Category Archives: Dressing Constitutionally

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Constitutional Challenge to New York’s Loitering for Prostitution Law

Is New York’s Loitering for the Purpose of Engaging in a Prostitution Offense, NY Penal Code § 240.37[2], unconstitutional?  An important new complaint filed in the federal court by The Legal Aid Society in D.H. v. City of New York argues that the statute, facially and as applied, is unconstitutionally vague under the Due Process Clause and that its enforcement violates First Amendment rights to expression, Fourteenth Amendment rights to equal protection, and Fourth Amendment rights.

John Singer Sargent, Street in Venice, 1882, oil on wood

John Singer Sargent, Street in Venice, 1882, oil on wood

Essentially, the complaint alleges that the statute does not provide people with adequate notice of the conduct they should avoid to preclude arrest and results in the inclusion of First Amendment protected speech, expressive conduct, and association.  Further, these lack of statutory guidelines have meant that law enforcement actions under the statute have been arbitrary as well as discriminatory on the basis of classifications involving race, ethnicity, gender, and gender identity.

In addition to the statutory arguments, plaintiffs allege that the NYPD guidelines and practices have failed to remedy the problems and have in fact exacerbated them.  One central allegation regards attire:

Furthermore, the purported guidance provided in the NYPD Patrol Guide is equally vague and otherwise flawed, thereby increasing arbitrary enforcement. For instance, the NYPD Patrol Guide instructs officers that an arrestee’s “clothing” is “pertinent” to the probable cause inquiry. At the same time, the NYPD Patrol Guide does not provide any objective criteria regarding what types of attire may or may not have probative value for purposes of establishing probable cause, thus encouraging officers to make arrests based on individual, subjective opinions regarding what clothing someone who might be “loitering for the purpose of prostitution” would wear.    In pre-printed affidavits provided by prosecutors (also referred to as supporting depositions), which prompt the arresting officer to describe “revealing” or “provocative” clothing, officers often respond by citing a wide range of innocuous attire, such as “jeans,” a “black pea coat” or a pair of leggings.

[¶ 54].  The “black pea coat” as grounds supporting a solicitation for prostitution charge attracted attention in 2013 when a judge dismissed a charge which was based on the defendant “wearing a black peacoat, skinny jeans which revealed the outline of her legs and platform shoes.”

The unconstitutional inequality in the application of NY Penal Code section, §240.37[2] is analogous to the equal protection problems in New York City’s practice of stop and frisk.  Recall that a federal judge found NYC’s practices violated equal protection in her opinion in Floyd v. City of New York, later stayed – – – and thereafter clarified – – – by the Second Circuit, followed by the City’s new administration agreeing with the decision and abandoning the appeals.  One of the complaint’s pendent state law claims is a violation of the city’s own prohibition of bias-based profiling, NYC Admin. Code §14-151 (passed in 2013 by City Council overriding the then-mayor’s veto).

Loitering statutes in general, and more specifically loitering (and even soliciting) for “criminal sex” statutes, whether that sex is criminalized because it is commercial, public, or “unnatural” (as in previous sodomy prohibitions), have always been constitutionally problematic.  And the use of dress or appearance to establish “probable cause” or to constitute elements of a crime are constitutionally suspect. It will be interesting to see whether or not the City defends the action, and if it does, how vigorously.

[cross-posted at Constitutional Law Professors Blog]

Scottish Independence, Empire, and National Dress

While the Act of Settlement of 1701 is touted as a “resolution” of the relationship between Scotland and England that is again at issue with the Scottish independence vote,  legal regulation of clothes tells a different story.

Allan_M'Aulay,_Horace_Vernet,_1823The relationship between England and Scotland was long mediated through laws passed by the English to regulate appearance.   Unlike England’s regulations of the Irish – – – which focused on  mustaches, hairstyles, and mantles – – –  the target of the Scottish attire regulations was tartan and plaid.   Even after the 1688 deposing of the controversial and Catholic King James (known as James II as King of England and Ireland, and as James VII as King of Scotland), there were continuing battles and royal contestations.

