HomeMy WebLinkAbout2017CA1103 - APPEAL - FTN - FORT COLLINS V. CITY OF FORT COLLINS, ET AL - 019 - CITY OF FORT COLLINS SUPPLEMENTAL AUTHORITYAndrew D. Ringel
ringela@hallevans.com
(303) 628-3453
Filed and Served Via CM/BCF
Elisabeth A. Shumaker, Esq.
Clerk of Court
October 12, 2018
United States Court of Appeals for the Tenth Circuit
Bryon White United States Courthouse
1823 Stout Street
Denver, Colorado 80257
Re: Notice of Supplemental Authority
File No. 6139-73
Free the Nipple et. al. v. City of Fort Collins, Colorado, Case No. 17-1103
Dear Ms. Shumaker:
Defendant-Appellant City of Fort Collins, Colorado hereby submits this Notice of
Supplemental Authority Pursuant to Fed. R. App. P. 280).
On August 23, 2018, the United States District Court for the District of Maryland decided
Bline v. Town of Ocean City, 2018 U.S. Dist. LEXIS 143951 (D. Md. Aug. 22, 2018) (enclosed).ln
Bline, the District Court noted the District Court's decision below "appears to be an outlier, given
the various decisions in both federal and state courts that do not favor Plaintiffs." Id. at *4 (citing
cases). Bline supports the City's argument that Plaintiffs here demonstrate no likelihood of success
on the merits because they describe no cognizable equal protection claim under applicable
Fourteenth Amendment law. [Opening Brief, at pp. 9-33; Reply Brief at pp 1-17].
Thank you for your attention.
Enclosure
2926625.l
Very truly yours,
s/
mge
and Gillian Dale
of HALL & EV ANS, L.L.C.
1001 Seventeenth Street
Suite 300
Denver, CO 80202
p 303-628-3300
F 303-628-3368
www.hallevans.com
Appellate Case: 17-1103 Document: 010110067691 Date Filed: 10/12/2018 Page: 1
Elisabeth A. Shumaker, Esq.
October 12, 2018
Page:2
cc: David A. Lane, Esq. (w/encl.)
Andrew J. McNulty, Esq. (w/encl.)
Jessica K. Peck, Esq. (w/encl.)
Carrie M. Daggett, Esq. (w/encl.)
John R. Duval, Esq. (w/encl.)
Christina S. Gunn, Esq. (w/encl.)
2926625.1
Appellate Case: 17-1103 Document: 010110067691 Date Filed: 10/12/2018 Page: 2
No Shepard's Signal™
As of: October 12, 2018 5:29 PM Z
United States District Court for the District of Maryland
August 22, 2018, Decided; August 23, 2018, Filed
CIVIL NO. M0-18-0145
Reporter
2018 U.S. Dist. LEXIS 143951 *
CHELSEA C. ELINE et al., Plaintiffs v. TOWN OF
OCEAN CITY, Md., Defendant
Core Terms
ordinance, female, sensibilities, governmental interest,
equal protection, Nipple-Fort, male, female breast,
bare-chestedness, bare-chested, observations,
MEMORANDUM, Residents, Wildlife, purposes, breast,
nudity, opaque, top
Counsel: [*1] For Chelsea C Eline, Megan A Bryant,
Rose R MacGregor, Christine E Coleman, Angela A
Urban, Plaintiffs: Devon M Jacob, PRO HAC VICE,
Jacob Litigation, Mechanicsburg, PA; Jason Gregory
Downs, DownsCollins, P.A., Baltimore, MD.
For Town of Ocean City Maryland, Defendant: Bruce
Frederick Bright, LEAD ATTORNEY, Ayres Jenkins
Gordy and Almand PA, Ocean City, MD.
Judges: James K. Bredar, Chief United States District
Judge.
Opinion by: James K. Bredar
MEMORANDUM AND ORDER
Plaintiffs 1
have moved for preliminary injunctive relief in
this case claiming a denial of equal protection under the
Fourteenth Amendment to the United States
Constitution. 2
(Mot. Prelim. lnj., ECF No. 21.) Plaintiffs,
1 Plaintiffs are Chelsea C. Eline, Megan A. Bryant, Rose R.
MacGregor, Christine E. Coleman, and Angela A. Urban.
