Massage therapists challenge Montana anti-trafficking ordinance
Monique Merrill
SEATTLE (CN) — Montana’s largest city says its massage ordinance is necessary to combat human trafficking, but a group of massage therapists says it’s an unconstitutional license for officials to search without a warrant.
Before a three-judge panel of the Ninth Circuit on Monday, the massage therapists implored the panel to find that the ordinance authorizing searches of any part of a home or business as often as an official deems fit is overbroad.
“Billings claims the extraordinary power to search every part of Ms. Larvie, Ms. Vondra and Ms. Poulos’ property — every room, cabinet and storage area — as frequently as its officers may desire for compliance with any law, without a warrant,” said Austin Waisanen, attorney with Pacific Legal Foundation for the plaintiffs.
Billings enacted its massage therapy ordinance in 2021, intended to crack down on illicit establishments that use massage services as a front for human trafficking and sex work.
Under the ordinance, every practitioner offering massage services must maintain an annual license, and any business offering such services is subject to inspection by city officials, including law enforcement.
It’s the inspection portion of the law that caused a group of four massage therapists to sue the city, arguing the ordinance violated their Fourth Amendment rights to protection from unreasonable search and seizure by the government.
A federal judge agreed, but only as far as the ordinance impacted solo practitioners. U.S. Magistrate Judge Kathleen DeSoto blocked the city from enforcing the search provisions against massage therapists who bring clients into their homes, finding the ordinance allowed for unreasonable searches of the private areas of their homes. DeSoto otherwise agreed with the city and tossed the rest of the practitioners’ claims as they related to commercial operations.
On appeal, the massage therapists argued the ordinance at large was overbroad and gave the city too much power to search for criminal evidence without a warrant.
Waisanen argued the ordinance doesn’t function like a regulatory scheme.
“The predominant purpose of the program is to discover evidence of criminal violations — that's what everybody says about it,” Waisanen said, citing the text of the ordinance that explained the purpose is to “regulate businesses that purport to be massage or spa facilities.”
“It’s not even aimed at the actual practice of massage,” Waisanen said. Instead, the ordinance is unconstitutionally searching these workplaces for evidence of crime without a warrant, he argued.
But U.S. Circuit Judge William Fletcher, a Bill Clinton appointee, questioned whether the massage therapists could prove that the searches were fully intended to collect evidence of crimes.
“Can you show that this administrative search has, as its primary purpose, the uncovering of evidence of criminal behavior?” Fletcher asked.
The massage therapists countered that it’s the city’s burden to show that the ordinance’s primary purpose is not criminal enforcement.
Plus, the massage therapists argued that Montana simply doesn't have a history of regulating massage therapists in the state.
“There's nothing in Montana history showing a history of warrantless inspection of massage therapy businesses,” Waisanen said.
But the city argued the case hinges on whether the ordinance qualifies under exceptions that allow warrantless inspections of closely regulated industries.
“It's very clear that there's not an improper crime control purpose on this statute,” argued Gerry Fagan, attorney representing the city. “It’s just to identify and eradicate illicit sex businesses.”
And the ordinance has been successful at doing so, Fagan said. Plus, the city argued that Montana does have a history of regulating massage therapists by enforcing licensing requirements, governing therapists via a state board and imposing other various professional requirements.
There have been breaks in between, but for approximately 29 of the past 55 years, the state has imposed regulations on massage therapists. In 2019, the state adopted a statewide warrantless inspection for massage therapy businesses that allows inspectors to look for the licenses of all the therapists on site, Fagan noted.
U.S. Circuit Judge Ana De Alba, a Joe Biden appointee, questioned whether that counts as a limited search, given that licenses are expected to be visibly displayed.
“Walk me through this: So, I go in, I’m an inspector, I don’t see a license hanging on a wall — can I start looking through drawers?” De Alba asked.
Fagan responded that likely an inspector would be allowed to search, but pointed out it's a statewide regulation. Billings adopted the specialized ordinance as a way to combat its long history of illicit sex business, Fagan said.
“ This was a decision to try to eradicate those businesses in a different way,” Fagan said.
But the massage therapists argued that the state’s history of regulating massage therapists has been spotty at best, and only recently allowed officials to check for licenses.
“The real question on duration is what is the history of warrantless inspection of massage therapy businesses in Montana, and there's no history,” Waisanen argued.
The Ninth Circuit panel — which was rounded out by U.S. District Judge William Orrick, a Barack Obama appointee in the Northern District of California who was sitting on the panel by designation — did not indicate when it would rule.