In the Supreme Court of the United States

NO. 13-1441 In the Supreme Court of the United States CITY OF INDIANAPOLIS, Petitioner, v. ANNEX BOOKS, INC., et al., Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit REPLY BRIEF FOR THE PETITIONER SCOTT D. BERGTHOLD Counsel of Record BRYAN A. DYKES LAW OFFICE OF SCOTT D. BERGTHOLD, P.L.L.C. 7446 Shallowford Rd., Suite 202 Chattanooga, TN 37421 (423) 899-3025 sbergthold@sdblawfirm.com Counsel for Petitioner Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001

i TABLE OF CONTENTS TABLE OF AUTHORITIES... ii REPLY BRIEF FOR THE PETITIONER... 1 I. The Conflicts Detailed in the Petition Exist Because The Seventh Circuit Applies A Burdensome Rule for Secondary Effects Evidence, While Other Courts Apply This Court s Deferential Rule from Renton... 2 A. The Seventh Circuit applies the burdensome rule referenced in the question presented... 2 B. The decision below conflicts with the decisions of several state and federal appellate courts because the Seventh Circuit applies a contrary legal rule... 6 II. Respondents Defense of the Decision Below Presents No Reason to Deny Certiorari... 9 A. Respondents incomplete and skewed view of the facts was rejected by the district court... 9 B. Respondents remaining arguments for denying certiorari are without merit... 10 CONCLUSION... 13

ii TABLE OF AUTHORITIES CASES Broadrick v. Oklahoma, 413 U.S. 601 (1973)... 12 Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003)... 8 Deja Vu of Cincinnati, L.L.C. v. Union Twp., 411 F.3d 777 (6th Cir. 2005)... 8 Erie v. Pap s A.M., 529 U.S. 277 (2000)... 5 H & A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th Cir. 2007)... 7 Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002)... passim Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)... 12, 13 McCullen v. Coakley, 134 S.Ct. 2518 (2014)... 11 Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355 (1994)... 12 Ocello v. Koster, 354 S.W.3d 187 (Mo. 2011)... 8 Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986)... passim Richland Bookmart, Inc. v. Knox County, 555 F.3d 512 (6th Cir. 2009)... 6

iii Schultz v. City of Cumberland, 228 F.3d 831 (7th Cir. 2000)... 11 Sewell v. Georgia, 435 U.S. 982 (1978)... 13 United States v. Nobles, 422 U.S. 225 (1975)... 12 Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976)... 4

1 REPLY BRIEF FOR THE PETITIONER The brief in opposition, like all three Seventh Circuit decisions below, completely ignores this Court s settled rule applied in Renton, Barnes, Erie, and Alameda Books that local governments may rely upon any evidence reasonably believed to be relevant to defend legislation targeting the negative secondary effects of sexually oriented businesses. Respondents (whose parent company owns 31 other adult establishments across the country, Tr. 34), ignore the Renton standard because the judgment below is indefensible under it, and because they hope for a nationwide ruling that departs from that settled standard. The result is a brief in opposition that never identifies a governing legal rule. After a distorted factual recitation that is contrary to the district court s undisturbed findings, respondents vaguely claim that the Seventh Circuit utiliz[ed] the framework established in Renton and Alameda Books. Brf. Opp. 10. But that cannot be true, as the Seventh Circuit never mentioned the reasonably believed to be relevant standard established in Renton and explicitly reaffirmed in Alameda Books. Thus, respondents are left to argue that: (1) the Seventh Circuit did not apply the heavy burden that appears in its three opinions, (2) the decision below does not conflict with the many decisions cited in the petition, even though those cases, applying the Renton standard, credited reliance on evidence that the Seventh Circuit rejected, and (3) this Court should affirm on the independent basis of a flawed

