By Scott D. Cosenza, Esq.

Stormy Daniels was arrested in Columbus Ohio in the early morning hours of July 12th while performing at a strip club. The porn star became famous for suing President Trump over a non-disclosure agreement designed to conceal a night’s liaison from 2006. She had been trying to sell her story to tabloids on the eve of the presidential election in 2016 when Trump’s attorney Michael Cohen agreed to buy her silence for $130,000. Daniels (real name – Stephanie Clifford) has been on a nationwide tour of strip-clubs since she rocketed to fame. Columbus police arrested Daniels for touching a patron, but then released her after charges were dismissed later that day.

Her arrest and release show off several profoundly disturbing features of our justice system that cry out for reform.

To Protect and Serve

Reading the charges about touching, and knowing Daniels is comfortable selling sex, you could be forgiven for thinking she was arrested for engaging in sex for sale. This is false. She was, according to her attorney Michael Avenatti, “arrested for allegedly allowing a customer to touch her while on stage in a non-sexual manner!” Mr. Avenatti later claimed in a television interview that an officer asked her to do it.

In Ohio, only immediate family members of nude employees of sexually oriented businesses may touch them or be touched by them at work. That’s not a misprint. If you’re asking why an immediate family member would want to watch their immediate family member working nude, or semi-nude, in a sexually oriented business, join the club. Why that’s something Ohio’s legislature sought to codify, we’ll leave for another day.

In one of the last opinions Justice Kennedy wrote, the Court ruled in favor of Fane Lozman, a man whose case is similar. No, he isn’t an exotic dancer, but he was arrested for what he said, a violation of his First Amendment rights. City leaders were mad at him and directed police to arrest him at a town meeting for disorderly conduct. Lozman claimed the arrest was illegal because it was made due solely to the words he spoke, not that he was talking out of turn. The law previously held that so long as probable cause for an arrest exists, true motivations need not be considered.

Kennedy and the Court did not make a bright-line rule establishing whether officials’ motivations for arresting people may be considered without considering probable cause. Instead, they issued a decision so narrowly tailored it likely will only apply in Lozman’s case, giving no guidance for the rest of us. We don’t know Daniels was arrested because of her speech. We can, however, say that common sense demands we assume that to be true unless other compelling reasons are given.

Third Watch

Can you imagine being paid a six-figure salary with generous medical benefits and an amazing pension, all to work a barstool, drinking and looking at naked dancers on the taxpayers’ dime? The brave men and women in blue at the Columbus, Ohio Police Department did not respond to requests for information as to whether lap dances are included in the police budget.

Not to be outgunned against the feature dancer, at least four Columbus police officers were on duty and dispatched to Stormy Daniels’ performance that Monday night. Three detectives and a patrol officer in plainclothes were part of this special enforcement detachment. Heroes all, they gathered, a thin blue line at the edge of the stage as Ms. Daniels gyrated. They were then victims/survivors/witnesses of the following:

During the performance, after removing her top, began forcing the faces of the patrons into her chest and using her bare breasts to smack the patrons.

Stormy ran afoul of the law by a performance that sounds less like a scene from a porno than a Benny Hill skit. Naughty, I suppose, but in a way that warrants police attention? Well if the officers or their supervisors are huge Trump fans who hate her for embarrassing the president, that’s another story.

Avenatti accused at least one detective of acting against Daniels for the political reason that they are pro-Trump and impermissibly discriminated against Daniels. Avenatti includes images alleged to have been posted to social media accounts owned by arresting officers that are pro-Trump, and whose accounts have now been deleted.

Since news of the arrest broke, the Columbus police department has been in damage control mode. First, they claimed the cops were investigating human trafficking. They were quick to add that the department “engages in these operations routinely, with no effect on other calls for service.” Columbus had 125 homicides in 2016, the most recent year reported. The next day, after Daniels’ release, the department’s chief, Kim Jacobs, released a statement promising to investigate the motivations behind the arrest.

Early Release

While Daniels’ arrest doesn’t pass the smell test, neither does her release. I’m not suggesting it was wrong for Deputy Chief Prosecutor Joseph Gibson to run to court to with a motion to dismiss and a memorandum in support of it a few hours after her arrest. I am suggesting that if you are ever arrested in Columbus, Ohio for a few misdemeanors at a strip bar on the overnight shift, it will likely be a lot longer than that before the DA provides a similar letter for you.

Her charges were dismissed because Avenatti and local defense counsel Chase Mallory convincingly argued that the statute only applies to those who “regularly” appear nude at the premises, and that police offered no evidence Daniels did so. While it’s not at all surprising to see charges dropped with these facts, it is surprising to see it done so quickly. Bravo to Columbus City Attorney Klein and his deputies if they treat defendants with less than half a million twitter followers thusly.

Daniels’ “Make America Horny Again Tour” continued that Thursday night, albeit with a change in venue:

I will be at Vanity Gentlemen's Club in Columbus tonight NOT at Sirens. The owners were too fearful to have me back but thankfully I have found a new venue so my Columbus fans will not be disappointed!! #TEAMSTORMY #Basta

— Stormy Daniels (@StormyDaniels) July 12, 2018

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