Update from the Ninth Circuit

Unfortunately, on January 17th, the Ninth Circuit of Appeals ruled against our court case, ESPLERP v Gascon [case #16-15927], and agreed with the lower District Court’s ruling to dismiss our case. You can read the whole disappointing decision here –

https://www.scribd.com/document/369378562/Decision-ESPLERP-Challenge-to-California-Prostitution-Laws

During the Oral Arguments before the Ninth Circuit on October 17th 2017, our lawyer, Louis Sirkin, did a great job of responding to the judges’ grilling. He strongly made the case that the California law  criminalizing prostitution, 647(b), was unconstitutional and should be struck down.  In contrast, the State Deputy Attorney General visibly struggled under questioning, and often appeared to be uncomfortable arguing the State’s case. So, after the hearing, our lawyers felt that we had a good chance of a ruling to remand the case back to the District Court for a more detailed hearing.

But sadly, the Ninth Circuit panel chose to dismiss, arguing that a 1998 Ninth Circuit case (IDK, Inc. v. Clark Cnty.) established that the relationship between a prostitute and client was not protected by the due process clause of the Fourteenth Amendment. IDK relied on the 1986 Bowers v Hardwick case (which upheld a Georgia sodomy law). However, in 2003, the Supreme Court explicitly overturned Bowers in Lawrence v Texas, and struck down sodomy laws nationwide – and clearly established aconstitutional protection ofsexual privacy. So for the Ninth Circuit panel to ignore Lawrence, and reach back 20 years to IDK, is a quite remarkable piece of legal jiggery-pokery (Webster definition: underhanded manipulation or dealings: trickery).

But we still have options. We have 14 days to file for a full Ninth Circuit rehearing – not just before a three judge panel, but “en banc” (usually 11 judges in the Ninth Circuit). The decision to allow an en banc hearing is entirely down to the Ninth Circuit. If our request is rebuffed, then we have 90 days to appeal to the US Supreme court.

We would have to be prepared financially for either option – but right now we are not. In fact, we are still paying off legal costs associated with Ninth Circuit Oral Arguments in October. So the key question is whether we have a realistic chance of raising sufficient funds to move forward – or whether we will just have to let the clock run down on our chance. Your donations now will influence these decisions.

In the future, there might still be further approaches. For example, most people who are arrested for 647(b) either take a plea deal, or take diversion options like LEAD, both or which involve waving the right to make further challenges to the law. But it would be entirely possible for someone who is arrested for 647(b) to take their case to trial and use some or all elements of our ESPLERP v Gascon briefs to make an ‘as applied’ challenge. That would start a challenge to 647(b) rolling in the State criminal courts, rather than the Federal courts where we have been so far, but would still require considerable financial backing.

Fundraising

Thanks so much to the  anonymous donors who put up $2000 of matching funds, as part of our attempt to raise $30,000 to meet the financial obligations of our Appeal.  https://www.crowdrise.com/o/en/campaign/litigate-to-emancipate1

Thanks to all the new folks who stepped up over the past year. And thanks to all who are part of the monthly giving. – Maxine

Today we announced that we have filed a petition in the Ninth Circuit for a rehearing “en banc” (before an eleven judge panel) asking the full Ninth Circuit Court to reconsider the dismissal of ESPLERP v Gascon [case #16-15927], which challenged California’s anti-prostitution law Penal Code 647(b) on the grounds that it is unconstitutional. You can read the latest filing and the press release here – https://esplerp.org/esplerp-files-for-a-rehearing-before-full-ninth-circuit-to-continue-fight-for-sexual-privacy/

We argue in our petition that in dismissing our case [ESPLERP v Gascon, case #16-15927],the three judge panel that heard Oral Arguments in October erred on two counts. Firstly in relying on IDK (a Ninth Circuit ruling from 1998) and ignoring Lawrence (the 2003 Supreme Court ruling that established a constitutional right to sexual privacy). Secondly in not applying “heightened scrutiny”. We are hopeful that a rehearing before a larger 11 judge panel of the Ninth Circuit will reverse the dismissal.  Again, we don’t know how long it will be before the court decides whether to grant a rehearing, and if it does so, how long it will be before that rehearing happens – but when it does, you, our supporters will be in the front row seat!

This is such an important issue, that we just cannot give up now. But in deciding to move ahead, we are taking on additional legal financial obligations. In paying off legal costs associated with the Ninth Circuit Oral Arguments in October, we are expecting additional costs with this latest effort.  So the key question is whether we have a realistic chance of raising sufficient funds to keep the fight going – or whether we will just have to let the clock run down on our chance. Your donations now will influence these decisions.

Fundraising

Please help us meet our $30,000 goal so we can carry on with legal challenge of our Appeal.  https://www.crowdrise.com/o/en/campaign/litigate-to-emancipate1

Thanks to all the new folks who stepped up over the past year. And thanks to all who are part of the monthly giving.

●      Contribute online atlitigatetoemancipate.com

●      Hit the PayPal button athttp://esplerp.org

●      Mail checks to ESPLERP, 2261 Market Street # 548, San Francisco, CA

Happy Valentine’s Day-Maxine