Reply Brief — Pooh Bah Enterprises, Inc. v. City of Chicago (No. 06-1614)

No. ¢ > |

Supreme Court of the Gunited States

POOH BAH ENTERPRISES, INC., ef al.,

Petitioners.

Vv.

CITY OF CHICAGO, ef al.,

Respondents.

On Petition for Writ of Certiorari te the

Supreme Court of Hlinois

REPLY BRIEF OF PETITIONERS

MICHAEL A. ABRAMSON ROBERT CORN-REVERE

ARNSTEIN & LEHR LLP (Counsel: of Record)

120 South Riverside Plaza DAVIS WRIGHT TREMAINE LLP

Suite 1200 1919 Pennsylvania Avenue, N.W.

Chicago, Minois 60606 Washington, D.C. 20006

(312) 876-7155 ~ (202) 973-4225

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

PPE OP. FA TET MES eens cccssececsccsccseccesscorsccssesorece li

Be IIE Soria bibbeessscrcescsvenienstcenccesinsencpensesnecees 1

I. STRICT VERSUS INTERMEDIATE

III cciclasricicsiaseycinsésssinsusbubevaanisieceassocceses 1

Il. THE CITY’S EVIDENTIARY BURDEN ........ 6

Bake EPR Ge CPUS FIRS vscecscsoscncssscsccscvenenonee 9

I Sai da sdasehabachoaneneconbousceaceossvscesens 10

(i)

