Washington appeals court: Police need warrant to arrest exotic dancers

Tuesday, October 5, 1999

The manager and exotic dancers of a Seattle nude-dancing club recently had their federal civil rights lawsuit against the city and several police officers reinstated by a Washington appeals court.

In November 1995, officers raided the club and arrested 13 dancers and the manager, Rick Furfaro. The police said the dancers were violating a city ordinance that prohibits dancers from touching their private areas and simulating masturbation. The ordinance prohibiting these sexual acts exempts performances that are not legally obscene.

After a jury acquitted two dancers in 1996, the city dropped charges against the remaining performers. The performers and the manager then filed a civil rights lawsuit, claiming the actions of city officials violated their free-expression rights under the First Amendment and their right to be free from unreasonable searches and seizures under the Fourth Amendment.

After a trial court dismissed the civil rights claim in 1998, the plaintiffs appealed to the Washington Court of Appeals. In its Sept. 27 opinion in Furfaro v. City of Seattle, the appeals court reinstated the lawsuit, finding that city officials needed to obtain a warrant before arresting the performers for conduct arguably protected by the First Amendment.

“Because of the risk of prior restraint and censorship, the First Amendment imposes special constraints on searches for and seizures of materials that are presumptively protected as expression,” the court wrote.

The state appeals court noted that the U.S. Supreme Court has determined that law enforcement officials must first obtain a warrant before they can seize allegedly obscene published materials, such as books and films.

The appeals court said that the same protections that are afforded books and films must also be granted to nude dancers. “Live performances are entitled, no less than books and film, to the same protection of the First and Fourteenth Amendments against unlawful censorship,” the court wrote. “The controversial content of human expressive activity does not have to be captured in a film canister or within the covers of a book to make it worthy of protection.”

The court noted that the U.S. Supreme Court has ruled that “topless entertainment” and “barroom nude dancing” are forms of expressive conduct that are protected to some degree by the First Amendment.

The appeals court concluded that police officers must obtain a warrant from a judicial officer before they can arrest dancers for allegedly engaging in obscene dancing.

Cameron DeVore, one of the plaintiffs' attorneys on appeal, said that the “unique aspect of the case was that it applied the warrant requirement in obscenity cases to live performances.”

“The city tried to argue that it could sidestep the warrant requirement and the obscenity test because it was only regulating conduct, not expression,” DeVore said. “The court of appeals saw through that argument and reached a correct result.”

Calls placed to the attorney representing the defendants were not returned.