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, 569F.3d1029(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 Metropo