the district court should not have granted summary judgment to either party, Berzon ruled.
She said the district court, by jury trial, needs to resolve whether Santopietro talked to Crawford about deleting the photo, and whether she is subject to a county law for demanding payment for services without a business license.
If she did, the court needs to resolve factual disputes and determine whether her actions amount to a “quid-pro-quo offer of services properly subject to analysis as a commercial speech regulation.”
Berzon heard oral arguments in the case on July 8, 2016, with Ninth Circuit Judge N. Randy Smith and Chief U.S. District Judge Dana Christensen, sitting by designation from Montana.
Santoprieto was represented by Andrew Jacobs with Snell & Wilmer; the officer by Nicholas Crosby with Marquis Aurbach & Coffing.