Reply Brief — Furfaro v. Seattle, Washington (No. 01-1522)

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No. 01-1522

a

———

In The

Supreme Court of the Gnite

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NICK FURFARO; BRANDY KIDDER;

ESMERALDA SILVA; and JJR, INC.,

Conditional Cross-Petitioners,

CITY OF SEATTLE,

Conditional Cross-Respondent.

*

On Petition For A Writ Of Certiorari

- To The Supreme Court For The

State Of Washington

&

v

REPLY BRIEF IN SUPPORT OF

CONDITIONAL CROSS-PETITION

FOR A WRIT OF CERTIORARI

-

v

JIEFFREY L. FISHER _ GILBERT H. LEVy

DAVIS WRIGHT TREMAINE LLP Counsel of Record

2600 Century Square 2001 Western Avenue

15501 Fourth Avenue _ Suite 200

Sieattle, Washington Seattle, Washington 98121

98101-1688 (206) 443-0670 Phone

(206) 622-3150 Phone (206) 448-2252 Fax

(206) 628-7699 Fax

Counsel for Conditional

Cross-Petitioners

————_$_ $_ $_ $— $_<_<_<—$$—[—$—_— OS=S={={={]{]{={=$=LClL*=—=|=_ _=_=_=_=_=_=_=_=a@a=_=@a_ ==

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831 ee

TABLE OF CONTENTS

Page

I. INTRODUCTION ....ccscesccssssssssssessssssesseessseesees 1

TE. ABUCUIDOIIIIT oanssciccceccccsncnscsnssasnssssnasasscsonnse 2

A. The Washington Supreme Court’s Refusal

| to Require a Warrant Here is Inconsis-

tent with this Court’s Precedent.............. 2

B. Cross-Petitioners’ Second Question Pre-

sented is Properly Before this Court ....... 5

ee EY icici scsnernsceciiarsiaansavccccern scat 7

ii

TABLE OF AUTHORITIES

Page

CASES

Bantam Books v. Sullivan, 372 U.S. 58 (1968) .................. 3

Charleston Federal Savings & Loan Ass’n v. Alder-

oor, SB4 U.S. MOR CRD vcscesevsrctsncsesitiineceisenciatetasenntios 6

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)............... 1,3

Dima Corp. v. Town of Hallie, 185 F.3d 823 (7th Cir.

TODD) «...-..<0<c.+snininsiscsiscainnnbamasiestasedissanatalnnanaisNiaeralsnananaDbannaanaiien 4

Jenkins v. Georgia, 418 U.S. 153 (1974)... eeseteeeeeeeeee 6

Marcus v. Search Warrant, 367 U.S. 717 (1961)......... 2, 4,5

Miller v. California, 413 U.S. 15 (19738) ......... ce eeesesseeseseenes 3

Orr v. Orr, 440 U2. Sa re carieseieeaacneeeetaevianns 6

Payton v. New York, 445 U.S. 573 (1980) ............ccceeesseeeeeee 5

Raley v. Ohio, 360 U.S. 423 (1959) ..............ccccosesrsssssssesccees 6

Roaden v. Kentucky, 413 U.S. 496 (1973)................004. 2, 4,5

Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

GAG (2G7G) ....1:.0<issassiconecainpipniunoaabanadaaennaaeaaelesaleusunaes 4

Steagald v. United States, 451 U.S. 204 (1981)............0..... 5

Whitney v. California, 274 U.S. 357 (1927) ......... ee eeeeeees 6

. OTHER AUTHORITY

Stern & Gressman et al., Supreme Court Practice

CT eRe Uh. LID ncsevenccssiseinienieiansiaensanesieiieaianacaaasnaad 6

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I. INTRODUCTION

The City’s briefing to this Court makes it plain that it

believes that its police officers have the right — without

obtaining a warrant or even considering the issue of

obscenity — to arrest any performer in an adult entertain-

ment establishment who touches her buttocks, breast or

other private area while dancing on stage. Br. in Opp. at 1-

3, 16. This radical proposition is at loggerheads with this

Court’s free expression jurisprudence, and finds no sup-

port in this Court’s prior restraint or Fourth Amendment

cases. While nude dancing may fall only within the “outer

ambit of the First Amendment’s protection,” City of Erie v.

Pap’s A.M., 529 U.S. 277, 289 (2000) (plurality opinion), it

is nonetheless protected. Therefore, under the First

Ame:.iment as well as Seattle’s own ordinance, police

officers may arrest adult entertainers for the content of

their dances only if they have probable cause to believe

that their performances constitute obscene expression.