2 overbreadth argument that neither the district court nor the court of appeals addressed. Brf. Opp. 21. These arguments present no reason to deny certiorari. I. The Conflicts Detailed in the Petition Exist Because The Seventh Circuit Applies A Burdensome Rule for Secondary Effects Evidence, While Other Courts Apply This Court s Deferential Rule from Renton Respondents attempt to obscure the clear conflicts detailed in the petition (see Pet. 13-26, 30-34) by claiming that the Seventh Circuit did not say what it said, and by arguing that the invalidation of Indianapolis s ordinance owes to the uniqueness of the evidence in this case. Neither argument withstands scrutiny. A. The Seventh Circuit applies the burdensome rule referenced in the question presented Respondents concede that none of the three Seventh Circuit decisions in this case mentions the reasonably believed to be relevant standard for evidence used to defend a legislative policy judgment concerning secondary effects, i.e., the governing legal standard. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 51-52 (1986); Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 438-39 (2002) (plurality); id. at 451 (Kennedy, J., concurring in judgment). Nor do respondents dispute that the City s secondary effects evidence includes more than 40 landuse and crime impact reports, 20 judicial decisions, 6

3 peer-reviewed, published studies, public testimony, media articles about crimes at adult bookstores, extensive expert testimony supporting the City s policy, and crime data from respondents adult bookstores. Yet, without identifying the governing legal standard, respondents claim that the question presented incorrectly assumes that the Seventh Circuit requires highly specific, statistically significant evidence. Brf. Opp. 10. Even if respondents quibbling about the question presented had merit, certiorari and reversal would still be warranted because the Seventh Circuit refused to apply the governing rule of law, which the City s secondary effects record easily satisfies. See Pet. 27-34 (explaining how the decision below conflicts with the broad contours of permissible reliance on secondary effects evidence under the reasonably believed to be relevant standard as applied in Renton, Barnes, Erie, and Alameda Books). But the respondents quibble is without merit. The Seventh Circuit plainly requires highly-specific evidence to support the City-County Council s legislative judgment. App. 2 1 (refusing to permit reliance on evidence from different kinds of adult businesses, or studies used to support different kinds of laws ); App. 56 (faulting City for failing to adduc[e] data specific to adult bookstores that do not furnish on-site viewing ); App. 60 (rejecting City s reliance on its own 1984 study of adult bookstores because it did not specifically define adult bookstore, and did not limit the survey to brokers who had experience buying 1 All references to App. are to the petition appendix.

4 or selling adult establishments, or in places near those establishments ); App. 53 (refusing to permit City to rely on judicial decisions or studies about adult businesses with live entertainment or viewing booths); App. 52-53 (holding that the City encounters problems because the studies on which it relies are not specific to hours regulations, but instead deal with ordinances dispersing adult businesses 2 ). The Seventh Circuit also repeatedly called for statistically-significant evidence, complete with multivariate regression analysis, to empirically prove the actual public benefits of the City s regulation. See App. 2 (rejecting City s evidence of decreased crime because the difference is not statistically significant ); App. 33 ( [W]e doubt that the standard tests of statistical significance have been satisfied. ); App. 51 (requiring proof that regulations actually have public benefits great enough to justify ordinance); App. 57 ( [A] multivariate regression would provide a better foundation than either a time series or a geographic 2 Contrary to the Seventh Circuit s repeated suggestion, secondary effects reports generally do not study particular regulations. Rather, they identify and evaluate negative secondary effects (crime, adverse impacts on surrounding properties, illicit sex acts, etc.) occurring in and around sexually oriented businesses. Often a study is undertaken before a local government adopts a new regulation, consistent with a city be[ing] allowed a reasonable opportunity to experiment with solutions to admittedly serious problems. Alameda, 535 U.S. at 451 (Kennedy, J., concurring in judgment) (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71 (1976)). But while secondary effects reports often suggest a regulatory approach, see Pet. 4-5 (citing studies suggesting hours regulations), those reports focus on the identification of secondary effects, not on an evaluation of regulatory solutions.

