Topless gardener may sue police for false arrest

A federal court in White Plains holds that a topless gardener can sue the police for arresting her for public lewdness.

The case is Igoe v. Village of Red Hook, 18 Civ. 3846, 2019 WL 1015174 (S.D.N.Y. March 4, 2019), issued by Judge Briccetti of the Southern District of New York. I am co-counsel to the plaintiff, along with Christopher D. Watkins, Esq. Plaintiff lives in a rural area. On hot days, she gardened in her front yard without her top. Someone complained to the police about this, and plaintiff was arrested and booked. The local criminal court dismissed the charges, finding the arrest was not legal because courts have already held that women cannot be arrested for going topless in public.

Under the New York Penal Law, "A person is guilty of public lewdness when he or she intentionally exposes the private or intimate parts of his or her body in a lewd manner or commits any other lewd act: (a) in a public place, or (b) (i) in private premises under circumstances in which he or she may readily be observed from either a public place or from other private premises, and with intent that he or she be so observed."

Plaintiff was arrested under this statute. The problem is that, in 1991, the New York Court of Appeals ruled that arrests like this are illegal. As Judge Briccetti wrote:

The New York Court of Appeals, however, refused to apply Section 245.01 to topless women protesting in a Rochester, New York, park. See People v. Santorelli, 80 N.Y.2d 875, 877 (1992). Recognizing the statute was originally enacted to discourage topless waitresses and their promoters, the court found the statute does not apply to the noncommercial exposure of a woman’s breasts. Id. Since then, no court has upheld the arrest of a woman for the noncommercial exposure of her breasts, and the media has widely recognized the holding in Santorelli as allowing women in New York to be topless in public.

That reference to the media comes with a footnote from the New York Times, which reported on the issue in 2015. You don't see newspaper articles quoted in court rulings this way, but it does show that the public is aware that arrests like this are not legal. For these reasons, the arresting officers are also not entitled to qualified immunity.