HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 03/26/2019 - POSSIBLE MOTION DIRECTING THE CITY ATTORNEY ON NEXAgenda Item 5
Item # 5 Page 1
AGENDA ITEM SUMMARY March 26, 2019
City Council
STAFF
Delynn Coldiron, City Clerk
Carrie Daggett, City Attorney
SUBJECT
Possible Motion Directing the City Attorney on Next Steps Related to Litigation Regarding the City’s Public
Nudity Ordinance.
EXECUTIVE SUMMARY
The purpose of this item is for Council to provide possible direction to the City Attorney on the next steps she
should take related to pending litigation challenging the City’s public nudity ordinance.
STAFF RECOMMENDATION
Staff recommends that Council consider a motion to direct next steps in this litigation.
BACKGROUND / DISCUSSION
In October 2015, the City Council adopted Ordinance No. 134, 2015, amending Section 17-142 of the City
Code, which addresses public nudity and prohibits toplessness by females in public places, with certain
exceptions. The plaintiffs, a group named Free the Nipple – Fort Collins (“FTN”), and two individuals named
Brittiany Hoagland and Samantha Six, sued the City in May 2016 challenging Section 17-142 based on claims
that it violated the First and Fourteenth Amendments of the U.S. Constitution and the Equal Rights
Amendment of the Colorado Constitution. The plaintiffs sought a preliminary injunction against enforcement of
Section 17-142 against female toplessness, and District Court Judge Brooke Jackson granted a preliminary
injunction based on the Fourteenth Amendment claim in February 2017. He had previously dismissed the First
Amendment claim. The City appealed this preliminary injunction decision, and after oral arguments on that
appeal in January 2018, the three-judge panel of the U.S. Court of Appeals for the Tenth Circuit issued an
order on February 15, 2019, upholding Judge Jackson’s preliminary injunction. The ruling cited that the Equal
Protection Clause of the US Constitution prohibits Fort Collins and other governments from restricting
toplessness in public by females only.
The City may seek review of this decision by the U.S. Supreme Court, but must move forward soon in order to
do so. This item is intended to give the City Council an opportunity to discuss next steps in the litigation with
the City Attorney. If it chooses to give direction, Council will do so through the adoption of a motion.
CITY FINANCIAL IMPACTS
This litigation is expected to result in further costs to the City regardless of the specific procedural path taken.