ii

TABLE OF AUTHORITIES

CASES Page

44 Liquormart, Inc. v. Rhode Island, 517 U.S.

SG I is inciiniecstsssshinccintcnaiiantaibibSibeisinsiasankens 4,5

181 South Inc. v. Fischer, 454 F.3d 228 (3d Cir.

AN eine aii nicssechitinicniabeidesideieeniaccebiietn Riandincescen 4

Abilene Retail #30, Inc. v. Bd. of Conan’ ee

F.3d _, No. 05-3473, 2007 WL 1982130

(10th Cir. UE Fs et rtinsinishiastcnnabessececninaincen 8

Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d

FOI BRE sisisetncarstsnscanteersimessatinniones’s ae

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)... 1,4

City of Los Angeles v. Alameda Books, Inc., 535

CFF eR isccissinkinhiticessitnlgacenciagincamecantnd passim

City of Renton v. Playtime Theatres, Inc., 475

TF ene Se cain vtbsnacipinaiivscirnadiiineinsiaunoanwchiemensions ee

Daytona Grand, Inc. v. City of Daytona Beach,

490 F.3d 860 (11th Cir. 2007) ........... eee eee 8

Encore Videos, Inc. v. City of San Antonio, 330

Fe Fie et lc BIST cisseniencccocscensinnanoesonecosen 5,8

Fantasy Ranch Inc. v. City of Arlington, 459 F.3d

FI Cs BRED ssiscecnscomncsinadniaasoncdangiiwnnnacniose 8

Flanigan’s Enters., Inc. v. Fulton County, 242

FB Sae Fe FE Gae, BOOED cienannesnscescsovicsnndssencensie 8

G&V Lounge, Inc. v. Michigan Liquor Control

Comm’n, 23 F.3d 1071 (6th Cir. 1994) ............. 5

G.M. Enters., Inc. v. Town of St. Joseph, 350

FB lw BOD inrtaaiinicsecictbstiinsapntionense 5

Giovani Carandola, Lid. v. Bason, 303 F.3d 507

UL. GSES ERS Serr avean ee eceress te oie 5,8

Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d

pail 4 Ri ° . Reenter cera ae 5

Gregg v. Georgia, 428 U.S. 153 (1976)................ 2

Hamling v. United States, 418 U.S. 87 (1974)...... 3

Heideman v. South Salt Lake City, 348 F.3d 1182

EE al SIG seis aiken icensschiotemsaasacicgnctveenectecn 5

TABLE OF AUTHORITIES—Continued

Page

Illusions-Dallas Private Club, Inc. v. Steen, 482

Fe Ee NE is cininncvenitintnianinckemenesn 4,5,8

Marks v. United States, 430 U.S. 188 (1977)......... A

Peek-a-Boo Lounge of Bradenton, Inc. v. Mana-

tee County, 337 F.3d 1251 (11th Cir. 2003)...... 8

Perry v. Sinderman, 408 U.S. 593 (1972).............. 5

R.V.S., LLC v. City of Rockford, 361 F.3d 402

PU: ND ip cents cacrincnctdensaiiavornissecinnicticcasen 5,8

Ranch House, Inc. v. Amerson, 238 F.3d 1273

ESE ReRG SUED cudivestncchcanssclevpeoansdickevsathoemsccbuentuecee 5

Schultz v. City of Cumberland, 228 F.3d 831 (7th

A. POD ais icnk-scscisdaanaledinibucsdouneseeaniioxesn cease 5

Steiner v. County Comm'rs of Caroline County,

490 F.Supp.2d 617 (D. Md. 2007)..................... 8

Top Flight, Inc. v. City of Inkster, No. 06-12399,

2007 WL 643897 (E.D. Mich. Feb. 26, 2007)... 7

Ward v. Rock Against Racism, 491 U.S. 781

STATUTE, RULE, AND ORDINANCE

Municipal Code of Chicago, § 4-60-140(d)

ics hinsincntcsntbadennsiiadiesaiadavennbalseatdennstaetisteees passim

OTHER

Bryant Paul, Daniel Linz, and Bradley J. Shafer,

Government Regulation of “Adult” Businesses

Through Zoning and Anti-Nudity Ordinances:

Debunking the Legal Myth of Negative

Secondary Effects, 6 COMM. LAW & POLICY

Fane CN FIN Fiestas cancencecceptanarntcnn cothisiaseceias 7

ae a9

air Sate. 5

ead 3

iv

TABLE OF AUTHORITIES—Continued

Daniel Linz, Mike Yao, and Sahara Byrne, Test-

ing Supreme Court Assumptions in California

v. LaRue: Is There Justification for Prohibit-

ing Sexually Explicit Messages in Establish-

ments That Sell Liquor?, 7 COMM. L. REV. 23,

ST ia ittiiniuicein nications

INTRODUCTION

The City of Chicago’s Opposition (“Opp.”) well illustrates

the doctrinal confusion that has divided the lower courts

in seeking to determine whether a regulation of sexually

oriented entertainment is content neutral, and, if so, how to

apply the evidentiary burdens necessary to justify the regu-

lation. Like the Illinois Supreme Court below, the City sim-

ply assumes that intermediate scrutiny is the correct standard

of review because the ordinance at issue regulates sexually

oriented entertainment without regard to content neutrality.

The City also erroneously contends that it has fulfilled its

“light” evidentiary burden notwithstanding the trial court’s

finding that “the record [is] devoid of any proof of the

existence of or even the possibility of potentially harmful sec-

ondary effects” (App. 147), and despite the fact that Peti-

tioners were not permitted to complete their case. The

Opposition blithely overlooks a growing split among the

circuit courts on each of these issues, and thus highlights why

review by this Court is warranted.

I. STRICT VERSUS INTERMEDIATE SCRUTINY

1. The City does not question the settled law that strict

scrutiny must be applied when regulation of expressive

conduct is content-based unless the government can establish

a neutral purpose. Petition for Certiorari (“Pet.”) at 11-13.

See City of Los Angeles v. Alameda Books, Inc., 535 U.S.

425, 434 (2002); City of Erie v. Pap’s A.M., 529 U.S. 277,

289 (2000); City of Renton v. Playtime Theatres, Inc., 475

U.S. 41, 46-47 (1986). However, it argues that the court

below properly applied intermediate scrutiny after it found

that the “only motivation” for Chicago Municipal Code § 4-

60-140(d) (“Coverage Ordinance”) was as a content neutral

regulation of “negative secondary effects.” Opp. at 13-14.

What is missing from the City’s analysis is any evidence of

legislative purpose for.the ordinance at issue in this case.

