HomeMy WebLinkAbout2016CV1308 - FTN - FORT COLLINS V. CITY OF FORT COLLINS - 051 - REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S HEARING BRIEFIN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-01308-RBJ-KLM
FREE THE NIPPLE – FORT COLLINS,
BRITTIANY HOAGLAND,
SAMANTHA SIX,
Plaintiffs,
v.
CITY OF FORT COLLINS, COLORADO,
Defendant.
REPLY TO PLAINTIFFS’ RESPONSE TO DEFENDANT’S HEARING BRIEF
Defendant City of Fort Collins, Colorado (the “City”), through its undersigned counsel,
hereby respectfully submits this Reply to Plaintiffs’ Response to Defendant’s Hearing Brief:
1. First, Plaintiffs argue post-United States v. Virginia, 518 U.S. 515 (1996), “real”
differences cannot justify discrimination based on sex-stereotyping. [See Plaintiffs’ Response, at
1-3]. Plaintiffs over-interpret Virginia. Initially, Plaintiffs ignore the Supreme Court’s specific
language celebrating the “inherent differences between men and women.” [See Hearing Brief, at
2]. Next, Plaintiffs also inappropriately and exclusively rely on a law review article for their
contention the Supreme Court has “expanded and reaffirmed this jurisprudential shift.” Indeed,
as Defendant has argued, the gravamen of the Equal Protection doctrine precluding sex-
stereotyping derives from the antiquated traditional notion that men and women have separate
spheres—the workplace for men and the home for women. It is this underlying principle that is
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the heart of the Equal Protection issue before this Court, as recognized in the Plaintiffs’ cited
article. See, e.g., Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex
Discrimination, 85 N.Y.U.L.Rev 83, 140-43 (2010). Nothing about Virginia or any other
decision from the Supreme Court has embraced Plaintiffs’ remarkable notion that any distinction
between men and women grounded in their inherent differences is constitutionally infirm.
Rather, the question is narrower and focuses on whether the distinction inappropriately
perpetuates the historical separate-spheres dichotomy between the sexes to such an extent that it
denigrates women. The City’s Ordinance simply does not do so.
2. Second, Plaintiffs’ Response completely ignores the six cases cited by the
Defendant decided after Virginia where both federal and state courts have applied Virginia in
evaluating equal protection challenges to topless bans applicable only to women all upholding
such a ban. [See Hearing Brief, at 4-8]. Plaintiffs’ persistent inability to distinguish this
precedent, and the other precedent reaching the same conclusion, should not be ignored by this
Court. All but one decision from any court has upheld topless bans on Equal Protection
grounds.
1
Plaintiffs have not provided this Court with any basis to depart from this
overwhelming and consistent precedent.
3. Third, Plaintiffs suggest the City’s Ordinance constitutes a discriminatory
1 The one contrary decision is a 1991 New York county court decision that is of questionable
precedential value. See People v. David, 585 N.Y.S.2d 149 (N.Y.Co.Ct. 1991). David was decided by
the County Court of New York, Monroe County which is an intermediate appellate court. While this
Court would be bound by a decision of the highest court of a state interpreting state law, this is a trial
court where no such deference is shown, particularly on a matter of the interpretation of the United States
Constitution. See, e.g., TMJ Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1171 (10th Cir. 2007) (“A
federal court must follow the state’s highest court in pronouncing or construing the state’s common law,
statutory law, or constitutional law. But it owes no deference to state-court interpretation of the United
States Constitution.”). It is noteworthy that David appears to have been cited in only a single opinion.
The City directs this Court to the comprehensive legal analysis provided in the numerous decisions
reaching the contrary conclusion in contrast to David’s truncated analysis.
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classification based on a sex-stereotype because according to the Plaintiffs there are not any
“real” biological or physiological differences between men’s and women’s breasts. Initially, this
Court should adopt the Fifth Circuit’s acknowledgment in this context that there are in fact
significant differences between men’s and women’s breasts in terms of biology and physiology
that are not simply based solely on the Plaintiffs’ idea of the traditional social construct. See
Hang On, Inc. v. City of Arlington, 65 F.3d 1246, 1257 (5
th
Cir. 1995). Moreover, the City has
previously provided this Court with ample precedent and evidentiary support for this
unremarkable proposition. [See Hearing Brief, at 8-12]. Regardless of whether there is any
merit to Plaintiffs’ contention that sex-stereotyping explains the different treatment of men’s and
women’s breasts in the United States as a matter of academic study and social discourse, the City
has sufficiently established there are legitimate non-sex-stereotype biological and physiological
differences between men’s and women’s breasts. So long as there is some basis for a legislative
distinction due to the “inherent differences between men and women,” it is justified under the
Fourteenth Amendment’s Equal Protection Clause.
4. Fourth, Plaintiffs’ persistent attempt to link the City’s Ordinance to the civil rights
movement represents an inappropriate analogy. [See Plaintiffs’ Response, at 4]. Fundamentally,
as established by the City at the hearing, the only thing the City’s Ordinance prevents Plaintiffs
from doing is going topless in public in the City. Unlike the broad-based restrictions on social
and economic participation and mobility at issue in the cases cited by Plaintiffs, there is no
economic impact on Plaintiffs from the Ordinance whatsoever. And any purported social impact
on the Plaintiffs is limited to one activity alone. Despite Plaintiffs’ rhetoric, careful
consideration of the type of discrimination at issue in the civil rights movement and what is at
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issue here demonstrates these fundamental differences.