In 1746, after another Jacobite “uprising” in the north, Parliament under King George II passed an “An Act for the more effectually disarming the Highlands in Scotland; and for the more effectually securing the Peace of the said Highlands ; and for restraining the Use of the Highland Dress; and for further indemnifying such Persons as have acted in Defence of His Majesty’s Person and Government, during the unnatural Rebellion.”[i] While much of the Act concerns firearms, including permissible search and seizure processes, section 17 prohibits Scottish dress:

no man or boy, within that part of Great Briton called Scotland, other than shall be employed as officers and soldiers in his Majesty’s forces, shall on any pretence whatsoever, wear or put on the clothes commonly called Highland Clothes (that is to say) the plaid, philibeg, or little kilt, trowse, shoulder belts, or any part whatsoever of what peculiarly belongs to the highland garb; and that no tartan, or partly-coloured plaid or stuff shall be used for great coats, or for upper coats.

By its terms, the provision only applies to males, but it is otherwise quite different from the “acts of apparel” of two centuries before. The punishment to be imposed reflects the severity of the infraction as a crime of “unnatural Rebellion” as well as the status of “Great Briton” as an empire: a first offense is imprisonment without bail for six months; a second offense would render a person “liable to be transported to any of his Majesty’s plantations beyond the seas, there to remain for a space of seven years.”

And so the colonies were “settled” by a plaid-wearing people.

Excerpted from Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our hairstyles to Our Shoes

Quotes from Statute: Act of Proscription, 19 Geo. II, ch. 39 (1746) in The statutes at large, from Magna Charta, to the end of the last Parliament, 1761 in eight volumes, (Owen Ruffhead,ed.) (London : printed by Mark Baskett, and by the assigns of Robert Baskett; and by Henry Woodfall and William Strahan, 1768-70), Vol. 6: 704-710.

[image via]

Constitutional Challenges in Raising the Minimum Wage

Even if NYC is successful in paving the way for a law raising the minimum wage, the legal road can turn rocky.

800px-History_of_US_federal_minimum_wage_increases.svgSeattle’s much-heralded raise of the minimum wage to $15 earlier this month has already been challenged.  In a lawsuit by the International Franchise Association, Inc. – – – represented by well-known conservative attorney Paul Clement, there are a raft of challenges including protectionism of local companies (a violation of the “dormant” commerce clause), treating franchised companies “unequally,” and even a First Amendment claim.   I’ve discussed the complaint in more detail on the Constitutional Law Professors Blog here.

Challenges to local minimum wage laws are nothing new.  As an excellent discussion by Steven Levine from CUNY’s La Guardia and Wagner Archives reminds us, in 1964 “Mayor Robert F. Wagner prioritized increasing the minimum wage from $1.25 to $1.50” as part of the war on poverty.  Wagner’s success, however, was short-lived.  The New York Court of Appeals (our state’s highest court) concluded that NYC  “Local Law 1964, No. 45, fixing higher minimum wage rate than State Minimum Wage Act, was unconstitutional.”   The case – – –Wholesale Laundry Bd. of Trade, Inc. v. City of New York, 15 N.Y.2d 604, 203 N.E.2d 652 (1964) – – – affirms the lower courts without even writing an opinion.  There is no dissent and it’s apparently so settled that there is no need for any explanation.

Spinner in a Cotton Mill, New England, by Lewis Hine, 1910

But the Seattle lawsuit is not simply concerned with city-state relations.  Instead, most of the claims of the complaint would apply to a similar scheme passed by a state and many would apply even if passed by the federal government. It shouldn’t be surprising that corporations have objections to paying workers what has been called a “living wage.”   Again, this is nothing new.  There’s more about these constitutional issues in the last chapter of my latest book, Dressing Constitutionally, considering slavery, child labor, the garment industry, and contemporary sweatshops.

Dressing Constitutionally CUNY Podcast

Listen to a conversation with CUNY’s Margaret Ramirez on “Book Beat.

Our Clothing, and Hair, in the Courts

February 10, 2014 | Book Beat

From Colonial collars and Quaker hats to miniskirts and Muslim headscarves, our clothing — and hair — often have become issues for U.S. courts, says CUNY Law School professor Ruthann Robson. In her new book, Dressing Constitutionally: Hierarchy, Sexuality, and Democracy from Our Hairstyles to Our Shoes, Robson examines nudity cases, saggy pants in schools and recent battles of transgender teens dressing for the prom.