by John Walsh…….

City Commissioners talked a lot about nudity at their workshop on Fantasy Fest, but are afraid to define it or take any action to control it.  Rather they leave it to the Police to make up and enforce their own rules.  The Nudity statute ought to be repealed and here’s why:

The City of Key West’s Nudity -Body Painting Statute [Section 42‐9] states that:

“Nude or nudity means the exposure of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering or the exposure of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple. A mother’s breastfeeding of her baby does not violate this section.” 42‐9 prohibits Nudity “any place where the conduct may reasonably be expected to be viewed by others and an individual does not have a constitutionally protected expectation of privacy.”

42‐9 is facially discriminatory, overbroad, purports to regulate private adult conduct on private property, exposes the police to personal risk in enforcement, does not lay out a workable public policy, and most importantly is ineffective.

42‐9 is Facially Discriminatory.

42‐9 lays out a different standard for men and women for being topless. Breasts are not genitalia, nor are they a sex organ. The only time that a woman’s breasts function differently than a man’s is when they are breastfeeding, however this is a protected activity under both 42‐9 and state law.

Key West’s Charter contains an Equality of Rights section, 1.04, which forbids ordinances like 42‐9, rendering 42‐9 a legal nullity: “The equality of rights under the laws of the City of Key West shall not be denied or abridged because of sex, sexual orientation, age, disability, race, creed, color, or national origin.” Either the City needs to amend its charter to support discrimination against women, or it needs to strike the gender discrimination portion of 42‐9.

Although it is not clearly established federal law, federal courts in other jurisdictions have held that a woman’s right to go topless wherever men can is protected by the equal rights clause of the Fourteenth Amendment to the United States Constitution. An arrest under 42‐9 could subject the police and the city to a federal civil rights suit under 42 U.S.C. 1983.∗ The city’s insurance rights will eventually reflect the cost of million dollar settlements for civil rights violations. In addition the horrid publicity surrounding a federal discrimination suit will cost most of the businesses and workers in the city due to decreased tourism, which we have seen since the last million dollar civil rights settlement.

42‐9 is Overbroad.

That 42‐9 prohibits conduct which is protected by both the City Charter and the United States Constitution, decisions as to whom to arrest are left up to the individual police officers. The goal of the law is to codify public policy and then let the police enforce the law. Without a workable ordinance to enforce the police have unfettered discretion as to whom to arrest or not.

42‐9 Purports to Regulate Private Adult Activity on Private Property

 42‐9 prohibits nudity in any public place, but defines public place as “any place where the conduct may reasonably be expected to be viewed by others and an individual does not have a constitutionally protected expectation of privacy.”

“Any place where the conduct may reasonably be expected to be viewed by others” clearly brings the city’s authority onto private property. It prohibits Ricks from having wet T‐shirt contests, Irish Kevin’s from asking women to flash their breasts, Cowboy Bill’s from running their sexy bull riding contest, the Garden of Eden, as well as most of the risqué parties leading up to Fantasy Fest. 42‐9 outlaws the strip clubs in town, except that they have some First Amendment protection. Barnes v. Glen Theatre, Inc., 501 U. S. 560 (1991), but see Erie v. Pap’s A. M., 529 U.S. 277 (2000). 42‐9 also prohibits sunbathing or swimming naked at backyard pools if the neighbors can see over the fence or you have guests over.

The savings clause, exempts places where an individual has a “constitutionally protected expectation of privacy.” The Supreme Court addressed the issue in LAWRENCE et al. v. TEXAS, 539 U.S. 558 (2003). “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

In Lawrence, the police responding to a disturbance observed John Lawrence and another man engaging in a sexual act, and arrested both of them for sodomy. The court held that “the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. . . . Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. ‘It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.’ Casey, [In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992)] at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual:

“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

Under Lawrence, it would seem that any conduct which is not in plain view from a public way is private and constitutionally protected. Where Lawrence has been the law of the land for over twelve years, it is clearly established federal law. This means that a police officer who arrests anyone for nudity, not within plain view from a public way, has no qualified immunity from a federal civil rights suit under 42 U.S.C 1983∗, and can be held personally liable.

