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Florida nudists concerned about enhancement of indecency law

According to a January 24, 2014, report from WFSU Radio, Tallahassee, Florida, House Bill 161, a measure aimed at enhancing the existing Florida indecent exposure law has been passed by the Florida House Criminal Justice Subcommittee. The bill has been of concern to Florida naturists and nudists who fear the enhancement may be misapplied by police to circumstances such as a nude person in their own home being accidentally viewed by a neighbor or passerby or to someone innocently skinny dipping.

Passage of problematic measure being considered by Florida lawmakers.
by kzinn | morgueFile Free photos

According to Boca Raton Republican Representative Bill Hager, co-sponsor of the bill, the measure was prompted by an incident that occurred inside a Boca Raton Barnes and Noble Bookstore where a "serial" exhibitionist "with nine former convictions" for similar conduct, allegedly engaged in lewd behavior in the children's section of the retailer.

While the individual was detained and restrained by bystanders until the police could be summoned, according to Hager's version of the events, once police arrived they informed the complainants they did not have the authority to arrest the accused because the offense was a misdemeanor not committed in their presence.

[MORE from Dallas Nudist Culture Examiner: Hyper-moral conservatism at warp speed]

Hager maintained that this was particularly egregious since the offensive behavior had been witnessed by a child and that the law needed to be changed to provide law enforcement officers the power to affect an immediate arrest in such circumstances. There is however some dispute about whether the offensive behavior was actually witnessed by child.

House Bill 161, if passed by the Florida legislature will affect two sections of Florida law. It will authorize law enforcement officers to make warrantless arrests on probable cause for offenses under § 800.03 Exposure of sexual organs, whether or not they viewed the offense. In addition, the bill will enhance current penalties prescribed for indecent exposure in other sections of Florida law for subsequent indecent exposure convictions after a first offense.

The Naturist Action Committee gives all aspects of House Bill 161 in depth treatment in a NAC Action Alert issued January 14, 2014, for those interested.

While § 800.03 Exposure of sexual organs, is a statute aimed at lewd conduct not simple nudity, there are some valid reasons why HB 161 should be a concern for Florida naturists and nudists as well as others who may have occasion to visit or vacation in the state.

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Nancy Moyers, president of Naturally FSU, a Florida State University student-lead naturist organization, in an interview with WFSU Radio, claimed that § 800.03 is very unclear and that nudists frequently are arrested for being nude even when no lewdness is involved by law enforcement officers who misapply the law. Even though Moyers noted that such cases are generally dismissed by the courts, she fears that the warrantless arrest authorization will only expose nudists to greater chance of wrongful arrest. That is a valid concern since even if a case is ultimately dismissed by a court, a defendant is still out the time and expense involved in mounting a defense which often involves retaining and paying a defense attorney.

A second concern is illustrated by a quote from Lake Mary Democratic Representative Mike Clelland, made to WFSU Radio. Clelland, a member of the House Criminal Justice Subcommittee who supports HB 161 dismissed the concerns of naturists saying, "It’s almost insulting to the Sheriffs who are on the ground and the police officers who are on the ground because it presupposes that they don’t know the difference between someone who’s innocently partaking in their nudist activity as opposed to someone as used in the examples by the representative.”

Clelland's statement revealed that he, like many legislators, has no understanding of how the laws he and other legislators pass are practically enforced. The common sense approach he seems to believe is routine actually isn't. Police officers are not attorneys. They are trained to learn arrest titles, such as § 800.03 Exposure of sexual organs, and to understand what specific elements constitute an offense under a particular law. Take a look at the Florida law in question.

"LEWDNESS; INDECENT EXPOSURE

800.03 Exposure of sexual organs.—It is unlawful to expose or exhibit one’s sexual organs in public or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or to be naked in public except in any place provided or set apart for that purpose. Violation of this section is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. A mother’s breastfeeding of her baby does not under any circumstance violate this section." (Source: www.leg.state.fl.us)

Here are the elements of an offense under the statute;

  • A person exposed or exhibited his sexual organs (or was naked),
  • In (or in view of) a public place or on the private premises of another,
  • In a vulgar or indecent manner.

Here is where Clelland's theory falls apart. Interpretation and use of the above elements is how many police officers are going to make the decision about whether probable cause exists that an offense under the indecent exposure law occurred and whether an arrest is warranted. Veteran police officers may very well apply common sense along with the law and may distinguish between indecent exposure and simple nudity as Clelland believes they will, but what about new, less experienced officers? They generally are not permitted as much discretion by supervisors as veteran officers and most will generally default to enforcing the letter of the law.

