versus damn important henry flanagan davenport and henry versus the city of sandy springs please the court my name is jerry webber and i fear here today with craig good mark and carrie wiggins honors this appeal turns on the proper framing of due process rights to sexual intimacy at one end of the spectrum the williams decisions framed the right to as a right to purchase and use sexual devices at the other end of the spectrum sandy springs now frames the right asserted as a quote unmoored sexual privacy right that will legalize prostitution and incest neither of these framings is correct the proper framing here is very similar to that in an adult's ability to make consensual choices about intimate noncommercial sexual activity a framing that this court in williams were described as an overbroad framing oberg fell clarified this due process right in the specific context of sexual intimacy identified two errors with this williams court's decisions first williams was faced with the lawrence opinion and lawrence was silent as to glucksberg that silence led this court to make one of two choices either follow glucksberg considering warrants a one off or consider the the analysis in lawrence and try to divine with what the court meant and lawrence how is mr hammond port prevented by the ordinance from purchasing and using the sexual devices because the ordinance by its terms prevents her from doing that and actually the allegations in the complaint are specific about her attempts to purchase and sell the devices and her inability to do so thanks but not in the community where she lives that is correct but your honor none of you also alleges in the complaint same you drafted it that she sells sexual devices that is correct so she gets them from somewhere doesn't she yes she does so the ordinance done prevent her from purchasing sexual devices does it it's an absolute bar on her purchase and sandy springs and if you're honest want to she have a right living in kennesaw as she does to purchase them in sandy springs but because your honor that the contraceptives cases the marriage cases have never said that there was a constitutional violation and still you can go somewhere else somewhere else well but what you tom carey specifically what kerry said was that the supply are the purchaser the retail outlet in that case could assert the rights of the user only if the law ordinance imposed a substantial burden and reduce the number of outlets to a small fraction of what they are otherwise would have been kerry was a new york law that had no geographic bounds in within the state applied throughout the state and did reduce the number of outlets to a small fraction of what they would otherwise be sandy springs is not a large fraction of anything except sandy springs so want to she have a constitutional right to purchase them in sandy springs when she doesn't even live there your honor for the same reason that if sandy springs had an ordinance prohibiting the sale of the american flag a person prohibiting the sale of guns one from outside that jurisdiction who attempted to go into that jurisdiction and purchase guns or purchased american flags would have a claim and your honor we would point to for example the shad case which was an adult entertainment case and the supreme court to address that issue and said that the plea that right may be exercised in some other place does not vitiate a constitutional violation that's sad for fifty two us at sixty one so no court has ever said a city ordinance that prohibits purchase is constitutional because it's otherwise unconstitutional but somebody can go somewhere else where they don't value you have williams itself like she's alleging as a right to buy from a brick and mortar store in a community she doesn't lay off suppose she alleged that she wanted to go to anchorage alaska and buy one there and anchorage had an ordinance prohibiting it would she have standing would that be justiciable controversy would that be a violation of  constitutional rights if it actually had gone there and was any unable to purchase those devices yes but it doesn't really make sense and if you look at carrie which is the she's got to do is click on amazon well put the word vibrator and you get fourteen thousand plus hits on your honor the reality is in williams itself the plaintiffs had a section yes and this court and all of its williams opinions never suggested that the plaintiffs in those cases lost their right to challenge the sexual device ordinance because they already owned them the reality is that any city prohibition on the sales of the american flag on the sales  guns whatever it may be under it under that analysis would be constitutional because somebody could get it somewhere else and with the internet people can always get a device a flag a gun somewhere else exactly but that doesn't mean that we have to shape the law to pervert preserve a cause of action for you if somebody can always get that which they have a constitutional right to possess and enjoying the intimacy of their home that doesn't mean that we've got to say you've got to be able to get a brick and mortar are on the way you won't have a constitutional violation well our allegations were very specific that our clients went to sandy springs they were unable to purchase these devices are car allegations were also very clear that our clients ought to sell the devices miss davenport's marriage in her view was saved by these devices and so she provides them to others she was unable to go to sandy springs because the law prohibited her from selling those devices the springs as i understand it has repealed the ordinance thirty eight one twenty you see the plaintiffs no longer to face any risk of prosecution so that consumers are free to buy and sell sexual devices within the city limits why is this case and park worthy at this time the the prime even a sunni for the purposes of my question that it's just issued bull on some theory of nominal damages why is it in bunk worthy now that essentially you've gotten the relief that you have wanted you can sell and buy what you wish in the city why should this course fund court fuss with the matter and bonk now court has held and amnesty international and slicker and al ameen that a nominal damages claim is a just claim sometimes cases go all the way to the supreme court based on oh i don't think i made availability i'm