Speaking of the Miccosukee Tribe.....

 
There's been a lot of discussion about the Miccosukee Tribe lately, and into the fray comes this opinion by Judge Marcus affirming Judge Seitz in a tragic case upholding tribal immunity:

The appeal presents us with tragic facts; it also yields a straightforward legal resolution. John Furry, as personal representative of the estate of his daughter Tatiana Furry, appeals the district court’s order granting the Miccosukee Tribe’s motion to dismiss his complaint. Furr 1 y complained that the Miccosukee Tribe violated 18 U.S.C. § 1161 and Florida’s dram shop law by knowingly serving excessive amounts of alcohol to his daughter, who then got in her car, drove off while intoxicated, and ended up in a fatal head-on collision with another vehicle on a highway just outside Miami. The Miccosukee Tribe moved to dismiss the complaint on the jurisdictional ground that it was immune from suit under the doctrine of tribal sovereign immunity. In its order granting the tribal defendants’ motion to dismiss, the district court determined that tribal sovereign immunity barred it from entertaining the suit.

We agree. The Supreme Court has made clear that a suit against an Indian tribe is barred unless the tribe has clearly waived its immunity or Congress has expressly and unequivocally abrogated that immunity. Furry argues that both of these exceptions have been met here, but these arguments are ultimately without merit. Accordingly, we affirm the judgment of the district court.

There's an interesting discussion about whether modern policy concerns require that the doctrine be abrogated or narrowed, noting the interdependence of tribal activity in our Nation's commerce (I guess tribal gambling impacts the Commerce Clause more than health care?), but in the end the ball is in Congress' court:

We share these concerns about the broad scope of tribal sovereign immunity. But at the end of the day, notwithstanding the Supreme Court’s reservations about the tenuous origins of the tribal immunity doctrine and the wisdom of the doctrine’s current breadth (both points that Furry emphasizes heavily), the Court could not have been clearer about placing the ball in Congress’s court going forward: “[W]e decline to revisit our case law and choose to defer to Congress.” Id. at 760.

So good luck with that.

11th Circuit Rules Against "Peek-a-Boo" Lounge!

The 11th Circuit, with Judge Cooke sitting by designation, has ruled against a Bradenton strip club, the "Peek-a-Boo" lounge, which had challenged a ridiculous ordinance designed to take all the fun out of life:

The ordinance allows employees of sexually oriented businesses to appear “semi-nude,” id. § 2-2.5-18(b), defined as “a condition in which a person is not nude, but is showing a majority of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, or is showing the majority of the male or female buttocks,” id. § 2-2.5-2. Employees appearing semi-nude, however, must “remain[] at least six (6) feet from any patron or customer and on a stage that is at least eighteen (18) inches from the floor and in a room of at least one thousand (1,000) square feet.””

Seriously?

That would mean at least half the parents at any South Florida children's birthday party held near a body of water would be in violation of this ordinance.

Now that you mention it, I am in violation of this ordinance right now.

But the First Amendment was not designed to protect a majority of the female breast below a horizontal line across the top of the areola and extending across the width of the breast at that point, according to Judge Marcus, mostly because of the "secondary effects" (no, not that kind).

The district court took extensive evidence and, indeed, the County spared no expense, sending in a top investigator, Tom McCarron, to find out exactly what goes on in these clubs:

At Pandora’s Box, Mr. McCarren was able to pay a dancer for a private dance, during which the dancer removed the tape over one of her nipples and allowed Mr. McCarren to touch her breast, buttocks, and genital area. At Paper Moon, Mr. McCarren was able to pay a dancer to go into a back room with him, where she removed all clothing except her G-string and allowed Mr. McCarren to touch her breasts.

Mr. McCarren, you sir deserve a medal for your fierce and relentless pursuit of the facts.

(Or at least a nice massage -- oh wait, that's your next case!)

But in the end, it was Mr. McCarren's dedicated muckraking that made all the difference:

The bottom line (ed. note -- ha ha) is that the County has presented a substantial body of evidence to support its rationale for adopting the ordinance. Peek-a-Boo has failed even to address much of that evidence at all, and it has failed to show that the County’s rationale or this body of evidence was unreasonable.

In other words, "Peek-a-Boo" has bottomed out.