A DISCUSSION OF LAW AND JOURNALISM

Topless Bust Spills Over Into Suit

By Antonio Mendez

Earlier this month, a fire-eating burlesque dancer filed a lawsuit in Brooklyn Supreme Court against two police officers who arrested her for sunbathing topless at Calvert Vaux Park in Brooklyn.

She is seeking unspecified damages plus attorney fees for assault and battery, malicious prosecution, and violation of her civil-rights.

On July 12, 2012, Jessica Krigsman was hanging out —literally—on a park bench when she was approached by cops and told to put on her shirt. “Haven’t you heard of People v. Santorelli?” she asked the officers. “This has been legal since the ‘90’s,” she added, trying to get the cops abreast of the law. “Call your supervisor!”

Rather than calling, the officers escorted Ms. Krigsman to their supervisor. She was arrested, taken to the 68th precinct stationhouse, and held for five hours. Ms. Krigsman was released only after receiving a summons by NYPD for “obstruction of a sitting area”—a Parks Department code prohibiting the hoarding of benches. The summons was dismissed three months later.

Earlier this year, NYPD reminded its officers in a memo that they “shall not enforce any section of law, including…against female individuals who are simply exposing their breasts in public.” In discussing the memo’s origin, Inspector Kim Royster commented that such memos were “periodically circulated to remind personnel of our policies.” The Inspector added that the memo “comports with the N.Y. Court of Appeals ruling on taking enforcement action against individuals for public nudity.”

That 1992 N.Y. Court of Appeals case is the very one that was cited by Ms. Krigsman. Many media outlets discussed Ms. Krigsman’s lawsuit, but none have peeked into the law books for a legal analysis.

Does Ms. Krigsman have a good case? Will the City lose its shirt in damages on her lawsuit?

LASIS goes after the naked truth.

On June 21, 1986, in Cobbs Hill Park, a public park located in Rochester, New York, Ramona Santorelli and Mary Lou Schloss exposed their breasts to protest a statute permitting men but not women to appear bare-chested in public. They were arrested and charged with violating New York’s law for public exposure of “private or intimate parts” of the body.

The statute explicitly defined “the private or intimate parts of a female,” but not that of men, to include “that portion of the breast below the top of the areola.” The two women contended that, by treating men and women differently for no legitimate reason, the statute violated equal protection principles.

The Court of Appeals passed on an equal protection inquiry, instead finding the statute inapplicable to the conduct presented by the facts. Relying on the law’s legislative history, the court noted that the statute “was aimed at discouraging ‘topless’ waitresses and their promoters.”

The underlying principle from People v. Price, a 1973 N.Y. Court of Appeals case holding that the law “should not be applied [to] noncommercial, perhaps accidental, and certainly not lewd, exposure,” was deemed controlling. The Court of Appeals affirmed the lower court’s dismissal of the charges without addressing the equal protection challenge of the law by Ms. Santorelli and Ms. Schloss.

One judge, though, did venture into equal protection territory. Judge Vito Titone, concurring with the majority’s decision, noted that the court’s reliance on a presumption of the law’s constitutionality was “nothing more than an artful means of avoiding a confrontation with an important constitutional problem [under an equal protection analysis].”

A law created with a classification based on gender triggers intermediate scrutiny, so gender classification must be substantially related to the achievement of an important governmental objective.

The State failed to provide a governmental objective but, Judge Titone identified an objective by looking to “the statute’s legislative history, as well as [the] case law and common sense.”  Accordingly, the explicit purpose of the current law was to protect parents and children using the public beaches and parks from any discomfort caused by unwelcomed public nudity.

Judge Titone asserted that the protection of public sensibility, a legitimate goal for legislation,, may merely reflect “commonly held preconceptions and biases.” Therefore, the State’s purpose was insufficient to satisfy their burden of showing an “‘exceedingly persuasive justification’ for a classification that expressly discriminates on the basis of sex.”

Thus, Judge Titone went further than the majority did – he deemed New York’s statute prohibiting women only from going bare-chested unconstitutional. We wouldn’t be surprised if a court holds this way in the not too distant future.

In the meantime, Ms. Krigsman is not the first virtual bra-burner to sue after being arrested for going topless. In 2005, Jill Coccaro set a boobie trap by baring her breasts on Delancey Street in New York City and was detained for twelve hours by NYPD despite citing the same 1992 case Ms. Kingston did last year. Subsequently, Ms. Coccaro successfully sued New York City for wrongful arrest winning a judgment for $29,000.

Ignorantia legis neminem excusat, not even when the boobs in blue are New York’s finest.

Comments

2 Comments »

2 Responses

  1. Ben says:

    This is a titalating post. I never stopped to think about our public nudity laws in terms of equal protection. I guess the bare facts reveal that some of our laws are based upon un-equal treatment. I think it is quite appropo that Judge Tit-one is the person to make this ruling and I am glad to know that public nudity laws are like the emperor who has no clothes–or in this case, the empress.

  2. ivan lamb says:

    Useful analysis , Speaking of which , you a AO440 , We came across a fillable version here https://goo.gl/zxw8vH

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