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Prof. Glenn Smith Clarifies Constitutionality of San Diego Municipal Code Designed to Regulate Adult Businesses

Image of glasses in a nightlife establishment

On March 16, 2018, U.S. District Judge James Lorenz ruled that San Diego Municipal Code section 33.0103 doesn't clearly limit the power of police to use the ordinance to infringe on the rights of dancers, and is therefore illegal.

The ruling stems from a lawsuit filed by dozens of dancers alleging 15 armed police officers violated their constitutional rights when Cheetahs, a strip club in Kearny Mesa, was "inspected" in 2014. The dancers claim the officers held them against their will for about an hour and forced them to undergo demeaning searches.

Dan Gilleon, the attorney representing the dancers, asked the judge to make a partial judgment in the case on two key arguments. First, that the city's ordinance always violates the First Amendment because it doesn't limit the San Diego police chief's discretion over the manner and scope of inspections. Judge Lorenz agreed.

"The Inspection Provision does not prevent the Chief of Police from using inspections as a means of harassing and discouraging adult entertainment businesses, and therefore violated the First Amendment on its face,” the order read.

Lorenz disagreed on Gilleon's second argument—that the ordinance always violates the Fourth Amendment because it allows for unreasonable warrantless searches—in part because all exotic dancers consent to "reasonable searches" in order to get their license to work. The judge said attorneys in the case would need to submit further arguments, specifically about the issue of consent, before he would rule on Fourth Amendment concerns.

In a San Diego Union-Tribune article, California Western School of Law Professor Glenn Smith clarified the ruling by stating, "The idea is that even if the law is not actually being used to censor speech, if it gives officials the unbridled discretion to do so, then it's unconstitutional."