OFF THE WIRE
By ADAM KLASFELD
MANHATTAN (CN) - "Topless paparazzo" Holly Van Voast claims in court that New
York City police repeatedly arrested and institutionalized her for legally
baring her breasts while wearing a Marilyn Monroe wig and Don Juan
mustache.
Van Voast aka Harvey Van Toast sued New York City, Police
Commissioner Ray Kelly, the Metropolitan Transit Authority and dozens of police
officers in Federal Court.
The 46-year-old performance artist calls
going topless part of her commitment to "personal, artistic and gender freedom,"
inspired a "broad artistic community of punk drag" performers such as Little
Kimchi, Misty Meaner and Mary Jo Cameltoe, according to the
complaint.
Van Voast says the law has been on her side since 1992, when
the New York State Court of Appeals dismissed an indecent exposure violation
against Rochester woman Ramona Santorelli.
Ignoring the "clear command"
of the Santorelli ruling, the NYPD "has stopped, detained, harassed, arrested,
summonsed, charged and/or prosecuted plaintiff on dozens of occasions - solely
for exercising her right to be to be topless in public in New York City. The
NYPD has repeatedly charged and arrested Ms. Van Voast for appearing topless in
public although she has committed no crime," the complaint states.
"On
multiple occasions when plaintiff was peacefully going about her business in New
York City, the NYPD has wrongfully detained and charged Ms. Van Voast, either
with 'Indecent Exposure' pursuant to New York Penal Law § 245.01, or with a host
of other sham charges. The NYPD has charged Ms. Van Voast on these occasions not
because she was doing anything illegal, but for the impermissible and
unconstitutional purpose of penalizing and deterring her from being topless in
public."
The NYPD Deputy Commissioner Paul Browne told the Village Voice
in June 2011 that toplessness was legal.
"The state's highest court
established long ago that women have the same right as men to appear topless in
public," Browne told the Voice.
Two months later, Van Voast says, police
detained and charged her for toplessly waltzing into the Oyster Bar at Grand
Central Station without a "permit."
That charge was adjourned in
contemplation of dismissal.
Another indecent exposure charge for walking
topless in the Williamsburg neighborhood of Brooklyn on Oct. 23, 2011 was
dismissed entirely.
On March 14, 2012, Van Voast says, she chose the
P.S. 6 elementary school in Manhattan's wealthy Upper East Side neighborhood to
send her message.
"Plaintiff chose that location to stand specifically
to express her opinion that the sight of women's breasts is not dangerous to
children, and that claims of 'protecting' children from toplessness were
misplaced," the complaint states.
She claims that two unidentified
officers took her for psychiatric evaluation to New York Presbyterian Hospital,
where she was held against her will for about six days.
After she
appeared topless at the Bronx Day Parade on May 20, 2012, police sent her for
evaluation at Montefiore Hospital, where she was handcuffed to a bed for "an
extended period of time," according to the complaint.
Oblivious to
irony, NYPD officers sent her to St. Luke's-Roosevelt Hospital for being topless
in front of a Hooters restaurant in Midtown Manhattan, she claims.
The
complaint recites several more such incidents.
Van Voast claims the NYPD
tried to justify its actions by issuing a "FINEST" message on Feb. 3 this year,
instructing police to take "enforcement action" against "male or female
individuals who are simply appearing in public unclothed above their
waist."
Van Voast demands punitive damages and legal fees for
constitutional violations and negligent supervision.
She is represented
by pugnacious civil rights attorney lawyer Ron Kuby and Katherine Rosenfeld,
with the heavy-hitting law firm Emery Celli Brinckerhoff & Abady.
A
New York City Law Department spokeswoman told Courthouse News that the New York
State Court of Appeals decision does allow women to be topless in public, but
that the decision included "various qualifiers" prohibiting "lewdness," among
other things.
"We will review the allegations in the complaint, which at
this point are just that, allegations," the spokeswoman said.
She said
Thursday that the NYPD had not yet been served with the complaint.
She
added that she could not speak to whether the Santorelli qualifiers applied in
this case.
The text of the Santorelli opinion is vague on
that.
The majority opinion states : "Considering
the statute's provenance, we held in Price that a woman walking along a street
wearing a fishnet, see-through pull-over blouse did not transgress the statute
and that it 'should not be applied to the noncommercial, perhaps accidental, and
certainly not lewd, exposure alleged.'"
The opinion does not state that
New York Penal Law § 245.01 applied to lewdness, but a concurring opinion says
the opposite.
"Nor can it be argued that Penal Law § 245.01 was intended
to be confined to conduct that is lewd or intentionally annoying," the
concurring opinion states. "First, there is absolutely no support in the
legislative history for such a construction. Second, a construction of Penal Law
§ 245.01 requiring lewdness would be of highly questionable validity, since it
would render Penal Law § 245.00 [prohibiting the exposure of 'intimate parts'
'in a lewd manner'] redundant."
Neither of Van Voast's attorneys replied
to a request for comment.