5 cross-section. ); App. 33 ( [A] multivariate regression is superior to a simple cross-tabulation of the sort that McCleary and Weinstein conducted. ); App. 2 ( The City did not use multivariate regression to control for other potentially important variables, such as the presence of late-night taverns. ). None of these burdens on the legislative body can be squared with the any evidence reasonably believed to be relevant standard, under which the Court has upheld secondary-effects laws where the government relied only on prior judicial decisions discussing secondary effects (Renton, Barnes, and Erie, see Pet. 26-28), or a single study that the city admitted did not directly address the harm targeted or the solution later adopted by the municipality (Alameda, see Pet. 28-30 (explaining that city was allowed to rely upon an inference drawn from its study)). Under the Renton standard, [i]t is not [the judiciary s] function to appraise the wisdom of the City s regulatory approach, Renton, 475 U.S at 52 (quoting Young, 427 U.S. at 71); an empirical analysis of secondary effects is not required, Erie v. Pap s A.M., 529 U.S. 277, 300 (2000); see also Alameda, 535 U.S. at 439; and the City does not bear the burden of providing evidence that rules out other causes or theories of secondary effects. Alameda, 535 U.S. at 437. That Annex Books III and the brief in opposition address only the recent, Indianapolis-specific evidence proves the point under its new rule, the Seventh Circuit (and respondents) deem it unnecessary to address the City s voluminous legislative record, even though that evidence is of the type that satisfied review

6 in Renton and each of this Court s subsequent secondary effects cases. B. The decision below conflicts with the decisions of several state and federal appellate courts because the Seventh Circuit applies a contrary legal rule The respondents attempt to explain away the host of conflicts identified in the petition relies on a non sequitur. Respondents correctly note that the lower courts agree that the outcome of a secondary-effects challenge turns on the evidence proffered to support the legislature s policy judgment. But agreement on that unremarkable proposition does not mean that the lower courts agree on the legal standard for evaluating such secondary effects evidence. They do not. The Seventh Circuit applies a standard foreign to this Court s secondary-effects jurisprudence, while all other lower courts apply the Renton standard. It is this difference in legal standards not differences in evidentiary records for local ordinances that is outcomedeterminative. For example, the Sixth Circuit in Richland Bookmart, Inc. v. Knox County, applying the any evidence reasonably believed to be relevant standard, 555 F.3d 512, 523 (6th Cir. 2009) (citing Alameda, 535 U.S. at 438-39), upheld an hours regulation applicable to adult bookstores (without booths), id. at 518, crediting the county s reliance on Indianapolis s 1984 study, Oklahoma City s 1986 study, and more recent testimonial evidence from Spokane. Id. at 525. But the Seventh Circuit, applying its significantly higher

7 standard, refused to credit Indianapolis s reliance on these same secondary effects documents. App. 60, 102 (Ordinance findings, citing Indianapolis (Ex. I-30) and Oklahoma City (Ex. I-40) studies); Ex. X-6 (Spokane evidence). A similar conflict unanswered in the opposition brief exists between the decision below and the Fifth Circuit s decision in H & A Land Corp. v. City of Kennedale, 480 F.3d 336 (5th Cir. 2007). See Pet. 15-17. Respondents ignore that the Fifth Circuit, applying Renton, accepted the same evidence that the Seventh Circuit, applying its own standard, rejected. Instead, respondents merely repeat for this and for every conflict identified in the petition the unrelated proposition that different evidence produces different outcomes. All respondents citations show, however, is the enduring workability of the settled Renton standard: while deferential, it does not guarantee that an ordinance will be upheld. Accordingly, courts applying that standard have reached different results on the differing records before them. The petition, on the other hand, shows that the Seventh Circuit s legal rule not only runs directly counter to Renton, but also produces different outcomes on the same evidence, i.e., it creates an outcomedeterminative conflict over the governing legal rule. This analysis need not be repeated for each conflict identified in the petition because respondents answer is the same for each. Suffice it to say that every state and federal appellate decision cited as being in conflict, see Pet. 13-26, 30-34, applies the reasonably believed

