An Interesting Way to Protest Judicially Inconsistent Definitions of a “Public Place”
April 6, 2009
Israel has a law prohibiting the sale of chometz (leavening or grain products) in “public places” during the upcoming holiday of Passover. However, many supermarkets in Israel have been selling chometz on Passover, arguing that enclosed supermarkets are not “public places” under the statute. Israeli courts have agreed, holding that supermarkets are not “public places” for the purpose of the statute prohibiting the sale of chometz in public places.
In what seems to have become an annual protest, a young man removed all of his clothing (except one sock) at a supermarket in Tel Aviv, Israel. Why? He argued that the Israeli law against public indecency, which applys only in “public places,” should not apply to supermarkets, given Israeli courts’ holding (in the chometz on Passover context) that supermarkets do not constitute “public places.” He challenged the authorities to prosecute him for undressing in a supermarket, thus attempting to force the court to face its inconsistent interpretation of the term “public place” one way for the purpose of the prohibition against publicly selling chometz on Passover and another way with regard to the public indecency law.
I am certainly no expert on Israeli law and cannot comment on the protester’s legal arguments, but I was curious to see if any similar inconsistency exists in New York law with regard to the definition of those prohibitions related to “public places.”
There are many laws which related to what may be done in “public places.” For instance, NY Penal Law § 245.01 prohibits exposure (nudity) in public places. According to that statute, “[a] person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed.” (Unlike § 245.00 of the statute, one can only violate the prohibition against “exposure” in a public place, and not in a private place visible to the public.)
People v. McNamara, 585 NE2d 788, 792-93 (1991) is the leading New York case defining the words “public place” in the Penal Law. But it offers no bright line rule defining the words “public place” in all cases. It did clarify, however, that “intent to be seen by others” is not necessary to violate the statute and that the statutory term must be interpreted in a “manner that comports with its purpose.” In this context, that purpose is the prevention of “the open flouting of societal conventions” It further clarifies that a place is public when “the objective circumstances establish that lewd acts committed there can, and likely would, be seen by the casual passerby, whose sensibilities the statute seeks to protect.”
The McNamara court clarified that there is no one definition of “public place” that will apply to all statutes that use that term. For instance, it held that the definition in § 240.00 that a public place is “a place to which the public or a substantial group of persons has access” did not apply to the exposure law. Every statute or regulation that uses the term “public place” may each have different definitions laid out by the statutes themselves or by the cases that interpret them.
Thus, it would be difficult to concoct a scenario in New York that would highlight some analogous inconsistency with regard to the use of the term “public place” under New York law. If any readers have some examples of New York statutory inconsistencies, the blogmeisters here would be interested to hear them. It will also be interesting to note whether Israeli courts will address the apparant inconsistency (or lack thereof) in the definition of the words “public place.”
Picture courtesy of bhs1971.net.