Tsao v. Desert Palace, Inc.

698 F.3d 1128

2012 Daily Journal D.A.R. 14,663

Laurie TSAO, AKA Laurie Chang, Plaintiff–Appellant,

v.DESERT PALACE, INC.; T. Crumrine, Defendants–Appellees.

Laurie Tsao, AKA Laurie Chang, Plaintiff–Appellant,

v.Desert Palace, Inc.; T. Crumrine, Defendants–Appellees.

Nos. 09–16233, 09–17535.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 2010.

Submission Vacated May 24, 2012.

Argued and Submitted June 21, 2012.

Filed Oct. 23, 2012.

Robert A. Nersesian of Nersesian and Sankiewicz, Las Vegas, NV, for plaintiff-appellant Laurie Tsao.

Thomas D. Dillard, Philip S. Gerson, and David M. Jones of Olson, Cannon, Gormley & Desruisseaux, Las Vegas, NV, for defendant-appellee Desert Palace, Inc.

Micah S. Echols and Craig R. Anderson of Marquis & Aurbach, Las Vegas, NV, for defendant-appellee Travis Crumrine.

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.

Before: ALEX KOZINSKI, Chief Judge,^*STEPHEN REINHARDT and MARSHA S. BERZON, Circuit Judges.

OPINION

BERZON, Circuit Judge:

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.¹ She was arrestedat 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.

I. BACKGROUND²A. 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 player's cards of friends and family.³

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; ⁴ 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 ⁵ 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,⁶ 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. SeeNRS § 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. SeeNRS § 4.370(3); Parsons v. Fifth Jud. Dist. Ct. of Nev., In & For Cnty. of Nye [“ Parsons I ”], 110 Nev. 1239, 885 P.2d 1316, 1319 (1994), overruled on other grounds by Parsons v. State [“ Parsons II ”], 116 Nev. 928, 10 P.3d 836 (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 criminalviolation and commanding the defendant's presence, but also serves as the state's own charging document. SeeNRS §§ 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, 98 S.Ct. 1729, 56 L.Ed.2d 185 (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, –––U.S. ––––, 130 S.Ct. 2184, 2185–87, 176 L.Ed.2d 1024 (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...