FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHELE SANTOPIETRO, 

Plaintiff-Appellant, 

 v. 

CLAYBORN HOWELL, Las Vegas 

Metropolitan Police Department 

Officer, Badge 9034; KRISTINE 

CRAWFORD, Las Vegas 

Metropolitan Police Officer, Badge 

10050; FRANCISCO LOPEZROSENDE, Las Vegas Metropolitan 

Police Department Officer, Badge 

8864, 

Defendants-Appellees.

No. 14-16324 

D.C. No. 

2:12-cv-01648-

JCM-PAL 

ORDER AND 

AMENDED

OPINION

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 quidpro-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 

againstSantopietro 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 LopezRosende, 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 doso.

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

activitiesin 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 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 

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 posesthe 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 JonesHamilton 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 quidpro-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.