However, “a city must advance some basis to show that its

2

regulation has the purpose and effect of suppressing second-

ary effects.” Alameda Books, 535 U.S. at 449 (Kennedy, J.,

concurring).’

a. The City, like the court below, relies exclusively on

testimony about prostitution on Chicago’s Rush Street in

years past and to legislative findings for a 1993 zoning

ordinance, with which Pooh Bah has always complied, that

was adopted fifteen years after the Coverage Ordinance.

Opp. at 3-6, 13-14; App. 31-36. Neither that testimony nor

the purported “findings” speak to the motivations for enact-

ment of the 1978 Coverage Ordinance. As Justice Freeman

explained, the court below made a “clear and piain error” in

“incorrectly citing the legislative history and preambles of the

City’s 1993 adult use zoning ordinance as if that were the

legislative history and original city council intent.” App. 79

(Freeman, J., dissenting from denial of reh’g). The Opposi-

tion merely repeats that error.

b. The City’s reliance on “findings” made fifteen years

later to justify the 1978 Coverage Ordinance confirms that

this case implicates the deep split of authority on whether

post-enactment evidence can be used to show a content neu-

tral purpose. See Pet. at 17 (citing cases). The City expressly

acknowledges the circuit split. Opp. at 17. It says only that

“lawmekers could not have known to include a statement

articulating their secondary effects rationale” because the

Coverage Ordinance was enacted before Renton. Id. See also

id. at 16. Not only is this a frank admission that the City has

zero evidence of a content neutral purpose for the Coverage

Ordinance, it is no answer to the doctrinal question raised by

the instant Petition. The City’s excuse for why it lacks

evidence of legislative intent is irrelevant. It is settled that the

showing of a content neutral purpose, required by Renton and

' For purposes of this analysis, Justice Kennedy’s opinion may be

considered the holding of the Court. Marks v. United States, 430 U.S.

188, 193 (1977); Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976).

3

its progeny, applies fully to this case even if that requirement

was articulated in later cases. See, e.g., Marks, 430 U.S. at

196-197; Hamling v. United States, 418 U.S. 87, 102 (1974).

c. The only contemporaneous legislative statement of

purpose for the 1978 Coverage Ordinance indicates that it

was intended to regulate content, i.e., to “control[ ] the form

of entertainment” in venues that serve alcohol. (App. 157.)

The City disputes that this statement demonstrates a content-

based purpose, yet admits as much by characterizing it as “a

generic description of the legislation included by the com-

mittee in its recommendation to the City Council.” Opp. at

17 n.9. Even if the City’s conclusion is accepted, this leaves

no record support for the City’s claim of content neutrality. ”

d. The City subsequently sought to fill this vacuum by

proffering various post-enactment theories of iegislative pur-

pose. However, the City abandoned various content neutral

justifications in the course of litigation. Pet. at 20-21. Sig-

nificantly, the City relied heavily on a content-related

justification for the Ordinance—that the effect on the patron

of combining alcohol and erotic dancing causes crime. App.

32, 38. The Court below agreed with the City and relied on

content-based justifications for the law—i.e., not secondary

effects, but rather direct effects on patrons of adult enter-

tainment. App. 37-40, 43. See also App. 68 (Freeman, J.,

dissenting from denial of reh’g) (the Court justified ordinance

based on “supposed effects of the regulated conduct on its

audience”). If this indeed was the City’s purpose, it should

have been subject to strict scrutiny. Pet. at 15-16.

2. The City’s argument that the ordinance regulates

alcohol sales—and not expression—is a red herring. Opp. at

8-14. Even where government claims to target the putative

? The City also admits that the [linois Supreme Court may have “mis-

conceived the legislative history,” but fails to grasp that this error leaves it

without any content neutral justification whatsoever for the Coverage

Ordinance. See Opp. at 17 n.9.

4

secondary effects of adult entertainment, there can be no

pretense it is not regulating speech but only liquor licensing.

See Pap’s A.M., 529 U.S. at 294-95 (allowing “States ... to

regulate secondary effects” necessarily involves “intrusions

on expression”) (discussing, inter alia, Ward v. Rock Against

Racism, 491 U.S. 781 (1989)). Since 44 Liguormart, Inc. v.

