Is there such a defense? Yes. It’s called entrapment by estoppel. I’ve always had a problem with the phrase, “What Happens In Vegas, Stays In Vegas.” Don’t get me wrong – I like a catchy phrase as much as the next guy. However, the problem I have with this multimillion-dollar commercial campaign is that it misleads people to think that certain types of conduct that are prohibited elsewhere are legal here. For instance, prostitution is widely but falsely believed to be legal in Las Vegas by tourists. I blame this in part on the “What Happens Here…” campaign because that slogan wrongly implies that “anything goes” or at least implies that some conduct is accepted here but illegal in other cities. That is just not true.
That’s where “entrapment by estoppel” comes in. Entrapment by estoppel was mentioned in United States v. Hsieh Hui Mei Chen, 754 F.2d 817, 825 (9th Cir. 1985). It’s also known as “official misleading.” Basically, when someone relies on what the government or the state has told him leaving him to believe certain conduct is legal, and then engages in that conduct and is prosecuted for doing so, the prosecuting entity (DA or U.S. Attorney) is barred from prosecuting the person because the person relied on the advice given to him by the government that his conduct was legal. So my point is that for certain crimes, such as solicitation for prostitution where a guy gets arrested for propositioning an undercover police officer posing as a prostitute, the entrapment by estoppel defense would help him if he was lead to believe that soliciting a prostitute is legal from the “What Happens Here…” commercial.
Of course, there are limits to this defense. The reliance must be reasonable. In other words, you’d be hard-pressed to raise this as a defense in cases of murder or armed robbery. But for certain crimes like, it’s a powerful argument. The defense of entrapment by estoppel serves to remind the City of Las Vegas that it can’t have it both ways with this “What Happens Here…” campaign. In other words, the City of Las Vegas can’t expect to make millions of dollars from this successful advertising campaign and then prosecute people for doing what they’ve been led to believe they can do by this misleading commercial.
And just for the record, solicitation of prostitution is a crime under NRS 201.354 and I’m not encouraging anyone to go out and violate this law! Solicitation for prostitution is actually a serious crime even though it’s a misdemeanor. It’s what is called a “crime involving moral turpitude” which means that the crime is one that implies the person convicted of it has bad character. Other crimes involving moral turpitude are theft and forgery. It’s not something you want on your record.