The Judge Jansen Ruling

by Brandon Summers | May 26, 2021

Street performers who fight their “obstruction of sidewalk” cases to trial rarely have their day in court. For the last 4 years, there has been a pattern and practice of the State dismissing cases before at trial— literally the moment before they can be heard by a judge. This leaves performers (“Defendants”) with no opportunity to let a neutral party decide their fate— whether the outcome is innocence or guilt.

On a very rare occasion in September 2017, street performer Gerald Lechner aka “Jerry Vegas” had his case come before Justice of the Peace Tempore William Jansen and it was found that the State did not provide the evidence necessary to convict him of a misdemeanor. Here are some footnotes left by the judge.

⁸ The Court notes that the body-camera footage includes several troubling statements from the LVMPD officers who indicated the existence of a “zero tolerance” policy for street performers on the Strip. These officers also incorrectly suggested that stationary performers are only allowed on Fremont Street and that street performers on the Strip are required to “keep walking” continuously in order to avoid being cited.

Troubling indeed.

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Justice Court, Las Vegas Township
Clark County, Nevada

The State of Nevada, Plaintiff vs. Gerald Lechner, Defendant
Case No. 17M-13486X
Dept. No.: 7
Filed in Open Court October 20, 2017

This matter, having come before the Court for trial on September 25, 2017, and the Court being fully advised of the premises herein, does hereby find the following:

Findings of Fact and Conclusions of Law

On June 2, 2017, Gerald Lechner (hereinafter “Defendant”) received a citation for “OBSTRUCTIVE USE OF PUBLIC SIDEWALK.” The citation alleges that Defendant “did obstruct, block, hinder, or interfere with pedestrian access on any public sidewalk in the resort corridor, which resulted in a threat or degradation to safety of pedestrians.”

On September 25, 2017, the Court presided over the trial in this matter. The testimony of each witness is summarized below.

I. Witness for the Prosecution
A. Christoper O’Connell
1. Direct Examination
Officer Christopher O’Connect is employed by the Las Vegas Metropolitan Police Department (LVMPD).
In the early evening Friday, May 5, 2017, Officer O’Connell was patrolling near the Showcase Mall in the vicinity of 3785 South Las Vegas Boulevard. This area of Clark County is commonly referred to as “the Strip Corridor,” and he believed that the sidewalk area was crowded with tourists on the evening in question.¹

Officer O’Connell observed a group of individuals who were dressed as superheroes so that tourists would stop and take pictures with them in exchange for the potential payment of money. Officer O’Connell also observed a group of tourists ² assembled in front of Defendant. According to Officer O’Connell, Defendant and his accompanying group of tourists were interfering with the normal pedestrian flow. Officer O’Connell testified as follows:

You would see people have to walk around them, try to squeeze through. They gather up, and so everybody can take turns taking pictures and pay for their pictures, and it causes other tourists to have to walk around.

Transcript of Proceedings (September 25, 2017) (hereinafter “Transcript”), at 14:19-14:23.
Officer O’Connell further testified that a safety hazard would be created if tourists were forced to exit the sidewalk and step into the street because those tourists potentially could be struck by passing vehicles.
Also, Officer O’Connell testified that street performers are required to obtain a permit before they can conduct business on the sidewalks of the Strip Corridor. Defendant did not produce such a permit.

¹ The state offered and admitted certain exhibits which were pictures of the exterior of the Showcase mall. The pictures were taken during the daytime and did not show any significant crowds. However, Officer O’Connell testified that, during the evening involving the events in question, “hundreds” of people were utilizing the sidewalk outside the Showcase Mall. Transcript of Proceedings (September 25, 2017), at 10:14-11:21.

² Officer O’Connell testified that the number of gathered tourists in front of Defendant was “way more than ten.” Transcript of Proceedings (September 25, 2017), at 14:12-14:16.

2. Cross-Examination
Officer O’Connell was wearing an activated body camera when he approached Defendant.
Moreover, the location of the Strip Corridor in question had a buffer zone of significant bushes, so that someone would have to run or jump over the bushes in order to enter the adjacent street.
Additionally, Officer O’Connell reiterated that a permit is required in order to conduct business for money on the Strip Corridor.

