United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
SHARON JOHNSON COLEMAN, District Judge.
Plaintiff Sonoko Tagami filed her complaint against defendants City of Chicago (the "City"), City of Chicago Department of Administrative Hearings ("DAH"), and Chicago Police Officer Ramona Stovall on November 12, 2014. Defendants now move to dismiss her complaint . For the reasons that follow, defendants' motion is granted in part and denied in part.
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 bare-chested in public. GoTopless Day occurs at sites around the world and Tagami participated in the event from 2010 to 2013. On August 24, Tagami was wearing opaque body paint and "protesting the existence of laws that prevented women from appearing bare-chested in public" when Stovall ordered her to end her protest or be subject to arrest. (Dkt. 1, ¶ 11). Tagami stopped protesting. Stovall cited Tagami with violating Municipal Code of Chicago § 8-8-080 (the "Ordinance"), which prohibits indecent exposure. 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 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.
According to Tagami, Stovall also "seized" Tagami's GoTopless Day protest flyer as "evidence" of Tagami's violation of the Ordinance. (Dkt 1, ¶¶ 16.) Stovall took possession of a flyer that contained information about GoTopless Day. Although Tagami alleges that Stovall "could not have reasonably believed that the [flyer] was evidence of indecent exposure[, ]" no details are provided about whether the GoTopless Day participants handed out fliers to promote their cause. On October 10, 2014, an administrative law judge of DAH found Tagami liable for violating the Ordinance and ordered her to pay a $100 penalty and $50 in administrative costs.
Tagami brought this complaint pursuant to 42 U.S.C. § 1983 alleging that, as applied to her "expressive activity, " the Ordinance is impermissibly vague and unconstitutionally infringes on her First Amendment and Fourteenth Amendment rights. (Dkt.1, ¶ 14.) She also asserts that the Ordinance does not prohibit bare-chested males from appearing in public, and therefore treats men and women as "an arbitrary classification prohibited by the Equal Protection Clause of the Fourteenth Amendment[.]" ( Id. at ¶ 15.) Tagami further claims that Stovall violated her rights secured by the First, Fourth, and Fourteenth Amendments when Stovall seized her flyer. (Dkt. 1, ¶ 16.) Finally, she contends that DAH's finding that Tagami is liable for violating the Ordinance is "arbitrary, unreasonable, against the manifest weight of the evidence, and was entered pursuant to an unconstitutional application to plaintiff of an unconstitutional ordinance." She asks the Court to reverse the administrative decision. Defendants move to dismiss Tagami's complaint for failure to state a claim upon which relief can be granted.
When reviewing a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court accepts as true all well-pleaded facts alleged in the complaint and construes all reasonable inferences in favor of the nonmoving party. Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). The complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). In other words, the 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). This does not require "detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id.
1. First Amendment Freedom of Expression Claim
Defendants argue that Tagami's First Amendment claim fails because her actions are not protected expression and that, even if Tagami's expression is deemed to be protected activity, the Ordinance nevertheless passes the test set forth in United States v. O'Brien, 391 U.S. 367 (1968) (" O'Brien test").
The First Amendment protects the expression of ideas through both written and spoken words and through symbolic speech, which is "nonverbal activity... sufficiently imbued with elements of communication." Spence v. Washington, 418 U.S. 405, 409 (1974). Conduct constitutes "symbolic speech" when (1) the conduct demonstrates "[a]n intent to convey a particularized message[, ] and (2) there is a great likelihood that "the message would be understood by those who viewed [the conduct]." Id. Since "[b]eing in a state of nudity' is not an inherently expressive condition" ( City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000)), the Court must first ...