Rhode Island, 517 U.S. 484 (1996), and certainly since Pap’s

A.M., there can be no serious claim that regulating exotic

dancing in liquor-serving venues “do[es] not restrict expres-

sion,” as the City argues here. Opp. at 10 n.6. In Jllusions-

Dallas Private Club, Inc. v. Steen, 482 F.3d 299, 306-07 (Sth

Cir. 2007) the Fifth Circuit cataloged the Third, Fourth, Sixth,

Seventh, and Eleventh Circuit cases that concluded that 44

Liquormart “requires that alcohol regulations of [sexually

oriented businesses] be analyzed in light of the First Amend-

ment.” Precedent from six Circuits shows that it is hardly just

“two cases. . .in which a restriction on sexually explicit

dancing at liquor-licensed establishments” was analyzed

under the First Amendment, as the City claims. °

Using license revocation as the means of punishment does

not change the fact that the activity being punished is speech.

Here, the City maintains that Pooh Bah may keep its liquor

license and avoid punishment if it alters the type of speech it

provides. But a “state actor cannot constitutionally condition

the receipt of a benefit, such as a liquor license or an enter-

tainment permit, on an agreement to refrain from exercising

3 See Opp. at 13. 44 Liquormart sounded the death knell for the argu-

ment that the Twenty-First Amendment provides a separate basis for

regulating speech. 517 U.S. at 516. It also is clear that the Alameda

Books analysis applies to adult entertainment regulation imposed through

alcohol license limitations. See Illusions-Dallas, 482 F.3d at 306-07. The

City’s reliance on pre-44 Liguormart cases is unavailing, Opp. at 9, 10-11

& n.7, as is its citation of 18] South Inc. v. Fischer, 454 F.3d 228, 233 (3d

Cir. 2006) (Third Circuit expressly declined to base its holding on the

argument that a regulation is constitutional where a state prohibits alcohol

sales in “inappropriate locations”).

5

one’s constitutional rights, especially one’s right to free

expression.” G&V Lounge, Inc. v. Michigan Liquor Control

Comm’n, 23 F.3d 1071 (6th Cir. 1994) (citing, inter alia,

Perry v. Sinderman, 408 U.S. 593, 597 (1972)). See 44

Liquormart, 517 U.S. at 513 (“Even though government is

under no obligation to provide . . . a particular benefit,” such

as “cho[osing] to license . . . liquor” purveyors, “it does not

follow that conferral of the benefit may be conditioned on the

surrender of a constitutional right.”).

3. The City’s claim that no circuit conflict exists regard-

ing the nature of the government’s burden to show a content

neutral purpose is plainly wrong. Opp. at 15. It ignores the

cases cited in the Petition which held that courts cannot

“simply assume that the legislature’s purpose was to combat

the negative impact on health, safety, and welfare,” e.g.,

Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1282-83 (11th

Cir. 2001); R.V.S., LLC v. City of Rockford, 361 F.3d 402,

408 (7th Cir. 2004); see also G.M. Enters., Inc. v. Town of St.

Joseph, 350 F.3d 631, 638 (7th Cir. 2003); Schultz v. City of

Cumberland, 228 F.3d 831, 844 (7th Cir. 2000), as distin-

guished from cases presuming content neutrality “even with-

out a legislative record to suggest a purpose unrelated to

speech.” E.g., Illusions-Dallas, 482 F.3d at 309 (Sth Cir.

2007); Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702,

712 (7th Cir. 2003); Heideman v. South Salt Lake City, 348

F.3d 1182, 1195 (10th Cir. 2003); Encore Videos, Inc. v. City

of San Antonio, 330 F.3d 288, 292 (Sth Cir. 2003); Grand

Faloon Tavern, Inc. v. Wicker, 670 F.2d 943, 947 (11th Cir.

1982); see also Giovani Carandola, Ltd. v. Bason, 303 F.3d

507, 514 (4th Cir. 2002). The cases show a significant

amount of confusion on this key threshold question not only

between different circuits, but among different panels of the

same circuit. Accordingly, clarification by this Court is ur-

gently needed.

