Wednesday, April 3, 2013

Morality can sometimes be Unconstitutional...

By Shawn Carter

Girls, Girls, Girls!!!
There are those, like my esteemed buddy and verbal sparring partner, the author of this blog, who would likely argue that our fair City was well within its rights, as a municipality, to have taken the action(s) now the subject of an action in federal Court.

Obviously, there are those, like the indefatigable Mr. Kamin, who would argue that what the City did represents indefensible actions on the part of a municipality engendered by nothing short of sheer animus toward a single industry. 

I will not attempt to litigate either proposition here.  I will, however, take the opportunity to share insights I've acquired through my years in government.

A few years back, Larry Flynt came to Pittsburgh, looking to open up an "adult entertainment" venue on the City's North Shore somewhere near Manchester.

After a single meeting with Planning and Zoning, a civil rights action was initiated, in federal Court, alleging, among other things, that Flynt's First, Fourth, Ninth and Fourteenth Amendment rights were to be violated. 

Mr. Flynt, through his corporate entity HDV-Pittsburgh represented by some of the VERY BEST constitutional lawyers in the land, requested relief from the federal Courts under 42 U.S.C. § 1983, known as the "Ku Klux Klan Act", which states:

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.  For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

The argument was simple and devastating.  The Zoning Code's process for approving adult uses was rife with overbroad municipal discretion, and that said discretion would undoubtedly lead to a denial of the requested permits, either by the Planning Commission, City Council, or both.

And as legitimate a threat to the zoning scheme as that presented to our municipality, the bigger threat was posed by an accompanying section of the United States Code, at 42 U.S.C. § 1988(b), which states:

§ 1988. Proceedings in vindication of civil rights

(b) Attorney’s fees
In any action or proceeding to enforce a provision
of sections 1981, 1981a, 1982, 1983, ... , the court, in
its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s
fee as part of the costs...

This little section was established to award attorney's fees to those attorneys willing to take up these "civil rights" actions against governments and municipalities, because as is often the case, the average citizen simply cannot afford to fight a years-long battle with government lawyers merely to vindicate their civil rights, as government never seems to run out of time, money or lawyers.

This section was designed to encourage civil-rights attorneys to take these cases.

And just as with previous civil-rights cases against the City, the City wisely decided not to take the risk of being ordered by a judge to grant the permits AND pay Larry Flynt's white-shoe civil-rights attorneys and decided that a non-money settlement would preserve the public coffers.

Through the years, the high Court has had to deal with the question of government actions which potentially violate one or more clauses of the First Amendment.  Generally speaking, the Court tends not to overturn the government application of "neutral, generally applicable laws" even when they infringe upon one of a citizen's First Amendment rights, like "freedom of exercise".  However, the Court does tend to step in when the infringement of that right also infringes upon other Constitutional guarantees, like freedom of speech, due process or equal protection of the law.

From the article, it appears that Mr. Kamin has turned his attack on free speech, due process AND equal protection.

Essentially, if Mr. Kamin can establish that the City's action discriminates against his client and does so solely against the class of industry in which his client(s) operate, and that the action was based upon an animus toward his client's form of "protected" speech, that no administrative process exists or existed to appeal said determination and that other classes of enterprises have access to said services, those actions amount to an unconstitutional deprivation of services and could require the Court to apply the judicial standard of "strict scrutiny."

What is "Strict scrutiny?"

U.S. courts apply the strict scrutiny standard in two contexts, when a fundamental constitutional right is infringed, particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the Due Process Clause or "liberty clause" of the 14th Amendment, or when a government action applies to a "suspect classification" such as race or, sometimes, national origin.
To pass strict scrutiny, the law or policy must satisfy three tests:
It must be justified by a compelling governmental interest. While the Courts have never brightly defined how to determine if an interest is compelling, the concept generally refers to something necessary or crucial, as opposed to something merely preferred. Examples include national security, preserving the lives of multiple individuals, and not violating explicit constitutional protections.
The law or policy must be narrowly tailored to achieve that goal or interest. If the government action encompasses too much (overbroad) or fails to address essential aspects of the compelling interest, then the rule is not considered narrowly tailored.
The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest. The test will be met even if there is another method that is equally the least restrictive. Some legal scholars consider this "least restrictive means" requirement part of being narrowly tailored, though the Court generally evaluates it separately.

Strict scrutiny, as per the legal scholars, is strict in theory, but often fatal in fact.

While I personally don't disagree with the City's actions in this matter, as a deeply-held personal belief, I tend to get instantly leery anytime a government, under color of law, intentionally deprives any person of their rights under the Constitution, because usually when it does, it disproportionately disaffects the vulnerable.

The Constitution tends to cut both ways where freedoms are concerned.  

I don't see Blush as a vulnerable victim, but they may be a victim nonetheless.  

Bram, your turn...


  1. I don't know how this case is going to go. It would be more of a slam-dunk if the City was acting in some way to protect the adult entertainment venue's patrons, employees and neighbors, and provided the Court with the copious, compelling evidence available that that is necessary.

    But here the City is acting to protect their police officers and the City itself. And I'm curious what evidence the City is going to bring to the table to justify its interest, and what Chief McDonald will say about her determination in the immediate aftermath of Chief Harper stepping down. I have a feeling "morality" in this case is a more textured argument based on recent lived experiences of the Bureau facilitating secondary employment at strip clubs, but I can't imagine the City letting those cats of the bag for the sake of this restriction.

