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A Constitutional Right to Drooping Drawers?

Do local ordinances prohibiting law slung pants violate the constitution? Do such laws unduly limit the expressive nature of such wardrobe choices? Some think so, and a public defender in Florida is making this claim in court.

einhverfr (mail) (www):
Interesting.... Thanks.
4.13.2009 2:49pm
UW 2L:
The sagging pants case has been used as the basis for a number of Moot Court competitions around the country the last year or so. It's interesting to see it in the real world after working on it for our 2L/3L competion.
4.13.2009 2:53pm
Oren:
Is there any historical precedent for State power to regulate individuals (lamentable) fashion choices? I can't find anything in US history that would suggest that the State possessed such powers.
4.13.2009 2:55pm
Dave hardy (mail) (www):
Isn't it time to invoke the maxim "The law does not concern itself with trifles, nor with clowns like you"?
4.13.2009 2:55pm
Soronel Haetir (mail):
If riding around Portland while nude is a protected form of expression I fail to see how any form of partial dress would not be equally protected.
4.13.2009 3:08pm
M. Hutchins (mail) (www):
"Law" slung pants might stretch statutory interpretation. I think the writer meant to use the word "low" and that site administrators should make a correction, despite the humor of this Freudian typo.
4.13.2009 3:11pm
Allan (mail):
If giving money is a form of political speech, anything can be. But, since the government can regulate giving money to political candidates, I guess the argument fails.

My position is: if the people are wearing these clothes as civil disobedience, it is free speech -- otherwise it is not.
4.13.2009 3:12pm
Tony Tutins (mail):
Two words: Crack kills.
4.13.2009 3:12pm
smitty1e:
Constitution, maybe not; good taste, absolutely.
4.13.2009 3:12pm
einhverfr (mail) (www):
M Hitchens:

I am wondering what the legal definition of "law slung pants" is. I would certainly think that pants bearing codes of laws would be quite expressive and therefore subject to protection under the first amendment.
4.13.2009 3:22pm
J. Aldridge:
This is what happens when idiots are allowed to define the first amendment. If original meaning was allowed these kind of arguments would go away.
4.13.2009 3:27pm
Hank:
if the people are wearing these clothes as civil disobedience, it is free speech -- otherwise it is not.

This is flat-out wrong, because it implies that the First Amendment protects only political speech. The Supreme Court has held that it protects music, art, and even nude dancing. (It found governmental interests to override the First Amendment right to nude dancing, but it did not deny the existence of the right.) It would be hard to argue that it does not protect style of dress.
4.13.2009 3:29pm
Allan (mail):
Hank,

I stand corrected.

It would be hard to argue that freedom of speech does not protect a style of undress. That assumes that by adopting a certain fashion style, one is making an expression. If the person does not contend that he/she is expressing him/herself, then it probably is not speech. On the other hand, if the person were not contending that he/she was expressing him/herself, then there would not be a claim, would there?
4.13.2009 3:52pm
common sense (www):
I thought when St. Louis did this, the argument was equal protection, in that the ordinance was targeted at a specific racial group. I don't remember the outcome, though.
4.13.2009 4:00pm
Frog Leg (mail):
This sounds more like it might have a chance under an Evans v. Romer-type analysis (no rational basis) rather than a straight individual rights analysis.
4.13.2009 4:02pm
MLS:
This is the ordinance in question:

Droopy Drawers

What is humorous to me is that I have as yet to meet one of these "fashionistas" who is able to consistently express themselves using intelligible english (or other languages for that matter).

BTW, as I read the ordinance it would likely apply to most plumbers who bend over to fix a sink.
4.13.2009 4:06pm
George Smith:
In the city where I live, a downtown entertainment district has been developed using millions of public dollars. The restaurants and clubs were an initial success, and there was a dress code that prohibited low slung pants and other types of "cultural" garb. The dress code was challenged as racist, designed to exclude certain groups, and the city relented. As the entertainment district begins to look and feel more like the 'Hood, patrons are beginning to stay away. I think the legal result is correct, but the unintended consequences may not be to everyone's liking.
4.13.2009 4:27pm
fishbane (mail):
As the entertainment district begins to look and feel more like the 'Hood, patrons are beginning to stay away.

... I take it that the people presumably importing the hoodish qualities don't patronize the the restaurants and clubs, thus not being included in the identifier 'patrons'?

