Monthly Archives: August 2013

Back to the Closet! – Alabama’s Seemingly Antiquated Anti-Obscenity Enforcement Act and the Sex Toy Circuit Split in the Shadow of the Lawrence Decision

Back to the Closet! – Alabama’s Seemingly Antiquated Anti-Obscenity Enforcement Act and the Sex Toy Circuit Split in the Shadow of the Lawrence Decision

By: John Gamble

Alabama’s Anti–Obscenity Enforcement Act prohibits, among other things, the commercial distribution of “any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value.”[1] However, the statute exempts sales of sexual devices “for a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose.”[2] That vague exemption has actually proved quite a significant roadblock to enforcement of the law.

In 1998 the Alabama legislature passed the Anti-Obscenity Enforcement Act ostensibly to deal with a serious public nuisance in the state, the commerce of dildos and other like objectionable devices. The legislature justified the necessity of the act stating, “That in order to protect children from exposure to obscenity, prevent assaults on the sensibilities of unwilling adults by the purveyor of obscene material, and suppress the proliferation of “adult-only video stores . . . the sale and dissemination of obscene materials should be regulated without impinging on [the] First Amendment . . . .”[3] Similar justifications were used by Texas in their comparable sex toy law, to no avail when the validity of the Texas law was brought before the Fifth Circuit Court of Appeals.[4]

Alabama’s previous Attorney General, Troy King, thought the sex toy issue one of such importance to fight a long and costly legal battle spanning almost a decade, in order to rid the state of these corrupting rubber menaces. However, that battle produced a rather pyrrhic victory when the state won its case before the Eleventh Circuit. Because not only was the decade long legal dispute undoubtedly expensive, but likely produced little results in terms of actually enforcing of the law. The law, vaguely written in general, contains the aforementioned key exception that allows the sale of sex devices for “a bona fide medical, scientific, educational, legislative, judicial, or law enforcement purpose.”[5] Many sex toy shops continue to operate in the state currently hiding beneath this broad and vague exception.[6] And in fact, the “attorney general’s office has never prosecuted a store for selling to a customer who said the purchase was for one of the approved reasons.”[7] Apparently, that loophole in Alabama’s law is quite large, large enough for a Sex Toy Drive-Thru to do a successful business in Huntsville in the immediate aftermath of the state’s successful defense of the law.[8] Increased liveliness in Alabama’s political rhetoric may be the only positive result from the law. The Libertarian candidate for governor in 2006, Loretta Nall, began a sort of dildo drive entitled “Sex Toys for Troy” in 2007, which called for citizens to voice their disagreement with the law by mailing sexual devices to the Attorney General’s Office.[9] And while the idea of the former straight-laced Attorney General unwittingly opening packages packed full of adult inflatables of sundry colors and sizes might seem chortle-worthy, there is nothing comedic about the cost to the state’s coffers from the litigation nor is it comical that this sort of legislation contributes to Alabama’s image as the “laughingstock of the country.”[10] The Anti-Obscenity Enforcement Act particularly contributes to this image when we consider the unfortunate fact that the Act is not some outdated dusty old blue law freshly dug from the courthouse basement, but a law that was passed at the end of the Twentieth Century.

The Anti-Obscenity Enforcement Act was challenged almost immediately following its passage. During a convoluted legal battle in which the case pinged back and forth between the Eleventh Circuit and the Northern District of Alabama two appellate rulings from the Eleventh Circuit are particularly important in understanding the Eleventh Circuit’s attitude regarding the constitutionality of the statute. In Williams IV[11]the court was forced to evaluate the statute in light of new Supreme Court precedent, Lawrence v. Texas[12]. In Lawrence, the Court overturned a Texas sodomy statute on Due Process grounds.[13]Problematically, however, Lawrence contained all sorts of lofty dicta seemingly protective of privacy rights, but the majority did not clearly state what level of scrutiny the Court applied in striking down the Texas law.[14] The lack of a specific standard of review created quite an unusual problem given the importance of the three-tiered scrutiny system to due process/fundamental rights analysis.[15]Though Lawrence broadly reframed the right at stake, the decision did not do so clearly despite Justice Kennedy’s seemingly sublime libertarian proclamations including, “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”[16]