2 Plaintiffs have also asserted they are similarly injured under
who are females, contend they have a "legal right to be
bare-chested, in public, in the same places that men are
permitted to be bare-chested, for purposes other than
breastfeeding." (Mot. Prelim. lnj. Supp. Mem. 1, ECF No
22.) They further claim the Town of Ocean City,
Maryland ("Ocean City"), has denied them equal
protection of the law by enacting and enforcing
Emergency Ordinance 2017-10, which bans "female
bare-chestedness in public while permitting male bare-
chestedness." (Id.)
The Court will hold a hearing on Plaintiffs' motion, which
has been fully briefed (ECF Nos. 27, 28), on the [*2]
date set at the end of this memorandum and order. In
preparation for the hearing, the Court makes the
following observations:
1. The United States Court of Appeals for the
Fourth Circuit has previously addressed a similar
contention in "'·'·'··'~·"'·''··""·'·~'·"·'"·"'····'·'···~~.·.,J .• ,~"'·· .. "'·"''·"'·;··,.-.·=·-'~-'··L=
''"··'····"°:·"'····'··"··'~ .. :..,.· In that case, the person claiming
constitutional injury had been cited for violating a
United States Fish and Wildlife regulation that
prohibited, on any national wildlife refuge, any act
of indecency as defined by State or local law. The
particular law at issue was § 9.3 of the Accomack
Page2 of 2
2018 U.S. Dist. LEXIS 143951, *2
identified [*3] the important governmental interest
as "protecting the moral sensibilities of that
substantial segment of society that still does not
want to be exposed willy-nilly to public displays of
various portions of their fellow citizens' anatomies
that traditionally in this society have been regarded
as erogenous zones. These still include (whether
justifiably or not in the eyes of all) the female, but
not the male, breast." .................... , .............. -
2. The Ocean City ordinance at issue, codified as
sections 58-191-194, sets forth various legislative
findings, including, "Protecting the public
sensibilities is an important governmental interest
based on an indisputable difference between the
sexes. Further, a prohibition against females baring
their breasts in public, although not offensive to
everyone, is still seen by society as unpalatable."
Sec. 58-191 (d). In keeping with that finding, the
ordinance prohibits public nudity, defined in part as
"Mess than [a] completely and opaquely covered ..
. female breast below a point immediately above
the top of the areola." Sec. 58-192(2).
3. The contested ordinance was enacted by duly
elected representatives of the public who reside in
Ocean City. The Court observes it is, at least,
arguable that these representatives [*4] are
authorized to speak, through legislation, in a
manner that reflects the public's sensibilities.
4. Plaintiffs rely on one court decision from the
District of Colorado that favors their position,
That case is currently on appeal to the Tenth
Circuit, No. 17-1103.
5. The Colorado decision appears to be an outlier,
given the various decisions in both federal and
state courts that do not favor Plaintiffs. See, e.g.,
6. This Court will, as of course it must, respect the
precedent set in
At the hearing, the parties are free to present evidence
on the question of whether public sensibilities are
accurately reflected or not in the Ocean City ordinance.
The hearing will be held on September 21, 2018, at
11 :00 a.m., in Courtroom 3D, United States Courthouse,
101 West Lombard Street, Baltimore, Maryland 21201.
SO ORDERED.
DATED this 22 day of August, 2018.
BY THE COURT:
Isl James K. Bredar
James K. Bredar
Chief Judge
Appellate Case: 17-1103 Document: 010110067691 Date Filed: 10/12/2018 Page: 4
County, Virginia, Code, which prohibited public
nudity, defined in part as "the showing of the female
breast with less than a fully opaque covering on any
portion thereof below the top of the nipple."
The Court found no constitutional
violation by enforcement of the code section. With
regard to equal protection, the Court assumed
without deciding "that a distinction based upon
anatomical differences between male and female is
gender-based for equal protection analysis
purposes,'' but then went on to decide "that th~
distinction ... is one that is substantially related to
an important governmental interest, hence does not
deny equal protection." The Court
the Maryland Declaration of Rights, Article 46. (Compl. Count Ill.)
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