Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding D.C. No. 2:08-cv-00713-RCJ-GWF
The opinion of the court was delivered by: Berzon, Circuit Judge:
D.C. No. 2:08-cv-00713-RCJ- GWF
Argued and Submitted October 7, 2010 San Francisco, California
Submission Vacated May 24, 2012
Argued and Submitted June 21, 2012-Pasadena, California
Before: Alex Kozinski, Chief Judge,*fn1 Stephen Reinhardt and Marsha S. Berzon, Circuit Judges.
Plaintiff-Appellant Laurie Tsao is a so-called "advantage" gambler-a professional gambler who uses legal techniques, such as card counting, to win at casino table games, especially blackjack.*fn2 She was arrested at Caesars Palace (a casino owned by the Defendant-Appellee Desert Palace) for trespassing and obstructing the duties of a police officer, and now challenges that arrest as unconstitutional and as constituting various common law torts. The District Court held that the casino's security guard (non-party Clint Makeley) had probable cause to make a citizen's arrest of Tsao for criminal trespassing; that Las Vegas Metro Police Officer Travis Crumrine, a Defendant-Appellee, had probable cause to arrest Tsao for obstructing the duties of a police officer; and that the probable cause determinations barred Tsao's various claims for relief against Crumrine and Desert Palace. Tsao appeals those holdings and also the District Court's grant of attorneys' fees to Crumrine, as well as the award of certain costs to both defendants.
A. Casinos & "advantage" players
This case grows out of the high-stakes cat-and-mouse game played between advantage gamblers and Desert Palace (sometimes referred to as "the casino"), which operates a number of gambling venues, including Caesars Palace in Las Vegas. Desert Palace attempts to identify advantage players and "trespass" them-that is, tell them to leave and not return- from the casino's property. Under Nevada's trespass statute, Nevada Revised Statute ("NRS") § 207.200, returning to a location from which one has been told not to return by a property owner or its agent, or remaining after having been asked to leave, is a misdemeanor. To avoid being trespassed, or, once trespassed, to avoid being charged with misdemeanor trespassing, advantage players apparently take a number of steps to evade detection, including wearing disguises, obtaining player's cards in false names, and gambling with the play-er's cards of friends and family.*fn4
B. Desert Palace Security and the Summons in Lieu of Arrest Program Once a Desert Palace casino has identified a patron as an advantage player, it typically instructs its security guards to escort that individual from the premises and warn her against returning. Desert Palace also directs its security to identify individuals who have returned despite having received a trespass warning. Pursuant to the policies in effect at Caesars Palace at all times relevant to this suit, if a previously trespassed individual returned to the casino, the security supervisor had the discretion to escort the individual from the casino with a second warning; to effect a citizen's arrest for trespassing;*fn5 or to issue a citation to appear in court to answer for the crime of misdemeanor trespassing.
Private security guards, of course, typically do not have the ability to issue citations for criminal offenses. Some of the security guards at Caesars Palace, however, have the authority to issue a summons*fn6 in lieu of arrest ("SILA"). To obtain this authority, private casino security guards must take a training course given by the Las Vegas Metro Police Department ("LVMPD"). During his deposition, Officer Crumrine explained that the LVMPD invites the security personnel of the city's casinos and department stores to take part in the SILA program "[t]o alleviate some of the manpower concerns of the police" by relieving local law enforcement of the obligation to respond to calls regarding relatively minor crimes.
After being trained, the security guards can issue summonses for criminal trespassing,*fn7 so long as the suspect is positively identified; not under the influence of intoxicating substances; cooperative; and free of outstanding arrest warrants. The guards verify that a particular individual does not have outstanding warrants by calling the records department of the LVMPD. A citation issued by a Caesars Palace security guard looks no different from one given by an LVMPD officer: it commands the suspect's appearance in court on a specified date and time, and states, accurately, that the failure to appear constitutes a separate offense. See NRS § 171.17785(1) ("It is unlawful for a person to violate a written promise to appear given to a peace officer upon the issuance of a misdemeanor citation . . . ."); Las Vegas Municipal Code ("LVMC") § 1.20.060 (2009) ("When an accused signs a citation promising to appear at the time and place specified in the citation and fails to appear as promised, the Court shall issue and have delivered for execution a warrant for his arrest.").