The Williams IV court distinguished the fact situation in Lawrence noting, “There is nothing private or consensual about the advertising and sale of a dildo.”[17]The Williams IV court also refused to conclude from Lawrence that sexual privacy is a fundamental liberty interest that would trigger strict scrutiny.[18]To determine this, the Williams IV court even conducted its own Glucksberg analysis, which of course resulted in Rational Basis review, as no fundamental right was found.[19] Thus, the Eleventh Circuit decided that because the Alabama law was based on only the trade of such sexual items that privacy was not implicated in a similar manner as the sexual conduct at issue in the Lawrence decision. Therefore, the Williams IV court had no difficulty upholding the Anti-Obscenity Act under Rational Basis Review.

More interestingly, the case returned to the Eleventh Circuit in 2007. The Williams VI[20]court again distinguished the commerce of sex toys from the situation in Lawrence. The court opined that because the private use of sex toys was not prohibited under the Alabama law, Lawrence did not govern the result. Despite the Lawrence endorsement of Justice Stevens’ view opining that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice . . . ,”[21] the Williams VI court again further extrapolated that Lawrence did not completely bar public morality as a rational basis for legislation. The Court noted, “One would expect the Supreme Court to be manifestly more specific and articulate than it was in Lawrence If now such a traditional and significant jurisprudential principal has been jettisoned wholesale . . .”[22]

However, the following year the Fifth Circuit had a different take on Lawrence when it interpreted a very similar Texas statute. The Fifth Circuit circumvented the ambiguity found in Lawrence regarding the level of scrutiny applied by the Court by applying the holding of Lawrence directly to the facts at bar in Reliable Consultants without regard for the standard of review.[23]However, though the standard of scrutiny was somewhat ignored, the Fifth Circuit’s opinion seems to read like Rational Basis Review. Regardless, Texas could not even overcome rational basis because aside from public morality, now insufficient according to the Fifth Circuit in the aftermath of Lawrence, Texas could advance only dubious government interests supporting the law including interest in protection of “unwilling recipients” of sex toys.[24] Unlike the Eleventh, the Fifth Circuit interpreted Lawrence as utterly barring public morality as a sufficient justification for a statute even under rational basis review.[25] They particularly noted the adoption of Justice Stevens’ view as controlling by the majority in Lawrence.[26] The Fifth Circuit continued to opine that just as public morality was insufficient to regulate private adult sexual activity in the home, as was the case in Lawrence, then public morality is also an insufficient justification for the Texas statute which restricted the same sphere of activity.[27]

With the unresolved circuit split, the extent of Lawrence undefined, and an absolute lack of interest by Alabama’s legislature in repealing the law, it seems the Anti-Obscenity Enforcement Act is around to stay for the time being. The Eleventh Circuit’s refusal to give Justice Steven’s language full effect is regrettable as it has contributed to a “plain silly”[28] law languishing in our state code until the People compel the legislature of Alabama to change it. But connoisseurs of such objects need not be totally crestfallen, a sex toy can still be purchased in the state with only a quick signature of a waiver affirming to use the device only for medical purposes. So far the Attorney General’s Office has not required buyers to make the arduous trek across state lines to Florida or Georgia.


[1]Ala. code § 13A-12-200.2 (West, Westlaw through 2013 Legis. Sess.).

[2]Ala. Code § 13A-12-200.4 (West, Westlaw through 2013 Legis. Sess.).

[3] Anti-Obscenity Enforcement Act, 1998 Ala. Acts 98-467.

[4]See Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 745-746 (5th Cir. 2008) (explaining that no “rational connection” exists between the Texas statute and the protection of children nor does such a connection exist regarding unwilling adults who must make an “affirmative decision” to purchase such a device).

[5]§ 13A-12-200.4.