B. Clint Owensby
1. Direct Examination
Officer Clint Owensby is also employed by the LVMPD. At around 8:00 PM on May 5, 2017, Officer Owensby was at the scene of 3785 South Las Vegas Boulevard. He described the area as “crowded” Transcript, at 45:2.
Officer Owensby observed Defendant who dressed in a “Thor” costume. Tourists were stopping on the sidewalk to take pictures with Defendant. A nearby series of bushes blocked access to the street from the sidewalk, thus creating a potential bottleneck which might force pedestrians to remain congregated on the sidewalk.

2. Cross-Examination
Cross-examination mainly consisted of questions to which witness did not know the answer, along with inadmissible statements offered by Defendant.

II. Witness for the Defense
A. Michael T. Moore
Michael T. Moore is president and general counsel of the Sonic Laborers and Visual Entertainers Union (S.L.A.V.E) which represents 750 street performers in Las Vegas. He described certain cases from the Ninth Circuit.
He also testified that he was at the scene when Defendant was cited, and the area was “not crowded” Transcript, at 64:18-64:19.
During the direct examination of Mr. Moore, the state stipulated to the admission of the video from body cameras of the LVMPD officers who testified.
B. Defendant (Testifying Pro Se)
Defendant testified that he was exercising his First-Amendment rights to communicate with the public in a lawful manner, and he was not obstructing the sidewalk. He argued that the number of people in his vicinity was “never more than 8 to 12 people there”. Transcript, at 82:10-82:11.

III. Closing Arguments
A. The State
The state argued that Defendant was cited on a Friday evening in May which is a time period that is commonly associated with heavy pedestrian crowds on the Strip Corridor.
The State further argued that Defendant can be convicted of the pending charge, even if no pedestrians were present, because “[t]he fact that the defendant is set up for business on the sidewalk is obstructive use of the sidewalk, and it is not permitted.” Transcript at 86:10-86:12.
Finally, the State claimed that any testimony relating to case law from the Ninth Circuit is irrelevant to the instant case involving a violation of the Clark County Code.

B. Defendant
Defendant argued that the State failed to show any level of pedestrian foot traffic was sufficient for his presence to constitute an “obstruction.”

At the conclusion of the trial, the Court took this case under advisement for the purpose of issuing this written conclusion.

Discussion

The Court believes that an important distinction needs to be made about certain issues that were raised in this case.

I. Street Performing Generally
On May 24, 2017, the Ninth Circuit issued its decision in Santopietro v. Howell, 857 F.3d 980 (9th Cir. 2017). In that decision, the Court referenced a “Memorandum of Understanding” involving LVMPD. The Court state the following:

[A]s 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 (I) 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 other law of general applicability are not immune from prosecution because they are street performers.”

The parties in the instant case did not reference the MOU at all during Defendant’s trial, so this Court has no way of knowing if the MOU is still in effect. Nevertheless, the MOU appears to be consistent with the Ninth Circuit’s perception of street performers and the First Amendment. Later in its opinion, the Ninth Circuit stated the following:

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, it. 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 1030. “[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).

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 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 requirment 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, 112 S. Ct. 2395, 120 L. Ed. 2d 101 (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 soliciation of voluntary tips. Id, at 1052-53. Metro’s 2010 MOU appears to incorporate that holding, by recognizing that “non-coercive solicitation of tips [] is not per se violation” of the County Code’s business licensing provisions.

If Santopietro’s activites 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 when beyond protected expression and moved into the realm of business activity subject to Chapter 6 regulations.
Id. at 987-88.

Here, Defendant has not been cited for acting as a street performer without a permit. Therefore, the Court only needs to focus on the true issue presented in this case.

II. Obstruction
Section 16.11.010 of the Clark County Code sets forth a statement of “purpose” for the restrictions within Chapter 16.11. Section 16.11.010 provides as follows:

16.11.010 – Purpose.
The board finds that due to vehicle congestion, long delays and increasing costs, it has become increasingly more attractive for residents and visitors to use the public sidewalks on Las Vegas Boulevard South (the Strip) rather than to drive or to ride. Since, traditionally, the major emphasis along the Strip has been on automobile transportation and not on pedestrians, the existing pedestrian environment is inadequate as a transportation system and lacking in many safety features. Moreover, a great number of persons are engaged in uses of the public sidewalks which create undue obstruction, hindrance, blockage, hampering, and interference with pedestrian travel. Large numbers of pedestrians are walking in the streets when the public sidewalks become congested and many pedestrians are crossing against the traffic signal indications. In recognition of the need for improvement of the pedestrian environment and the need for accessible public sidewalks, it is necessary to enact the following regulations.

