Free the Nipple—Fort Collins v. City of Fort Collins

• Decision Date: 22 February 2017
• Docket Number: Civil Action No 16–cv–01308–RBJ
• Citation: 237 F.Supp.3d 1126
• Parties: FREE THE NIPPLE—FORT COLLINS, an unincorporated association, Brittiany Hoagland, and Samantha Six, Plaintiffs, v. CITY OF FORT COLLINS, COLORADO, Defendant.
• Court: U.S. District Court — District of Colorado

237 F.Supp.3d 1126

FREE THE NIPPLE—FORT COLLINS, an unincorporated association, Brittiany Hoagland, and Samantha Six, Plaintiffs,

v.CITY OF FORT COLLINS, COLORADO, Defendant.

Civil Action No 16–cv–01308–RBJ

United States District Court, D. Colorado.

Signed February 22, 2017

Andrew Joseph McNulty, David Arthur Lane, Killmer, Lane & Newman, LLP, Denver, CO, Jessica Katherine Peck, Peck Law Firm, LLC, Mount Pleasant, SC, for Plaintiffs.

Andrew David Ringel, Christina Shavon Gunn, Gillian Dale, Hall & Evans, LLC, Denver, CO, Carrie Mineart Daggett, John R. Duval, Fort Collins City Attorney's Office, Fort Collins, CO, for Defendant.

ORDER

R. Brooke Jackson, United States District Judge

Plaintiffs seek a preliminary injunction enjoining the City of Fort Collins from enforcing an ordinance prohibiting women from exposing their breasts in public other than for purposes of breastfeeding. I conclude that it is likely, absent some significant new evidence not heretofore submitted by defendant, that I will ultimately find at trial that the ordinance violates the Equal Protection Clause of the United States Constitution. I also find that the other factors courts must assess in deciding a motion for a preliminary injunction weigh heavily in plaintiffs' favor. Therefore, plaintiffs' motion is GRANTED.

I. BACKGROUND

Brittiany Hoagland, Samantha Six, and Free the Nipple—describing itself as an unincorporated association of individuals—challenge § 17–142(b) of the Fort Collins Municipal Code. Prior to October 20, 2015 § 17–142 provided that "[n]o person shall knowingly appear in any public place in a nude state or state of undress such that the genitals or buttocks of either sex or the breast or breasts of a female are exposed." Fort Collins, CO., Mun. Code § 17–142 (2011). Arguing that the ordinance unduly discriminated against women, plaintiffs and others held a protest of the law on August 23, 2015 on the corner of College Avenue and Mulberry Street in downtown Fort Collins. Complaint, ECF No. 1 at ¶ 26. The protestors exposed the top half of their bodies with the exception of their nipples and breast which they covered with opaque dressings

. Plaintiffs suggest that their manner of dress at the protest complied with § 17–142 but was meant to send the message that this ordinance was "borne of tired sex stereotypes, double standards, hypocrisies, and the hyper-sexualization (primarily by men) of women's breasts." Id. They inform the Court that their protest is part of a growing movement around the country that seeks to overturn similar laws that allow men and boys to expose their breasts and nipples in public but criminalize women and girls who do the same.

In reaction to the protest, defendant allegedly considered repealing the law. Id. at ¶ 25. Instead, however, on or about November 3, 2015 the Fort Collins City Council enacted Ordinance No. 134. It provides:

No female who is ten (10) years of age or older shall knowingly appear in any public place with her breast exposed below the top of the areola and nipple while located: (1) in a public right-of-way, in an natural area, recreation area or trail, or recreation center, in a public building, in a public square, or while located in any other public place; or (2) on private property if the person is in a place that can be viewed from the ground level by another who is located on public property and who does not take extraordinary steps, such as climbing a ladder or peering over a screening fence, in order to achieve a point of vantage.

Fort Collins, CO., Mun. Code § 17–142(b) (2015). The municipal code defined a "public place" to mean:

[A] place in which the public or a substantial number of the public has access, and includes but is not limited to highways including sidewalks, transportation facilities, schools, places of amusement, parks, playgrounds and the common areas of public and private buildings and facilities, and shall not include any theater, concert hall, museum, school or similar establishment to the extent the same is serving as a performance venue.

Id . § 17–142(a)(3). This modification also exempted from the law's coverage women who are breastfeeding in places they are legally entitled to be. Id . § 17–142(d).

