Red Rock Resort trespassing citation leads to First Amendment battle

What started with a simple trespassing citation at Red Rock Resort has evolved over the past six months into a major constitutional fight that reached the highest levels of the Clark County district attorney’s office.

Now Nevada’s attorney general wants to join the fray.

Late last year, Metro cited a pair of Culinary Union representatives after they were seen slipping fliers under guest room doors on the 12th floor of the hotel.

Prosecutors since have accused them of vagrancy and alleged that wording on the fliers “annoyed” the resort and its parent company, then called Station Casinos.

Defense lawyers say the prosecution’s interjection in a labor dispute is unprecedented.

“This is the craziest thing I’ve ever seen,” said veteran defense attorney Tom Pitaro, who represents the union members. “They’ve wasted a lot of time, money and effort. The district attorney’s office is a function of the people. It’s not a subsidiary of Station Casinos. They’re taking their orders from Station. They’ve picked a fight. They’re going to have it. They should have minded their own business.”

Station Casinos spokeswoman Lori Nelson declined to comment.

On the evening of Dec. 15, hotel security noticed paper fliers near guest room doors. An officer later spotted Maria Yesenia Hernandez Escalante, 23, and Ramiro Funez, 24, in the hotel lobby, gripping red folders that contained similar documents.

The two were escorted to a security office, handcuffed and cited.

The citation said Funez and Escalante had returned to the property after “Red Rock Casino security warned the Culinary Union, via attorney.” Defense attorneys argued that a warning was never “personally communicated” to Funez or Escalante.

In attempting to prove their case, prosecutors turned to the words on the fliers, including one with the heading “LAS VEGAS TRAVEL ALERT/STATION CASINOS.” The fliers included such statements as:

— “Protect yourself from the biggest labor dispute in Las Vegas.”

— “Station Casinos, the owner of Red Rock Resort, is the worst labor law breaker in Nevada gaming.”

— “Many organizations, conference attendees, and other customers have decided to stay out of Station Casinos during their escalating labor dispute.”

For years, the Culinary and its affiliate Bartenders Local 165 have tried unsuccessfully to organize 5,000 nongaming employees of Station Casinos’ 12,000-member workforce.

As recently as February, Culinary workers and supporters protested in front of Palace Station.

But prosecutors argued that the representatives were in a restricted area of Red Rock in December after they somehow managed to find their way into a part of the hotel that could only be accessed by a guest key card.

“This was private property and these defendants are not being prosecuted for their speech,” Chief Deputy District Attorney Jake Merback wrote, “but rather for their illegal entry onto private property.”

Assistant District Attorney Christopher Lalli said prosecutors stay out of labor disputes during public outdoor protests.

“What’s different here is union activity deep inside a casino, up in the hotel area, within the rooms themselves,” Lalli said. “That’s certainly different from that celebrated First Amendment right to gather, to protest out in a very public area. It’s a different sort of conduct.”

As the union fought the citation, prosecutors filed a criminal complaint in February that charged Escalante with one count of trespassing and one count of vagrancy, both misdemeanors, saying she “did willfully and unlawfully prowl upon the private property of another, without visible or lawful business with the owner.”

Defense lawyers responded by calling the vagrancy charge unconstitutional and saying the allegations had changed.

“This amended complaint, filed in the name of the state of Nevada, and being prosecuted by the Clark County District Attorney’s office, resurrects the Jim Crow vagrancy laws of a segregated and bigoted United States,” Pitaro wrote in court papers. “The District Attorney’s office asks that the defendants be deemed trespassers and vagrants for seeking to improve the working conditions of Red Rock Casino employees.”

Vagrancy laws were used in the Deep South to convict civil rights demonstrators who distributed leaflets advocating boycotts against white merchants.

The defense said prosecutors wanted to “resurrect this ugly history in the context of the Union’s labor dispute with Station Casinos.”

In April, prosecutors offered another criminal complaint, removing the vagrancy charge, but maintaining that Escalante and Funez went to the Red Rock “with the intent to vex or annoy the owner.”

Defense attorneys argued that, too, was unconstitutional.

“In its attempt to fix these errors, the DA’s office has laid bare what was previously unspoken: that it is pursuing this criminal action because it disagrees with what union representatives were saying as part of the union’s labor dispute with Station Casinos,” Pitaro wrote, adding that the charges violate “bedrock First Amendment principles.”

Last week, in a 15-page order, Las Vegas Justice of the Peace Deborah Lippis found the phrase “vex or annoy” unconstitutional and ordered it stricken from the complaint. But she gave the prosecutors yet another chance to amend the charge.

Merback said he planned to continue to pursue the case but would not disclose how.

That’s when Attorney General Adam Laxalt filed court papers, saying his office should have been notified before Lippis made her ruling.

“The court’s order may have a wide-ranging impact on Nevada statutes,” Laxalt’s motion read. “The court’s ruling may have a particularly harsh impact on workers and victims of harassment or other domestic violence related crimes.”

Pitaro called the domestic violence claim “completely hollow,” “baseless” and “somewhat insulting.”

On Friday, Lippis suspended her ruling and set another hearing in three months.

“It seems like the district attorney’s office has thrown away 25 years of fair play with the union,” Pitaro told the Las Vegas Review-Journal. “The district attorney’s office appears to be taking sides against the employees, against the representation of the employees.”

If Friday’s hearing was any indication, it could be a long fight.

“The district attorney has already made clear that his prosecution is based on a desire to silence speech,” said the Union’s secretary-treasurer, Geoconda Arguello-Kline. “The attorney general’s practice of expansive litigation is merely delaying the inevitable.

“The Culinary Union continues to support workers fighting for a fair process to choose whether to unionize at Station Casinos. We also continue fighting against companies, politicians, and officials who try to limit the First Amendment rights of working people.”

Civil rights lawyer Allen Lichtenstein, who is not directly involved in the litigation, said the content of the fliers should not have been considered in a trespassing case.

“By trying to use the content as the basis for their citation, they’re getting involved in a First Amendment violation,” he said. “When the DA’s office gets involved with the content of fliers in a labor dispute, they’re opening up a real Pandora’s Box that turns out to create more problems than it solves. It would seem pretty simple that people who go onto private property be warned, then trespassed. That seems to be the best way of doing things. Then you don’t have the DA talking about content, then you don’t have the AG talking about content, then you don’t have judges having to declare certain actions unconstitutional because they are.”

Contact David Ferrara at dferrara@reviewjournal.com or 702-380-1039. Find @randompoker on Twitter.