CITY COMMISSION AGENDA MEMO October 28, 2019 FROM: Katie Jackson, City Attorney MEETING: November 5, 2019 SUBJECT: Second Reading of an Ordinance Relating to the Definition of Public Nudity PRESENTER: Katie Jackson, City Attorney BACKGROUND This memorandum has been updated between 1st and 2nd readings, with updates highlighted in gray. In 2003, the City adopted a prohibition on general public nudity in Sections 22-59 through 22-61 of the City Code. The ordinance makes it unlawful for a person to knowingly appear in a state of nudity in public. Nudity is defined to include male and female genitals and buttocks, and female toplessness (except while breastfeeding). The City has prosecuted 51 public nudity cases from 2003 through today; 37 of the 51 defendants were males exposing their genitalia. Of the 14 female defendants, six were cited for toplessness, which occurred between 2004 and 2010. Kansas is in the 10th Circuit of federal courts, which means that 10th Circuit Court of Appeals decisions are binding in Manhattan. Many news outlets reported recently that the 10th Circuit Court of Appeals made it “legal” for a woman to go topless in public in the six states within the 10th Circuit. The media is referring to the decision in Free the Nipple v. City of Fort Collins, Colorado. In this case, the plaintiffs filed a civil lawsuit in federal court challenging the constitutionality of the Fort Collins ordinance that only criminalized female toplessness. In February, the Court in the Fort Collins case entered a preliminary injunction against the City, stating that, if the case proceeds, the Court will likely find the Fort Collins’ public nudity ordinance to be unconstitutional as a violation of women’s equal rights. Fort Collins decided not to continue its appeal, and the case will be dismissed in a City settlement with the plaintiffs. Boulder, Denver and Fort Collins do not prohibit female toplessness. The 10th Circuit Court did not issue a final decision on the merits, so the media reports of the “legalization of female toplessness” in six states are not accurate. The preliminary injunction does not declare the City’s public nudity ordinance to be unconstitutional. However, the 10th Circuit’s decision was strongly worded, and its language can be used in a challenge to a 10th Circuit of the city’s existing ordinance. The Fort Collins decision is contrary to several other federal circuits that have upheld laws criminalizing only female toplessness. In May, the 8th Circuit issued a preliminary decision to uphold Springfield, Missouri’s similar ordinance in a civil lawsuit filed by the American Civil Liberties Union (ACLU). In that case, the appeals court said it needed to follow precedent from 2003, but the ACLU is further appealing the case. When the federal circuit courts disagree on a legal issue, the law applies differently in the different circuits, until the U.S. Supreme Court resolves the “circuit split” and issues a decision on the issue. The U.S. Supreme Court has been asked to hear a case from New Hampshire as to whether female toplessness laws are unconstitutional, and the U.S. Supreme Court will decide soon whether to hear the case. However, that decision has been delayed; on October 4, 2019, the State of New Hampshire asked for an extension to file materials with the U.S. Supreme Court. If the U.S. Supreme Court hears the case, then the Court could resolve the “circuit split” within a year or so. DISCUSSION A challenge to Manhattan’s ordinance could arise in one of two ways: (1) law enforcement issues a citation to a woman who is topless in public, and the citation is sent to Municipal Court for prosecution. The City prosecutors will prosecute the violation, and will defend any challenge to the ordinance’s constitutionality through the state court system. (2) a civil lawsuit is filed by plaintiffs challenging the ordinance’s constitutionality. A civil lawsuit can be filed simply because the ordinance exists; an actual violation need not occur. In a civil lawsuit, the City will incur legal fees and, if the City loses, can be required to pay the plaintiff’s legal fees or, less likely, damages. Some cities have already experienced response to the 10th Circuit’s decision. In Salt Lake City, Utah, some criminal defense attorneys have already filed motions to dismiss similar criminal charges, using the 10th Circuit’s argument. Oklahoma has seen a fair amount of activity. On September 29, 40 men and women rollerbladed topless in a Tulsa park. A woman who received a citation from the City of Tulsa announced she initiated a lawsuit. The next day, the City of Tulsa said it would not enforce the prohibition on female toplessness, then reversed course again when the Oklahoma Attorney General said that the 10th Circuit did not automatically invalidate state and local laws in Oklahoma. On October 5, four women