Section 16.11.090 then imposes a misdemeanor penalty for any violation of it’s provisions. See Clark County Code Section 16.11.090 (“Any person who violates any of the provisions of this chapter is guilty of a misdemeanor and upon conviction shall be punished by imprisonment in the county jail for a term not to exceed six months or by a fine not to exceed one thousand dollars, or by both such fine and imprisonment.”). In the instant case, the Court must determine whether such a penalty is warranted for Defendant’s alleged “obstruction.”

Section 16.11.035 declare the following:

16.11.035 – County policy against obstructive uses of public sidewalks.
It is the policy of Clark County that no obstructive use, other than a permitted obstructive use ³, shall be permitted upon any public sidewalk of the resort district of the Las Vegas Valley if the obstructive use, if allowed to occur, would:
(a) Cause the LOS ⁴ for the sidewalk to decline below LOS C ⁵; or
(b) Result in a significant threat to or degradation of the safety of pedestrians.

The parties presented no evidence relating to Section 16.11.035 (a) and, in fact, Defendant’s citation is similarly silent, claiming only that Defendant’s presence “resulted in a threat ⁶ [to] or degradation [of] safety of the pedestrians” under Section 16.11.035 (b). However, Section 16.11.035(b) is not a penal statue, it merely defines the County’s general policy relating to obstructions. Thus, the Court must search elsewhere for the underlying conduct which can support the misdemeanor penalty under Section 16.11.090. ⁷

³ The parties did not allege that a “permitted obstructive use” applies to the facts of this case under the Clark County Code. Under 16.11.020(g), a “permitted obstructive use” is defined as follows:

(1) Any obstructive use of the public sidewalk by public safety equipment, including but not limited to, street signs, traffic signals, fire hydrants, utility poles and street and sidewalk lighting; and

(2) Any obstructive use of the public sidewalk for purposes of construction, maintenance or repair of the public safety equipment, right-of-way (or equipment therein) or adjoining private property, conducted by or pursuant to a valid construction permit issued by the Clark County department of public works, Clark County building department or Nevada Department of Transportation;

(3) Any obstructive use of the public sidewalk resulting from:

(A) An encroachment or structure constructed pursuant to the ordinances, rules, regulations or laws of the United States, the state of Nevada or Clark County, or

(B) The construction, modification, addition or attraction upon abutting private property occurring or in place before May 1, 1994;

(4) Any newsrack licensed pursuant to Clark County Code Chapter 16.08 unless such newsrack causes a degradation of the LOS to LOS C or less as provided in Section 16.11.040(e);

(5) Any conduct “arguably protected” by the National Labor Relations Act until or unless such conduct is determined to be unprotected pursuant to a decision of the National Labor Relations Board

Notably, conduct “arguably protected” by the First Amendment is not listed above.

⁴ Section 16.11.020(b) defines “level of service” or “LOS” means a series of measures that define the relative degree of convenience for different pedestrian traffic volumes and densities, as determined by methodology set forth in Chapter 13 of the Highway Capacity Manual and the Las Vegas Boulevard South Pedestrian Walkway Study.”

⁵ Section 16.11.020(f) defines “LOS C” means a pedestrian flow on a sidewalk of less than or equal to ten pedestrians per minute per foot as specified and defined in the Highway Capacity Manual, Special Report 209, a copy of which is filed with the office of the county clerk.” [Emphasis added].

Section 16.11.020(e) defines “obstructive use” as follows:

(1) Placing, erecting or maintaining an unpermitted table, chair, booth or other structure upon the public sidewalk, if the placing, erecting, or maintaining of the table, chair, or booth is not protected by the First Amendment or if the placing, erecting, or maintaining of the table, chair, or booth is protected by the First Amendment but is actually obstructive;
(2) Forming a cordon or line of persons across the public sidewalk;
(3)Carrying banners or signs, upon the public sidewalk which actually causes an obstruction on the sidewalk;
(4) Placing or storing equipment, materials, parcels, containers, packages, bundles or other property upon the public sidewalk which actually causes an obstruction on the sidewalk;
(5) Placing, erecting or maintaining an unpermitted fixed sign upon the public sidewalk;
(6) Sleeping upon the public sidewalk;
(7) Obstructing, delaying, hindering, blocking, hampering or interfering with pedestrian passage, including passage to or from private property; or
(8) Any use of the public sidewalk that causes the LOS for the public sidewalk to decline below LOS C, as determined by the methodology used in Chapter 13 of the Highway Capacity Manual and Las Vegas Boulevard South Pedestrian Walkway Study. [Emphasis added].

