Massage therapists sue City of Billings for violating their constitutional rights

A group of massage therapists is suing the City of Billings because it says new laws aimed at protecting victims of sex trafficking are violating their constitutional rights, forcing them to choose between a paycheck or their freedom.

They filed suit in federal district court in Billings alleging the city is forcing them to submit to unreasonable, unwarranted and illegal searches and seizure without due process or even so much as probable cause. Even more, they can be required to turn over patient records to city employees without a warrant, possibly disclosing sensitive information without a client even knowing it.

The city adopted the stricter licensing rules as a means to combat human trafficking and illegal prostitution in businesses that often masquerade as spas, massage parlors or body treatment. In crafting the law, the City Council believed that adding elements like surprise inspections and unannounced searches would help deter illegal sex businesses, but therapists said they’ve been unfairly targeted because some human traffickers have attempted to disguise themselves. Instead, they said the city should have worked hard to regulate the illicit sexually-oriented businesses rather than picking on legitimate, credible massage therapists.

“So if a group of thieves and robbers decided to set up a business as plumbers, would the city be subjecting every plumber to new rules or would they address the crime?” asked Deborah Kimmet, the executive director of the Business League for Massage Therapy and Bodywork. Kimmet is a licensed massage therapist in Missoula.

The lawsuit asks the court to “vindicate the Fourth Amendment rights of licensed and law-abiding massage clients in Billings.”

A quid pro woah?

According to Billings City ordinance, if a licensed massage therapist wants a business license to operate in Montana’s largest city, the therapist must consent to unannounced, warrantless searches. That includes opening any doors, examining files and inspecting a patient calendar. If the therapist refuses, they can’t be licensed in the city.

“For a therapist to insist that the police first acquire a warrant before searching their premises is to risk arrest on the spot, criminal prosecution, and incarceration under this framework,” the lawsuit states. “The ordinance does not significantly limit the timing, frequency, duration, or scope of the authorized searches.”

The city’s administration did not comment on the specifics of the lawsuit.

Massage therapists are licensed by the state to practice, and can be licensed by national accrediting boards and bodies. The therapists raise concerns not just about their own practice, but the safety and privacy of the records that may be obtained through a search.

“Each massage therapist keeps a version of a … chart for some or all of their patients,” the suit said. “This document contains sensitive information concerning a patient’s prior injuries and trauma, which can be a combination of physical, sexual or psychological, including how pain or injury affects the patient’s activities of daily life.”

Some of the therapists — to protect patients’ privacy and their own liability — are keeping a separate set of treatment notes and logs so that names and sensitive personal information aren’t disclosed in a warrantless inspection.

During discussions of the ordinance, advocates told massage therapists that code enforcement officers from the city would be unlikely to target legitimate massage businesses, reserving the tool to help target businesses masquerading as massage therapists. But on March 7, one of the therapists was inspected.

“The officers entered the private areas of the business, including massage rooms, the business’ outdoor and storage area, and employee lockers. They took photos as they opened the doors and cabinets,” the lawsuit said.

The owner did not interfere or prevent the searches “despite her objections and their intrusiveness, for fear of risking criminal sanctions or nonlicensure.”

Other options available

Kimmet believes that other options were available, and that enforcing sex trafficking should not be the responsibility of code enforcement, often a civil matter, while human trafficking and prostitution is a criminal offense and handled by the criminal justice system.

She said most engaging in an illegal massage parlor won’t apply for a license anyway, rather just change the type of business it uses as a cover.

She also resented Billings Mayor Bill Cole, who asked why the therapists “couldn’t just take one for the team?”

“Once it became clear they were not interested in helping, I expressed my surprise that they didn’t seem to want to compromise in any way,” Cole said. “I can’t remember the phrasing, but I said something along the lines of in order to reduce human trafficking, we might all have to take one for the team.”

Cole told the Daily Montanan that already the city has seen signs of the ordinance working as many suspected sexually-oriented businesses have disappeared.

Kimmet said the best strategy on illegal sexually-oriented businesses is to put pressure on landlords. Most of the parlors don’t purchase property and rely on renting. She said that’s a great opportunity to pressure landlords not to operate illegal businesses on their property.

“It’s pretty clear when you walk in the door what kind of business it is,” Kimmet said.

Many illegal sex shops are 24-hour, have back entrances, use neon and other symbols to communicate with clients – something normally not associated with legitimate licensed massage therapists.

There are other ways for clients seeking therapeutic massage to avoid walking into a sexually-oriented business, including checking with the state to find a licensed massage therapist. Clients should also ask what techniques and therapies the therapist uses. And, even websites like “Look Before You Book” have been developed to talk about the issue of massage and human trafficking.

“A violation of the doctrine of unconstitutional conditions occurs when the government conditions the issuance of a license upon an unconstitutional demand,” the lawsuit said, quoting from a previous 2013 federal case. “An individual made subject to an unconstitutional condition need not suffer additional injury resulting from the actual surrender of the coerced waiver of a right to seek redress in court.”

Lawyers for the therapists argue, “consent to a search cannot be coerced. When the government ‘seeks to rely upon consent to justify the lawfulness of a search, (it) has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.’”

The case argues that by threat of prosecution, sanctions, jail time or fines that massage therapists must either trade their constitutional rights or risk being shut down or jailed for refusing.

“Human trafficking is a crime. Massage therapy is not,” Kimmet said. “The problem is that it stigmatizes all of us and puts us in danger. Regulating us as if we were the criminals and the problem instead of separating the problems – they’ve lumped us in with all of it. We’re not a sexually-oriented business, and we’re not trying to malign legal sexually-oriented business.”

She laments that in many ways the law has pitted women against women. It was women, including former city Councilmember Penny Ronning, who led the charge against sex trafficking, against massage therapists, who are overwhelmingly women, against those who are trafficked, who are also women.

“We’ve been bullied,” Kimmet said. “Instead of putting some lipstick on a pig, they’re now putting make-up on it. But it’s still a pig. And you can’t change that.”