And no decision from this Court or any other court has

ever held that nude dancing that includes some self-

touching in the course of conveying a sensual message (as

it almost always does) automatically becomes obscene

conduct. (Indeed, in prior state court proceedings, the jury -

decided that ene of the entertainers arrested in this very

case was not guilty of obscenity. App. to City’s Pet. for

Cert. at 29.) The Citys misunderstanding of this basic

point demonstrates not only why this Court should deny

the City’s petition for certiorari, but it also shows why this

Court should review the City’s warrantless arrest policy at

the first appropriate opportunity.

Cross-Petitioners submit this Reply Brief to refute two

points in the City’s brief in opposition to the Conditional

Cross-Petition. First, the Washington Supreme Court’s

2

holding that the warrant requirement that applies to

sexually explicit books and film does not also apply to

sexually explicit live entertainment is, contrary to the

City’s arguments, inconsistent with this Court’s precedent.

Second, the City is simply wrong in asserting that the

question whether the Constitution permits after-the-fact

probable cause determinations concerning arrests of live

entertainers is not properly before this Court.

Il. ARGUMENT

A. The Washington Supreme Court’s Refusal to

Require a Warrant Here is Inconsistent with

this Court’s Precedent.

While not disputing that division of authority exists

on this question, the City urges this Court to deny certio-

rari on the ground that the Washington Supreme Court's

refusal to require officers to obtain warrants before arrest-

ing nude dancers for obscene expression is consistent with

this Court’s precedent.’ Specifically, the City contends that

its warrantless arrest policy is constitutional because

when adult entertainers touch their buttocks or breasts

* The City does claim that two of the cases implicated in this split

are inapplicable because they “involved an arrest for selling or promot-

ing allegedly-obscene printed materials or films.” Br. in Opp. at 10. But

the City does not provide any reason for thinking that promoting

allegedly obscene books and films is any different from promoting

allegedly obscene live entertainment. Nor does any such reason exist.

What makes those cases and this one incrementally different from

Marcus v. Search Warrant, 367 U.S. 717 (1961), and Roaden v. Ken-

tucky, 413 U.S. 496 (1973), is that the-former cases involve arrests of

individuals, while the latter involve seizures of inanimate objects. Thus,

all of the cases Cross-Petitioners cite in their Conditional Cross-Petition

contribute to the split of authority on this issue.

m 3

during a stage performance, they engage in “action” or

“conduct” that somehow is not entitled to ordinary First

Amendment protections. Br. in Opp. at 1, 5, 14. The City

further maintains that any prior restraint concerns raised

by this policy dissipate because “nude dancing is not

afforded the same First Amendment protections as books

and films.” Br. in Opp. at 1.

The Citys arguments are incorrect and, indeed,

emphasize that if this Court grants the City’s petition for

~ certiorari, a review of this warrant issue is essential as

well. The City’s position that its officers’ conduct here was

justified by the dancers’ “conduct” is apparently based on

its assumption that nude dancing automatically loses First

Amendment protection whenever a performer touches her

own buttocks or breast. But no court has ever so held, for

such a rule would vitiate this Court’s doctrine that expres-

sive conduct, including dancing, is unprotected by the

First Amendment only if its content “taken as a whole”

appeals to the prurient interest and is so patently offen-

sive and otherwise lacking in value that it is obscene.

Miller v. California, 413 U.S. 15, 23 (1973) (emphasis

added); see also City of Erie v. Pap’s A.M., 529 U.S. 277,

289 (2000) (plurality opinion). Indeed, if identifying

obscenity were as easy as identifying an exposed or

touched body part in a performance or a picture, then the

First Amendment’s procedural protections based on the

“dim and uncertain line” that separates obscene from

protected expression would make no sense. See, e.g.,

Bantam Books v. Suliivan, 372 U.S. 58, 66 (1963). The

City’s one-size-fits-all approach to identifying obscenity

completely undermines this Court’s carefully crafted

protection of sexually oriented expression.

4

Because determining whether any form of sexually

oriented expression is obscene is a sensitive and multi-

faceted task, it is clear that the arrests here were just like

the seizures at issue in Marcus v. Search Warrant, 367

U.S. 717 (1961), and Roaden v. Kentucky, 413 U.S. 496

(1973), in the sense that the police oiiicers seized per-

sons/items based on the unreviewed conclusion that their

content was so sexually explicit that they were not pro-

tected expression. The only distinction between this case

and the Marcus/Roaden line of cases is that this case

involves live entertainment instead of books and films.

The key question thus is whether that distinction makes

any constitutional difference regarding the need for a pre-

seizure warrant.

The City’s assertion, echoing the Washington Supreme

Court, that “nude dancing is not afforded the same First

Amendment protections as books and films,” Br. in Opp. at

1, does not answer this question, for it rests on a false

comparison. The proper comparison between this case and

the Marcus/Roaden line of cases is between live enter-

tainment and books and films — or between nude dancing

and books and films (found in adult bookstores and thea-

tres) depicting nudity. Either way, the result is the same.

