According to news reports, a female policer undercover officer says that Daniels was topless when she “knowingly” touched the officer’s buttocks, placed her hands on the officer’s breast and then put her chest in the officer’s face while “on the premise of a sexually oriented business.”
Notably, the law does not even allow the touching of clothing. Here is the pertinent section:
(1) No patron who is not a member of the employee’s immediate family shall knowingly touch any employee while that employee is nude or seminude or touch the clothing of any employee while that employee is nude or seminude.
Former Trump campaign adviser A.J. Delgado has suggested that the arrest could be a case of entrapment. That is highly unlikely. The Supreme Court has noted that “[t]o determine whether entrapment has been established, a distinction is made between a trap for the “unwary innocent” and a trap for the ‘unwary criminal.'” Sherman v United States, 356 US 369, 372; 78 S Ct 819; 2 L Ed 2d 848 (1958). Entrapment requires a showing that the “conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for trickery, persuasion, or fraud of the officer.” Sorrells v United States, 287 US 435, 454 (1932). The courts are unlikely to see this as a case of entrapment unless the officers literally pulled Daniels into contact involuntarily.
Selective enforcement is another possibility but such claims are difficult to maintain in court. The first such Supreme Court case was Yick Wo v. Hopkins (1886) where an otherwise facially neutral law was found to be a violation of the Equal Protection Clause when administered in a prejudicial manner. The case involved an ordinance enacted in the 1800s by San Francisco requiring all commercial laundries to be in brick or stone buildings absent approval from the Board of Supervisors. The board approved waivers for white owners but denied every one of the nearly 200 Chinese petitions.
However, these claims are easier when used for racial or discriminatory purposes against groups. In United States v. Armstrong (1996), Justice Rehnquist wrote that a selective-prosecution claim in the criminal context requires proof not only of a discriminatory purpose but a discriminatory effect. The Court stressed:
“In order to dispel the presumption that a prosecutor has not violated equal protection, a criminal defendant must present “clear evidence to the contrary.” Chemical Foundation, supra, at 14-15. We explained in Wayte why courts are “properly hesitant to examine the decision whether to prosecute.” 470 U. S., at 608. Judicial deference to the decisions of these executive officers rests in part on an assessment of the relative competence of prosecutors and courts. “Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake.” Id., at 607. It also stems from a concern not to unnecessarily impair the performance of a core executive constitutional function.”
The Court then ruled that the evidence of the lower courts and the challengers fell well short of that standard.
This case involves the trickier element of the use of the law to limit free speech by a critic of the President. However, the law itself is designed to limit conduct in the form of touching as opposed to the act of dancing.
That makes it an even more difficult challenge to bring on a constitutional level. What is weird is that the law does not include a type of de minimus violation exception. Any touching is criminalized under the vague and sweeping provision.
The police account does not describe a de minimus violation and more than one officer may have been touched. With multiple accounts from undercover officers, it is the type of offense that is treated as largely unassailable by courts unless they believe that multiple officers are making false statements.