2
5. Fifth, Plaintiffs argue the City has not supported its public order argument. [See
Plaintiffs’ Response, at 5-10]. Plaintiffs suggest the public order argument is some sort of
improper effort to impose the City’s morality on the Plaintiffs.
3
As detailed at the hearing
through the testimony of Deputy City Manager Jeff Mihelich, Assistant Chief of Police Jerome
Schiager, and Manager of Pools Megan Greer, the City does possess a legitimate non-
discriminatory basis to believe public order will be detrimentally impacted by allowing topless
women anywhere in the City at any occasion, event or location. Plaintiffs’ disagreement with
the wisdom of the City’s consideration of public order is not the equivalent of demonstrating its
illegitimacy. Plaintiffs suggest the City has the burden of providing empirical data to support its
conclusion that there will be potential negative impacts on public order is illusory. [See
Plaintiffs’ Response, at 8]. Tellingly, Plaintiffs offer absolutely no precedent suggesting a
municipality must present empirical data to support a statutory classification on public order or
any other grounds. In this instance, because of the long-standing existence of this Ordinance, it
was simply not possible for the City to present data about what would occur in Fort Collins if the
Ordinance did not exist and women appeared topless publicly.
2 Similarly, Plaintiffs’ reliance on First Amendment precedent to suggest the Plaintiffs’
anticipated actions of being topless require nothing more than the City’s citizens to avert their eyes in
similar fashion as First Amendment activity are inapposite in light of this Court’s conclusion the
Plaintiffs’ are not engaged in activity protected by the First Amendment. [See Plaintiffs’ Response, at 7;
Order, at 6-9 (ECF 37)].
3 Plaintiffs’ citations for the proposition government cannot institutionalize private biases or
morality are far afield from the actual context of this case. [See Plaintiffs’ Response, at 7-10].
Importantly, none of the cases Plaintiffs rely upon arise in an Equal Protection context involving a gender
classification, none of them involve a topless ban for women or anything analogous, and no prior decision
cited by the parties addressing a topless ban in the context of an Equal Protection challenge has ever even
implied, let alone held that such a classification constituted an impermissible governmental effort to
impose private morality on the public.
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6. Sixth, Plaintiffs suggest the City has not justified the Ordinance on the basis of
the protection of children. [See Plaintiffs’ Response, at 10-11]. To the contrary, the City
presented evidence at the hearing about the many distinctions made related to the exposure of
children to different things in society and how society has also developed many mechanisms to
provide parents with information to allow them to make informed decisions as to what their
children will be exposed to. The City does not have the burden of establishing actual harm to
children from public exposure to the breasts of strangers. Rather, the City’s justification of the
Ordinance on this basis was to suggest the non-discriminatory intent behind the Ordinance and
the rationality for differentiating between what children and adults are ready to view and
experience and the importance of allowing parents to make many such decisions for their own
children rather than allowing Plaintiffs to do so as the lowest common denominator.
7. Seventh, Plaintiffs contend the City has no legitimate interest in regulating the
personal dress of women. [See Plaintiffs’ Response, at 12-13]. In reality, however, the City is
not attempting to legislate particular dress or grooming requirements on anyone as was the issue
in the cases cited by Plaintiff. Rather, the City’s Ordinance regulates public female toplessness
based on the biological differences between male and female breasts for the legitimate
governmental concerns of maintaining public order, to protect children, public safety, the quiet
enjoyment of private property, and the commercial business interests of the City’s downtown, all
as articulated with supporting evidence at the hearing before this Court.
4
4 Cognizant of this Court’s page limitation for replies, this Court’s preference for concise briefs,
and the prior briefing before this Court, the City does not address every argument raised in the Plaintiffs’
Response. The City stands by its arguments, authorities and evidence previously presented to this Court
on all such issues. The failure to address a particular argument specifically should not be construed as
acquiescence to the argument in any respect whatsoever.
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Dated this 6
th
day of January, 2017.
Respectfully submitted,
/s/ Andrew D. Ringel
Andrew D. Ringel, Esq.
Gillian Dale, Esq.
Christina S. Gunn, Esq.
HALL & EVANS, L.L.C.
1001 Seventeenth Street, Suite 300
Denver, CO 80202-2052
Phone: 303-628-3300
Fax: 303-628-3368
ringela@hallevans.com
daleg@hallevans.com
gunnc@hallevans.com
/s/ John Duval
Carrie M. Daggett, Esq.
John R. Duval, Esq.
Fort Collins City Attorney’s Office
300 LaPorte Avenue
Fort Collins, CO 80521
Phone: 970-221-6520
Fax: 970-221-6327
cdaggett@fcgov.com
jduval@fcgov.com
ATTORNEYS FOR DEFENDANT CITY OF
FORT COLLINS, COLORADO
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CERTIFICATE OF SERVICE (CM/ECF)
I HEREBY CERTIFY that on the 6
th
day of January, 2017, I electronically filed the
foregoing with the Clerk of Court using the CM/ECF system which will send notification of such
filing to the following e-mail addresses:
David A. Lane, Esq.
dlane@kln-law.com
Andy McNulty, Esq.
amcnulty@kln-law.com
Jessica K. Peck, Esq.
jessica@jpdenver.com
/s/ Nicole Marion, Legal Assistant to
Andrew D. Ringel, Esq.
Hall & Evans, L.L.C.
1001 Seventeenth Street, Suite 300
Denver, CO 80202-2052
Phone: 303-628-3300
Fax: 303-628-3368
ringela@hallevans.com
ATTORNEYS FOR DEFENDANT
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