Tagami v. City of Chicago et al
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 2/1/2016:Mailed notice(rth, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SONOKO TAGAMI,
Plaintiff,
v.
CITY OF CHICAGO and CITY OF CHICAGO
DEPARTMENT OF ADMINISTRATIVE
HEARINGS,
Defendants.
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Case No. 14 cv 9074
Judge Sharon Johnson Coleman
MEMORANDUM OPINION AND ORDER
On July 10, 2015, this Court granted in part and denied in part a motion to dismiss filed by
defendants, City of Chicago and the City of Chicago Department of Administrative Hearings
(collectively “the City”). Plaintiff Sonoko Tagami filed a three Count Amended Complaint, which
the City now moves to dismiss [27]. For the reasons stated herein, this Court grants the motion.
Background
Tagami alleges that on August 24, 2014, she participated in “GoTopless Day” organized by
“GoTopless,” a non-profit organization that advocates for the right of women to appear barechested in public. During the event, Tagami alleges that she attempted to comply with Municipal
Code of Chicago § 8-8-080 (the “Ordinance”), which prohibits certain forms of public nudity, by
applying opaque body paint. (Dkt. 26 at ¶ 24). She was ordered to end her protest or be subject to
arrest. (Id. at ¶ 25). Tagami complied with Chicago Police Officer Romona Stovall’s request.
Officer Stovall issued a notice of ordinance violation, charging plaintiff with committing the
municipal offense of Indecent Exposure or Dress. (Id at ¶ 27). The Ordinance provides:
Any person who shall appear, bathe, sunbathe, walk or be in any public park,
playground, beach or the waters adjacent thereto, or any school facility and the area
adjacent thereto, or any municipal building and the areas adjacent thereto, or any
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public way within the City of Chicago in such a manner that the genitals, vulva,
pubis, pubic hair, buttocks, perineum, anus, anal region, or pubic hair region of any
person, or any portion of the breast at or below the upper edge of the areola thereof
of any female person, is exposed to public view or is not covered by an opaque
covering, shall be fined not less than $100.00 nor more than $500.00 for each
offense. Municipal Code of Chicago § 8-8-080.
On October 10, 2014, an administrative law judge (“ALJ”) of the City’s Department of
Administrative Hearings found Tagami liable for violating the Ordinance. (Id. at ¶ 28, 30). She was
ordered to pay a $100 penalty and $50 in administrative costs. (Id. at ¶ 30).
Tagami filed the instant lawsuit alleging that the Ordinance violates her First Amendment
right to Freedom of Expression, that the Ordinance violates Equal Protection by creating a sex-based
classification, that Officer Stovall violated her constitutional rights by seizing her flyer, and that the
administrative decision was arbitrary and against the manifest weight of the evidence. The City moved
to dismiss the original Complaint for failure to state a claim. This Court granted the motion with
respect to the Equal Protection claim and the Fourth Amendment claim, and denied the motion with
respect to the First Amendment Freedom of Expression claim. The Court’s Opinion Memorandum
and Order was silent on the administrative review claim. (Dkt. 24). Tagami’s Amended Complaint,
reasserts her Freedom of Expression claim, Equal Protection claim, and administrative review claim.
(Dkt. 26).
Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial
plausibility when the complaint’s factual content allows the Court to draw a reasonable inference
that the defendants are liable for the misconduct alleged. Id. The Court draws all reasonable
inferences in favor of the nonmoving party. Pisciotta v. Old Nat. Bancorp, 499 F.3d 629, 633 (7th Cir.
2007).
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Discussion
The City moves to dismiss the constitutional claims in the Amended Complaint for failure
to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) and asks this Court to decline
jurisdiction over the state law claim for administrative review. The City elected to move to dismiss
the Amended Complaint rather than file a motion to reconsider the partial denial of its motion to
dismiss the Original Complaint. Nevertheless, the Court will treat the motion with respect to the
First Amendment Freedom of Expression claim as one for reconsideration.
Under Federal Rule of Civil Procedure 54(b), a district court has inherent authority to
reconsider its own orders entered prior to final judgment. See Saunders v. City of Chi., No. 12-CV09158, 2015 U.S. Dist. LEXIS 154989, 2015 WL 7251938, at *2-3 (N.D. Ill. Nov. 17, 2015).
“Motions for reconsideration serve a limited function: to correct manifest errors of law or fact or
to present newly discovered evidence.” Conditioned Ocular Enhancement, Inc. v. Bonaventura, 458 F.
Supp. 2d 704, 707 (N.D. Ill. 2006) (citing Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90
F.3d 1264, 1269 (7th Cir. 1996)). Here, as part of their motion to dismiss, the City asserts that this
Court failed to sufficiently analyze the second prong of Spence v. Washington, which requires facts
showing that “in the surrounding circumstances the likelihood was great that the message would
be understood by those who viewed it.” 418 U.S. 405, 410-11 (1974). The City also argues that the
Court erred by applying the secondary effects doctrine as set forth in Foxxxy Ladyz Adult World,
Inc. v. Vill. of Dix, 779 F.3d 706, 711 (7th Cir. 2015). Upon review of this Court’s prior ruling as
well as the relevant cases, this Court finds that it bent over backwards to adhere to the low
standard of notice pleading when considering whether Tagami’s purported message would be
understood. However, as the United States Supreme Court has held public nudity is not inherently
expressive. See City of Erie v. Paps A.M., 529 U.S. 277, 299 (2000). This Court was remiss when it
considered the verbally communicated message in its consideration of the circumstances. See
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Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 66 (U.S. 2006) (holding that if
the expressive component of an action is not created by the conduct itself but by the speech that
accompanies it, then it is unlikely expressive conduct protected by the First Amendment).
Upon further reflection, the cases that this Court relied on in its prior ruling, including
Foxxxy Ladyz and, Schultz v. City of Cumberland, 228 F.3d 831, 842 (7th Cir. 2000), are
distinguishable from the case at hand because those cases specifically addressed nude dancing in
private venues where the governmental concern was the “secondary effects” that could result
from such venues. That is not the situation here. Accordingly, this Court finds that Tagami’s claim
under the First Amendment fails as a matter of law.
Next, the Court considers whether the Amended Complaint adequately states an equal
protection claim under the Fourteenth Amendment. As this Court previously found, Tagami’s
equal protection claim fails because the Complaint did not contain sufficient allegations showing
how the Ordinance places “artificial constraints” on women or how it is used to “create or
perpetuate the legal, social, and economic inferiority of women.” United States v. Virginia, 518 U.S.
515, 533-34 (1996). The Amended Complaint does not cure this defect. The Amended Complaint
contains only conclusory allegations such as: “creates an artificial constraint that embodies and
perpetuates an assumption of inferiority: that the sight of a female’s breast is offensive in a way
that the sight of a male’s breast is not.” (Dkt. 26 at ¶ 39). However, Tagami does not support
these allegations with factual support to survive dismissal under Iqbal and Twombly. See Iqbal, 556
U.S. at 678; Twombly, 550 U.S. at 570.
Having dismissed Tagami’s constitutional claims in which this Court has original
jurisdiction, this Court declines to exercise jurisdiction over Tagami’s state law claim for
administrative review of the ALJ’s decision to impose a fine for Tagami’s violation of the
Ordinance. See 28 U.S.C. § 1367(c).
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Conclusion
Based on the foregoing discussion, this Court grants the City’s Motion to Dismiss [27].
Civil case terminated.
IT IS SO ORDERED.
Date: February 1, 2016
Entered:____________________________
SHARON JOHNSON COLEMAN
United States District Judge
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