[I]n order to satisfy the burden explicated by the Seventh Circuit, the City must essentially make two showings: first, that adult entertainment businesses lacking facilities for on-premise viewing create the same secondary effects as establishments providing those services, and second, that the revised ordinance requiring Plaintiffs to close from midnight to 10:00 a.m. Monday through Saturday and all day on Sunday “has the purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech substantially intact.” Id. (quoting City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 449 (2002) (Kennedy, J., concurring)). If the City is unable to produce such evidence, the revised ordinance cannot stand.
Judge Barker goes on to grant injunctive relief to the Indianapolis adult bookstores. On the first question, the court referenced the “paternalistic” rationale offered by the City, but leapfrogged the issue “because even assuming that it is sufficient to show that adult businesses without on-premise viewing cause the same secondary effects as adult businesses which do offer such services, that is not the end of our inquiry.” Judge Evans pointed out that the City “still must demonstrate that its ordinance meets Justice Kennedy’s cost-benefit standard, meaning that it must advance some basis to show that its regulation ‘is likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech.’”
The evidence submitted by the City up to this point does not support such a conclusion. In fact, the statistical evidence presented by the City comparing crime rates before and after enforcement of the revised ordinance actually shows that overall crime n3 actually increased by 19% following enforcement in the areas within 500 feet of Plaintiffs’ businesses, compared to an increase of 13% in the balance of the Indianapolis Police Department (“IPD”) district.
More specifically, on Sundays, crime characterized by the City as “violent/person crime,” which includes aggravated assault, forcible rape, homicide, and robbery, increased by 138% in the areas near Plaintiffs’ businesses after enforcement; “property crimes,” which include arson, burglary, larceny/theft, and motor vehicle theft, increased by 30% following enforcement of the revised ordinance; and overall crime increased by 46%. In comparison, on Sundays in the balance of the IPD district during that same time period, violent/person crime increased 14%, property crime increased 10%, and overall crime increased by only 11%. Id. During the hours of midnight to 10:00 a.m., property crimes within 500 feet of Plaintiffs’ locations increased by 59% and overall crime increased by 29%. During those hours in the balance of the IPD district, property crimes increased 25% and overall crime increased 21%.
Thoughtful application of Justice Kennedy’s concurrence in Alameda Books (i.e., the holding), as here, will be the Achilles’ Heel for municipalities that are targeting the business of adult business. The types of restrictions coveted by cities often affect adult-business profit, but not surrounding crime. Judge Barker noted that “[s]uch minimal decreases in a narrow category of crime are clearly too insignificant to determine whether the decrease in violent/person crime was due to enforcement of the revised ordinance as opposed to chance, let alone to justify the significant reduction in speech resulting from the City’s post-2003 regulation as required by Justice Kennedy’s cost-benefit analysis.”