Metropolitan News-Enterprise


Monday, May 10, 2010


Page 3


Tattoo Parlors Protected by First Amendment, Ninth Circuit Told




An ordinance banning tattoo parlors is unconstitutional, an attorney whose client wants to open one in Hermosa Beach told the Ninth U.S. Circuit Court of Appeals Friday.

“The art of tattooing is expression protected by the First Amendment, Robert C. Moest told a seemingly receptive three-judge panel during oral argument in Pasadena.

The issue is one of first impression, Moest told Judges Jay Bybee and Richard Clifton and Senior Judge John T. Noonan. But there is no reason to treat tattooing differently from other art forms to which the First Amendment has been held applicable, he said, such as music, dance and painting.

Moest explained that many cities, including all of the South Beach municipalities, either ban the business of tattooing outright, or—like Hermosa Beach—have zoning ordinances that effectively bar tattoo parlors from operating. Such enactments are facially unconstitutional, he said.

John C. Cotti, a Manhattan Beach lawyer who represents Hermosa Beach, argued that U.S. District Judge Christina Snyder correctly dismissed Anderson’s civil rights action on the ground that while the wearing of tattoos may be protected speech, the process of applying them is not.

“There is nothing inherently expressive about injecting ink into skin,” Conti insisted. “Tattooing has never been a venerable means of communication,” at least in this country, he said, drawing skeptical comments from Clifton and Bybee.

Bybee questioned why, under that rationale, the city permits beauty salons to do cosmetic tattooing, allows jewelers to pierce ears, allows doctors and dentists to perform invasive procedures, and allows tattooing when not done for profit.

Conti responded that banning tattoo parlors is a rational step because their activities are not regulated by state law or governed by “generally accepted practices.”

Clifton, however, questioned whether that reasoning would allow the city to ban newspapers in order to prevent littering, which Conti acknowledged it could not do. But by banning tattoo parlors, the lawyer said, “we are not regulating the message, you just can’t [express] it by means of an ink injector gun.”

Outside the courthouse after the proceedings, Anderson told the MetNews that he thought the arguments “went really well.” He said that he considers tattooing an art form and takes it very seriously.

“It’s something that somebody’s going to wear for the rest of their lives,” he commented. “I consider it the purest form of expression.”

And while he did not set out to become a First Amendment activist, he said, the right to operate a tattoo parlor is “something I care about deeply,” expressing hope that his case sets a national precedent.

Earlier Friday, the same panel heard argument on whether to reinstate a suit by Xue Lu, a Chinese immigrant seeking damages under the Federal Tort Claim Act as a result of being extorted for money and sex by Thomas Powell when Powell was a federal asylum officer.

Powell was convicted on corruption and civil rights charges in 2004.

The plaintiff’s attorney, V. James DeSimone of Venice’s Schonbrun DeSimone Sephlow Harris & Hoffman, argued that the alleged torts were inextricably connected to Powell’s employment, while the government insisted that Powell’s criminal acts were outside the scope of employment under the FTCA, which excludes liability for some intentional torts and permits liability for others only to the extent that a private entity would be liable under applicable state law.

DeSimone seemed to take the brunt of the questioning, as the judges did not appear convinced that Powell was acting within the scope of his employment as defined by relevant decisions of the California Supreme Court, including Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, which held that a hospital was not vicariously liable for an ultrasound technician’s molestation of a patient during an examination.

But the government’s attorney, Henry C. Whitaker of the Department of Justice, also faced skepticism, especially from Noonan, who questioned the government’s reliance on cases involving police officers. Noonan noted that since police officers are public employees, the extent of the government’s liability for their actions is irrelevant to the FTCA analysis.


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