And that one can lay the blame for the invasion of these dark-skinned non-patrons at the feet of a lack of dress code?
4.13.2009 4:35pm
Oren:

On the other hand, if the person were not contending that he/she was expressing him/herself, then there would not be a claim, would there?

There's the alternative route of substantive due process. As far back as Meyer v. Nebraska the Court has held that the fourteenth amendment protects an individual's right

... to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. (my emphasis)
4.13.2009 4:35pm
Arkady:
Someone posted this on another blog, in response to the PD's likening the charges to a Monty Python skit:



Idle (Judge): What is the charge?

Cleese (QC): M'lud, the defendant was showing his knickers in public.

Idle: How say the defense?

Palin (the other one) of the Bailey: M'lud, my client's knickers are none of the city's business.

Idle: What does the defendant have to say for himself?

Gilliam (defendant, affecting an English accent): I paid 10 quid for me knickers.

Cleese: Objection. The price of defendant's knickers is not at issue.

Idle (ignores Cleese): 10 quid? (stands up, drops trow) I paid 30 for these.

Palin: Crikey! You were taken M'lud. (stands up, drops trow, has same knickers as the judge.) I only paid 20.

Cleese: God's truth! (drops trow, has same knickers) I paid 25 for these.

[All three look pointedly at Gilliam. He slowly rises and drops trow, has same knickers as the others.]

Idle: Counsel and QC will approach the bar. [Palin and Cleese shuffle up to the judge, pants around their ankles. Murmured conversation. They shuffle back to their places.]

Idle: Defendant is fined 45 pounds payable in cash to the court (Cleese and Palin nod in agreement) and is remanded to custody pending shopping trip to wherever he got his knickers for 10 pounds. Next case.
4.13.2009 4:37pm
Tom952 (mail):
When I was in school, these things would have ended up down around the wearer's knees to often for the fad to survive.
4.13.2009 5:02pm
Apodaca:
Did the PD file his briefs under seal?
4.13.2009 5:06pm
pushing the envelope:
Those looking to extend this doctrine to its logical conclusion may want to explore this site.
4.13.2009 5:08pm
J. Aldridge:
... to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. ...

But the privileges under the 14th addresses are the same under Article IV for which state laws define and extend to their own citizens, not what might have been recognized at common law.
4.13.2009 5:08pm
Epic Boxers:
The regulation prohibits the showing of 1 inch or more of your undershorts (boxers or briefs). The point is that there's no actual nudity being prohibited. Thus, we're looking at a defense in equal protection (defined by classes of clothes -- and this is completely arbitrary), first amendment, and possibly due process. Since there's no obscenity (it's showing more than an inch of an article of clothing), no commercial speech, and a prohibition rather than forced disclosure, this gets at least intermediate scrutiny. If you say it's anti-establishment political speech (which there is a very good argument for), it's strict scrutiny, and there's no way this regulation will pass muster.

As for the real world, I worked in South Florida as a PD. Our #1 defense was an improper terry stop because the vast majority of the cases PDs get are drug or unlawfully concealed weapon possessions (FL prohibits convicted felons from possessing, and others simply don't get a CCL). I'd ask in depo, "Did you have any reason to believe my client had just commit a crime? Did you have any reason to believe my client was in the process of committing a crime? Did you have any reason to believe my client was about to commit a crime?" Some cops would even say no to all three of these. In those cases, I'd have a motion on calendar for the next morning to suppress, with an attached motion to dismiss, or in the alternative a motion for an RoR, and I'd attach a copy of the page from the depo. Sometimes, the cop would interject things like "it was at night," or "the guy wore baggy clothes," or "it's a bad neighborhood," but when you look at all the case law, these are rarely grounds for a lawful terry stop. However, when the cop is allowed to lawfully stop someone for something as simple as wearing pants too low (which is the vast majority of black males in public in Riviera Beach), the cop can "pat the guy down for officer safety." The result is that you can't claim unlawful terry stop because your client was lawfully stopped.

And if you think this is bad, the cops and state attorneys make ridiculous arguments to get around terry. I've personally been arguing cases where cops tried to testify that if you are in public, and are moving the opposite direction of an officer, that's grounds for an arrest as L&P (loitering and prowling Florida Statutes 856.021). One of the factors in L&P is "the fact that the person takes flight upon appearance of a law enforcement officer." I had a (black) defendant the cops stopped when he was listening to his ipod, jogging on the beach in jogging shoes, running shoes, and a sleeveless t. They charged him with resisting and L&P solely on the basis that he didn't stop to talk to them until they drove up onto the curb of the boardwalk to block his path.

