Ninth Circuit bars Montana city from inspecting home-based massage therapists in trafficking crackdown

(CN) — The city of Billings, Montana, cannot conduct searches inside of massage practitioners’ homes in an effort to combat human trafficking, according to a Ninth Circuit Court of Appeals ruling on Wednesday that affirmed a District Court’s decision.

The decision allows the city, the largest city in Montana, to continue requiring massage therapists in commercial spaces to undergo city inspections. However, conducting those same inspections inside of a private practitioner’s home was a bridge too far, the Ninth Circuit affirmed.

Billings enacted the massage therapy ordinance in 2021 in an attempt to crack down on parlors using the business as a front for illegal sex work and human trafficking. The ordinance requires that massage therapists maintain annual licenses and that they are subject to searches by city officials and law enforcement, including those who operate out of their homes.

A group of four massage therapists in Billings sued the city over the inspection portion of the ordinance. The massage therapists, Theresa Vondra, Donna Podolak, Lunda Larvie and Adam Poulos, argued that the ordinance gave the city too much power to search for criminal evidence without a warrant and violated their Fourth Amendment rights to protection from unreasonable search and seizure from the government.

The city argued the ordinance protects the public from illegal activity and discourages human trafficking.

A District Court only ruled against the part of the ordinance that required inspections for at-home massage therapists. The plaintiffs appealed last year.

The Ninth Circuit panel — consisting of Senior U.S. Circuit Judge William Fletcher, Bill Clinton appointee, U.S. Circuit Judge Ana De Alba, a Joe Biden appointee, and U.S. District Judge William Orrick, a Barack Obama appointee — affirmed the lower court’s decision that found the searches were lawful at commercial massage parlors.

“Plaintiffs’ broader challenge to these search provisions fails because the discretion of inspectors is appropriately circumscribed in both time — during hours of operation and when clients and staff are on the premises — and scope — allowing inspection of logical areas and records that would uncover illicit operations engaged in sex trafficking or prostitution,” the court wrote in a per curiam order.

However, she affirmed that they were unlawful for at-home practitioners.

“The District Court appropriately held that this section is unconstitutionally overbroad as to all massage therapists because it allows inspectors or law enforcement to search for violations of ‘any law’ under their jurisdiction,” the panel wrote. “Notably, the discretion of inspectors and law enforcement is unrestricted in scope and expressly allows for ‘general searches by state officials’ to look for violations of any law.”

Under the city’s ordinance, all rooms, cabinets and storage areas are subject to city inspection. Any locked rooms, cabinets or storage areas shall be promptly opened for inspection, the ordinance says.

The panel noted that other sections of the ordinance were also overbroad when applied to private, at-home massage therapy, including requirements to grant inspectors access, to immediately unlock any door requested by an inspector and to maintain business records on-site, among others.

A spokesman for the city of Billings said that the decision vindicated its ordinance.

“The court found that the overwhelming majority of the ordinance remains valid and enforceable,” city administrator Chris Kukulski wrote in an email. “The city is pleased by the ruling because it allows the city to continue to use the ordinance to eradicate the illicit sexual massage businesses.”

The ordinance has so far been effective in preventing the operation of illicit massage businesses, Kukulski wrote. Advertisements for sexual services have declined by about 75% in the Billings area and several businesses suspected of offering illegal services have closed, he wrote.

One key part of the argument in the case revolves around a 1987 case, New York v. Burger, that found warrantless government inspections of a junkyard were not for criminal investigations but were regulatory measures to prevent stolen items from being resold. Such inspections are permissible if there is a substantial government interest, the inspection is necessary for the government, and the inspections are well defined, the court determined.

“These search provisions are constitutionally applied to commercial spaces where massage therapists operate to aid in enforcing the ordinance,” the panel wrote. “However, the provisions fail Burger’s reasonableness prong and were appropriately enjoined by the District Court as unconstitutionally overbroad to the extent they cover solo practitioners operating from their homes.”

The city argued the ordinance isn’t meant to include at-home practitioners, but the panel writes that this isn’t clear in the ordinance.

“The city has not identified anything in the legislative history of the ordinance or the broader record regarding its implementation to support its position that the admittedly ‘inartful’ or poorly drafted definitional provision was intended to exclude solo practitioners from the challenged searches,” the panel wrote.

Attorneys for the massage therapists could not be reached for comment on Wednesday.