not sure that i've made my question clear i assume for the purposes of my question that nominal damages would lie and that the case is technically not moot that is to say it's justiciable if only barely accepting that why should this court as a matter of its discretion here the matter and paul could now when essentially you've gotten all of the relief you want you want to be able to buy and to sell without fear of prosecution in sandy springs you can do that now why should we foss with difficult questions of mootness nominal damages and the merits but we have asserted our prayers for relief and on a nominal damages claim so if this court you have to lose you keep coming back to just issue a bill and you're not answering his question you say that it's only just you said a moment ago it's only justice at the williams court and brock as a matter of discretion should take this case up now in this procedural posture when you have gotten all of the relief that you want why we believe it is in bank where the is because this is the case that gives this court the opportunity to resolve a circuit split resolved its case law and bring it in line with supreme court precedent and provide our clients with the relief that they specifically sought and their prayer for relief we as to if we this inbox this case does the district court order remain in effect the eleventh vacated the panel decision so the district court decision remains in effect and the williams line of cases will remain on the books and constitute eleventh circuit precedent i mean i guess my question is there so is there a concern on the part of the cases yes let me address that to voluntary sation and to this day and in their briefs before this court the apple e sandy springs has taken the position that this ordinance is constitutional they have not wavered from that in their briefing whatsoever and i venture to say they will not waiver from that in their argument before this court there ordinance was repealed eleven years into litigation in this case and only after this court granted in bank they filed a one page motion to dismiss not articulating anything more than that the ordered set ordinance had been repealed despite the fact under this circuit's rules they could have placed some evidence in the record to show that they weren't going to return to their old ways that they did now think the statute was unconstitutional that they were doing it for some reason other than that this court granted in bank and as you pointed out one can you bring me up to date on the city with fantastic visuals  so mr wiggins on behalf of flanagan's has asserted the rights of flanagan's as to this specific regulation now there's a larger piece of litigation that's currently pending in this court that that flanagan's is involved in about many other issues six twenty two that remains in the code of the city of sandy springs and also regulates sexual devices twenty six twenty two regulates devices that  utilized for sexual devices that emulates stimulator represent specific anatomical areas so it's still being regulated elsewhere in the sandy springs code so the reality is that has anybody ever had an action brought against them for this have not been able to purchase the devices they attempted to do so i'm not asking about your clients i'm asking if the ordinance has ever been unforced against anyone if anyone has ever been cited the ordinance there were two pieces of litigation brought to enjoin the ordinance there were not what i'm asking counsel have anyone ever been cited for a violation of this ordinance in the entire eleven years you say that it's been on the books not to my awareness but that's because some stores have closed they were stays issued at certain points in litigation there was a there was a whole lot happening in a in a series of litigations and state and federal court that precluded at certain points in time in force have sexual devices been sold inside the city limits of sandy springs in the last eleven years yes and they're permitted to under the old ordinance because there were specific purposes for which they could be sold and determine always pleading stage aren't those issues that are more appropriately addressed that summary judgment it may be that those issues will need to be remanded the questions about standing the questions about governmental interest all it please the court scott birchell done behalf of the city of seeing the springs we asked this court to dismiss this appeal as moot and in the alternative to affirm the judgment below this case is obviously moot legislative repealed renders the challenge to the repealed statute moot this court has said that time and time again is code section thirty a hyphen one twenty three unconstitutional no absolutely not it was based on case law that been upheld a georgia statue actually that had been upheld by the united states supreme court in one thousand nine hundred eighty eight and school versus georgia which is a case of the court took jurisdiction under their old statute for jurisdiction and then dismissed it for want of a substantial federal question it was not only procedural due process not only due process claims but also first claims and this just so i understand the history of this as i understand it sandy springs was and incorporated december one two thousand and five correct and this ordinance has been on the books ever since the beginning they've had some version of this ordinance it was basically an analogue to the georgia state statute that was on the books for thirty years and upheld many times but there was a two thousand and two opinion of this court in a case called this that and the other tobacco versus cobb county that had preliminarily enjoying the state statute because of an advertising ban so when the city adopted this ordinance they basically adopted what the state had minus the advertising ban that this court had to show but the williams case is where the precedent this court when they adopted it  had i had one more i looked at the docket this morning and so it looked like to me the notice issued from this court on march the twenty first of this year and that's the same day that the sandy springs  repeal subset ordinance and i'm not sure if it was the same day it may have been a few days after but that's the whole point mr weber's point to another provision of the code for regulating in the affirmative