Post-Trial Reply Briefs Filed By Both Sides of 2257 Case, Part 2

PHILADELPHIA, PA—As noted in AVN's earlier article about the defendant's post-trial reply brief in Free Speech Coalition, et al. v. Holder, Judge Michael M. Baylson ordered reply briefs to be not longer than 15 pages, and the plaintiffs' reply keeps to that restriction—though it appears to be ten pages longer owing to its attachment of the current Code of Federal Regulations (CFR) regarding how to implement 18 U.S.C. §2257.

The plaintiffs' reply brief, written by trial counsel J. Michael Murray and Lorraine Baumgardner, deals exclusively with the government's objections to plaintiffs' Fourth Amendment claims, as ordered by Judge Baylson, and the fact that the FBI's 2257 inspections that took place in 2006-7 violated the Constitution's prohibitions against unreasonable searches and seizures couldn't be more clear.

"The evidence establishes that under the authority of 18 U.S.C. §2257 and its implementing regulations, government agents: (1) without a warrant or probable cause; (2) entered and occupied homes and private businesses, in many cases, for several hours; (3) examined and copied private records containing personal information; and (4) took photographs of the areas and files they searched," the plaintiffs' brief begins. "Agent Lawrence admitted that without the authorization afforded by 18 U.S.C. §2257, he would have needed a search warrant to accomplish what occurred during the inspections. Under well-established precedent establishing the restraints placed on the government’s power to search for evidence by the Fourth Amendment, the regime allowing these inspections is unconstitutional."

While the plaintiffs cite several Supreme Court cases that support their argument, the brief focuses on the same case the government cited in its post-trial brief, Patel v. City of Los Angeles—though plaintiffs note that the Ninth Circuit ordered that that opinion "not be cited as precedent by or to any court" since it's about to be reheard by the Ninth Circuit en banc.

"Patel is useful in illuminating a different point for which the government did not cite it–Plaintiffs' reasonable expectation of privacy in their 2257 records," the plaintiffs argue, then quote from the pending decision that, "An individual’s otherwise reasonable expectation of privacy cannot be so easily stripped away merely by the adoption of a regulation authorizing searches of an item or location. To hold otherwise would allow the government to conduct warrantless searches just by announcing that it can." [Citations omitted here and below]

Plaintiffs support that view by quoting a decision that can be cited, 1979's Lo-Ji Sales, Inc. v. New York, which apparently involved an investigation of an adult book/video store. There, the Supreme Court held that, "[T]here is no basis for the notion that because a retail store invites the public to enter, it consents to wholesale searches and seizures that do not conform to Fourth Amendment guarantees. The Town Justice viewed the films, not as a customer, but without payment a member of the public would be required to make. Similarly, in examining the books and in the manner of viewing the containers in which the films were packaged for sale, he was not seeing them as a customer would ordinarily see them."

That precedent is particularly important since one of the government's arguments is that the FBI inspectors didn't need a search warrant because company owners had invited the agents into the premises, whether it was a business office or the producer's home. What the government left out, of course, was that failure of the owner to permit FBI access to the company's 2257 records would in itself be a crime—a point that plaintiffs drive home later in the brief.

Plaintiffs bolster their "invasion of privacy" argument by noting that 2257 records "contain private, personal information. Driver’s licenses contain the photographer’s models’ addresses, birth dates, weights, information regarding corrective lenses, and whether they wish to be an organ donor. Their passports contain an exemplar of their signatures and their places of birth. The records are akin to employers' personnel records in which both employees and employers have an expectation of privacy."

"The evidentiary record meticulously documents the government’s intrusion into the homes, offices, and private records of producers of constitutionally protected sexually explicit expression under the auspices of 18 U.S.C. §2257," the brief later continues. "These intrusions were made against the backdrop of established Supreme Court precedent requiring that the Fourth Amendment be applied so as to invoke the utmost solicitude for protected expression," with plaintiffs citing five cases from as early as 1961 to support their point.

Regarding whether the 2257 inspections were consensual searches, plaintiffs note, "Consent to a search is a 'jealously and carefully drawn' exception to the warrant requirement. The government bears the burden of proving that consent was 'freely and voluntarily' given... Here, the statute itself removed the option of withholding consent to the searches. On July 27, 2006, 18 U.S.C. §2257 was amended to make it a crime 'to refuse to permit the Attorney General or his designee to conduct an inspection.' All but one of the inspections occurred after this amendment."