The modification of § 17–142 did little to mollify plaintiffs' concerns. ECF No. 1 at ¶ 38.¹ They contend that by implementing the new version the City Council "continu[es] the criminalization of women who appear at public places with their breasts and nipples exposed." Id. Significantly, plaintiffs point out that § 1–15 of the Fort Collins Code of Ordinances provides that each violation of § 17–142 is punishable by "a fine not exceeding two thousand six hundred fifty dollars ($2,650.00) or by imprisonment not exceeding one hundred eighty (180) days, or by both such fine and imprisonment, in addition to any costs which may be assessed." Id. at ¶ 40. They allege that § 17–142 is consequently "one of the most restrictive public nudity ordinances in the nation." Id. at ¶ 41.

Plaintiffs' complaint and motion for a preliminary injunction were filed on May 31, 2016. On August 2, 2016 defendant filed a motion to dismiss the entirety of plaintiffs' complaint. On October 20, 2016 the Court granted the motion in part, dismissing plaintiffs' First Amendment claim, but otherwise denying it. The Court held a hearing on plaintiffs' pending motion for a preliminary injunction on December 19, 2016. ECF No. 48 (hearing minutes). That motion is the subject of this Order.

II. ANALYSIS

To succeed on a motion for a preliminary injunction, the movant must demonstrate the following four factors:

(1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; and (4) the injunction is not adverse to the public interest.

Kikumura v. Hurley , 242 F.3d 950, 955 (10th Cir. 2001). However, an injunction that alters the status quo and affords the movants all of the relief they could recover at the conclusion of a full trial on the merits, as is the case here, "must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course." Id . Plaintiffs "must [therefore] make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms[.]"See, e.g ., O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft , 389 F.3d 973, 976 (10th Cir. 2004) (en banc) aff'd and remanded sub nom. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal , 546 U.S. 418, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (2006) (citation omitted). I address each factor in turn.

A. First Factor: Likelihood of Success on the Merits .

The Equal Protection Clause of the Fourteenth Amendment bars state governmental entities from discriminating between the sexes unless they have an "exceedingly persuasive justification" for doing so. See United States v. Virginia , 518 U.S. 515, 524, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) ; KT. & G Corp v. Attorney Gen. of State of Okla ., 535 F.3d 1114, 1137 (10th Cir. 2008). Phrased somewhat differently, the government's rationale for distinguishing between males and females must satisfy the intermediate scrutiny standard of being "substantially related" to an "important governmental interest." Id.

This heightened standard bars governments from discriminating on the basis of supposed "differences" between the sexes when doing so is a means of "creat[ing] or perpetuat[ing] the legal, social, and economic inferiority of women." Virginia , 518 U.S. at 534, 116 S.Ct. 2264. Indeed, as the Supreme Court has made "abundantly clear in past cases [,] ... gender classifications that rest on impermissible stereotypes violate the Equal Protection Clause, even when some statistical support can be conjured up for the generalization." J.E.B. v. Alabama ex rel. T.B. , 511 U.S. 127, 139 n.11, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). See also Miss. Univ. for Women v. Hogan , 458 U.S. 718, 726, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) (explaining that "[t]he purpose" of intermediate scrutiny is to make sure that sex-based classifications are based on "reasoned analysis rather than ... traditional, often inaccurate, assumptions about the proper roles of men and women.").

In this case, Fort Collins has on the books an ordinance that on its face discriminates against women. The City has nevertheless justified its ordinance in two interrelated ways. See Def.'s Mot. to Dismiss, ECF No. 18 at 13–20. First, it argues that the law satisfies intermediate scrutiny because it is necessary in order to maintain "public order" and to "protect children." See, e.g. , Reply to Pls.' Resp. to Def.'s Hr'g Br., ECF No. 51 at ¶¶ 6–7. Second, it contends that discriminating between male and female breasts does not raise an equal protection issue because men and women are not similarly situated when it comes to their breasts. See, e.g. , Def.'s Hr'g Br., ECF No. 47 at 4. In other words, Fort Collins believes there is a "real" and constitutionally significant difference between male and female breasts. Id. at 8.

On defendant's first argument, I find that the evidence Fort Collins has presented about these governmental interests amounts to little more than speculation. For instance, during the hearing defendant called Assistant Police Chief Jerome Schager who testified that topless females in public likely might cause distracted driving and traffic issues that disrupt public order. There are many things that could potentially distract drivers and disrupt traffic, but the constitutional issue is whether there is such a threat to public order that it rises to the level of an important government interest. Frankly, without any significant evidence on this point, I'm skeptical that it does. Rather, it appears that underlying...