Judge rules street performers’ lawsuit can continue against Metro Police, Venetian

A judge has ruled that street performers, who for years have clashed with casino owners over whether Strip sidewalks are public or private venues, can continue a lawsuit against Metro Police and the Venetian.

For years, street performers and Las Vegas casino operators have clashed over whether the sidewalks along the Strip and Fremont Street are a public stage or private property.

Now, a new court ruling suggests police and casino security personnel will be held accountable if the free speech rights of those performing on the sidewalks are threatened.

The ruling was issued last week by U.S. District Judge Philip Pro, who refused to dismiss the bulk of a lawsuit claiming two street performers were wrongly detained by Venetian security officers and Las Vegas police.

In his ruling, Pro rejected claims by the two performers that the Las Vegas Metropolitan Police Department has a policy of harassing individuals staging street performances.

However, he allowed the performers, who are brothers, to continue pursuing claims against Sheriff Doug Gillespie related to First Amendment issues. The brothers contend Gillespie has failed to adequately train Metro Police officers on free speech conflicts that the American Civil Liberties Union says arise when casinos try to prevent street performers from bothering would-be casino patrons on the sidewalk.

Pro wrote that the plaintiffs showed that “confusion reigns amongst line officers when confronted with casino property owners claiming rights to the sidewalks on the Strip.” The judge added that Gillespie was aware of the confusion.

“Thus, a reasonable jury could find Gillespie was deliberately indifferent to the risk that the current policies and training were inadequate,” the judge wrote.

Pro’s ruling was an interim one on whether individual lawsuit claims should be dismissed. As such, it did not mean any claims have been proven.

Both sides will have a chance to prove and disprove the remaining claims at a trial that has yet to be scheduled, though it could be called off if the suit is settled.

The ruling came in a lawsuit filed against Metro Police and the Venetian by Jason Perez-Morciglio and his brother, Sebastian Perez-Morciglio. The two dress up as a Zorro-like bandit and Darth Vader, respectively, and perform on the sidewalks along the Strip.

Their suit was filed by ACLU of Nevada attorneys after the brothers were detained, handcuffed and taken to a Venetian security office on Jan. 15, 2010.

Some of the facts in the case are disputed, but in his order, Pro summarized the incident this way: Jason Perez-Morciglio was in costume, but his brother was not, when they walked in front of the Venetian en route to other Strip hotels to the south.

Jason insists he was on a public sidewalk during the incident at issue, but the Venetian says he was in its private fountain area. Metro says its officers had difficulty determining whether trespassing was involved since the front of the Venetian looks like a European street, “making it difficult to ascertain where the sidewalk ends and the Venetian’s private property starts.”

Jason was approached by a Venetian guard, who said he had seen Jason give a sword to a tourist and receive money in return. Jason denied he sold anything to the tourist, but the guard told him soliciting was not permitted on the property. In additon, Jason said he was told he was on private property and had to leave immediately. He refused, saying he was on a public sidewalk and was not trespassing.

When Jason stood his ground, he was handcuffed by Venetian security and taken to the hotel security office. Sebastian then approached the Venetian security officers and asked what his brother had done wrong. He was told to leave or he would be arrested. When he refused, he was handcuffed and taken to the hotel security office, where both men were searched.

About 20 minutes later, two Metro Police officers arrived and appeared to back up the Venetian security officers in insisting the brothers had been trespassing, Pro’s order said. The officers replaced the Venetian handcuffs on the men with Metro handcuffs, searched them and gave them trespass warnings, Pro wrote in his order.

The brothers were eventually released without being charged, but the incident left them “afraid to go back to the sidewalk in front of the Venetian for fear of being arrested,” Pro wrote in his ruling.

In their suit, the Perez-Morciglio brothers accused the Venetian and its officers of violating their First Amendment and due process rights as well as their constitutional rights against unlawful arrest, to be free from unreasonable searches and to be protected from unlawful detention.

They also accused the Venetian and its employees of false imprisonment, battery, infliction of emotional distress and negligent training and supervision of the security officers.

In asking that the suit be dismissed on a summary judgment basis, or without a trial, attorneys for the Venetian argued “the sale of plastic swords is not expressive conduct” protected by the First Amendment, that Nevada law specifically allows hotel operators to remove trespassers and that the men suffered no injuries.

Pro dismissed the brothers’ constitutional claims against the Venetian, as he rejected the ACLU’s arguments that the Venetian security officers were state agents acting under color of state law.

But Pro allowed the brothers to continue with their state law claims against the resort, including a charge that excessive force was used to remove them from the sidewalk and that the resort lacks authority to remove the public from the sidewalk.

“This court and the 9th Circuit Court of Appeals already have ruled (in a Culinary Union case) that the sidewalk in front of the Venetian is a public sidewalk and Venetian defendants have no right to exclude members of the public from the public sidewalk,” Pro ruled.

As to the Metro Police portion of the lawsuit, attorneys for the police department said the claims against it should be dismissed because its officers did not personally participate in removing the Perez-Morciglio brothers from the sidewalk. Further, the department’s attorneys said, the officers never told the two they could not engage in free speech on the sidewalk, nor did they arrest or cite the plaintiffs for being on the sidewalk.

Pro found that in looking at the Metro officers’ intent in the situation, “No reasonable jury could find defendants acted with the intent to chill or deter plaintiffs’ First Amendment rights.”

While Pro dismissed First Amendment violation allegations against the officers personally, he allowed them to stand against the police department. He also allowed the brothers’ lawsuit against Metro to continue on their contention that the two had been arrested by the police officers in the Venetian security office and then searched there without probable cause.

The police department scored a victory in the ruling when Pro dismissed allegations that Metro has a “policy or custom of violating First Amendment rights” along the Strip.

“Rather, the evidence shows that while some officers will support the casinos, others will support the street performers,” Pro ruled.

As to the allegation that Gillespie failed to train officers on First Amendment issues, police department attorneys argued unsuccessfully that those claims should be stricken from the lawsuit.

“LVMPD’s training discusses citizens’ First Amendment rights, though it does not specifically break down the various individual public sidewalks in Clark County or the Venetian sidewalk in particular,” said a court filing for the police department by attorneys at the Las Vegas law firm Marquis Aurbach Coffing. “There is no law or duty on the part of the sheriff to ensure his training addresses each specific location in town for various specific constitutional rights.”

On top of that, they said, the officers in the Venetian incident have already declared they are aware citizens are free to use the sidewalk to express their First Amendment rights and that street performers have a right to perform on the public sidewalk.

In another federal case involving street performers, the same attorneys agreed in January 2010 to a “Memorandum of Understanding” with the ACLU that Metro police would not cite or arrest street performers solely for engaging in street performances.

That agreement also said the sidewalks and pedestrian bridges along the Strip are a “traditional public forum for First Amendment purposes,” and that the 9th U.S. Circuit Court of Appeals, which includes Nevada, has found street performing is protected expressive conduct. The agreement further said street performing is legal even when it involves the acceptance of unsolicited tips and the non-coercive solicitation of tips.

That agreement was reached to resolve 2009 lawsuit filed by guitarist and singer Suzette Banasik and Elvis Presley impersonator William Jablonski, who claimed they had been harassed and cited by Metro police for performing on the Strip.

The lawsuits in 2009 and 2010 involving street performers are part of a long-running legal battle over free expression, distribution of adult material by handbillers and other commercial activities on the Strip and at the Fremont Street Experience attraction in downtown Las Vegas.

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