Something that is already a problem with the existing Florida law is the last sentence. "A mother’s breastfeeding of her baby does not under any circumstance violate this section." Why would Florida legislators believe that a mother breastfeeding a child is in any way related to a law that prohibits exposure of sexual organs? This is another offensive and shameful example of moralistic legislators marginalizing and objectifying women by suggesting that female breasts are sex organs. It is simply a backhanded means of pulling exposed female breasts into a statute that focuses on exposure of the genitals in a lewd way.

Under Florida case law, as noted at the website of the Florida law firm, Hussein & Webber, "mere nudity or exposure is insufficient to sustain a conviction for indecent exposure." The problem is, beyond some basic instruction in key U.S. Supreme Court case law that deal with important constitutional topics related to arrest, search and seizure; uniformed police officers typically do not receive extensive training in case law, especially that originating at the state courts level. It is therefore unlikely that the average street cop in Florida has much if any knowledge of case law that applies to § 800.03. He or she is most likely simply going to rely on what is contained in the criminal statute when faced with circumstances where the law applies. In addition to the problems arising from a uniformed officer's lack of knowledge with regard to case law, the Florida indecency statute itself is overly broad and ambiguous.

What is the definition of vulgar or indecent? The statute does not define it. Case law must be examined to find the definition. An officer is likely going to apply his or her own personal moral standards so if they consider nudity as vulgar or indecent, they may decide simple nudity meets that element.

Thus, it is more likely than not that Nancy Moyers is correct when she says more nudists could end up being wrongfully arrested under the indecent exposure statute if House Bill 161 is passed. It's doubtful that happens routinely now because arrests for indecent exposure, a misdemeanor, require a warrant.

For situations where a uniformed officer responds to a situation involving indecent exposure and where he or she does not actually view the offensive behavior, a report is made and forwarded to a criminal investigative division. A detective or investigator will review the report and determine if circumstances justify filing charges. Unlike uniformed officers, criminal investigators may have some training and experience with the application of case law. Regardless, if charges are filed, an arrest warrant must be prepared and taken before a magistrate authorized to sign warrants. At this point case law will definitely come into play during judicial review of the warrant application so it is unlikely that an arrest warrant would be issued for a situation that involved only simply nudity and no accompanying lewd behavior.

House Bill 161 with its intended authorization of warrantless arrests is a bad idea for two reasons. First, it will authorize uniformed officers with little if any knowledge of applicable case law to make an arrest without a warrant which removes important constitutional checks and balances now in effect. That will also increase substantially chances that the indecent exposure law will be misapplied. Misapplication will subject police agencies, counties and municipalities to increased exposure to legal liability and risks of civil suits brought against them by people whose constitutional rights are violated when they are unlawfully arrested under the indecent exposure statute. However good the intentions of an arresting officer, that is never a legal defense to making unlawful arrests.

Under provisions of the United States Constitution, arrests by warrant are always preferred over warrantless arrests. Generally, in every state, warrantless arrests are not authorized for misdemeanor offenses involving situations where a law enforcement officer did not actually witness the offense. There are usually only very rare exceptions when law enforcement officers are empowered to make arrests without a warrant for misdemeanor offenses. Domestic violence offenses are one example. It is just too easy to run afoul of constitutional requirements.

Representative Bill Hager was likely motivated by the best of intentions to address an issue he felt was a real problem, protecting children from being victimized by exhibitionists. However, it was a typical knee jerk reaction. The warrantless arrest provision contained in House Bill 161 is unwise and unlikely to achieve his goal anyway. Pragmatically speaking, there is little difference between offenders being arrested on the spot or being arrested a day or two later under a warrant and the warrant requirement will minimize unlawful arrests.

This is yet another example of why lawmakers should consult law enforcement officials and prosecutors before simply throwing a bill together. Those charged with enforcing them do not appreciate bad laws any more than citizens to whom they get applied. Florida legislators would be wise to discard the warrantless arrest provision and settle for the penalty enhancements in this measure. Likewise, Florida nudists and naturists would be well advised to continue opposition to the bill before it comes up for a vote before the full legislature. Removing constitutional protections from our laws that are there to serve a valid purpose is never a good idea. It creates more problems than whatever problem such action is calculated to solve.

Check out the embedded video for another example of how Florida legislators don't often see the unintended consequences when rushing to pass a law.
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