Plaintiffs also make short shrift of the government's claim that even though, for the last 15 of the 29 inspections the FBI performed at adult businesses and owners' homes, the agents handed the owner a letter advising him/her that under 2257, he/she had no right to refuse entry to the FBI, that those owners voluntarily allowed the agents into the business or home without having read the letter, so therefore, their entry was consensual. Trouble is, at an adult industry conference in February of 2007, which many company owners attended, FBI Special Agent Chuck Joyner told the audience that they had no right to refuse entrance to FBI inspectors.

On that point, plaintiffs once again quote from the Lo-Ji opinion: "Any suggestion that petitioner through its clerk consented to the sweeping search also comes too late. After Lo-Ji's agent was placed under arrest and was aware of the presumed authority of the search warrant, his conduct complying with official requests cannot, on this record, be considered free and voluntary. Any 'consent' given in the face of the 'colorably lawful coercion' cannot validate the illegal acts shown here."

But it takes until Section III of the brief before Murray and Baumgardner get to the bottom line: "Subsection (f)(5) of the statute makes it unlawful 'to refuse to permit the Attorney General or his designee to conduct an inspection.' There is no ambiguity. On its face, the statute authorizes warrantless searches in violation of the Fourth Amendment, and the record establishes that each of the 29 inspections under 18 U.S.C. §2257 were conducted as such. Thus, in every case, it will violate the Fourth Amendment. The statute is, therefore, facially unconstitutional under the Fourth Amendment."

The government has claimed that the 2257 inspections were conducted under the "administrative search exception," but no one is fooled by that claim... least of all Third Circuit Judge Marjorie Rendell, who noted in her concurrence with the majority's decision to reinstate and remand plaintiffs' lawsuit that, "the statutes 'do not target a "pervasively regulated" industry'—finding 'that the statutes and their associated regulations are not specifically directed at any industry at all.' Thus, she concluded that they did not clear the threshold for the administrative search exception. Judge Rendell went on to observe that the warrantless searches here were 'not necessary to further the statutes' purpose.' She explained that 'this is not a case where the government must conduct random, unannounced inspections of a business premises to ensure health and safety (as, for example, in the case of mine inspections...)'."

Indeed; at trial, the government made a point that in several cases, the FBI tried to inspect a company but either found no one home, or couldn't even find the premises to be searched, but managed to contact the owners and arrange for an inspection at a later time. But with or without that type of delay, it would still have been illegal for the owner to refuse the search.

Equally porous was the defense contention that none of the plaintiffs have standing to challenge the Fourth Amendment violations because there haven't been any inspections for more than five years, and if they do start up again, the government claims that they'd be handled differently than they originally were.

Plaintiffs make short work of that argument: "In its entire discussion of the inspections that have taken place and inspections yet to be, the government does not once mention 28 C.F.R. §75.5. Yet that is the regulation under which the inspection program was created, pursuant to which the 29 inspections were carried out, and with which any future inspections must conform... Therefore, there is no uncertainty about the parameters of future inspections compared to the previous 29. They must be carried out in consonance with 28 C.F.R. §75.5,which sets forth the protocol for those inspections. Importantly, we know that government agents are authorized to enter producers' premises without delay, without a warrant or probable cause, and without advance notice. It does not provide for an administrative warrant, nor an administrative subpoena."

Murray/Baumgardner also note that Judge Baylson dismissed that very argument when he denied the government's Motion to Dismiss back in December, 2012.

Or as the old musical refrain goes, "Same as it ever was/Same as it ever was."

The government's final argument on the Fourth Amendment is also its most squishy, with the government claiming that 2257's warrantless searches can be upheld by considering "the totality of the circumstances." Plaintiffs point out, however, that the only precedent for such searches involves "'special law enforcement needs, diminished expectations of privacy, or minimal intrusions' in the context of police booking procedures or conditions of release from government custody"—and besides, according to the 1977 case of G.M. Leasing Corp. v. United States, "The Supreme Court has never suggested that an entry into private homes or businesses to examine a person's records can be done without a warrant unless there is a well-recognized exception to that basic Fourth Amendment requirement." And of course, in this case, there ain't one!

The full text of the plaintiffs' post-trial reply brief can be read here.

Now, with all the post-trial briefing completed, plaintiffs must wait for Judge Baylson's ruling in the case, which is expected to occur before the end of July—and when it does, AVN will be ready to analyze it and its effects on the adult industry.