Social media has been flooded recently with messages informing women they have the right to go topless in Oklahoma and Kansas should they wish.
The posts, part of the “Free the Nipple” movement, are related to a ruling by a Fort Collins, Colorado, case in the 10th U.S. Circuit Court of Appeals.
Monday, a woman in Parsons apparently decided to test the ruling, entering Walmart topless and videotaping her shopping.
Police Sgt. Jason Ludwig said officers called to respond to a half-naked woman in the store allowed the woman to make a purchase and leave. She was compliant with the officers’ request and didn’t resist.
He said she was carrying a food item and eating out of it.
Public nudity is a tricky issue because there is really no ordinance that deals with it unless officers could establish that the person did that to arouse or satisfy the sexual desires of a person. Police think the woman clearly was testing the 10th Circuit’s case.
In these instances officers tread carefully and try not to infringe on individual freedom.
“You really walk on egg shells in situations like that,” he said.
Parsons City Attorney Ross Albertini said he just recently heard of the 10th Circuit’s case.
Fort Collins had implemented a nudity ban in 2015 that applied to women exposing their breasts in public. The plaintiffs sued in part under the equal protection clause in the 14th Amendment because the topless ban applied to women and not men. The Colorado city, which paid $322,000 to defend its ordinance (that reflects the city’s legal fees and a payment toward the plaintiffs’ legal fees), stopped fighting the suit and in September the language was removed from the city ordinance.
“I haven’t had a chance to look into the case and see how applicable it is to our ordinance. We do have an indecent exposure ordinance that prohibits certain things, but that case, I don’t know how much of an impact that will have. Sometimes that ruling is issued and the ordinance is worded a lot differently than ours. I just don’t know yet. It’s so new it hasn’t been an issue until yesterday.”
The Kansas indecent exposure law prohibits lewd and lascivious behavior. Essentially the law prohibits people from having sex in public or exposing genitals for the purpose of arousing others or gratifying the perpetrator’s sexual desires.
“You would have a hard time fitting it into that,” Albertini said of the woman’s actions.
Regardless of state law, Albertini said the city of Parsons indecent exposure law states:
A) It shall be unlawful for any female person to (1) expose her genitals or pubic area in any public place; (2) expose her buttock or anus in any public place; (3) expose any part of her breasts below the top of the areola in any public place.
B) It shall be unlawful for any male person to expose his genitals or pubic area in any public place; 2) expose his buttocks or anus in any public place.
“That’s what we have on the books. As I said, I will have to compare what that one case out of the 10th Circuit Court of Appeals was interpreting and how that compares to what we have.”
Albertini said there are some instances where local ordinances can be more stringent than state laws.
“We can write a local ordinance that can be more strict than state statute, but this is Court of Appeals case law decision and I’m not sure how this is going to interact with what we have. It’s probably something that the Kansas League of Municipalities is looking at as well,” Albertini said. “Most towns’ attorneys aren’t combing through the Court of Appeals cases to see what comes out. The league usually red flags something like this and at some point they will issue some guidance on what they think and how cities should handle this. My guess is they are probably looking at it right now and probably in the next week or two they’ll issue something.”
He said unless there is a rash of these incidents that would require quicker action he will wait to see what guidance the league offers.
As topless roller skaters took to some trails in Tulsa, Oklahoma’s attorney general stated two days ago that the federal court’s ruling doesn’t invalidate Oklahoma state and local laws.
“The 10th Circuit’s preliminary decision in the Fort Collins case — a case that has now ended without a full adjudication — does not change local and state laws in Oklahoma on the subject,” Oklahoma Attorney General Mike Hunter told the Tulsa World. “The majority of courts around the country that have examined this issue have upheld traditional public decency and public nudity laws. These courts have recognized that states and political subdivisions have a legitimate interest in prohibiting public nudity as traditionally defined.”
Albertini said he believes businesses, as they did in the 1960s and 1970s, have a right to post signs such as “No shoes. No Shirt. No Service.”
This does change the legal terms regarding the topless person’s actions.
“I would have to check it out, but my gut feeling is a local business or property owner would have a right to say who they want on their property — who can and can’t be on their property. In this instance, if Walmart wanted to have a sign up that said, ‘No shoes. No Shirt. No Service,’ or Walgreens, or whoever, and someone walked in and violated that, they could ask them to leave. If they didn’t, at that point it becomes a trespass issue instead of an indecent exposure issue. Even if they didn’t have a sign up, if someone’s on the property and the owner says ‘I want you to leave’ and the person doesn’t, that becomes trespass.”
It is hard to imagine being a customer in Walmart and seeing a partially nude shopper.
“It becomes complicated. You have your freedom of speech versus the whole ‘I don’t want my kids exposed to that or myself to be exposed,’” Albertini said. “I think the whole situation took the police department and Walmart and everybody off guard. Hopefully that was an isolated incident and it will sort itself out.”