licensing adult bookstores the definition of adult bookstore in this separate zoning ordinance in the other flanagan's case looks in an adult bookstore or defines it by reference to printed adult material and then also the sexual devices in other words the fact that there is another portion of the city's code that affirmative licenses and allows bookstores with sexual devices proves that the send the ordinance that prohibited the commercial distribution of was obscene devices was just an inconsistency in the city's code and they have another means of controlling the adverse secondary effects that they targeted in this ordinance with that separate ordinance subsections the has now been repealed the sandy springs now can see the unconstitutional section you can see that that section is unconstitutional now of course not your honor but that's not the point the were not there is no intent to rely on why is the answer of course not well because the court would have to define reasons for why this was being adopted but curiously when you revoked it there is no statement or explanation whatsoever as to why you did it and the interesting thing is that in eleven circuits years prudence we have harrell versus the florida bar national advertising company vs city of fort lauderdale richfield secretary of florida department of corrections all of these cases pointed to in particular two factors one is the timing of w a challenge regulation or statute was revoked and the other is the content of why it was revoked and these cases all of them found that the voluntary suspicion doctrine did not apply because it was too little too late and here this is the most egregious of all three of these cases as far as i can tell of all four of them if we include this one so my question to you is first of all why did it take you know literally years to decide to do this you went through the district court he went through two rounds of briefing before the panel because over gavel came out in the middle then you received the panel opinion in august of tw sixteen with the explanation that perhaps there might be some problems with williams and you still waited until after we on the case to revoke the statute and you gave no explanation as to why you did it i mean that is troubling it feels like maybe you're trying to game the system a little bit your honor that's absolutely not true and i would disagree with you on about the case law in the eleventh circuit it's clear that those situations are voluntary sation involve that particular practice but when there are so  repealing ordinance there could case law from the national d a mortgage versus miami beach and the national advertising versus city of miami case so that you don't guesswork as to the motive behind it what about we don't need to bring it about our tanner decision and on advertising versus fayette county case is directly on point when it's a legislative repeal the presumption is that the government will not reenact the law in the burden is on the challengers to provide affirmative evidence in the record that that's not true well more importantly  though that fine if you don't want to concede that it's a situational at least concede that there are questions about its continuing constitutionality because if you don't and you have no explanation as to why you were revoked it and you did it so late in the game after literally years and years of defending this statute why isn't the presumption rebutted that perhaps that you do intend to re invoke it at some later point in time your honor if i mean we said that no matter what else we may have said in other cases we have lots of jurisprudence where we have said exactly that same thing that if you do that in those other cases that that rebuts the presumption of voluntary susan your honor i think from the supreme court elian's castle versus that's not the case when there's a legislative repeal i could supply a resolution from the city sandy springs city council in a week that says we really really meant it when we repealed the law but they authorized not knowing that's that's not the point i mean that's not what we look to what we look to as an explanation of why you are revoking it that's what we look to that's one of the things we look to we don't look for you to say we really really meant that we look for you to say you know we've we've been through all these years of litigation and we've discovered that maybe there might be some constitutionality questions about it we have concerns those types of things those types of things that would indicate that it's not reasonable to be concerned anymore that you might read invoke the statute your honor the law had never been forced and that's what was extend at the time that they maybe they didn't want to proceed with litigation over an ordinance that was the interest of address and secondary effects is addressed in another law that had been up held this constitutional and zoning that they knew they were going to stay committed to so revoking but it is when we when they say they authorized me to file the motion to appeal is moot based on the legislative the repeal of this ordinance they authorized me to say the city disavows any intention reenactment and that's what  courts rely on all the time to determine just as your bill it what do we do with the city changes its mind elections happen and the new council saying you have counsel comes in and says darn that was a great ordinance and  never been struck down and they reenacted what do we do well at that point we can't do it and we can't do anything if we dismiss the appeal what what happens then well they could go do what they didn't do in this case and that is a lead specific facts of actual purchase no no they want to they want to bring this very lawsuit again and they follow the second amended complaint with intervene ors maybe this time they get somebody who lives in sandy springs who wants to about these devices until frustrated  and then they bring the case again and then we start all over and we're running out of roman numerals on the way you so we've got this new name we can start over only if you build up to five or six your own words i think the fanciful nature of your question shows why it's such a remote possibility that doesn't i didn't think it was fanciful i thought it was probing and well really there are perhaps that too but the reality is it relies on a