6

Il, THE CITY’S EVIDENTIARY BURDEN

1. The City entirely misses the point of the second issue

presented in the Petition. The petitioners seek clarification by

this Court of the government’s burden of proof where the

litigants have cast doubt on the city’s evidence and theories,

and where the trial court has found that the record lacks any

proof of potentially harmful secondary effects. (App. 147).

The City argues that it need only show that it “reasonably

believed” the Coverage Ordinance would help combat sec-

ondary effects, and that petitioners “do not even attempt to

identify a conflict with respect to the second question [pre-

sented in the Petition].” Opp. at 18-26. This assertion ignores

a significant split among the circuit courts as to the appropriate

evidentiary burden and advocates the absurd position that local

governments need offer no tangible evidence other than their

beliefs about possible secondary effects.

a. In Alameda Books, this Court explained that, in order

to show a regulation furthers a substantial government inter-

est under intermediate scrutiny, the government must show a

connection between the speech regulated and undesirable

secondary effects. Alameda Books, 535 U.S. at 434-38.

Although the City correctly notes that it may seek to satisfy

this burden by relying on any evidence that is “reasonably

believed to be relevant” to this inquiry, id. at 438, it utterly

ignored the rest of the Court’s holding: “If plaintiffs succeed

in casting doubt on a municipality’s rationale . . . the burden

shifts back to the municipality to supplement the record with

evidence renewing support for a theory that justifies its

ordinance.” Jd. at 439. See also id. at 453 (Kennedy, J.,

concurring) (“If these assumptions can be proved unsound at

trial, then the ordinance might not withstand intermediate

scrutiny.”). In such a case, it simply will not do for the gov-

ernment to assert, contrary to the evidence, that it neverthe-

less was persuaded by its own asserted secondary effects

rationale and that it has no burden to support its conclusion

beyond its own “reasonable belief.” The City’s suggestion

7

that once doubt is cast on the government’s rationale, its bur-

den. to respond is de minimis would render meaningless this

Court’s insistence that governments not rely on “shoddy data”

to avoid strict scrutiny when regulating adult entertainment.

b. That is precisely what happened in this case. After

hearing all the evidence and assessing the credibility of the

City’s witnesses, the trial court found the City had failed to

show “even the possibility of potentially harmful secondary

effects.” (App. 147.) Although Pooh Bah was able to present

some evidence, if it had been allowed to complete its case after

the Illinois Supreme Court’s reversal of the trial court ruling, it

would have been able to introduce expert testimony as well as

published studies on the absence of secondary effects in these

kinds of venues, thus further demonstrating the shoddy nature

of the City’s data.* The Illinois Supreme Court’s failure to

remand for further evidence contravenes Alameda Books,

where this Court remanded for further proceedings. 535 U.S.

at 432-33, 343. See also Section III, infra.

2. Although Alameda Books requires a process by which

petitioners may challenge the government’s asserted rationale

and shift the evidentiary burden back to the municipality, the

lower courts have been greatly divided in ascertaining and

applying these burdens. E.g., Top Flight, Inc. v. City of

Inkster, No. 06-12399, 2007 WL 643897, at *9 (E.D. Mich.

Feb. 26, 2007) (“Stating the precise parameters of a munic-

* See, e.g., Daniel Linz, Mike Yao, and Sahara Bye, Testing Supreme

Court Assumptions in California v. LaRue: Is There Justification for

Prohibiting Sexually Explicit Messages in Establishments That Sell

Liquor?, 7 COMM. L. REV. 23, 44 (2007) (“Results from previous studies

and the results from the present study suggest either no relationship or

even a negative relationship between the presence of alcohol serving adult

entertainment establishments and adverse secondary effects in the form of

sex related crime activity.”); Bryant Paul, Daniel Linz, and Bradley J.

