http://www.nytimes.com/2013/05/16/nyreg ... times&_r=0
A Roll-Call Reminder: When Seeing a Topless Woman, Just Move Along
By J. DAVID GOODMAN
Published: May 15, 2013
In the cold of February, as New York City police officers gathered for their daily orders at roll call, they were given a rather unusual command, for both its timing and its substance: If they happened upon a topless woman, they were not to arrest her.
The command was repeated until it was read at 10 consecutive roll calls. Each of the city’s 34,000 officers, in theory, got the message: For “simply exposing their breasts in public,” the officers heard, women are guilty of no crime.
Bare-breasted women should not be cited for public lewdness, indecent exposure or any other section of the penal law, according to the official memorandum, disclosed in a federal lawsuit filed on Wednesday against the city and the Police Department by Holly Van Voast, a Bronx photographer and performance artist known for baring her breasts.
And even if the topless display draws a great deal of attention, officers are to “give a lawful order to disperse the entire crowd and take enforcement action” against those who do not comply, the memo instructs. “Whether the individuals are clothed is not a factor in making a determination about whether the above-mentioned crowd conditions exist.”
The suit lists 10 episodes in 2011 and 2012 in which the police detained, arrested or issued summonses to Ms. Van Voast, 46, for baring her breasts at sites that included the Oyster Bar in Grand Central Terminal, in front of a Manhattan elementary school, on the A train and outside a Hooters restaurant in Midtown.
That last episode, the suit says, ended with her being taken by the police to a nearby hospital for a psychiatric evaluation.
Each complaint against her was dismissed or dropped, her lawyers said, for one simple reason: The state’s highest court ruled more than two decades ago that bearing one’s chest in public — for noncommercial activity — is perfectly legal for a woman, as it is for a man.
But when Ms. Van Voast’s top came off again this year, her lawyers said, what had seemed to be an annual rite of spring did not follow. “I was aware that they stopped telling her to put a shirt on, stopped arresting her, stopped carting her off to mental institutions,” Ronald L. Kuby, a lawyer for Ms. Van Voast, said. “But I was not aware why.”
It was not clear whether the department memo was issued in response to the repeated confrontations between Ms. Van Voast and the police. The memo does not allude to its origin, and police officials did not immediately respond to requests for comment.
But the memo’s language is as clear as it is legalistic. Officers “shall not enforce any section of law, including penal law sections 245.00 (public lewdness) and 245.01 (exposure of a person) against female individuals who are simply exposing their breasts in public.”
Katherine Rosenfeld, a lawyer at Emery Celli Brinckerhoff & Abady who is also representing Ms. Van Voast, saw a direct connection between the memo and her client’s public performances, often done in the character of a mustachioed “topless paparazzo” called Harvey Van Toast. “It establishes that they’ve been in error in all the times that they’ve charged her,” she said.
Ms. Van Voast, in her suit, is seeking compensation from the city as well as punitive damages from several named and unnamed officers for her treatment, which the suit alleges constituted civil rights violations.
The memo reminds the officers that there are still times when they can detain, arrest or ticket women or men for being indecent in public — “if the actions of any individual rise to the level of a lewd act (e.g. masturbation, simulated sexual act), regardless of whether the individual is clothed above their waist,” or if the person is naked below the waist “and is not entertaining or performing in a play, exhibition, show or entertainment.”
Of a dozen patrol officers from precincts around the city interviewed on Wednesday, nearly all correctly cited the law on toplessness, though none would describe roll call discussions. Each declined to be quoted by name, citing departmental policy.
“It was told to us,” one said. “But I don’t remember if it was at roll call or in a conversation like this.”
Another officer said he could not recall the message’s being read but said he remembered hearing last summer that “it’s legal to be topless if you’re a man or a woman.”
“I thought you had to have body paint,” said a female officer standing with him.
“No,” the first replied. “You don’t need that.”
