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*
Xavier Becerra is substituted for his predecessor, Kamala Harris.
Fed. R. App. P. 43(c)(2).
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Case: 16-15927, 01/17/2018, ID: 10726736, DktEntry: 87-1, Page 2 of 20
2 ESP V. GASCON
SUMMARY ***
Civil Rights
**
The Honorable Jane A. Restani, Judge for the United States Court
of International Trade, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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ESP V. GASCON 3
The panel held that Section 647(b) does not violate the
Fourteenth Amendment freedom of intimate or expressive
association. The panel noted that this court in IDK, Inc. v.
Clark Cnty had already ruled that the relationship between a
prostitute and a client does not qualify as a relationship
protected by a right of association. The panel further
rejected plaintiffs’ assertion that Section 647(b) violates
their substantive due process right to earn a living. The panel
held that there is no constitutional rights to engage in illegal
employment, namely, prostitution. Finally, the panel held
that Section 647(b) does not violate the First Amendment
freedom of speech because prostitution does not constitute
protected commercial speech and therefore does not warrant
such protection.
COUNSEL
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OPINION
RESTANI, Judge:
BACKGROUND
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DISCUSSION
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1
Of course, we are bound by our precedent unless overruled by an
en banc panel or clearly abrogated or overruled by the Supreme Court.
Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).
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16 ESP V. GASCON
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2
Despite Nevada’s decision to opt for partial legalization, it too has
taken significant steps to limit prostitution, including the total ban on
prostitution in its largest population center, Clark County, home to
72 percent of the state’s population. Id. at 600–01 & n.11.
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Case: 16-15927, 01/17/2018, ID: 10726736, DktEntry: 87-1, Page 19 of 20
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CONCLUSION
HIV/AIDS
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The risk of HIV and other sexually transmitted diseases is high among ed on J
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exchange sex for money or nonmonetary items. con, N
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l E d u. v.
Few large-scale (population-based) studies a
Leghave been done on HIV among this
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diverse group of people. in Erotic S
cited
Many social and structural factors make it difficult to prevent and treat HIV among
persons who exchange sex for money or nonmonetary items.
The term “people who exchange sex for money or nonmonetary items” (hereinafter referred
to as “people who exchange sex”) includes a broad range of persons who trade sex for
income or other items including food, drugs, medicine, and shelter. Persons who exchange
sex are at increased risk of getting or transmitting HIV and other sexually transmitted
diseases (STDs) because they are more likely to engage in risky sexual behaviors (e.g., sex
without a condom, sex with multiple partners) and substance use. Those who exchange sex
more regularly as a source of ongoing income are at higher risk for HIV than those who do so
infrequently. Persons who engage in such activities include escorts; people who work in
massage parlors, brothels, and the adult film industry; exotic dancers; state-regulated
prostitutes (in Nevada); and men, women, and transgender persons who participate in
survival sex, i.e., trading sex to meet basic needs of daily life. For any of the above, sex can
be consensual or nonconsensual.
It is important for people who exchange sex to get tested for HIV regularly and know their
Condoms are highly effective in preventing a person from getting or transmitting HIV
infection if used the right way every time during sex.
For persons who are HIV-negative, prevention options like pre-exposure prophylaxis
(PrEP), taking HIV medicines daily to prevent getting HIV, may be beneficial.
For people who are living with HIV, taking medicines to treat HIV (called antiretroviral
therapy or ART) the right way every day can help keep them healthy and greatly reduce
their chance of transmitting HIV to others.
Prevention Challenges
Lack of Data
There is a lack of population-based studies on persons who exchange sex, although some
studies have been done in singular settings such as prisons and exotic dance clubs.
However, the illegal—and often criminalized—nature of exchange sex makes it difficult to
gather population-level data on HIV risk among this population. This lack of data creates
significant barriers to developing targeted HIV prevention efforts.
18
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Socioeconomic Factors ived
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arch
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N
Many persons who exchange sex face stigma, poverty,. andcon,
Gas lack of access to health care and
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other social services—all of which pose challenges to HIV prevention efforts. Existing
rovid CP
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research shows that in Erot
cited
Many persons who exchange sex may have a history of homelessness, unemployment,
incarceration, mental health issues, violence, emotional/physical/sexual abuse, and drug
use.
Some transgender persons may turn to exchange sex because of discrimination and lack
of economic opportunities. They may exchange sex to generate income for rent, drugs,
medicines, hormones, and gender-related surgeries.
Economics: Persons who exchange sex may receive more money for sex without a
condom.
Partner type: Persons who exchange sex may use condoms less often with regular
clients than with one-time clients and even less frequently with intimate partners.
Power dynamics: Unequal power in a relationship with clients may make it difficult for
persons who exchange sex to negotiate condom use.
Multiple high-risk sex partners, e.g., partners who do not know they are living with HIV or
other STDs.
More money for sex with partners known to be HIV positive.
Bibliography
Additional Resources
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Judgment
• This Court has filed and entered the attached judgment in your case.
Fed. R. App. P. 36. Please note the filed date on the attached
decision because all of the dates described below run from that date,
not from the date you receive this notice.
Petition for Panel Rehearing (Fed. R. App. P. 40; 9th Cir. R. 40-1)
Petition for Rehearing En Banc (Fed. R. App. P. 35; 9th Cir. R. 35-1 to -3)
(4) Form & Number of Copies (9th Cir. R. 40-1; Fed. R. App. P. 32(c)(2))
• The petition shall not exceed 15 pages unless it complies with the
alternative length limitations of 4,200 words or 390 lines of text.
• The petition must be accompanied by a copy of the panel’s decision being
challenged.
• An answer, when ordered by the Court, shall comply with the same length
limitations as the petition.
• If a pro se litigant elects to file a form brief pursuant to Circuit Rule 28-1, a
petition for panel rehearing or for rehearing en banc need not comply with
Fed. R. App. P. 32.
Attorneys Fees
• Ninth Circuit Rule 39-1 describes the content and due dates for attorneys fees
applications.
• All relevant forms are available on our website at www.ca9.uscourts.gov under Forms
or by telephoning (415) 355-7806.
BILL OF COSTS
Note: If you wish to file a bill of costs, it MUST be submitted on this form and filed, with the clerk, with proof of
service, within 14 days of the date of entry of judgment, and in accordance with 9th Circuit Rule 39-1. A
late bill of costs must be accompanied by a motion showing good cause. Please refer to FRAP 39, 28
U.S.C. § 1920, and 9th Circuit Rule 39-1 when preparing your bill of costs.
Cost Taxable
under FRAP 39, REQUESTED ALLOWED
28 U.S.C. § 1920, (Each Column Must Be Completed) (To Be Completed by the Clerk)
9th Cir. R. 39-1
No. of Pages per Cost per TOTAL No. of Pages per Cost per TOTAL
Docs. Doc. Page* COST Docs. Doc. Page* COST
Excerpt of Record $ $ $ $
Opening Brief $ $ $ $
Answering Brief $ $ $ $
Reply Brief $ $ $ $
Other** $ $ $ $
TOTAL: $ TOTAL: $
* Costs per page: May not exceed .10 or actual cost, whichever is less. 9th Circuit Rule 39-1.
** Other: Any other requests must be accompanied by a statement explaining why the item(s) should be taxed
pursuant to 9th Circuit Rule 39-1. Additional items without such supporting statements will not be
considered.
I, , swear under penalty of perjury that the services for which costs are taxed
were actually and necessarily performed, and that the requested costs were actually expended as listed.
Signature
("s/" plus attorney's name if submitted electronically)
Date
Name of Counsel:
Attorney for:
Clerk of Court