Also, Section 16.11.040 is a penal statute that affirmatively prohibits “obstructive uses” of public sidewalks. This ordinance provides as follows:

⁶ The Court notes that the State failed to allege that Defendant’s conduct resulted in a “significant” threat to, or degradation of pedestrian safety as required by Section 16.11.035

⁷ The Court emphasizes that Defendant’s citation merely cites Section 16.11.090. (the penalty section) without citing the underlying code provision which defines conduct constituting the violation.

16.11.040 – Prohibition of obstructive uses.
No obstructive use shall be permitted on public sidewalks in the following areas, which areas shall be designated by the placement of pavement markings on the public sidewalks or signs designating the limits of the no obstruction zones, or plaques, monuments or medallions placed in the public sidewalks:

(a) On or within any crosswalk, including but not limited to all portions of a public sidewalk located in or on a median, traffic island or other structure within, across or over or under a public street or roadway;
(b) (1) In or within one hundred fifty feet of any mid-block crosswalk, as measured from the crosswalk parallel to the sidewalk curb toward the direction of approaching vehicular traffic, and (2) In or within fifty feet of any mid-block crosswalk as measured from the crosswalk parallel to the sidewalk curb away from the direction of approaching vehicular traffic;
(c) (1) In or within one hundred feet of any crosswalk located at an intersection of streets or highways, as measured parallel to the sidewalk curb in the direction of approaching vehicular traffic from the point of curvature of the curb or the marked edge of the crosswalk, whichever is less, and
(2) In or within fifty feet of a crosswalk located at an intersection of streets or highways, as measured parallel to the sidewalk curb away from the direction of approaching vehicular traffic from the point of curvature of the curb or the marked edge of the crosswalk, whichever is less;
(d) In or within fifty feet of any driveway providing ingress into or egress from any private or non-public property, as measured parallel to the sidewalk curb outward from the point of the curb cut;
(e) On or within any section of the public sidewalk which has been determined to have an average LOS of C or below, during the hours at which LOS declines below LOS C, as determined by a traffic study conducted by a registered professional engineer or the Clark County department of public works according to the methodology set forth in the Las Vegas Boulevard South Pedestrian Walkway Study. [Emphasis added]

The highlighted language above is significant. Defendant can only be convicted of “obstruction” on a public sidewalk “which has been determined to have an average LOS of C or below, during the hours at which LOS declines below LOS C.” In other words, the State is simply incorrect when it claims that Defendant can be convicted of “obstruction” merely for standing upon a street containing no pedestrians whatsoever.
The Court recognizes that Section 16.11.020(e)(7) defines “obstructive use” to include actual “[o]bstucting, delaying, hindering, blocking, hampering, or interfering with pedestrian passage,” but none of that was shown in the instant case. Even if this definition of “obstructive use” had been show, Section 16. 11.040 still would have required that “obstructive use” to have occurred “[o]n or within any section of the public sidewalk which has been determined to have an average LOS of C or below, during the hours at which LOS declines below LOS C.” As the court stated above, no evidence was presented to show that Defendant’s sidewalk area had been determined to have an average LOS of C or below, and no evidence was presented to show that the time of Defendant’s citation was a time “at which LOS declines below LOS C.” Although these evidentiary requirements may be burdensome, the State cannot simply ignore these requirements and read them out of the ordinance.
Based upon the above analysis relating to the ordinance, and based upon the fact that the State stipulated to the admission of the LVMPD body-camera footage which only showed a small crowd of people at any given time with no reasonable potential for actual obstruction, the Court finds that the State has not shown beyond reasonable doubt that Defendant should be convicted of the misdemeanor penalty under Section 16.11.090.

Order

Pursuant to the statements of fact and the arguments of law submitted, it is hereby ordered, adjudged, and decreed that the citation against Defendant is dismissed.⁸

Date this 20 day of October 2017
Justice of the Peace Tempore William Jansen

⁸ The Court notes that the body-camera footage includes several troubling statements from the LVMPD officers who indicated the existence of a “zero tolerance” policy for street performers on the Strip. These officers also incorrectly suggested that stationary performers are only allowed on Fremont Street and that street performers on the Strip are required to “keep walking” continuously in order to avoid being cited. The Court commends Defendant for the polite manner in which he attempted to preserve and clarify his First-Amendment rights during the video footage observed by the Court.