Shafer, Government Regulation of “Adult” Businesses Through Zoning

and Anti-Nudity Ordinances: Debunking the Legal Myth of Negative

Secondary Effects, 6 COMM. LAW & POLICY 355 (Spring 2001).

ipality’s burden to support its asserted secondary effects is

difficult . . . due to the splintered nature of the leading

Supreme Court opinions in this area of law.”). Some courts

require the government’s rationale to be rebutted by clear and

convincing evidence, although this Court has never spoken to

that question. Compare Giovani Carandola, 303 F.3d at

516; Steiner v. County Comm'rs of Caroline County, 490

F.Supp.2d 617, 625 (D. Md. 2007), with, e.g., Peek-a-Boo

Lounge of Bradenton, Inc. v. Manatee County, 337 F.3d

1251, 1271-72 (11th Cir. 2003) (substantial and unanswered

factual challenges are sufficient to cast doubt on government

rationale). Others have reached sharply divergent conclu-

sions about the government’s evidentiary burden. Compare

Rockford, 361 F.3d at 411-13 (government failed to cite

sufficient evidence of connection between adult entertainment

and secondary effects); Encore Videos, 330 F.3d at 294-95

(same); Flanigan’s Enters., Inc. v. Fulton County, 242 F.3d

976, 985 (11th Cir. 2001) (court may not “presume the evi-

dence needed” to show secondary effects); [/lusions-Dallas,

482 F.3d at 313 (striking down ordinance on “record [ ]

completely devoid of any evidence that a secondary effects

problem exists”), with Fantasy Ranch Inc. v. City of Arling-

ton, 459 F.3d 546, 560-61 (Sth Cir. 2006) (even where plain-

tiffs’ expert’s report showed that “no arrests at strip clubs had

occurred for prostitution, drugs, or assault,” plaintiffs failed

to cast doubt on government’s secondary effects rationale).

This is not, as the City attempts to frame it, a situation in

which some local governments have provided sufficient

evidence to support their regulations while others have not.

Opp. at 22-23. Rather, the different outcomes have resulted

from the lack of clear guidance from this Court as to the

respective burdens of proof. Even in the brief time since the

Petition was filed, further dissension among the Circuits

emerged. Compare Daytona Grand, Inc. v. City of Daytona

Beach, 490 F.3d 860, 874-85 (11th Cir. 2007) (finding City

carried its burden to show secondary effects despite

significant expert testimony to the contrary), with Abilene

Retail #30, Inc. v. Bd. of Comm'rs, __ F.3d _, No. 05-3473,

2007 WL 1982130, at *9 (10th Cir. July 10, 2007) (in

attempting to meet initial burden, government may not “rely

on the existing body of prepackaged secondary effects

studies” but instead must “show[ ] that the evidence . . . relied

[on] is germane to their local experience”); id at *13-17

(Ebel, J., concurring) (disagreeing with majority that

government met its initial burden but stating that plaintiff cast

sufficient doubt on government’s secondary effects rationale).

This continuing confusion cries out for review by this Court.

lil. LACK OF DUE PROCESS

The City declined to address the merits of the due process

question presented in the Petition based on its erroneous

claim that the issue had been waived and its mistaken view

that it is not a distinct issue. It is wrong on both counts.

1. The claim that Pooh Bah waived the due process issue

is absurd. It was the Illinois Supreme Court’s refusal to allow

further evidence of the First Amendment issues on remand

that created the due process problem. See Pet. at 22. Pdéoh

Bah thus could not have “failed to forward a due process

argument in their [sic] appeal to the Illinois Supreme Court,”

Opp. at 26, because the due process violation had not yet

occurred. Pooh Bah briefed the due process violation on

rehearing before the state high court. See App. 65 (Freeman,

J., dissenting from denial of reh’g) (“in [the] rehearing

petition ... this court’s opinion .. . violates the “constitu-

tional required procedures for intermediate scrutiny * * *

resulting in a denial of due process””) (ellipses added, aster-

isks original). Petitioners also continue to press the issue

before this Court. The issue has not been waived.