whole bunch of hypotheticals that are barred by the fact is if say the springs wanted to reenact the ordinance you know next month it could it's free to do that isn't it wouldn't be in contempt that's the city has we're looking is there's the representation of the city in a court of law that they're not going to reenact it anywhere on the court so we have ways of dealing with flip flopping hold on how and where is that representation the record in the motion to dismiss page one that's that's your statement on the half of a client that's not the word of a legislature or a city council and there's tons of law saying that what lawyers say in papers don't substitute for the statements or evidence coming from their counsel's miles there whether whether it leads to a finding of mood in a certain not there is nothing in this record from sandy springs itself about why the repeal took place is that correct well other than the representations of counsel and the ordinance itself right there's nothing else right the only reason that let me let me jump into the second side of of the moodiness issue if i could with you tell me why you believe that a claim for nominal damages will not lie in a substantive due process case when it does and a procedural due process case in a first amendment case a fourth amendment case because this court is explicitly said so we're sitting on bank ok ok the reason is that the recognition of the novel the damages claim under nine hundred eighty three and when a legislative repeal will not be said will not save a case from the moon is to generation i'm not talking mutinous now before you even get to whether or not nominal damages saves a case for mootness you've got to figure out whether or not nominal damages will lie that's right i'm at the first question not the second about it so tell me why you believe mootness aside nominal damages will not lie in a substantive due process k because under the supreme court substantive to process as interpreted by the supreme court not an absolute right one procedural due processes in both scenarios there is a huge amount of line drawing just because you say there's a right to procedural due process doesn't tell you what process is due and when it's due and just because you say there's a right to substantive due process doesn't tell you when the government crosses that impermissible line so tell me why there's a hierarchy of rights that allows nominal damages for some violations but not others because one is rooted in the constitution and the other ones are judicially the problem you've got with that is that the supreme court says otherwise but the supreme court and they were and we are stuck with supreme court precedent whether you like it or not  and there are substantive due process cases from the supreme court recognizing that at some core there are some things that government cannot do although there is no substantive due process right express stated in the constitution so given that reality how do you create a hierarchy of rights that allows recognition of nominal damages for some violations but not others well in this case recognized by the supreme court not the type of claim where name of damages will lie no i'm asking you why i thought part of your argument is that nominal damages do not exist for a substantive due process claim isn't that part of your argument i'm asking you to justify that argument with how do you distinguish between rights how do you say one right gets nominal damages but another one doesn't we're going to think that a second amendment right is not important we're going to think that a fourth amendment right is important you get them for this right but you don't get them for that right i'd like you to give me a principled reason as to how we can distinguish among rights in terms of the award of nominal damage that is because those rights and the fourth of those rights in the second and those rights in the first amendment exist and they're not created by judges during the litigation based on the numbers and the nations that flow from only inferences that are not in the constitutional text and so it would bring court to supreme court has strayed from texas a lot over its history and we're bound to follow those pathways of the supreme court has created whether or not we think they're grounded in text the eleventh amendment is one example that comes to mind we're not free to say you know what the eleventh amendment doesn't say what you say it says so we're really not going to follow it this time around we think you got it wrong in louisiana many moons ago so you're sort of stuck with what the supreme court has given us as a framework and i want to know within that framework what test do we use for saying that one right gets nominal damages and another one does was still on the books it wasn't even repealed and the opinion of the court dismissing the case for lack of just issue ability was grounded in the fact that we don't engage in debating societies when there's not an immediate threat of enforcing what how would the plaintiffs in this case  or they make the allegation in their complaint that they saw to obtain to purchase these devices and they were unable to do so and that's really that's that's what we're faced with and yes but that's a conclusory allegation that is quote unquote need to who what when where why you can't have a conclusory allegation adored by actual facts like the who what where when and how how were they prevented you look at the allegation is only if you have say if you have an ordinance on the books that prohibits it flatly prohibits it and you say you weren't able to buy it if you link up one and two you think that's conclusory were respectfully judged jordan the district court held the opposite both these intervenors could purchase these devices  i'm not talking about a district court held i'm talking about the sufficiency of the complaint well but look at the ordinance as to the consider the complaint it explicitly excluded medical uses mr davenport could go purchase the artwork that mr sell sexual devices that's correct you cite to pellets brief at twelve but it's not on page twelve of the on bank break for anywhere and on bond brief but i think in another portion of the braver maybe on that page we also cite to the district court's opinion  sell these sexual devices they don't allege that they've stopped selling them so you mean