After the SILA officer has issued the citation, Nevada law requires that it be filed "with a court having jurisdiction over the alleged offense." NRS § 171.1776(1). The Justice Courts have jurisdiction over all misdemeanors, including the offenses for which the SILA officers may issue citations. See NRS § 4.370(3); Parsons v. Fifth Jud. Dist. Ct. of Nev., In & For Cnty. of Nye ["Parsons I"], 885 P.2d 1316, 1319 (Nev. 1994), overruled on other grounds by Parsons v. State ["Parsons II"], 10 P.3d 836 (Nev. 2000) (en banc). Once properly filed, the citation is "deemed to be a lawful complaint for the purpose of prosecution." NRS § 171.1778.
While Nevada law requires many public offenses to be prosecuted by indictment or information, there is an exception for offenses tried in Justice Courts, which are prosecuted by complaint. NRS § 172.015. Taken together, these features of Nevada law mean that a misdemeanor citation issued by a SILA officer not only initiates the formal criminal justice process by informing the court of the alleged criminal violation and commanding the defendant's presence, but also serves as the state's own charging document. See NRS §§ 4.370(3), 171.1776(1), 171.1778, 172.015; Parsons I, 885 P.2d at 1319-20.
In sum, SILA officers have the authority to issue citations that compel individuals to appear in a particular Nevada Justice Court at a specified date and time, thereby performing a law enforcement function. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 163-64, 163 n.14 (1978). When they do appear in the Justice Courts, the accused must defend against the criminal charges levied by the officer who issued the citation; in this respect, the SILA officers also perform a prosecutorial or quasi-prosecutorial function. See Robertson v. United States ex rel. Watson, 130 S. Ct. 2184, 2185-87 (2010) (per curiam) (Roberts, C.J., dissenting from the dismissal of the writ of certiorari as improvidently granted) (suggesting that criminal prosecutions may only be brought "in the name and pursuant to the power of the [state]").
C. Tsao's arrest by Desert Palace
Laurie Tsao is a professional gambler, apparently quite a good one. Tsao has received several trespass warnings. Prior to her arrest at Caesars Palace, she had been "trespassed" from Desert Palace properties on at least five occasions under four different names: Cao Hong, Laurie Cao, Laurie Tsao, and Shuyu Deng. On each occasion, she was told that she was not welcome on any of the casino's properties, including Caesars Palace, and was warned that she could be arrested for trespassing if she returned. The last of these warnings was given by Clint Makeley, the night shift supervisor of Caesars Palace security, on September 23, 2007.
Following that warning, but before Tsao was arrested on March 19, 2008, Desert Palace mailed her at least three promotional offers. The offers were sent to Tsao's home address and were directed to "Laurie Tsao." The first offer, valid from December 1, 2007 through February 29, 2008, offered a free four-night stay at one of seven Las Vegas casino hotels (including Caesars Palace) owned by Desert Palace. The second (labeled an "invitation") was valid from March 19 through March 24, 2008, and offered a three-night stay at one of the same seven hotels, as well as entry to a "VIP Viewing Area" to watch college basketball and "VIP access to Race and Sports Book wagering area." The third, valid from March 1 through May 31, 2008, included six different offers, including one for a free four-night stay at one of Desert Palace's casino hotels. Tsao's claims against Desert Palace turn in large part on whether these offers can reasonably be viewed as "invitations" for Tsao to play blackjack at Caesars Palace.
Tsao returned to Caesars Palace around 2:00 a.m. on March 19, 2008, along with her friend and fellow advantage player Nelson Fu. Tsao was using a player's card for someone named "Monica Lieu," which she had found abandoned during a prior visit. Around 5:00 a.m., someone from the Caesars Palace surveillance team advised Makeley that a patron on the property had been trespassed on September 23, 2007, under the name of "Shuyu Deng." After reviewing casino records, Makeley told John Banner, the casino manager, that the casino could (a) re-trespass and escort Tsao out of the casino; (b) issue her a SILA if she had identification; or (c) make a citizen's arrest for trespassing. Banner and/or Makeley apparently decided to do (b) or (c), depending on whether Tsao had identification.*fn8
As depicted by the casino's surveillance video (which is part of the record), Makeley and two other security guards approached Tsao on the casino floor at approximately 5:18 a.m. Makeley asked her for identification; when Tsao stated that she had none, Makeley allegedly replied that she would "rot in jail." Tsao then asked repeatedly to be permitted to leave, a request Makeley refused. After arguing with Tsao on the casino floor, Makeley and the two other security guards grabbed Tsao by the arm, handcuffed her (even though she was not behaving aggressively), and led her off the floor, through the casino, and into an interview room.