Of course, you have to remember that South Florida is home to the Miami Police department, which bought new $2,000 laptops for every car a few years ago, but adamantly refuses to put cameras in the car after a judge in Broward county found that a certain memo was admissible in a false imprisonment case. That memo was from one of the veteran officers complaining that the department's conviction rate plummets when the officer has video in his car. Simply put, you don't know how bad the widespread corruption goes until you stick your head in the trenches.
4.13.2009 5:35pm
Anon23:
Perhaps next there will be a statutory requirement that all pants be belted up (or, in the alternative, suspendered) at an altitude not lower than the belly-button. Ah, the perils of rational basis review.
4.13.2009 5:37pm
Clayton E. Cramer (mail) (www):

Is there any historical precedent for State power to regulate individuals (lamentable) fashion choices? I can't find anything in US history that would suggest that the State possessed such powers.
I wouldn't immediately assume that it lacks that power. Benjamin Franklin, at one point, suggested that sumptuary laws of the sort that had been common into the Renaissance in Europe, might serve a useful purpose in discouraging the yeomen of America from wasting money on frivolous clothes.

Is this an appropriate use of governmental power? I don't think so. (If young black men want to pretend that they just got out of the slammer--which is what this fashion was originally intended to suggest--then they are in no position to complain that they are regarded as criminals because of it.) But the notion that anything and everything is protected free speech is absurd.
4.13.2009 6:51pm
Radar:
The regulation prohibits the showing of 1 inch or more of your undershorts (boxers or briefs).

I've been told that most of the boys around here (suburban Connecticut) wear briefs, then boxers, then the pants to avoid the accusation that their 'undershorts' are showing. It is only the middle-layer of boxers that is showing.
4.13.2009 6:58pm
Clayton E. Cramer (mail) (www):

Our #1 defense was an improper terry stop because the vast majority of the cases PDs get are drug or unlawfully concealed weapon possessions (FL prohibits convicted felons from possessing, and others simply don't get a CCL).
Why don't they get a CCL? Would they not be able to pass the background check?
4.13.2009 6:59pm
ERH:
Interesting that so many people have no problem with this, if the law required men and women to wear a berka or equivalant i imagine there would be outrage.
4.13.2009 7:16pm
Laura(southernxyl) (mail) (www):
Please let's strike the language that disallows an inch or more of underwear. At Clearwater recently while we sat eating supper just off the beach we were treated to the sight of a young man whose pants repeatedly dropped to his upper thighs despite his dragging them back up now and then. I am not exaggerating. I wish I was. Forget "crack" - this would have been the full moon. Thank God for underwear. Next they'll be leaving that off.
4.13.2009 7:35pm
Thorley Winston (mail) (www):
Interesting that so many people have no problem with this, if the law required men and women to wear a berka or equivalant i imagine there would be outrage.


I'm largely in agreement with Clayton in that State and local governments have long had (although rarely exercised) their police power to regulate clothing but it's probably not a wise use of State power in this case. Frankly, I wouldn't mind if the ordinance is upheld if only so we can dispense with the nonsensical notion that this is a First Amendment issue.
4.13.2009 7:45pm
Laura(southernxyl) (mail) (www):

Interesting that so many people have no problem with this, if the law required men and women to wear a berka or equivalant i imagine there would be outrage.


Well, there would. The cultural norm in this country has never included men or women wearing burkhas. Covering one's privates with actual clothes, though, does not seem outlandish to us.
4.13.2009 8:05pm
krs:
I think pants become "law slung" when a deranged judge decides that they should be the subject matter of a $50M suit against his dry cleaners.
4.13.2009 8:38pm
Ahcuah (mail):
The heck with its expressive nature. This violates the Constitution for not even passing rational basis review.
See DeWeese v. Palm Beach, 812 F.2d 1365 (11th Cir. 1987)
4.13.2009 9:50pm
Ricardo (mail):
Covering one's privates with actual clothes, though, does not seem outlandish to us.

This is already covered by public nudity laws and is not germane to the discussion.
4.13.2009 9:50pm
Henry (mail):
Allan wrote:

if the person were not contending that he/she was expressing him/herself, then there would not be a claim, would there?