This Court explicitly held in Southeastern Promotions,

Ltd. v. Conrad, 420 U.S. 546, 557-58 (1975), that live

entertainment is entitled to the same prior restraint

protections as books and film, and every lower court to

consider the issue has held that nude dancing is entitled to

the same First Amendment protections as sexually explicit

books and film. See, e.g., Dima Corp. v. Town of Hallie, 185

F.3d 823, 827 (7th Cir. 1999). Similarly, this Court has

consistently held that individuals are entitled to as much

Fourth Amendment protection against warrantless arrests

5

as inanimate objects are warrantless against seizures. See,

e.g., Steagald v. United States, 451 U.S. 204, 213 (1981);

Payton v. New York, 445 U.S. 573 (1980). Thus, as the

dissent below and numerous other courts have recognized,

once a proper comparison is made between the seizures at

issue here and those at issue in Marcus and Roaden, it

becomes plain that there is no basis for requiring a war-

rant in one context but not the other. See Cross-Pet. at 13-

15 (citing cases).

B. Cross-Petitioners’ Second Question Presented

is Properly Before this Court.

Instead of commenting on the certworthiness of Cross-

Petitioners’ second question presented (whether arrests of

live entertainers can be validated by purely after-the-fact

determinations of probable cause), the City argues only

that Cross-Petitioners are precluded from raising this

argument because they did not raise it below. The City,

however, is incorrect as a matter of fact and, in any event,

fundamentally misunderstands this Court’s rules regard-

ing waiver.

Cross-Petitioners did argue below that probable cause

was lacking in this case under the First and Fourth

Amendments. As the Washington Supreme Court stated,

“the [Washington] Court of Appeals agreed with Respon-

dents that a consideration of obscenity is essential to the

determination_of probable cause to arrest under SMC

6.270.100(A)(2).” App. to City’s Pet. for Cert. at 14 (empha-

sis added); see also id. at 22 (confirming that Cross-

Petitioners raised same argument in Washington Supreme

Court). Furthermore, the notion that police officers them-

selves must at least actually consider obscenity before

6

making arrests under SMC 6.270.100 is subsumed within

Cross-Petitioners’ broader argument that such arrests

violate the First and Fourth Amendments unless they are

done pursuant to a warrant from a neutral magistrate

finding that the expression at issue is obscene.

But even if Cross-Petitioners somehow had failed

adequately to brief the particular issue whether — in the

event that a court held that a neutral magistrate is not

required to make a pre-arrest determination regarding

obscenity — a police officer must at least do so, it still

would not matter in the slightest. It is a basic rule of this

Court that “[t]here can be no question as to the proper

presentation of a federal claim when the highest state

court passes on it.” Raley v. Ohio, 360 U.S. 423, 436-37

(1959). It is enough for this Court’s purposes if the state’s

highest court “reached and decided” the issue. Jenkins v.

Georgia, 418 U.S. 158, 157 (1974); accord Orr v. Orr, 440

U.S. 268, 274-75 (1979); Charleston Federal Savings &

Loan Ass’n v. Alderson, 324 U.S. 182, 185-86 (1945);

Whitney v. California, 274 U.S. 357, 360-61 (1927); Stern

& Gressman et al., Supreme Court Practice §3.18 (7th ed.

1993) (“Where the highest state court assumes or holds

that a federal question is properly before it and then

proceeds to consider and dispose of that issue, the [United

States] Supreme Court’s concern with the proper raising of

the federal question in the state courts disappears.”). In

short, this Court “need not inquire how and when” the

federal question “was raised [in state court] when such

question appears to have been actually considered and

decided by that court.” Alderson, 324 U.S. at 185-86.

There can be no dispute that the Washington Supreme

Court extensively considered and decided this second

question presented — namely, whether the First and

‘\

~]

Fourth Amendments permit police officers’ arrests of nude

dancers for allegedly obscene conduct to be validated

solely by post-arrest determinations of probable cause.

App. to City’s Pet. for Cert. at 19-22. The City does not

contend otherwise. That being so, that question is properly

before this Court.

Ill. CONCLUSION

For the foregoing reasons, if this Court grants the

City’s petition for certiorari in this case, it should also

grant this Conditional Cross-Petition for Certiorari.

RESPECTFULLY SUBMITTED this 31st day of May,

2002.

GILBERT H. LEvy

Counsel of Record

2001 Western Avenue

Suite 200

Seattle, Washington 98121

(206) 443-0670

JEFFREY L. FISHER

DAVIS WRIGHT TREMAINE LLP

2600 Century Square

1501 Fourth Avenue

Seattle, Washington 98101

(206) 622-3150