[6] Mike Brantley, Alabama Sex Toy Ban: Court Rejects the Challenge, (Sep. 11, 2009, 3:41 PM),http://blog.al.com/live/2009/09/alabama_court_rejects_challeng.html

[7]Id.

[8]Jay Reeves, Sex Toy Drive-Thru Opens after Long Legal Battle in Alabama, (Dec. 30, 2010, 5:30 AM),http://www.huffingtonpost.com/2010/12/30/pleasure-sex-toy-drive-thru-alabama.

[9]Nall Adds Humor to Sex Toy Debate, The Tuscaloosa News (Nov. 16, 2007, 3:30 AM), http://www.tuscaloosanews.com/article/20071116/NEWS/711160301?tc=ar

[10]John Archibald, Alabama Rep. John Rodgers Out to Bust the Sex Toy Ban (Jan. 20, 2008, 6:57 AM),

http://blog.al.com/archiblog/2008/01/alabama_rep_john_rogers_out_to.html (quoting Representative John Rogers, who has twice unsuccessfully tried to repeal the current statute).

[11] Williams v. Att’y Gen. of Ala., 378 F.3d 1232 (11th Cir. 2004).

[12] Lawrence v. Texas, 539 U.S. 558 (2003).

[13]See id. at 562-564.

[14]See generally William C. Hayes, “Rabbit” Hunting in the Supreme Court: The Constitutionality of State Prohibitions of Sex Toy Sales Following Lawrence v. Texas, 44 Ga. l. Rev. 245, 259 (2009) (noting both that Justice Kennedy’s majority seems to have completely ignored the two-part Glucksberg fundamental rights test and that lower courts have been confused by Lawrence’s precedential value).

[15]See U.S. v. Virginia 518 U.S. 515, 567-568 (1996) (Scalia, J., dissenting) (explaining strict scrutiny is applied to state classifications affecting fundamental rights as determined by the Court and noting that such, in his view, “’fundamental rights’ should be limited to ‘interests traditionally protected by our society’”); see also Michael H. v. Gerald D., 491 U.S. 110, 122 (1989) (plurality, Scalia, J.); for more on the Court’s traditional recognition of narrow fundamental rights see Washington v. Glucksberg 521 U.S. 702, 721 (1997).

[16]Lawrence at 562.

[17] Williams IV at 1237 n. 8.

[18]See id. at 1238 (explaining that Lawrence was actually a rational basis decision).

[19]Id. at 1242 (defining the right at issue in the case as “the right to sell and purchase sexual devices”).

[20] Williams v. Morgan, 478 F.3d 1316 (11th Cir. 2007).

[21] Lawrence at 577.

[22] Williams VI, 478 F.3d at 1323 (citing Williams IV, 378 F.3d at 1238 n. 8).

[23]See Reliable Consultants at 744.

[24] Id. at 746.

[25] Id. at 745.

[26] Id.

[27] Id.

[28] Williams IV at 1251.

New York Stop and Frisk Laws

Paul Sloderbeck

Racist Stop and Frisks: New York Police Department Ordered to Change Their Ways

 

            A Federal Judge recently ruled that New York’s Stop and Frisk policy has violated the civil rights of racial minorities.[1] The Plaintiffs brought claims under the 4th and 14th Amendments. In a 195 page decision, Judge Shira Scheindlin examined a statistical analysis of the database of forms made after each stop, known as the UF-250, in the New York Police Department. The court also tried the Constitutionality of nineteen individual stops, and found that nine of the stop and frisks were unconstitutional.          