To go out in public wearing clothes (or nude, for that matter) is inherently to express oneself. One need not be consciously thinking about the impression one makes.
4.13.2009 10:00pm
Epic Boxers:
@Clayton E. Cramer

As I'm not your bleeding heart defense attorney, I don't want to downplay the number of guys who know they're carrying unlawfully but do it to rebel or just don't care. Regardless, there are a number of other reasons why the rest of the guys don't get a CCL, but the most notable reasons I'd say are:
1) cost (it's about $70 to take the course and you have to renew every 5 years). Many of these guys haven't been gainfully employed in years, so getting them to drop $70 on paperwork is impossible. For many of them, when they do scrounge up cash, it goes for food, booze, and drugs. Comparatively, these guys just borrow/steal a gun from a family member, or they use another weapon, which leads to my next point...
2) the definition of "concealed weapon" in FL is basically any deadly weapon which is not in plain view. Things like bats and various types of knives are often construed to be deadly weapons so they also require a CCL. There are also various oriental weapons openly sold at flea markets which either require a CCL or are banned altogether. CCLs aren't only required for guns, and while ignorance of the law is no defense, many of these guys never finished high school. Their only legal education is what their PD explains to them after they get arrested.
3) many are very anti-establishment and either are too incompetent to figure out where/how to get a CCL, or they found out and don't want their info in the system (address and fingerprints). The latter figures they'll just run the odds.
4) I would opine that the most prominent reason these guys don't get a CCL is that the vast majority of PD clients (70%+ of the defendants) are repeat offenders in some manner (I'm talking pages of convictions). Convicted felons can't get a CCL unless they get pardoned or otherwise get their rights restored (which virtually never happens). A smaller portion have a prior case where there was a competency hearing with a finding that precludes eligibility for a CCL. And I'm not saying PD's overzealously use procedural insanity -- just that there are a lot of guys who really lost it at one point.

Overall, there are numerous reasons why they don't get a CCL but these are the most prominent. On the more rare end, I've had cases where cops are just nuts. I had a guy who was stopped after cops followed the car he was in for 20 minutes. The cops pulled the car over at the edge of the county line, claiming the tail light was out. Not only was the light perfectly working after that, the arrest was solely on the basis that a 6 inch fishing knife was concealed in a tackle box in the trunk. Fishing poles and fish on ice were also in the car. The guy was not a convicted felon, but had multiple prior felony withholds (getting more than 1 felony withhold is like winning the lottery). Minutes before we were about to start his suppression hearing, the state offered ANOTHER withhold with time served, so he took it.

But more importantly, most "contraband possession" cases are not weapons. The vast majority of possession cases (and I'd estimate that easily at 80%+) were coke possession or purchase (and while it's charged as coke, these guys actually just have crack rocks). From a legal standpoint, CCL issues are interesting but rare. After hearing cops in depo try to use anything as a basis for a stop, laws like these underwear regulations are mostly just methods of legalizing searches on crack addicts. Back in my crim pro class, my prof read out the list of factors FBI agents are supposed to use, and they actually include in order "running, walking quickly, walking at a normal pace, walking slowly, standing still, sitting; wearing baggy cloths, wearing heaving clothes, wearing light clothes, wearing tight fitting clothes, wearing casual clothes, wearing business attire, wearing beach attire, not wearing clothes" etc. In one depo, a cop would tell me that he based his suspicion partially on the fact that the defendant was wearing baggy clothes, and in the next case, the same cop will tell me that he based his suspicion on the fact that the defendant wasn't wearing baggy clothes. I was always waiting for a cop to actually spout this ridiculousness in court in front of a judge or jury because I would admit the entire list into evidence (every police department has one in their procedures manual). Then I would go through their whole shpiel on how, based on their procedures, everyone in the room, including the judge, the state attorney, myself, and the officer himself, all meet a huge number of factors on the list, even though we're clearly not committing crimes.
4.13.2009 10:15pm
Oren:
Nice find, Ahcuah.

Clayton, didn't we have a debate months ago about precisely whether State regulations of dress would fly under sdp? Good to finally get an answer ...
4.13.2009 11:16pm
ChrisatOffice (mail):
I told my 16 year old son about this last night. I think his response captures my own,"Really? Well that town sucks, then."
4.14.2009 3:31pm
einhverfr (mail) (www):
Ahcuah,

Very entertaining read. Thanks.
4.14.2009 4:16pm

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