PHOENIX – Last Friday, Milo Fencl, owner of Club Chameleon filed a $500,000 claim against the city of Phoenix alleging false arrest and malicious prosecution.
Coincidence or not, the following day, police raided Club Chameleon and arrested the manager Kyle Crawford in an ongoing dispute over whether swingers have a constitutional right to openly engage in sex at the establishment. Crawford, 33, was hit with a misdemeanor charge of operating a business where live sex acts occur. No swingers were arrested because, under public indecency laws, sexual activity is only illegal if it offends those observing it. Club members sign sworn statements advocating the conduct.
This was the latest of the on-going battles Fencl has been waging with the city. Fencl and operators of three other establishments were arrested during a police operation last year that targeted social clubs where patrons openly engage in sex. Fencl and co-defendants claimed the misdemeanor criminal prosecution violated constitutional rights to free expression and association.
Other legal fights have been taken to the Phoenix Municipal Court, Maricopa County Superior Court, the Arizona Court of Appeals, the U.S. District Court and the 9th Circuit Court.
Just last week, city prosecutors dropped charges against Fencl, who promptly had attorney Nick Hentoff submit a letter demanding $500,000 in personal damages.
The letter paves the way for a lawsuit. Hentoff previously demanded $15 million on behalf of the club owners, and filed a civil complaint that remains open in Superior Court.
“This is nothing but naked harassment,” complained Hentoff. Hentoff said the city squanders tax dollars and police time assaulting small businesses to enforce an unconstitutional ordinance that carries the same penalty as a leash-law violation.
Assistant City Attorney Jimmy Hays, however, claims the weekend vice squad operation had been planned for weeks in response to complaints and was not in retaliation for Fencl’s civil claim.
Hays said Fencl was convicted once and is fighting efforts by city prosecutors to have him jailed for violating probation. The city’s legal efforts have been upheld in every venue so far, he added, and a recent dismissal of charges against Fencl had nothing to do with the merits of the ordinance. Prosecutors now have six boxes of records for the misdemeanor violations and have spent untold tax dollars on the case.
“These people are absolutely relentless,” Hays added. “The case is over. We have all the legal ammunition we need. Every argument they’ve made, they’ve lost.”