            A body of law developed after the landmark case of Terry v. Ohio allows police officers who have reasonable suspicion that criminal activity “may be afoot” to stop and detain a person for investigative purposes.[2] A stop has occurred if a reasonable person would not feel free to leave the encounter.[3] In order to move from a stop to a frisk, the officer must “reasonably suspect that the person stopped is armed and dangerous.”[4] Between 2004 and 2012, the NYPD conducted 4.4 million such Terry stops, and over 80% of those stopped were Black or Hispanic.[5]

            The statistician for the plaintiffs, Dr. Fagan, examined the database of UF-250 and categorized each stop as “apparently justified,” “apparently unjustified,” and “ungeneralizable.” Although he characterized only 6%, or approximately 200,000, of the 4.4 million stops as “apparently unjustified,” the judge took this as a bare minimum. One large problem in the UF-250 form is the vagueness of the terms which provide explanation for each stop. For example, officers interpreted “furtive movements” to mean almost anything, including being “very fidgety,”: “looking over their shoulder,” “getting a little nervous, maybe shaking,” or “hanging out in front of [a] building, sitting on benches or something like that.”[6] One telling statistic showed that officers checked this box in 48% of stops involving blacks, 45% of stops involving Hispanics, and in only 40% of stops involving whites.[7] The two most commonly checked boxes between 2004 and 2009 were “Furtive Movements” and “High Crime Area.”[8] Dr. Fagan found evidence of “scripting” among some police officers, or checking the same boxes to justify the stop regardless of circumstances.[9]Based on Dr. Fagan’s analysis, the judge determined that even when controlling for other variable, then NYPD makes more stops of blacks and Hispanics. In other words, the best predictor of the number of stops is the racial composition of a neighborhood, and not the higher crime rate.[10] Furthermore, regardless of racial composition in an area, blacks and Hispanics were more likely to be stopped than whites.[11]

            The court found the municipality vicariously liable for the actions of its police officers through a finding of municipal policy or custom based on “deliberate indifference.”[12] The City had been on early notice. A 1999 study of 175,000 UF-250’s, the first of its kind in evaluating pedestrian stop and frisk practice, put the city on notice that even after controlling for other relevant variables and racial composition of areas, blacks and Hispanics were being stopped at much higher rate than whites.[13] The report called for a conference on these issues, but it never occurred.  There was evidence of increasing pressure on officers to increase their quotas, including use of these stops, regardless of reasonable suspicion. Recordings of a roll call in the 81st precinct in the Bedford Stuyvesant area of Brooklyn showed evidence of this practice. Deputy Inspector Mauriello said at a November 8, 2008 roll call, “Their bandanas—if they’re walking down the street and they’ve got a bandana sticking out their ass, coming out there—they’ve got to be stopped. A 250 at least.  At least.”[14] Such police tactics, although they may be effective, are not constitutional, because wearing a bandana is not a crime. A 2010 Quota Law prohibited retaliation against police officers for failing to reach a certain number of stops, tickets, or summonses. However, this pressure for increased stops seemed to continue.

            Judge Scheindlin did not order an end to stop and frisk, but did appoint a monitor to oversee a reform of the system: Peter Zimroth, a partner in the New York office of Arnold & Porter, LLP and  the former Chief Assistant District Attorney of New York County.[15] The immediate reforms include designing a plan  for avoiding stops with an unconstitutional basis. This requires individualized objective suspicion, and not simply “Furtive Movements” in a “High Crime Area.”[16] The plan also includes long term goals for remedy in the Department’s pedestrian stop and frisk practices.

            With this new judicial pressure and the appointment of a monitor, one hopes that NYPD can improve its relationship with minority residents of the city, and begin to carry out pedestrian stop and frisks in a more race-neutral way. Stop and frisks may be effective in reducing crime, but we cannot sacrifice our civil rights and equality in the name of crime reduction.

 


[1] Floyd v. City of New York, 08 Civ. 1034 (S.D.N.Y. Aug. 12, 2013).

[2] United States v. Sokolow, 490 U.S. 1, 7 (1989)

[3] Florida v. Bostick, 501 U.S. 429 (1991)

[4] Arizona v. Johnson, 555 U.S. 323, 326-27 (2009)

[5] Floyd at 1

[6] Id. at 11-12

[7] Id.  at 45

[8] Id. at 34

[9] Id. at 46-47

[10] Id.  at 59

[11] Id.

[12] Id. at 16

[13] Id. at 62-63

[14] Id. at 75

[15] Floyd, Remedies Opinion at 9

[16] Id. at 15-16

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