First Cases Seen Under Nudity Ban

by Seth Hemmelgarn
Tuesday Mar 12, 2013

People who choose to be naked in public are finding out that when San Francisco officials passed a new law banning most open nudity in the city, they meant it.

Police have cited a handful of people who refused to put clothes on in recent weeks. An April 23 trial date has been set for some who refused to pay the citations and pleaded not guilty.

Supervisor Scott Wiener proposed the ban, which the Board of Supervisors passed by a 6-5 vote and Mayor Ed Lee signed into law in December. The law became effective in February after a federal district judge denied a request from four urban nudists seeking an injunction against it.

Among other provisions, Section 154 of the police code states that a person "may not expose his or her genitals, perineum, or anal region" on public places including sidewalks and parklets. Children under 5 are exempted, and the restrictions don't apply to a woman's breasts nor ban such things as chaps or other ass-bearing clothing. The legislation allows for exemptions of the policy at "permitted parades, fairs, and festivals" such as the gay Pride festival or the Folsom Street Fair.

A first offense would come with a $100 fine, while repeat offenders could face a $500 fine or a year in county jail. Any convictions due to the ordinance would not constitute a sex offense for purposes of the state sex offender registry.

Four activists are seeing firsthand how the anti-nudity law is being implemented. Police cited Russell "Trey" Allen III, 30; George Davis, 66; Dan DeVero, 25; and Oxane "Gypsy" Taub, 43; for refusing to put on their clothes outside City Hall February 1, the day the law went into effect.

Allen said police put them in a van, took them to a nearby police station, and held them in the vehicle for about 45 minutes to an hour. Officers gave them blankets to wear, cited them, and released them, he said. (Taub said she put on clothes that she'd brought with her but accepted a blanket.)

Allen and Davis appeared in San Francisco Superior Court Friday, March 1 (clothed this time) with attorney Christina A. DiEdoardo and entered pleas of not guilty. DiEdoardo also pleaded not guilty on behalf of Taub, who didn't appear in court. It's not clear what the status is for DeVero, who also didn't appear at the hearing.

"I know that the city can allocate taxpayer resources more effectively than arresting peaceful people," Allen said in an interview before court.

After the appearance, Davis said that during the February 1 incident, he'd announced his intention to run in 2014 to replace Wiener as District 8 supervisor.

"If you think about civil liberties," his arrest after making his announcement "sounds a little bit outrageous," he said.

DiEdoardo declined to comment.

Officer Albie Esparza, a spokesman for the San Francisco Police Department, said that when someone puts their clothes on, they are cited and released at the scene if they have proper identification.

Allen and the others were taken to the station because people in the crowd outside City Hall were being "hostile toward officers" and police wanted to remove them from the situation, Esparza said.

Allen said he asked police why he and the others were put in the van, but they didn't explain. He said the officers, whose names he couldn't immediately recall, "basically wrote the rules on the spot on what to do in the case of the nudity violations."

In response to emailed questions about training and other points last week, Officer Carlos Manfredi, another SFPD spokesman, indicated staff have had to review Section 154 and are supposed to have "a working knowledge" of it.

"There will be a department bulletin in the future that will explain in more depth as to how to handle people in violation of [Section] 154 and a department-wide email" was sent to district captains, Manfredi said.

Manfredi wasn't available for follow-up this week and Esparza wasn't able to provide information on the bulletin or on the email to captains.

In his email, Manfredi added, "a citation is still considered a lawful arrest."

Allen, Davis, and Miller are San Francisco residents. Taub lives in Berkeley. In an email exchange, DeVero said he's connected to the Norwegian project and is based in Berlin and Tokyo.

Another incident

A second incident occurred around noon Wednesday, February 27, at 17th and Castro streets. Esparza said people were dancing nude and given "multiple verbal orders to clothe themselves," but they refused to do so.

Elwood Miller, 56, of San Francisco, was cited and released when he put clothes on, Esparza said.

Davis and Taub refused to sign citations, and police transported them to SFPD's Mission Station, Esparza said. Once they got there, they signed the citations and were released, he said.

The incident occurred at Harvey Milk Plaza, Davis and Taub said. They said they were released after putting their clothes on and signing the citations. They plan to plead not guilty to the latest offense.

Taub said she'd worn a sign that said, "War is obscene, not my body" during the February 1 incident and she'd been "exercising political speech." She said that February 27, she and others had been "exercising our right to free expression," and the nudity ban is "illegitimate and illegal."

Miller didn't respond to an interview request.

Manfredi said five men and one woman have so far been cited for violating Section 154.

The upcoming trial will be before a judge. There won't be a jury. If found guilty for the first infraction, the base fine for each defendant could be up to $100, but "with mandatory assessments added in, the total fine with assessments could be as high as $490," according to Superior Court spokeswoman Ann Donlan.

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