Morgan v. City of Detroit
| Decision Date | 24 February 1975 |
| Docket Number | Civ. No. 74-70855. |
| Citation | 389 F. Supp. 922 |
| Parties | Donald MORGAN et al., Plaintiffs, v. CITY OF DETROIT, a Michigan Municipal Corporation, et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
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Bruce L. Randall, Margate, Fla., for plaintiffs.
Nansi Irene Rowe, Maureen P. Reilly, Asst. Corp. Counsel, Detroit, Mich., for the City of Detroit.
This is a civil rights action which raises novel constitutional challenges to several ordinances of the City of Detroit.
Two of the plaintiffs, DONALD MORGAN and MARVIN RIELI, are owners of Detroit business establishments which were operated as a massage parlor and a nude photographic studio. The remaining plaintiffs were employees of these two establishments. Plaintiff-owners have been convicted of municipal ordinance violations of operating a business establishment without a certificate of occupancy, operating a massage parlor without a license, and operating the premises for purposes of prostitution. Further, both premises have been determined to be public nuisances in Wayne County Circuit Court and have been ordered padlocked. Several of the female employees of these two establishments have been arrested at the establishments and convicted of accosting and soliciting in violation of City Ordinance 39-1-52.
Plaintiffs' complaint seeks damages, injunctive, and declaratory relief alleging that several raids were conducted on the two establishments and arrests made under ordinances, which on their face are unconstitutional.
A hearing was held on December 16, 1974, on plaintiffs' Motion for Preliminary Injunction and Declaratory Judgment and defendants' Motion for Summary Judgment. Plaintiffs' attorney stated in oral argument that claims relating to certain ordinances would not be pursued. A subsequent letter to the Court by plaintiffs' attorney confirmed this statement and a voluntary dismissal as to these claims was entered January 6, 1975. Only claims relating to the accosting and soliciting ordinance and the massage parlor ordinance remain.
Inasmuch as the two premises owned by plaintiffs have been padlocked for one year as public nuisances, and there is no evidence any of the plaintiff-employees are now employed in similar establishments, plaintiffs have failed to show any irreparable harm that will result to any of them if defendants are not enjoined from enforcing the questioned ordinances. The Motion for Preliminary Injunction is, therefore, denied.
The demands for a permanent injunction and damages hinge on the constitutionality of the ordinances. No claim is made that probable cause did not exist for the arrests or that excessive force was used by the police, only that arrests were made under unconstitutional ordinances. The liability of the individual defendants for damages and the Motion for Declaratory Relief distill to the same issues: the constitutional validity of the two ordinances.
I.
The City of Detroit accosting and soliciting ordinance states:
It shall be unlawful for any person to accost, solicit or invite another in any public place or in or from any building or vehicle by word, gesture or any other means to commit or afford an opportunity to commit fornication or prostitution or to do any other lewd immoral act. It shall be unlawful for any male person to engage or offer to engage the services of a female person for the purposes of prostitution, lewdness or assignation, by the payment in money or other forms of consideration. It shall be unlawful for any person to loiter in a house of ill fame or prostitution or place where prostitution or lewdness is practiced, encouraged or allowed. Section 39-1-52 Ordinances of the City of Detroit.
Plaintiffs mount a five-fold challenge to the ordinance: the ordinance violates the right of freedom of speech, the right of privacy, the Eighth Amendment Cruel and Unusual punishment, the Equal Protection Clause, and is unconstitutionally vague and overbroad.
The right of privacy first enunciated in Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) in the context of the marital relationship has been extended by the Supreme Court to the right to be free from unwarranted governmental intrusion generally. As Justice Brennan stated in Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S.Ct. 1029, 1038, 31 L.Ed.2d 349 (1972): "if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion . . .."
The right of privacy in order to encompass protected acts between two individuals necessarily presupposes consent between them. Stated succinctly, the right of privacy prohibits the state from proscribing activity conducted in private between consenting individuals where no overriding state interest can be shown.
While it may be true that the completed acts of prostitution, fornication and adultery are consensual, the crime of accosting and soliciting is not since the party accosted or solicited cannot by definition have yet consented and is, therefore, not protected by the right of privacy.
The ordinance is narrowly drawn so as to include only accosting and soliciting "in any public place or in or from any building or vehicle." The Court cannot make the assumption that everyone accosted in a public place will consent to a prostitute's solicitations. Even limited to the facts of the instant case, such an assumption is unwarranted.
The premise that anyone who enters a massage parlor is thereby consenting to being solicited for prostitution is belied by the fact that where, as here, arrests were made, the persons solicited were police officers. There is no claim that the officers entrapped the employees into solicitation. The solicitations were indiscriminate to anyone who entered the premises including Detroit police officers.
Plaintiffs claim that they are being denied their First Amendment right of freedom of speech because the accosting and soliciting law impinges on pure communication. They point out that there is no crime of prostitution in either the City of Detroit or the State of Michigan. The Court notes also that while adultery is a crime in Michigan, there is no crime of fornication. The question posed is whether the First Amendment prohibits criminal prosecution for soliciting someone to perform an act which is itself not criminal.
Plaintiffs read the freedom of speech clause too broadly. Various forms of speech have long been held to be without the protective umbrella of the First Amendment. The Supreme Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1941) excepted "fighting words" from First Amendment protection, noting:
there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those which by their very utterance inflict injury or tend to incite to an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 315 U.S. at 571, 62 S.Ct. at 769.
Plaintiffs have not indicated, nor is the Court aware, of any social value that will be advanced by the speech involved in accosting and soliciting to prostitution. While arguments may be advanced for the legalization of prostitution as socially desirable, these arguments advance no socially desirable effect from allowing persons to solicit for prostitution in public places.
In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), the Court was concerned with the constitutionality of the Georgia obscenity laws as applied to films. Chief Justice Burger's comments are pertinent to the issue here:
where communication of ideas, protected by the First Amendment, is not involved, or the particular privacy of the home protected by Stanley Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, or any of the other "areas or zones" of constitutionally protected privacy, the mere fact that, as a consequence of criminal laws, some human "utterances" or "thoughts" may be incidentally affected does not bar the State from acting to protect legitimate state interests. Cf. Roth v. United States, supra 354 U.S. 476, at 483, 485-487 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); Beauharnais v. Illinois, 343 U.S. 250, at 256-257 72 S.Ct. 725, 96 L.Ed. 919 (1952) 413 U.S. at 67, 93 S.Ct. at 2640.
On the direct issue of whether an ordinance can prohibit speech which solicits conduct which is not unlawful, the Court noted:
commercial exploitation of depictions, descriptions, or exhibitions of obscene conduct on commercial premises open to the adult public falls within a State's broad power to regulate commerce and protect the public environment. The issue in this context goes beyond whether someone, or even the majority, considers the conduct depicted as "wrong" or "sinful." The States have the power to make a morally neutral judgment that the public exhibition of obscene material, or commerce in such material, has a tendency to injure the community as a whole, to endanger the public safety, or to jeopardize in Chief Justice Warren's words, the States' "right . . . to maintain a decent society." Jacobellis v. Ohio, supra, 378 U. S. 184 at 199, 84 S.Ct. 1676, 12 L. Ed.2d 793 (1964) (dissenting opinion). Id., at 68-69, 93 S.Ct. at...
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