The New York Law Journal by Joel Stashenko - November 8, 2010
A police officer fired for masturbating in a tanning room had no constitutional right to privacy, a federal judge has ruled. Sexual activity in "public places" is not protected by the Fourteenth Amendment to the U.S. Constitution, Northern District Judge David N. Hurd ruled in Fiore v. Town of Whitestown, 6:07-cv-00797, in upholding an upstate town's decision to dismiss the officer. "Here, the right of privacy may provide protection for plaintiff's act if it took place where he had a reasonable expectation of privacy, such as in his home," Judge Hurd wrote from Utica. "However, a tanning booth in a tanning salon, which is open to the public, is a commercial establishment and thus a public place where plaintiff has no protectable constitutional privacy interest in his sexual activities. Simply because the room was enclosed by four walls does not make the setting a private one for this act." Judge Hurd rejected arguments from former part-time Whitestown Town Officer Michael Fiore that statutes in several states, including Minnesota, Mississippi, North Dakota, Nebraska and New Mexico, regard tanning booths as akin to private places such as bathrooms and fitting rooms. Mr. Fiore, who was still under probation, was dismissed in 2007 after a woman told a police commission member that she had seen him while he was off-duty in a local tanning saloon with his gun visible. The woman also recounted a conversation with the owner of the salon in which the owner allegedly described having seen Mr. Fiore masturbating in a tanning room. The police commission notified Mr. Fiore that his "performance" as a police office was not "at a level acceptable" to the town. Mr. Fiore and his wife, Susan, sued the town and police commission members. On June 25, Judge Hurd threw out the federal claims without issuing a written opinion and refused to consider his state-law arguments. Mr. Fiore then asked Judge Hurd to reconsider. The judge held last week in a 14-page ruling that he had not made any errors of law and let his previous ruling stand. The judge acknowledged that "an individual's private sexual activities are generally within the zone of privacy protected from unwarranted government intrusion." But he added that such protection generally does not extend to public places. Mr. Fiore claimed that there was no evidence that he had purposely "exposed" himself to an unsuspecting woman in a public place. Rather, he argued that he had masturbated as part of an "intimate, consensual encounter" with the owner of the tanning salon in a private room. But Judge Hurd concluded that the circumstances of the ex-officer's conduct was irrelevant because "the Fourteenth Amendment does not provide protection to sexual activities, whether consensual or not, in a public place." The judge also ruled that the police department did not violate Mr. Fiore's right to procedural due process because Mr. Fiore did not request a name-clearing hearing, and the town was not obligated to offer him one. Edward J. Smith III, Eric G. Johnson and Gabrielle M. Hope of Smith, Sovik, Kendrick & Sugnet represented the Town of Whitestown and police officials. A.J. Bosman of the Bosman Law Office in Rome was the attorney for Mr. Fiore. Joel Stashenko can be reached at email@example.com.