42‐9 can be unconstitutional as applied to individual circumstances under the due process clause of the Fifth and Fourteenth Amendments.

42-9 Exposes Police to Personal Risk in Enforcement.

42‐9 exposes police officers to possible lawsuits for false arrest, malicious imprisonment, and federal civil rights violations. It requires police officers to determine where people have a constitutional right to privacy, under risk of personal suit if they err in interpreting clearly established federal law.

When encountering someone who is nude or partially nude in public, the police officer has several options:

(1) They can arrest the person for violation of 42‐9. It would fall upon the city attorney to then prosecute the case. If the city failed to prosecute under 42‐9, the officer would be liable to a charge of false arrest and malicious imprisonment. The Sherriff and his deputies could also be held liable for malicious imprisonment threatening the current relationship where city prisoners are held by the Sherriff pending bail or trial. If the offender was a woman exercising her right to go topless in public as men do, the officer and the city could face a federal civil rights suit. When police officers were instructed to arrest women for marching topless in the “go topless” parade to protest 42‐9, they were in grave danger as the right to protest topless against laws like 42‐9 is a clearly established federal right thus exposing the officers to personal liability, as they are supposed to know better than to enforce illegal ordinances.

(2) A police officer can arrest the person for a common law breach of the peace, Florida Statute 877.03. Forty years ago two young women, Donna Moffett and Janis Chiapparo, were arrested for sunbathing topless at North Beach in Saint Lucie. Their convictions were upheld in the Florida Supreme Court by a divided court. Moffett v. State, 340 So. 2d 1155 (1976). The dissent argues “I cannot conclude at this juncture in the evolution of modern society that the wearing of see‐through blouses, or bikini bathing suits on Florida’s public beaches, constitutes criminal conduct under this statute. By the same token, I can find no reasonable basis to differentiate and condemn as “disorderly conduct” the form of partial undress present here. . . . The point is that under the wording of this statute it makes no sense for the courts of this state to be involved in drawing lines between permissible and impermissible variations on the degree of clothing worn by females.”

This is why it has been the policy of the State’s Attorney’s Office for years that they will not prosecute women for sunbathing topless. If the police officer arrests a topless woman for a Breech of the Peace, he could be subject to a charge of false arrest and malicious imprisonment. Moffett is the case cited by City Attorney Shawn Smith for the premise that topless women can still be arrested.

(3) A police officer could arrest the person for violation of Florida’s lewdness, indecent exposure law, FS 800.03. This statute generally requires a lewd or vulgar intent. Simple nudity, although included in the text, is not considered a basis for prosecution. Again, if the State’s Attorney declines to prosecute the case, the police officer could be subject to a charge of false arrest and malicious imprisonment.

42-9 Does Not Lay Out a Workable Public Policy.

As best stated by Commissioner Wardlow, if the police arrested everyone in technical violation of 42‐9, there would not be enough room in the jail. It seems the common impression that the law in Key West is that women must have their nipples covered in public. This standard was circulated by police officers during Fantasy Fest in the past. For lack of an ordinance spelling out public policy, the police have made their own rule.

It would not be good for our tourism if we were to enforce 42‐9. Bikini Swimwear is banned in Key West. Thongs are illegal in Key West. One‐piece women’s swimwear subjects the wearer to arrest if it shows any portion of the breast below the nipple. Perhaps the police should raid all formal events to arrest women for showing too much cleavage.

Key West has reveled in its reputation for being a laid back community accepting of others. One Human Family. However many European tourists would be arrested under 42‐9 if they were to wear their swimwear from home.

42-9 is Ineffective.

As discussed at the Fantasy Fest workshop, there has not been a public nudity arrest in Key West for over 15 years. After reading the forgoing, it should be obvious why the police are not arresting people for violating 42‐9; they simply bully them into covering up.

42‐9 Ought to be Repealed.

For the foregoing reasons, City Ordinance 42‐9, as it currently exists, ought to be repealed. A better ordinance might be:

“No person shall expose their male or female genitals, pubic area, or anus with less than a fully opaque covering in a public place, other than an area designated by the City Commission for that purpose.”

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∗ 42 U.S.C. 1983 – “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .”

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