the complainant twelve probably apologizing for the but the reality is this is just like posner says only because in that case the connecticut attorney general came in and said these regulates the zoning and location and affirmatively licenses stores themselves you understand though that one of the factors that we take in the consideration in determining whether or not the case is moot is whether or not the repeal of the ordinance is for the purpose of avoiding an adverse result from the your honor i can unequivocally say that the city is not going to reenact the ordinance and the reason that they were dismissed it under the national advertising first miami case is not something that the court speculates as to the motive and it lands council from the supreme court again says they bear the burden of proof to show affirmative evidence of reenactment so the reason that they repealed the ordinance is because sandy springs does not want to be known as a municipality that the ns the sale of sexual devices it could be that or it could be their other code section but i want to say one last thing they added something in the record in their reply brief about photographs i think that's a improper and b it just shoes that they didn't have a sufficient pleading alleging specific facts inconsistent with the argument that you're making in your brief the ordinance is for the purpose of promoting public morality and it voiding the secondary effects from the sex toy stores in the community if the ordinance did say that but that's the whole point the city repealed the ordinance and the fact that they had a provision that we still because the court kept the end bank proceedings scheduled for today your honour's in one sentence in a one page brief eleven years into this litigation that they disavow that the city disavowed any intent to revisit this ordinance well co counsel speaks for the client does counsel montt know a c l u vs florida bar says that statements of counsel are not evidence for purposes i'm not talking about evidence if counsel makes a stipulation are an agreement we bind the client with it the legal process one hundred one i would say on that a c l u vs florida bar as definitive as are many decisions of this court that a statement of counsel in argument or in brief is not a statement of the governmental entity into it is not a statement of the government we have held governmental entities to statements of counsel countless times you can't function in a legal system adversary litigation system if you can't rely on the statements of a counsel to bind his client you just can't and a c l u versus florida bar the statement wasn't a voluntary secession context and it was a statement in a breach so we would rely on that decision moreover the statement i'm just going to reenact this what we know is that several cities near sandy springs have identical ordinances those were cited cited in the amicus brief what we know is that the city of sandy springs has been fighting this doggedly for eleven years and they have not to this day conceded the constitutionality unconstitutionality of the ordinance and therefore you believe there is a realistic risk that if this case finally one away they would reenact this ordinance we do believe that that is a possibility and it is not absolutely clear that's the laidlaw standard absolutely clear that they will really not reenact the ordinance that's the standard of laidlaw it is not absolutely clear especially in cases we have said that the burden on you is more demanding every night when it involves a legislative repeal that is correct there is a presumption but still the laidlaw standard applies in an analytic case where we found that the legislature where we went so far east to determine by looking behind to let the repeal that the case was no longer moot i would i would point for example to the case to the  factors in volunteers to say sion first does the governmental entity still contest the constitutionality here they do was the change done in response to litigation here eleven years into litigation on the very day that in bank is granted were a day after the city repealed third is there evidence that they would not return to their old race at this point we've only got a one sentence statement of counsel we don't even have an affidavit that they were so let me let me ask you a question about that does this record reflect that notwithstanding the ordinance being on the books it wasn't in fact inforced and the defendants were able and in fact did sell their product there and i just wonder what their matter i think the record about that and what i will say is that the ordinance did permit them to sell these devices for certain purposes virgin's certain very limited purposes what i what i will say and it's a matter of notice there are a series of litigations in state and federal court that involved the constitutionality of these ordinances in the broader scheme that was  existence i understand that about the broader scheme my question is just more precisely focused on the sale of these products were they selling them was the ordinance forced during this litigation or is the answer you cannot tell from this record from this record what you can tell is that our clients went to a store there were stores other than fla that weren't subject to this so called agreement that they were unable to purchase those devices because the store owners did not did not want to face criminal prosecution in selling those to them because the ordinance is not a prohibition  purchase it is a prohibition on sale it's a criminal ordinance and they're subjected to potential criminal prosecution so our clients went there there were signs that said you cannot purchase and they went and attempted to purchase and they were unable to do so  this court addressing the nominal damages question has been very clear and amnesty international and slicker we have an ambiguously held that a wherry that a plaintiff who's constitutional rights are violated is entitle to nominal damages even if he has suffered no amnesty international all those cases stand for that proposition yes there is one decision from the circuit that appears to limit that to procedural due process context but that's contradicted by all the other decisions of th and thank you so much for the same bank review and we appreciate your time appreciate the argument now from both sides t