Free the Nipple v. City of Fort Collins
| Decision Date | 20 October 2016 |
| Docket Number | Civil Action No 16–cv–01308–RBJ |
| Citation | 216 F.Supp.3d 1258 |
| 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 |
Andrew Joseph McNulty, David Arthur Lane, Killmer, Lane & Newman, LLP, Denver, CO, Jessica Katherine Peck, Peck Law Firm, LLC, Mount Pleasant, SC, for Plaintiff.
Andrew David Ringel, Christina Shavon Gunn, Gillian Dale, Hall & Evans, LLC–Denver, Denver, CO, Carrie Mineart Daggett, Fort Collins City Attorney's Office, Fort Collins, CO, John R. Duval, City Attorney's Office–Fort Collins, Fort Collins, CO, for Defendant.
This matter is before the Court on defendant's Motion to Dismiss [ECF No. 18] and plaintiffs' Motion for a Preliminary Injunction [ECF No. 2]. This Order solely addresses defendant's Motion to Dismiss. For the reasons below, that motion is GRANTED IN PART and DENIED IN PART.
Plaintiffs Brittiany Hoagland, Samantha Six, and Free the Nipple—an unincorporated association of individuals—brought this action challenging a City of Fort Collins ordinance that forbids females from knowingly exposing their breasts in public.1 ECF No. 1 at ¶ 1 (Complaint); See Fort Collins, Co., Mun. Code § 17–142 (2016). Plaintiffs contend that this ordinance discriminates against females and LGBTQIA individuals in violation of the Fourteenth Amendment's Equal Protection Clause and the Equal Rights Amendment to the Colorado Constitution. ECF No. 1 at ¶¶ 2, 49–58. They also contend that it violates the Free Speech Clause of the First Amendment. Id. at ¶¶ 43–48. Plaintiffs have sued the City of Fort Collins seeking both a preliminary injunction [ECF No. 2] and a permanent injunction to prevent defendant from enforcing its allegedly unconstitutional ordinance. Id. at 1, 12. Plaintiffs likewise seek declaratory relief as well as costs and attorneys' fees under 42 U.S.C. § 1988. Id. at 12.
Prior to October 20, 2015 Section 17–142 of the Fort Collins Municipal Code stated that "[n]o personal 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." Id. at ¶ 18. Arguing that this ordinance unduly discriminated against women, plaintiffs and others conducted a protest of the law on August 23, 2015 on the corner of College Avenue and Mulberry Street in downtown Fort Collins. Id. at ¶ 26. At that protest, plaintiffs and the other protestors exposed to the public the top half of their bodies with the exception of their nipples and breasts, which they allegedly covered by opaque dressings
Plaintiffs allege that their manner of dress at this protest was in full compliance with Section 17–142, id. at ¶ 28, but that it was meant to send the message that this ordinance was "borne of tried sex stereotypes, double standards, hypocrisies, and the hyper-sexualization (primarily by men) of women's breasts[,]" id. at ¶ 26. They also allege that their protest, and the Free the Nipple organization, is part of a growing activist 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. Seeid. at ¶ 23. Plaintiffs state that they will continue to participate in similar protests in the future. Id. at ¶ 39.
In response to plaintiffs' protest, defendant allegedly considered amending or repealing Section 17–142. Id. at ¶ 25. Instead of repealing the law outright, however, the Fort Collins City Council proposed a modification to Section 17–142 on October 20, 2015 entitled "Ordinance No. 134." Id. at ¶ 29. It reads as follows:
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 screened fence, in order to achieve a point of vantage.
Id. at ¶ 30. Ordinance No. 134 defined a "public place" as "a place in which the public or a substantial number of the public has access, and includes but i [s] not limited to highways including sidewalks, transportation facilities, school[s], 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. This modification also exempted from the law's coverage on women who are breastfeeding in places they are legally entitled to be. Id.
On November 3, 2015 the City Council allegedly considered the proposed modification, ratifying and implementing it shortly thereafter. Id. at ¶ 38. Plaintiffs allege that this modification of Section 17–142 did little to mollify their concerns about the law's discriminatory nature.2 Seeid. at ¶ 38. They contend that defendant, through its implementation of the new version of Section 17–142, "continu[es] the criminalization of women who appear at public places with their breasts and nipples exposed." Id. Plaintiffs point out that Section 1–15 of the Fort Collins Code of Ordinances states that each violation of Section 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 Section 17–142 is consequently "one of the most restrictive public nudity ordinances in the nation." Id. at ¶ 41.
Plaintiffs state that the City Council advanced three rationales for this modification to Section 17–142: "(1) That women who appear in public with their breasts and nipples exposed violate the values of the Fort Collins community, including its sense of decency and family, (2) That women with exposed breasts impede the right of others to enjoy public spaces, and (3) That women with exposed breasts constitute pornography, which children cannot legally view." Id. at ¶ 31. Plaintiffs likewise assert that in passing Section 17–142 "Defendant also made veiled references to religious morality as a principle backing the continued criminalization of women who appear at public places with their breasts and nipples exposed." Id. at ¶ 32. Defendant accepts for the purposes of its motion to dismiss that the City Council discussed these three quoted rationales, but counters that they do not represent the "complete rationale" for the ordinance. ECF No. 18 at 4 n.3.
Finally, in their Complaint plaintiffs quote several e-mail exchanges between Fort Collins officials and citizens of Fort Collins allegedly showing that the ordinance targeted plaintiffs' "expressive activity." ECF No. 1 at ¶ 36. First, plaintiffs quote an e-mail exchange between Fort Collins city councilor Ray Martinez and a citizen of Fort Collins in which Martinez stated that he planned to vote in favor of Ordinance No. 134 "because allowing women to appear topless at public places would ‘denigrate[ ] a woman's respect and value.’ " Id. at ¶ 33. Martinez then allegedly wrote that "[w]e endorse a program from the White House called ‘It's on us', to prevent women from assaults ... this kind of ordinance [allowing women to legally expose their breasts in public] is counterproductive to the very cause" and that "[w]e have nothing to gain by passing such a law [permitting public female toplessness] other than a poor reputation." Id. Plaintiffs also quote an exchange between Fort Collins Mayor Wade Troxell and a Fort Collins citizen in which the citizen commented: Id. at ¶ 34. Troxell allegedly stated in response that he "agree[d] with [the citizen's] sentiments and concerns" and that he supported "the update revision of our current version of the ordinance." Id.
To survive a 12(b)(6) motion to dismiss, the complaint must contain "enough facts to state a claim to relief that is plausible on its face." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A plausible claim is a claim that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). While the Court must accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff, Robbins v. Wilkie, 300 F.3d 1208, 1210 (10th Cir. 2002), conclusory allegations are not entitled to be presumed true, Iqbal, 556 U.S. at 681, 129 S.Ct. 1937. However, so long as the plaintiff offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See, e.g., Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).
Defendant seeks dismissal of each of plaintiff's three claims for relief. Agreeing with defendant that dismissal of plaintiffs' First Amendment claim is appropriate, but not that plaintiffs' Fourteenth...
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