scootered topless through Bricktown in Oklahoma City, and initial reports indicate no citations were issued. On the other hand, Sand Springs announced it would no longer enforce its ordinance, while Stillwater does not expressly prohibit female toplessness, but can prosecute a circumstance if the facts support the city’s “public indecency” ordinance or state law. Kansas has not yet experienced the same level of activity, perhaps in part because the State of Kansas does not have a law that generally prohibits public nudity, unlike Oklahoma. Kansas has several laws, discussed below, that may apply to an individual appearing nude in public. However, the general display of public nudity, absent other facts, is not illegal per state law. That means that unless a Kansas city has adopted an ordinance criminalizing female toplessness, general female toplessness is not illegal in that area unless the facts violate a different state law. While many first class cities have public nudity ordinances that prohibit female toplessness, smaller cities including Great Bend and Hays, do not. Topeka adopted its public nudity ordinance in 2015. The Uniform Public Offense Code (“UPOC”), produced by the League of Kansas Municipalities to serve as Kansas cities’ criminal code (similar to how the STO serves as our traffic code) also does not contain a general prohibition on female toplessness. Instead, the UPOC has offenses involving child pornography and prohibiting a commercial establishment from displaying or distributing materials “harmful to minors,” which may contain nudity. That said, the proposed ordinance amendment does not “legalize female toplessness” in Manhattan. No person has the unrestricted ability to appear in public in a state of nudity. The facts of a woman appearing topless in public may violate a different state law. For example, a woman appearing topless in public could violate the state law prohibiting “lewd and lascivious behavior” if the facts meet the law’s requirements. K.S.A. 21-5513 makes it unlawful for any person to appear in public exposing a sex organ, in the presence of someone other than a spouse and who has not consented, with the intent to arouse or gratify the offender’s own sexual desires or of another person. In addition, the City’s ordinance has no impact on any federal or state sex offenses involving a minor. If the proposed amendment is adopted, such crimes can be prosecuted to the same extent as they were prior to this change (and even prior to 2003, when the City had no public nudity ordinance). State and federal criminal laws always apply in Manhattan. A city ordinance cannot legalize any conduct that a state or federal law makes illegal. The 10th Circuit decision does not require the City Commission to amend its ordinance. The City Commission may decide to maintain the existing ordinance, accepting the risk of a legal challenge through a criminal or civil case. The City would have an uphill battle defending any challenge and overcoming the 10th Circuit’s legal arguments that such an ordinance would be found to be unconstitutional. However, it is also possible that no legal challenge would arise. That said, from a strictly legal perspective, this item recommends the amendment of the ordinance to decriminalize general female toplessness from the City ordinance, while otherwise maintaining the law against public nudity. This approach provides a “safe harbor” as we await possible Supreme Court action, eliminating the risk of a legal challenge that would expend City funds or resources. In addition, this approach recognizes that many areas of Kansas do not have local ordinances generally prohibiting public nudity, instead relying on state laws as the facts arise. If amended, Manhattan’s public nudity ordinance would still criminalize the exposure of male or female genitalia and buttocks. In addition, a woman appearing topless in public could be prosecuted under state law, if warranted by the facts. The state and federal crimes relating to lewd and lascivious behavior, and sex crimes involving minors, continue to apply in Manhattan to the same extent as they always have, and they may result in prosecution based upon the facts. Even with the amended ordinance, the City of Manhattan’s public nudity law will still be stricter than many smaller cities and unincorporated areas of Kansas, because Manhattan would still prohibit public display of female or male genitals or buttocks. However, it is still critical to understand that these communities are also subject to the same state and federal laws as Manhattan, and public nudity in these communities could be prosecuted if the facts violate state or federal law. The City Commission maintains the ability to restore the provision until we have a conclusive decision from a Kansas appeals or federal court declaring such ordinances unconstitutional.