In the cold of February, as New York City police officers gathered for their daily orders at roll call, they were given a rather unusual command, for both its timing and its substance: If they happened upon a topless woman, they were not to arrest her.
The command was read at 10 consecutive roll calls. Each of the city’s 34,000 officers, in theory, got the message: For “simply exposing their breasts in public,” women are guilty of no crime.
Whether any officer encountered such a brave-hearted, bare-chested soul is not clear, nor is the reason for the Police Department’s concern about such matters in the dead of winter.
One possible explanation lies in the person of Holly Van Voast, a Bronx photographer and performance artist known for baring her breasts.
The order was disclosed in an official memorandum contained in a federal lawsuit Ms. Van Voast filed on Wednesday against the city and the department. The memo makes clear that bare-breasted women should not be cited for public lewdness, indecent exposure or any other section of the penal law.
Even if the topless display draws a lot of attention, officers are to “give a lawful order to disperse the entire crowd and take enforcement action” against those who do not comply, the memo says. “Whether the individuals are clothed is not a factor in making a determination about whether the above-mentioned crowd conditions exist.”
The suit lists 10 episodes in 2011 and 2012 in which the police detained, arrested or issued summonses to Ms. Van Voast, 46, for baring her breasts at sites that included the Oyster Bar in Grand Central Terminal, in front of a Manhattan elementary school, on the A train and outside a Hooters restaurant in Midtown. That last episode, the suit says, ended with her being taken by the police to a nearby hospital for a psychiatric evaluation.
Each complaint against her was dismissed or dropped, her lawyers said, for one simple reason: The state’s highest court ruled more than two decades ago that baring one’s chest in public — for noncommercial activity — is perfectly legal for a woman, as it is for a man.
But when Ms. Van Voast’s top came off again this year, her lawyers said, what had seemed to be an annual rite of spring did not follow. “I was aware that they stopped telling her to put a shirt on, stopped arresting her, stopped carting her off to mental institutions,” Ronald L. Kuby, one of her lawyers, said. “But I was not aware why.”
The memo does not allude to its origin, and a department spokeswoman declined to discuss what had precipitated it. The spokeswoman, Inspector Kim Y. Royster, said such memos were “periodically circulated to remind personnel of our policies.” She added that it “comports with the N.Y.S. Court of Appeals ruling on taking enforcement action against individuals for public nudity.”
The memo’s language is as clear as it is legalistic. Officers “shall not enforce any section of law, including penal law sections 245.00 (public lewdness) and 245.01 (exposure of a person) against female individuals who are simply exposing their breasts in public.”
Katherine Rosenfeld, a lawyer at Emery Celli Brinckerhoff & Abady who is also representing Ms. Van Voast, saw a direct connection between the memo and her client’s public performances, often done in the character of a mustachioed “topless paparazzo” called Harvey Van Toast. “It establishes that they’ve been in error in all the times that they’ve charged her,” she said.
Ms. Van Voast, in her lawsuit, is seeking compensation from the city as well as punitive damages from several named and unnamed officers for her treatment, which the suit alleges constituted civil rights violations.
The memo reminds the officers that there are still times when they can detain, arrest or give tickets to women or men for being indecent in public — “if the actions of any individual rise to the level of a lewd act (e.g. masturbation, simulated sexual act), regardless of whether the individual is clothed above their waist,” or if the person is naked below the waist “and is not entertaining or performing in a play, exhibition, show or entertainment.”
Of a dozen patrol officers from precincts around the city interviewed on Wednesday, nearly all correctly cited the law on toplessness, though none would describe roll call discussions. Each declined to be quoted by name, citing departmental policy.
“It was told to us,” one said. “But I don’t remember if it was at roll call or in a conversation like this.”
Another said he remembered hearing last summer that “it’s legal to be topless if you’re a man or a woman.”
“I thought you had to have body paint,” a female officer said.
“No,” the first replied. “You don’t need that.”
If our "askoniem" are truly looking out for us how come in the past 20 years not 1 politician tried to fix this major problem!