    The City isn't refusing to provide Blush with city services or protection. It's refusing to let its uniformed, armed and empowered officers work for them, subservient to them, be part of their business. It's strange to think somebody else has the right to make you work for them, can't you just tell them "buzz off?" But like I said, I'm not sure how this one's going to turn out. I don't suffer from quite as much Kamin-awe though.

  2. That really is the most interesting question: how come, right after Chief Harper resigned, Chief McDonald's first orders of business were 1) Get keys to the executive washroom 2) Stop letting our officers work for two strip clubs 3) Terminate the employees who went into business with Harper, bust up C-TIPS, etc.

  3. A few notes (without doing any particular research but having some familiarity with this area of the law):

    (1) The fact that this is a program run out of an office within the police bureau, that the officers are in uniform, that there is payment to the City for these services, and that the work "is conditioned on the actual or potential use of law enforcement powers" (all as reported previously in the P-G) means that the distinction suggested by Bram ("The City isn't refusing to provide Blush with city services or protection. It's refusing to let its uniformed, armed and empowered officers work for them, subservient to them, be part of their business.") is unlikely to hold up.

    Rather, this does seem like a denial of a specific City service to these particular establishments, and it is likely not in fact the case that officers participating in this program are actually "subservient to" or otherwise "part of" the business receiving these services.

    (2) Probably the best hope for the City would be to show something had gone on with the officers at these specific establishments such that banning these establishments from the program was justifiable--mere speculation, particularly after apparently decades of participation in the program, is unlikely to suffice.

    I'm not sure there are any facts to support such a showing, and even then it is true if the ban was being evaluated under strict scrutiny, less dramatic options than a total ban would have to be considered. For example, suppose some of the officers had been tempted into some sort of misconduct. One obvious question would be why it is not sufficient to discipline those officers, and maybe provide additional training for future officers, as opposed to banning the establishment.

  4. I'm surprised to see Bram isn't more beholden to the arguments he made in a certain notorious set of comments in the CP a few years back.

    As I recall, the argument was that these clubs attract crime and the city thus had an interest in moving them to locations away from commerce and residents. (In point of fact I think this is actually an argument for further integrating them into places like the Southside or Downtown where they would presumably benefit from the increased vigilance)

    But requiring them to have uniformed police present to deter said crime increase would be even more effective. As such, it is difficult to see the suggestion that the city could deny these establishments exactly that which his arguments suggest they are in most need of to satisfy the city's concerns as motivated by anything but an animus toward such establishments and an unwillingness to see them succeed within the boundaries of the city's own concerns.


  5. If they're working for the club, they're working for the club. It's "2ndary employment" or "moonlighting". That means as long as they're there, Blush is their boss.

  6. "If they're working for the club, they're working for the club. It's '2ndary employment' or 'moonlighting'. That means as long as they're there, Blush is their boss."

    Even without having seen any documentation, I'll bet you dollars to donuts (the not-fancy kind of donuts still worth less than dollars) that is not how the contracts with the City work.

    I strongly suspect a fairer analogy would be the employees of a contractor who was doing work at your house. Those people are not in fact your employees and you are not their boss, even though they are doing work for your benefit at your place.

    Of course the arrangements made through this program are likely a bit more complicated than that, but the point is the sort of simplistic assertions and analysis being offered by Bram are extremely likely to be wrong, because it is very likely that the City would not in fact agree to a hypothetical arrangement of the kind Bram is describing given the other reported facts about the program as I related above.

    In fact, I'd go so far as to say their lawyers simply would not let the City do what Bram is describing, because the liability exposure alone from telling a uniformed officer who is consciously prepared to exercise law enforcement powers that some private entity was his "boss" would be enormous.

    Incidentally, I understand there is a whole other sort of employment distinct from the secondary employment program, called "outside employment," in which the officers don't serve in uniform, the City doesn't receive a fee, law enforcement activities are not anticipated, and so on. That sort of employment would be subject to a different sort of analysis, but it would also raise new issues such as what business the City had in denying officers the right to take some but not other such employment opportunities. In any event, from the reporting it appears the Blush case is about the official City-run "secondary employment" program.

  7. This article gets into some of the distinctions I noted between "secondary employment" and "outside employment":

  8. I'm going to go ahead and agree with BrianTH that in this specific legal instance of establishing a sufficient City interest in protecting the Bureau, I don't have a strong idea what I'm talking about.

    I'm approximately where Councilman Dowd is with 2ndary police employment. We've got bigger problems with it and we may need to look at it comprehensively and from the ground up, and maybe even through assertive collective bargaining. The uniform is stretched too thin and becoming too privatized.

  9. It is indeed more than a little troubling that these police services are being provided to only those entities which are willing and able to pay for them.

  10. Brian TH - Well then, we'd better hear from Shawn again or this will hardly feel like sparring. The Rev was just on the TV saying Council can't do anything about that, and the City probably shouldn't anyway since officers can never be compensated enough for the risks they take in the line of duty.

    Anon 1:25 - Sorry I missed you... That's why I support ON-DUTY police officers checking out those adult venues as part of their beats, why I believe lucrative establishments like Blush should and can continue to provide professional security in other ways, and why I made an important DISTINCTION between the City's compelling interests in protecting neighborhoods from predictable increases in certain types of crime, in subcontractors working in the City from exploitation for lack of open doors or any official or legally demonstrable standing as employees, and other conspicuous vulnerabilities -- and on the other hand, the City's possibly weaker interest in protecting the Bureau in some way.

    And if that comment thread is notorious to some, you made my day.