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7th Circuit mulls adult-business laws

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Indiana Lawyer Rehearing

The 7th Circuit Court of Appeals is considering whether a Southern District of Indiana judge correctly weighed evidence in granting a preliminary injunction that stopped Indianapolis from enforcing a 2002 ordinance regulating adult-business hours.

Attorneys appeared before a three-judge panel Sept. 20 to argue the 7-year-old case of Annex Books, et al. v. City of Indianapolis, Ind., No. 1:03-CV-918, which U.S. District Judge Sarah Evans Barker ruled on in December 2009.

The case had been remanded after the 7th Circuit heard arguments in 2005. The appellate court had affirmed Judge Barker’s judgment regarding the licensing procedures set out in the ordinance but reversed on whether any substantive First Amendment issues existed. The appellate court had ordered an evidentiary hearing, and she examined whether any secondary effects were created by the ordinance that required the plaintiffs to close between midnight and 10 a.m. The judge found the city’s evidence to date is likely insufficient to meet the standard or justify the ordinance, and Indianapolis appealed that preliminary injunction.

Corporate attorney Justin Roebel for Indianapolis argued that Judge Barker created a new standard and shouldn’t have weighed the evidence, and should not be turning this case into what he described as a “battle of experts.” The city doesn’t need to provide localized evidence but can use outside-the-state data, even if it’s from much larger cities such as New York and Reno that have different demographics.

The 7th Circuit judges pressed the attorneys about the data being relied on in this case, criticizing it as being outdated and not adequate to compare the effects of the ordinance.

Plaintiff’s attorney J. Michael Murray agreed the evidence wasn’t technically clear but that it logically showed an increase in crime rather than what the city said the ordinance effect would be. Murray said more conclusive and “statistically significant” data would be presented at trial for a permanent injunction, but Roebel argued that a trial isn’t the standard and the plaintiff’s data currently isn’t adequate to be relied on.

Chief Judge Frank Easterbrook questioned that data and said this is a case that doesn’t have clear guidance. In response to an initial statement from Murray about how the previous 7th Circuit ruling from last year created a “template” for Judge Barker to use, Chief Judge Easterbrook opined about how unclear this issue is for the trial court to determine.

“I think that might be overstating the extent to which our opinion can be said to be a ‘template’ … There’s a whole passage in there that says we appreciate that we’re remanding with a completely fuzzball standard and aren’t entirely sure what it means,” he said. “But that’s what the Supreme Court has said.”

The panel took the case under advisement.
 

Rehearing "City stopped from enforcing adult-business law" IL Daily Dec. 3, 2009

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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