2. Contrary to the City’s contention that due process

“questions have no significance outside this case,” Opp. at 26,

this procedural question goes to the heart of Alameda Books’

burden shifting process. Alameda Books makes clear that,

10

when a challenger raises questions about the asserted ra-

tionale by showing data and/or reasoning flaws, the City faces

a “burden [that] shifts back to [it] to supplement the record

with evidence renewing support. . . that justifies its ordi-

nance.” 535 U.S. at 439. See id. at 453 (Kennedy, J., con-

_ curring). Due process requires that affected businesses must

have a chance to “cast doubt” on the government’s rationale

for regulating adult entertainment. Jd. at 438-39. In this case,

however, Pooh Bah was not afforded a “full and fair

opportunity” to make this showing, Opp. at 26, because the

trial court interrupted Pooh Bah’s case—to conclude the trial

by holding the City did not meet its initial burden—before

Pooh Bah could finish presenting evidence. Pet. at 4, 22.

This Court must clarify what evidentiary procedures are re

quired in these circumstances.

CONCLUSION

For the foregoing reasons, this Court should grant the

petition for writ of certiorari.

Respectfully submitted,

MICHAEL A. ABRAMSON ROBERT CORN-REVERE

ARNSTEIN & LEHR LLP (Counsel of Record)

120 South Riverside Plaza DAVIS WRIGHT TREMAINE LLP

Suite 1200 1919 Pennsylvania Avenue, N.W.

Chicago, Illinois 60606 Washington. D.C. 20006

(312) 876-7155 (202) 973-4225

DAVID A. EPSTEIN

DAVDD A. EPSTEIN, LTD.

30 North LaSalle Street

Suite 2900

Chicago, Illinois 60602

(312) 553-1479

Counsel for Petitioners

FIUZd

| Ad, 2A ZOOF

me No. 06-1641

IN THE |

Supreme Court of the Buited States

JUAN C. ESPINOSA, et ux.,

Petitioners,

Vv.

UNION COUNTY, NEW JERSEY, et al.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

Unitep States Court or APPEALS

FOR THE THIRD CIRCUIT

REPLY BRIEF

=—S ——————

Tuomas D. Supa, Jr.

384 Starling Drive

Bozeman, MT 59718

(406) 599-8649

Counsel for Petitioners

4800) 278-8928 + B00) 359.6859

1

The Respondents did not address the simple and

undisputed bases for the Petition for a Writ of Certiorari.

First, it was “undisputed” that Petitioner had a

constitutionally protected “property interest in his job” as a

jail guard at all times including when the Respondents

ordered him to return to the jail. (App. 16a) (The

Respondents’ reliance on Gilbert v. Homar, 520 U.S. 924

(1997), provides no support for the lower Court’s sua sponte

conclusion that the Petitioner had a “weak” constitutional

interest in his job.)

Second, it is undisputed that the Respondents admitted

that the Petitioner “would be unable to return to work” in

the jail and the lower Court took as true Petitioner’s assertion

that he “could not return to work.” (App. 23a, 27a.) (The

Petitioner was the first guard to break the Blue Wall of

Silence. Also, the Petitioner was the only guard who tried to

help the abused detainees, identified by the detainees as

having tried to help them, praised as courageous in writing

by the Prosecutor for his voluntary testimony, and permitted

to leave the jail for safety reasons.)

Third, it was undisputed that Petitioner repeatedly

pleaded for comparable alternative employment outside the

jail and the Respondents never made ‘any efforts to find

alternative employment although they freely admitted that

such positions were available.

Fourth, it is undisputed that the Petitioner now holds a

nontenured position with a lower rank, earns less than half

his prior salary, and will lose in excess of a million dollars

through his retirement given his reduced salary, loss of

benefits and pension, and overtime pay.

2

It is respectfully submitted that the termination of

Petitioner’s tenured employment for not returning to the jail

was unlawful, and inherently discourages any law

enforcement officer from voluntarily, and truthfully, testifying

against a fellow officer in the future.

CONCLUSION

Petitioner respectfully requests that the Supreme Court

grant review of this matter.

Respectfully. submitted,

Tuomas D. SHEA, Jr.

384 Starling Drive

Bozeman, MT ‘59718

(406) 599-8649

Counsel for Petitioners