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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1722%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 2001

## Text

(3/
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1722%3A3. Public record. Not legal advice.