“Sexy cops” patrolling the Las Vegas Strip. Source: loweringthebar.net.

This post was authored by Otten Johnson summer law clerk David Brewster.  David is a rising third-year law student at the University of Denver Sturm College of Law.

Last month, street performers in the Ninth Circuit got a bigger tip than anticipated when the Ninth Circuit Court of Appeals reversed a Nevada federal district court’s order granting summary judgment to three Las Vegas police officers, where the police officers ticketed two street performers on the famous Las Vegas Strip.  In its ruling, the appeals court found that the street performers—who dressed up as “sexy cops” to take photos with tourists—could not constitutionally be required to obtain a business license for engaging in expressive activity and association.

Michele Santopietro is an actress turned street performer who occasionally dresses up as a “sexy cop” on the Las Vegas Strip.  In March of 2011, Santopietro and her colleague Lea Patrick performed as “sexy cops” on the Strip as they were approached by three individuals indicating a desire to take a photograph.  The “sexy cops” happily obliged.  Following the photograph, Patrick persistently reminded the three individuals that the “sexy cops” work for tips.  Unbeknownst to Santopietro and Patrick, the three individuals in question were real Las Vegas Metro police officers dressed down in street clothes.  Due to Patrick’s persistence and claim that the officer entered into a “verbal contract” to give a tip, the Metro police officers arrested the two women under Clark County Code § 6.56.030 which states: “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.”

Santopietro subsequently brought suit alleging eleven state and federal causes of action, including alleged violations of her First Amendment free speech rights.  Ignoring her 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,” and that “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.”  Interestingly, while granting summary judgment in favor of the Defendants, the district court acknowledged that all of the aforementioned actions were completed by Patrick and not Santopietro.

Breaking from the district court’s analysis, the Ninth Circuit articulated the primary issue as, “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.”  As the court noted, “street performances are subject to reasonable time, place, and manner restrictions,” however, it has “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.”  Importantly, under Ninth Circuit precedent, a “permitting scheme that requires single individuals to inform the government of their intent to engage in expressive activity in a public forum . . . is not permissible,” and the solicitation of tips is “entitled to the same constitutional protections as traditional speech.”  Thus, as applied to Santopietro’s “sexy cop” performance, Clark County Code § 6.56.030 was “indubitably invalid.”  Further, local governments may not ban either passive or active solicitation of tips for street performances, as any such ban necessarily requires police officers to “examine the content of the message that is conveyed.”

Although the Ninth Circuit reversed the district court’s grant of summary judgment to the police officers, it agreed with the district court’s denial of summary judgment to Santopietro.  The appeals court remanded the case back to the district court for further findings on Santopietro’s motion for summary judgment, noting that there were several outstanding factual issues.  In particular, the appeals court implied that the district court should consider whether Santopietro’s expressive activity is First Amendment-protected activity, or is instead an unprotected commercial activity.  To the extent the law in question addressed solely commercial activity, there is a much stronger likelihood that it would be upheld.

Santopietro v. Howell, 857 F.3d 980 (9th Cir. 2017).