Dennis Herrera answering reporters at San Francisco Superior Court

S.F’s nudity law is still constitutional—but ‘prudent settlement’ resolves factual dispute

Costs of defending evidence-intensive ‘as-applied’ challenge at trial ‘would have far exceeded the settlement amount,’ says City Attorney Herrera’s spokesman

Dennis Herrera answering reporters at San Francisco Superior CourtSAN FRANCISCO (June 17, 2015)—City Attorney Dennis Herrera’s office today sought to clarify a news release issued by two remaining plaintiffs in their federal constitutional challenge to a 2012 San Francisco ordinance that generally bans nudity on public streets and sidewalks, with exceptions for certain permitted events.

San Francisco’s nudity ordinance was already upheld as constitutional by the U.S. District Court, which rejected all of the plaintiffs’ challenges to the law’s validity. The case’s lone remaining contention involved allegations that the police department did not enforce the ordinance at certain events—such as Critical Mass—but did enforce the ordinance at events organized by the plaintiffs. Known in legal terminology as a “claim for unconstitutional viewpoint discrimination,” such cases challenge the law “as applied,” and their outcome generally turns on depositions from multiple individuals involved and testimony from witnesses at trial.

In light of the time and expense usually required to litigate these kinds of cases at trial, the City Attorney’s Office agreed to settle the factual dispute by paying a portion of the plaintiffs’ legal fees in the amount of $20,000.

“We’re confident that we would have prevailed at trial on the remaining factual dispute, but frankly the cost of doing so would have far exceeded the settlement amount,” said Matt Dorsey, spokesman for City Attorney Dennis Herrera’s office.

“This was a prudent settlement that avoids needless expense to taxpayers, and cost-effectively resolves an evidence-intensive legal sideshow. We are aware that the plaintiffs intend to pursue their facial challenge to the law’s constitutionality in the Ninth Circuit, and the City Attorney will continue to defend San Francisco’s ordinance aggressively. Bans on public nudity have been longstanding features of municipal codes nationwide, and their constitutionality has been repeatedly affirmed by the courts, including the U.S. Supreme Court.”

The case is: Hightower et al. v. San Francisco et al., U.S. District Court, Northern District of California, Case No. C-12-5841 EMC, filed Nov. 14, 2012.

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