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Nov 06 2010

Court Rules: No Expectation of Privacy for Cop Caught Masturbating in Tanning Booth

Remember when cops just wanted free coffee and donuts? Well it looks like things  have gone on pretty far from there.  Mike Fiore, a cop from Whitestown NY, lost his job when a tanning salon owner reported he not only stopped by while on the job to tan, but that one time, while Fiore was in a tanning booth, the owner observed him masturbating.  The Town fired him for “conduct unbecoming an officer.”

You would think Fiore would be mortified for having gotten caught pleasuring himself in someone’s place of business, but no, he sued for his job back, claiming he had a right to privacy in the booth and therefore could not be fired for the act.  This month, Federal Judge David Hurd threw the case out saying that while “an individual’s private sexual activities are generally within the zone of privacy protected from unwarranted government intrusion,” that  protection generally does not extend to public places.   Judge Hurd concluded that “the Fourteenth Amendment does not provide protection to sexual activities, whether consensual or not, in a public place.”

What would make someone think they had a right to privacy in somebody else’s workplace? Who would then want to sue in Federal Court and expose themselves(pun intended) to more humiliation.    The “right to privacy” is a tricky thing. It is not specifically written in the constitution.   Rather, it is a court created doctrine developed in court decisions like Roe v. Wade.  The Tea Party folk argue that its creation was further “judicial activism” like they also argue at times that the constitution  does not specifically say there must be “separation of church and state” because those words don’t appear in the constitution either.  (Do you want to bet, by the way, that Office Fiore was a die hard Tea Party member before this incident? Q: What is a liberal? A:  A conservative whose been arrested).  Anyway, the right to privacy doctrine stands for the proposition that the Founding Fathers clearly meant to have the constitution reach beyond the specifically enumerated rights contained in the  Bill of Rights.  It says that the document also provides a more general right to privacy to protect us from governmental intrusion into our private lives.  It only applies, however, in situations where a person would have an expectation of privacy. Now, there has been decades of litigation trying to define what that is so I won’t get into it here, but generally speaking, the expectation of privacy exists in places where you would expect to have the right to be left alone – your home and your car being prime examples.   Also some states have passed privacy laws that list places where folks have such an expectation – changing rooms, bathrooms, gym locker rooms, etc. Several states including Minnesota, Mississippi, North Dakota, Nebraska and New Mexico have listed tanning booths as such a place. That’s normally to protect users from  peeping toms or having videos of themselves in nude or semi-nude situations posted on the internet. (The argument has never been made though that this would allow you to masturbate freely in those places. That’s for the next case).  Unfortunately for Ex-Officer Fiore, New York’s right to privacy law does not listed tanning booths as a protected location. Without that specific legal protection, he had no expectation of privacy in the tanning booth and therefore no case against the Town. By the way, this ruling also means a tanning salon owner is free to look at you while you are in the booth and may even be allowed to post pictures of you tanning as long as they don’t make a commercial use of them since that would violate other NY laws.

The Constitution does great things for us, but it cannot protect us from our own idiocy.  It should be noted that this officer was already on probation from an incident in 2007 when he was off-duty but was at the same tanning salon with his gun exposed.  (No, I mean his service revolver).  I am not making this up, read the case here’s the link:

http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202474510415&Court_Finds_No_Right_to_Privacy_in_Tanning_Booth&slreturn=1&hbxlogin=1

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