Dave's non-lawyer review of 9th Circuit ESPLER Case
Brilliant ESPLER brief in my view. Discusses in depth fundamental liberty interests which is one of the key legal points in trying to expand Lawrence vs. Texas landmark decision into private consenting adult commercial sex area.
Lawrence clearly decided that laws cannot be based on morality and that there should be no government intrusion into private bedrooms. The ESPLER brief uses many more recent cases to support its argument that the fundamental rights should also extend to private commercial consenting adult prostitution.
The brief includes a case I pointed out years ago in my reports as supportive of expanding Lawrence to private adult prostitution: The Reliable Consultants vs. Earle 5th Circuit case of 2008.
As the ESPLER brief quotes Reliable:
"The right the Court recognized was not simply a right to engage in the sexual act itself, but instead a right to be free from governmental intrusion regarding 'the most private human contact, sexual behavior.' That Lawrence recognized this as a constitutional right is the only way to make sense of the fact that the Court explicitly chose to answer the following question in the affirmative: 'We granted certiorari'[to whether] petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment.'
The ESPLER brief expands further using more recent case law to support this fundamental right.
The brief goes into detail challenging the District Court's application and State's purported interests in 1) Deterring human trafficking and coercion; 2) deterring violence against erotic service providers; 3) deterring the spread of disease; 4) deterring crimes incidental to prostitution, and 5) deterring commodification of sex.
The brief takes on each of these purported "compelling interests" often used by the State in many cases including at the Federal District Lower Court and debunks them The brief argues that it is the illegal nature of prostitution that creates or increases these risks. This is similar to the harm reduction argument that won in Canada's Supreme Court resulting in the incall and related prostitution laws being deemed unconstitutional under the Canadian Charter of Rights (outcall was always legal)
The brief cites zillions of court cases as well as articles and research papers to support the fact that having in private consenting adult prostitution illegal increases the risks vs., private consenting adult prostitution being legal.
The brief argues the District Court dodged many of these issues.
The brief argues with citations of many cases that:
1). The District Court Erred In Dismissing Appellants' Claim That Section 647(B) Violates The First Amendment Freedom of Speech.
2). The District Court Erred In Dismissing Appellants' Claim That Section 647(B) Violates The First Amendment Freedom of Association.
3). The District Court Erred In Dismissing Appellants' Claim That Section 647(B) Violates The Fourteenth Amendment Right To Earn A Living.
Section 647(B) is the California prostitution law - similar to Arizona and most states.
The California Attorney General and other District Attorney defendants have until October 31, 2016 to file their reply briefs. They will argue for the continued illegal status of prostitution. Then it will up do the 9th Circuit judges to decide whether the prostitution law is legal or not.
The case may take a year or more to get to a decision. The 9th Circuit Court of Appeals, is controlling law in Arizona as well as California and most Western States.
While very expensive and fundraising for legal fees has not had as much support as we would have liked, making a similar case in another District could be good or bad.
It would seem a sharp attorney in the many current felony cases now in Superior Court might make the same type of constitutional argument in the trial court for the record for appeal or file for a declaratory action in Phoenix Federal Court. I am not a lawyer and any legal advice should be by a competent attorney.
If we lose fighting for private consenting adult rights, it could be helpful to challenge in another district.
If the Court of Appeals in another district rules the opposite of the 9th Circuit, it could go to the Supreme Court. Since Lawrence was a split 5-4 decision (liberals vs. conservatives). Who wins the election and appoints the current Supreme Court vacancy will be critical to many cases with the conservative vs. liberal judges often taking opposing positions, with currently one possible swing vote.
Links:
I have the 58 page brief from Pacer at http://phxlist.com/forum/showthread.php?tid=18933
ESPLER Project is at http://esplerp.org/ with a huge amount of information
Good earlier background discussion of the case is at http://coyoteri.org/wp/what-is-esplerp-v-gascon/