A federal appeals court dismissed a case involving a Georgia town's sex-toy ban by rendering it moot via a narrow vote of 7-5.
The City of Sandy Springs enacted several laws in 2009 blocking the sale of sex toys in the city, as the 11th Circuit Court of Appeals noted in its decision. A group of businesses, including the adult sex shop "Inserection," challenged the city's ordinances. Two other plaintiffs later joined the businesses, including an artist who uses sex toys and a person with multiple sclerosis who uses the devices for intimacy with her husband.
One week after the 11th Circuit Court of Appeals agreed to resolve the dispute by a full en banc review in 2017, the city's lawmakers repealed the part of the ordinance at issue in the appeal. As a result, a narrow majority of the 11th Circuit decided this week that was enough to settle the disagreement.
"In short, the city has repealed its ordinance," wrote Judge R. Lanier Anderson for the 11th Circuit's majority on Wednesday. "And it has expressly, repeatedly and publicly disavowed any intent to re-enact a provision that it never enforced in the first place. Against those facts, there is no reasonable expectation that the city will return to its previous ordinance. Accordingly, we are simply unable to conclude that the claims for declaratory and injunctive relief are properly before us."
The plaintiffs' request for nominal damages was not warranted, the majority ruled, because Lanier said, "A fair reading of their complaints reveals that all of their alleged injuries would be remedied by, and therefore all of the possible relief exhausted by, removal of the challenged ordinance provision."
But five judges joined together in a dissent written by Judge Charles Wilson, who wrote that the plaintiffs' request for nominal damages should prevent the case from becoming moot.
While the majority said the plaintiffs "already won," Wilson wrote that the issue of whether the challengers' constitutional rights were violated by the city remains undetermined. By dismissing the case now, the dissenters argued, the city would be free to re-enact the law at a later date and the issue would have to be relitigated.
"For a number of civil rights violations (e.g., free speech, procedural due process), compensable damages may not always exist," Wilson wrote. "Under the majority opinion, as long as the government repeals the unconstitutional law, the violation will be left unaddressed; the government gets one free pass at violating your constitutional rights."
Wilson wrote he believed the "most workable" solution in the case involved implementing "a bright line rule allowing nominal damages to save constitutional claims from mootness."