Maryland Judge: Topless Photo Didn't Violate Privacy

Associated Press
October 23, 2006

BALTIMORE — A magazine that published a photograph of a woman baring her breasts at a pig roast for motorcycle enthusiasts did not intrude on her privacy, a federal judge has ruled.

Tonya Barnhart sued Paisano Publications LLC, publisher of Easyriders magazine, after it ran the picture of her in its March 2005 issue, claiming unreasonable intrusion, false light invasion of privacy and appropriation of her likeness.

U.S. District Judge J. Frederick Motz granted summary judgment to Paisano last week.

Barnhart’s display of her breasts "cannot reasonably be said to have constituted a private act," Motz wrote. "She exposed herself at an outdoor fundraising event open to any members of the public who purchased a ticket."

Her claim that the image presented her in a false light also failed because she never claimed that the picture distorted "her true appearance," but only that it created the impression she was the sort of person who would consent to posing topless for a magazine, Motz ruled.

Finally, Motz held that Barnhart’s claim for appropriation of her likeness failed because her image has no commercial value. Maryland courts have held that someone whose picture is taken in a public place at a newsworthy event does not have an appropriation claim, the judge noted.

David Ellin, Barnhart’s attorney, said he expected to win on the appropriation claim at least.

"It’s not in dispute that Paisano Publications did use her photo, never obtained her consent, and that her photograph that appeared in their magazine helped sell magazines," Ellin said. "For that she should be entitled to something, even if it’s a small amount."

Ellin said an appeal was unlikely.

Information from The (Baltimore) Daily Record: www.mddailyrecord.com

Law Blind to Sight of Nude Woman
Appeal Vowed: the Fate of a Freed Woman
Accused of Showing All to a Teen Boy Rests on Gender Wording

By Richard K. De Atley
The Press-enterprise
October 20, 2006

LEGAL LANGUAGE

California Penal Code, Section 314, subdivision 1 (misdemeanor indecent exposure):

"Every person who willfully and lewdly exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed ..."

Source: Transcript from hearing

A Corona woman accused of exposing herself to a 14-year-old boy will not be tried for indecent exposure because the law against such behavior applies only to men, a visiting judge in Riverside County has ruled.

Alexis Luz Garcia, 40, was cited for misdemeanor indecent exposure in May after the boy's parents complained to police that she gave a full-frontal view to their son while he was playing basketball in their yard next door.

But on Monday, Superior Court Judge Robert W. Armstrong dismissed the charge just before a jury was to be picked, saying the law under which she was charged uses only the male pronoun.

"Every person who willfully and lewdly, either one, exposes his person ... in any public place," he read into the hearing's transcript.

"It's gender specific," Armstrong said.

Riverside County Deputy District Attorney Alison N. Norton argued that applying the law just to men would violate the state constitution.

But Armstrong responded, "I'm just telling you what it says, so on that basis, this case is dismissed. And the People can take an appeal from the dismissal," according to court records.

Norton said her office will appeal the decision. She said she later found a rule in Section 7 of the California Penal Code that says, "Words used in the masculine gender include the feminine and neuter."

Armstrong and the Riverside County public defender representing Garcia did not return calls seeking comment. A working phone number for Garcia was not available.

Armstrong, a private criminal lawyer since 1951, became a pro tem judge for the Los Angeles Municipal Court in 1965 and was elevated to Superior Court judge in 1987 by Gov. George Deukmejian.

He retired in 1997 but continues to serve part-time. He is assigned to the Riverside County Hall of Justice through Oct. 31.

Norton said the boy's parents were disappointed by the ruling.

"What kind of broke my heart was the father said, 'How am I going to tell my kids that the justice system works when something like this happens?' "

Norton said the family has moved from the neighborhood since the incident took place, but she didn't know why they left. Prosecutors declined to identify the family because the boy is a minor.

According to Norton, Garcia complained to the boy in May that he was making too much noise playing basketball.

Afterward, Garcia went out on the sundeck of her home. "He looked up at her, she looked down at him, and she disrobed," Norton said.

The boy ran inside his home and told his parents, who complained to Garcia.

"She threatened to do it every time he played basketball," Norton said. The parents called police, she said.

"Some might say it's just a misdemeanor, but it is really important to this family," Norton said of the decision to appeal.

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