8 to be relevant standard for secondary effects the standard that is eschewed, and replaced, by the decision below. Respondents also fail to harmonize the conflicts in the lower courts over whether Justice Kennedy s Alameda concurrence precludes hours of operation regulations targeting secondary effects. Respondents admit that the Ninth Circuit, in Center for Fair Public Policy v. Maricopa County, 336 F.3d 1153 (9th Cir. 2003), held the proportionality analysis set out in Justice Kennedy s concurring opinion in Alameda Books did not apply to an hours of operation restriction, but respondents argue that that conclusion was not dispositive. Brf. Opp. 17. But it clearly was dispositive: [T]he application of Justice Kennedy s proportionality analysis to this particular type of secondary effects law would invalidate all such laws, and we are satisfied that he never intended such a result. 336 F.3d at 1163; Deja Vu of Cincinnati, L.L.C. v. Union Twp., 411 F.3d 777, 791 (6th Cir. 2005) (following Ninth Circuit to uphold hours regulation). Nor does respondents one sentence devoted to Ocello v. Koster, 354 S.W.3d 187 (Mo. 2011), negate the conflict identified in the petition. Pet. 24-26. The Seventh Circuit holds that Justice Kennedy s Alameda concurrence precludes classic time regulations, while the Sixth Circuit, Ninth Circuit, and Missouri Supreme Court hold a contrary view. Thus, review is warranted.

9 II. Respondents Defense of the Decision Below Presents No Reason to Deny Certiorari Respondents remaining attempts to defend the judgment below do not diminish the need to resolve the conflict over the legal standard for judging secondary effects evidence. In any event, these arguments are meritless. A. Respondents incomplete and skewed view of the facts was rejected by the district court Respondents attempt to reargue their view of selective facts record fails on multiple levels. First, respondents assume that the Seventh Circuit s standard applies, and wholly ignore that the Ordinance s vast legislative record satisfies the correct standard from Renton. See, e.g., Pet. 3-5, 26-30; App. 83-92. Second, the district court rejected respondents view of the evidence. Respondents relied then, as now, on summary crime counts compiled from machinereadable data in 2009, while ignoring the details of the crimes underlying those counts, as contained in more than 1,000 narrative police reports presented at the 2012 trial. App. 14. Both parties experts agreed that the machine-readable data presented numerous reliability problems, App. 17-19, but that reliable information could be obtained by reviewing the underlying police reports. App. 19. The resulting hotspot analysis a method endorsed and employed by [b]oth parties experts showed that: (1) respondents addresses all ranked higher in

10 crime, especially violent crime, than almost all other addresses within their 500-foot circles, App. 15, (2) the few addresses that ranked higher, e.g., Menards, did so due to numerous larceny (shoplifting) incidents that do not present serious public safety risks, App. 17, and (3) in contrast, respondents adult bookstores were hotspots for armed robbery, a very rare crime relative to other offenses, [that] is extremely dangerous. App. 20 (citing homicide during robbery at respondent Lafayette). The district court thus rejected respondents argument that the armed robbery numbers are small and insufficient an argument that itself assumes the conclusion that statistically significant, empirical proof is required for secondary effects evidence. The court concluded that because armed robberies on the whole occur so infrequently [once every 99.1 years at a randomly-chosen Indianapolis address], it is clear that the numbers attributable to the adult bookstores [26 armed robberies in six years] are in fact quite significant. App. 20-21. Third, respondents argument fails because the Seventh Circuit did not question any of the district court s findings let alone find them clearly erroneous. Rather, the Seventh Circuit reversed based on its own herculean burden for sustaining a legislative judgment concerning secondary effects. B. Respondents remaining arguments for denying certiorari are without merit 1. Respondents advance what is essentially a narrow tailoring argument against the Ordinance, based on its regulation of adult bookstores Sunday