After arresting Tsao, Makeley approached Fu and asked him for identification. Fu, who apparently had not been previously trespassed from Caesars Palace, was allowed to leave with a trespass warning. After leaving the casino, Fu immediately called Tsao's husband, John Chang, to inform him of Tsao's arrest. Chang then called Robert Nersesian, the couple's long-time attorney. Chang advised Nersesian of Tsao's arrest and of the previous trespass warning, and said that he (Chang) had the promotional offers that Caesars Palace had sent to Tsao. Nersesian immediately met with Chang, obtained the mailed offers, and proceeded to Caesars Palace.
Meanwhile, Makeley had called LVMPD to ask for an officer's assistance. As he waited for the officer to arrive, Make-ley began questioning Tsao, who was still in handcuffs. When Tsao stated that she did not have identification with her, Makeley asked rhetorically, "Wouldn't you rather get a ticket from me and be on your way, rather than go to jail? That's your choices. [sic] Carry ID and get the ticket." When Tsao asked which ticket Makeley was referencing, Makeley told her, "I go to all the classes just like the police department. I get to write you a ticket and get you on your way in no time." Tsao stated that she had identification in her car that she could retrieve, to which Makeley responded, "[i]t doesn't work that way." In response to Tsao's question, "How am I supposed to know that?", Makeley responded that she should "ask the judge."
Makeley then began questioning Tsao about her identity, apparently the first time that Tsao was asked for her name. While that question is a simple one, the answer is complicated in Tsao's case. In addition to playing (and having been trespassed) under various aliases, Tsao has other reasons for using different names. Like many other Chinese immigrants, Tsao took an English first name (Laurie) when she immigrated, though she sometimes appends her Chinese first name, Hong, as either a middle or a second last name. With regard to her last name, it is translated from a Chinese character; in her case, the closest English spelling approximation is "Cao," which Tsao sometimes uses. However, upon discovering that many native English speakers pronounce "Cao" as "cow," Tsao began also using "Tsao," which is closer to how her Chinese name ought to be pronounced. Tsao also went for a time by the last name of "Chen," the surname of her first husband, whom she divorced in 1997. After her divorce, she reverted to using her birth name, Tsao.
In 2001, Tsao married her current husband, John Chang. She now sometimes goes by Laurie Chang. Her U.S. passport was issued to "Laurie Chang." But she also still uses "Tsao" as her surname, and her Nevada driver's license and credit cards are issued in that name. When questioned by Makeley, Tsao told him that her name was "Laurie Chang," although Makeley seems to have heard the last name as "Chen."*fn9
D. Officer Crumrine's arrival
LVMPD officer (and defendant) Travis Crumrine arrived at Caesars Palace at approximately 5:45 a.m. As soon as Crumrine entered the interview room, Makeley-who knew Crumrine from previous calls to which Crumrine had responded- informed Crumrine that Tsao had given the name "Laurie Chen," had been trespassed on September 28, 2007, and had been playing on that night under an alias. Tsao was, at this point, still in handcuffs, and remained in handcuffs throughout the remainder of her time at the casino.
Crumrine, without ever identifying himself by name or position or giving any Miranda warnings, began questioning Tsao while simultaneously rummaging through her purse. Over the next several minutes, Crumrine questioned Tsao about how much money she had with her; her occupation; whether she had been arrested before; her age; why she did not have identification with her; and how she had arrived at the casino that night. When Tsao stated that she had driven, Crumrine asked where her car was parked. Tsao answered that her car was being driven by a friend. Crumrine then asked whether Tsao was lying; she answered "maybe."*fn10 Understand-ably annoyed, Crumrine told Tsao that "the next question I ask you is very serious for you not to lie to me, because if you lie to me, I have to take you to jail. Do you understand?" After Tsao indicated that she understood, Crumrine asked, "What's your last name?" Tsao said that her last name was "Chang." After asking Tsao a few more questions about her identity, including her date of birth, Social Security number, and the state in which she is licensed to drive-to all of which Tsao answered truthfully-Crumrine left the room. After Crumrine left the interview room, he attempted to search for
"Laurie Chang" in the Nevada databases to which he had access, but the search yielded no results.
The remainder of Tsao's time in the interview room, as portrayed by the video recording, is mostly unremarkable, except in a few respects. Approximately ten minutes after Crumrine left the interview room, Tsao asked a casino security guard whether Crumrine was a police officer; the guard said he was. About twelve minutes later, Crumrine returned to the interview room and began going through Tsao's purse once more, at which point he found her car keys. Crumrine gave the keys to Caesars Palace security guards, instructing them to try to identify Tsao's vehicle in the Caesars Palace parking lot by pushing the "panic" button on the key fob. According to ...