Ninth Circuit creates groundbreaking jurisprudence for "sexy cops"

The Ninth Circuit's opinion in Santopietro v. Howell marks an important turning point in US jurisprudence, marking the first-ever time that a federal judge has used the phrase "sexy cop" in a decision.

The case involved two women who performed in Las Vegas as "sexy cops" on the sidewalk, asking passers-by for voluntary tips in exchange for posing in photos. Las Vegas employs undercover officers who sting these sidewalk performers, looking for performers who demand -- rather than requesting -- tips, which pushes their work into the domain of a licensable activity (performing for tips requires no business license, but performing for fees does).

Clayborn Howell, an undercover officer, says that the sexy cops were aggressive enough about getting their tips that they shaded over from "tips" to "fees" and moreover, that even though only one sexy cop was aggressive, they were both "associated" and thus guilty together.

The resulting case upheld an interesting and informative set of constitutional freedoms, including the First Amendment's protections for both freedom of expression and freedom of association.

Also, it got a judge to pen the words, "sexy cop."

[The officers] had no evidence before them … that suggested that the “sexy cops” association had any purpose that could have fallen outside the protection of the First Amendment…. Nor was there evidence of Santopietro’s intent to engage with Patrick in anything other than clearly constitutionally protected expressive activity…. Both “sexy cop” performers were engaging largely, if not entirely, in activity that was not only legitimate but also constitutionally protected.

The [o]fficers 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.

Ninth Circuit Breaks New Ground in Sexy-Cop Jurisprudence [Kevin Underhill/Lowering the Bar]