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The Constitutional Dance

A California Gentlemen’s Club Fights for its Rights

Photo provided by Yelp.

Exotic dancers at San Diego’s Cheetah’s Nightclub have found themselves twisted up in a legal battle with the city.  Twenty-five dancers employed by Cheetah’s claim their Fourth Amendment rights were violated when police performed illegal searches and seizures after a compliance check.  United States District Judge M. James Lorenz believes that the dancers could have a valid argument.

[A]fter the permit checks were performed, the dancers claim the officers required them to remain in the club…

Last year, San Diego police officers allegedly raided Cheetah’s as part of a routine and required compliance check to ensure that each dancer held the proper permit to dance nude.  However, after the permit checks were performed, the dancers claim the officers required them to remain in the club—standing almost naked—while their tattoos were individually photographed.  To add insult to injury, the officers allegedly made disparaging comments to the women while making them pose in different ways.  The dancers have since filed a complaint against the officers, claiming that this action violated the dancers’ Fourth Amendment rights to be free from illegal searches and seizures.

The officers claimed that the photographs were necessary to update the dancers’ permits, but the dancers contend that the photographs were taken from the knee up, rather than just of their faces.  Lieutenant Kevin Mayer, San Diego Police Department, argued that because dancers change their appearances so frequently, tattoo photos were necessary to help avoid permit fraud.

Daniel Gilleon, the attorney for Cheetah’s, filed the suit  on behalf of the dancers and club against the City of San Diego and San Diego Chief of Police Sandy Zimmerman.  The defendants attempted to have the suit thrown out, asserting that it was inadequately pleaded and untimely.  Judge Lorenz disagreed and has allowed the suit to proceed.

The officers may have gone beyond their permissible scope of search and seizure when they allegedly required the dancers to remain in place while being photographed

Do the dancers have a valid legal argument that their Fourth Amendment rights were violated?  Likely, yes.  The Fourth Amendment forbids unreasonable searches and seizures.  Here, the officers may have gone beyond their permissible scope of search and seizure when they allegedly required the dancers to remain in place while being photographed.  Although the officers had the right to do a compliance check, it is questionable if that right extended to requiring the dancers to stay put – a seizure – while photographing their almost nude bodies – a search.

Because no warrant was present for what was supposed to be only a compliance check, the officers would have needed some other reason to go beyond the scope of what they were there to do.  Additionally, in order to obtain a warrant, the officers would need to have shown probable cause to search and seize the dancers.  Now, it is up to the court to determine if the police did in fact go further than what was reasonable for a standard compliance check.

The judge expressed concerns that to forbid dancers from dancing naked in certain parts of the club would be a prior restraint on free speech

Cheetah’s has faced another constitutional battle since the March 2014 raid.  The City of San Diego has multiple rules for exotic dancers, which forbid the dancers from touching or fondling clients, and also require dancers to stay at least six feet away from the patrons while performing.  Cheetah’s has allegedly violated these rules multiple times, and therefore its permit to operate an all-nude club has been revoked.  The club has also had to pay a $20,000 fine.

Recently, a San Diego City Attorney asked that Cheetah’s be ordered to limit the areas where dancers can dance fully nude within the club.  Although this request was suggested to alleviate the city code violations within the club, it was initially denied by a San Diego Superior Court Judge on the grounds that the dancers had a First Amendment right to do their jobs.  The judge expressed concerns that to forbid dancers from dancing naked in certain parts of the club would be a prior restraint on free speech.

However, in early July Cheetah’s faced a potentially fatal blow.  The club has been able to remain open since having its license revoked in 2014 to allow it to fight the revocation.  Yet, during the second week of July, San Diego Superior Court Judge Randa Trapp determined that Cheetah’s has in fact violated city ordinances numerous times, thus allowing the city to permanently revoke Cheetah’s permit.  Cheetah’s will have sixty days to appeal the court decision.

Nude dancing has been a point of constitutional contention in the past

Nude dancing has been a point of constitutional contention in the past.  In the 2000 case of City of Erie v. Pap’s A.M., the United States Supreme Court discussed whether a city of Erie ordinance requiring exotic dancers to wear underwear and cover their nipples was unconstitutional.   Gentlemen’s club Kandyland, operated by Pap’s A.M., allowed its dancers to dance fully nude.  A 1994 city ordinance forbade dancers from doing so as part of a public decency movement.  Two days later, Pap’s filed a complaint against the city “seeking declaratory relief and a permanent injunction against the enforcement of the ordinance.”

Six years later the case ultimately traveled up to the Supreme Court.  The Court had to determine whether nude dancing was content-neutral or content-based speech.  Using the United States v. O’Brien framework regarding when the government can control symbolic speech, the Court determined that being nude is “not an inherently expressive condition.”  Therefore, the ordinance was not a hindrance on free speech and fully-nude dancing could be prohibited by the City of Erie.

Kandyland closed in 1998 while the case waited to be heard by the Supreme Court.  In light of this, Pap’s attempted to have the case dismissed as moot.  Yet, regardless of the closure, the Court found that the case was not moot because the club still held incorporation, it could potentially reopen.

The Pap’s A.M. case differs from the Cheetah’s controversy slightly: Cheetah’s is not fighting for the right of its dancers to dance nude, but rather to dance closer than six feet to the customer.  If this case were to make it to the Supreme Court, the Court would likely view the six-foot rule as a time, place, and manner restriction under the First Amendment, and therefore find it constitutional.

Cheetah’s currently remains open while it appeals the latest decision.  However, it will have to prove on appeal that the San Diego ordinances are unconstitutional in order to stay open for the long run.  This challenge will be its toughest dance yet.

Paige Miles Feldmann, Managing Editor
About Paige Miles Feldmann, Managing Editor (20 Articles)
Paige Miles Feldmann is a 2016 graduate and served as the Managing Editor of the Campbell Law Observer for the 2015-2016 academic year. Originally from Erie, Pennsylvania, she graduated from Penn State with a finance degree. Following her first year of law school, she interned with the Clerk of Superior Court for Chatham County, the Wake County Family Court, and the Wake County Public Defender. She also competed on a Campbell Law Trial Team in the Buffalo-Niagara Mock Trial Competition. Paige worked with the Wake County District Attorney as an intern in the misdemeanor section during her third year.
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