11 operations. But Indianapolis specifically relied on Schultz v. City of Cumberland, 228 F.3d 831, 846 (7th Cir. 2000), which upheld the identical hours of operation regulation based a host of studies on secondary effects and the need for constrained operating hours. There, legislative research indicated that the hours-of-operation constraint enabled local law enforcement to concentrate its limited resources for those business hours, establishing a substantial government interest for the regulation. Id. 3 Under Renton, Indianapolis s reliance on this on-point authority is sufficient. 475 U.S. at 51-52 (upholding ordinance based on city s reliance on judicial decision discussing secondary effects). The district court, moreover, rejected respondents factual argument about an increase in crime in the general area on Sundays during enforcement. The court was not persuaded that the excerpted data relied on by respondents support a reliable conclusion. App. 16-17. Instead, although Sunday hours represent only 14% (1/7) of the hours in the week, 22% (8/36) of the pre-enforcement crimes at the adult bookstores occurred on Sunday, Exh. M-4, and 3 Respondents reliance on McCullen v. Coakley, 134 S.Ct. 2518 (2014), is misplaced. McCullen did not deal with the standard for judging evidence of a substantial government interest. Rather, McCullen held that a regulation burdened substantially more speech than necessary to achieve the government interest, which was not in question. Id. at 2537. The regulation there was truly exceptional and impose[d] an especially significant burden on core First Amendment speech. Id. at 2536-37. Here, in direct contrast, the district court held that there is no persuasive support for a conclusion that the opportunity to purvey sexually graphic materials and devices is curtailed to a significant decree by Indianapolis s time regulation. App. 25.

12 the Ordinance was effective at ameliorating such secondary effects. App. 15-16. 2. Respondents overbreadth argument against Indianapolis s adult bookstore definition, an issue not reached by either court below, also does not weigh against certiorari. That definition applies to licensing, location, and booth-configuration requirements, as well as the enjoined hours of operation regulation. Thus, a decision invalidating it would expand the judgment in respondents favor to those other regulations but respondents did not file the necessary cross-petition. Northwest Airlines, Inc. v. County of Kent, 510 U.S. 355, 364-65 (1994). Even if the issue were justiciable, the Court should decline to entertain it because it is not of sufficient general importance to justify certiorari, United States v. Nobles, 422 U.S. 225, 241 n.16 (1975), e.g., it is not dividing the lower courts. Finally, the argument lacks merit. Overbreadth analysis is an exception to standing rules, and is employed only as a last resort. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). Here, the claimed overbreadth is neither real nor substantial, as judged in relation to the statute s plainly legitimate sweep. Id. at 615. There is no realistic danger that the statute itself will significantly compromise recognized First Amendment protections of third parties. Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984). Respondents hypothesized about a store with just barely 25 percent of its stock in adult products, but Dr. McCleary had never seen one like that. Tr. 333:15-21.

13 Respondents also imagined that a store might happen[] in one week to be lucky enough to sell enough books like Fifty Shades of Grey to generate more than 25 percent of its revenue from that category. Tr. 337:5-9. But a single, anomalous week of such hypothetical sales is not weekly, and does not trigger the adult bookstore definition. Tr. 388:2-11. And the mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge. Taxpayers for Vincent, 466 U.S. at 800. Respondents also cite websites selling sexual devices, but those sites are outside the record and, moreover, sexual devices are not protected speech. Sewell v. Georgia, 435 U.S. 982 (1978). CONCLUSION For the foregoing reasons, the petition for a writ of certiorari should be granted. Respectfully submitted, SCOTT D. BERGTHOLD Counsel of Record BRYAN A. DYKES LAW OFFICE OF SCOTT D. BERGTHOLD, P.L.L.C. 7446 Shallowford Rd., Suite 202 Chattanooga, TN 37421 (423) 899-3025 sbergthold@sdblawfirm.com Counsel for Petitioner August 20, 2014