pageok
pageok
pageok
The Strange Case of the Naked Prosecutor:
An Ohio prosecutor has been charged with the crime of public indecency for walking around the office at night without any clothes on:
  A top law-enforcement official in Hamilton, City Prosecutor Scott Blauvelt, is accused of "walking around the Government Services Center after business hours without clothing," the Butler County Sheriff's Office says.
  Blauvelt, 35, who was charged with two counts of public indecency, was booked into the county jail and then released. He awaits a hearing in Hamilton Municipal Court, where Blauvelt usually works, said Sheriff's Maj. Anthony Dwyer.
  Calling the situation "an odd occurrence," Dwyer said investigators don't know what motivated Blauvelt to disrobe. He was alone at the time.
  Mayor Don Ryan said he couldn't comment Monday, but he plans to discuss Blauvelt's employment status with Law Director Hillary Stevenson today.
  Thursday night, a guard monitoring a security camera spotted a person going into an area outside the camera's range, in a tower that houses county offices, Dwyer said. "Then (the guard) sees him come back naked. ... That started the investigation."
  Investigators identified the nude man as Blauvelt, Dwyer said. Blauvelt also appears naked on security-camera footage from the previous night, but in the building's other tower. That tower houses city offices, Dwyer said, including the court where Blauvelt prosecutes cases.
 The charge is a fourth-degree misdemeanor, which carries a jail term of up to one month and a maximum fine of $250.
    Why was Blauvelt walking around naked in his office at night? Well, according to his attorney, Blauvelt has medical problems; he was seriously injured in a 2005 car accident, suffers from mental illness and is on medication for seizures.

  This is a really weird story, of course, but it also raises an interesting legal question: Was Blauvelt's conduct actually a crime? Let's assume Blauvelt was conscious and not having some sort of seizure that might raise voluntary act or mens rea issues. Here's what I gather is the relevant text of the Ohio public indency statute, R.C. ยง 2907.09(a):
No person shall recklessly do any of the following, under circumstances in which the person's conduct is likely to be viewed by and affront others who are in the person's physical proximity and who are not members of the person's household . . . Expose his or her private parts.
  There are some interesting ambiguities in the statute, but it seems to me that the key question is whether Blauvelt was naked "under circumstances in which the person's conduct is likely to be viewed by and affront others who are in the person's physical proximity."

  We don't know a lot of the facts here, but based on the story it doesn't seem like this element has been satisfied. As best we know, the only person who saw Blauvelt was the security guard, who saw him at night via a remote security camera. If the courthouse was closed and no one else was expected to be physically nearby, I would think that the statute probably wasn't violated. The cases I found on this issue all involved places that were open to the public, such as public restrooms, open stores, public parks, open courtrooms, and the like. See, e.g., State v. Johnson, 2006 WL 2709709 (Ohio App. 2 Dist. 2006) (exposure to an undercover police officer in a public restroom). The cases don't require that the person actually be seen by a nearby member of the public, see State v. Henry, 783 N.E.2d 609 (Ohio App. 7 Dist. 2002) (statute violated when video camera catches man masturbating in open area of public restroom, although no member of the public saw him). However, in every decision I could find the area was open to the public; the key was the good chance that someone physically nearby would see the person exposing himself. It doesn't sound like there was much of a chance of that in this case given that the building was closed.

  My guess is that there is a lot going on here that hasn't been reported. But at least based on the facts as disclosed so far, and my current understanding of the law, it doesn't sound like Blauvelt violated the statute.
Jeff R.:
The case brings to mind the question of whether there are in fact any laws against Mopery (in the Barney Miller et al 'exposing yourself to a blind person' sense, not the older generic charge to harass people with a la 'hooliganism', that is.)
10.12.2006 5:30pm
John (mail):
It does seem odd that the prosecutor would use resources like this, especially when the defendant obviously has some mental problem and the scenario seems to present a no-harm-no-foul situation.
10.12.2006 5:40pm
Dave Hardy (mail) (www):
As I recall, Ben Franklin liked to walk around naked, and once startled a maid. He called it taking an air bath and, considering the infrequency of real bathing back then, it may have been better than nothing.
10.12.2006 6:47pm
steveh2:
This reminds me of a case I came across in researching search-and-seizure law in Idaho several years ago. The crime was masturbating in a stall in a public restroom.

The defendant was the aptly named "Dale Limberhand."
10.12.2006 6:58pm
Raphael Laufer (mail):
No jokes about the possibility that he had misplaced his briefs?
10.12.2006 7:08pm
Jake (Guest):
Naked prosecutor? Sounds like a case for the Hardly boys.
10.12.2006 7:44pm
Huh:
Indeed, how else is one to investigate a raging clue?
10.12.2006 8:10pm
A Zarkov (mail):
Maybe he was just hot.
10.12.2006 8:30pm
GWstudent (mail):
Prof. Kerr,

Anyone who has worked at a firm knows that you're not clear to walk around in the buff late night for at least one reason: Cleaning staff.

I would suspect that gov't offices also have cleaning staff.

Likewise, if there is security at night, the guards may make rounds to check "things" out.
10.12.2006 8:31pm
A Zarkov (mail):
I would suspect that gov't offices also have cleaning staff.

They do, but in the government places I've worked, the cleaning staff works during the day. I think they do this to save money. The government managers don't seem to care if the cleaning staff interrupts you when you work. There are even strict rule over how heavy you trash can get. If you throw away some thick paper documents they won't empty the can. Many is the time I had to bring my own trash to the dumpster.
10.12.2006 9:18pm
RainerK:
Whether legally prosecutable or not, the man's career is over and much of his life as well. He will be lucky to escape being labelled a sex offender on the theory that he is a ticking time bomb for worse, in which case all of his life will be over.
Unfortunately these are times of increasing surveillance and decreasing tolerance for out-of-the-mainstream sexual behaviour.
The media salivate over such stories and the moralists emerge to bring merciless judgement. As a result simply being turned on by streaking in an empty building, no harm intended, is being treated as a criminal offense.
In my opinion this event should have been treated as a non-event. A private caution by the man's boss should have sufficed.
For Heaven's sakes, let's show some compassion and understanding for others' faults, some day one of ours may be judged harshly.
10.12.2006 9:19pm
Public_Defender (mail):
I feel sorry for the guy. He appears to have had a head injury. He didn't hurt anyone, but now he's humiliated on the internet even if he he probably committed a crime. I hope he gets the help he needs.

The prosecutor's office also needs to think carefully about what he can still do for the office. This incident could be devasting for a trial prosecutor. At least one jury on every panel is bound to know about this.
10.12.2006 9:26pm
Caliban Darklock (www):
> Maybe he was just hot.

If he was hot, the security guard would have just enjoyed the show instead of reporting it.
10.12.2006 9:55pm
therut:
Please a seizure that cause you to take your clothes off. What isnheck is a lawyer going to think of next. The guy should never have been in the job he is in. Who knew what and when. If someone covered up this guys obvious mental illness(yeah maybe) and allowed him to be a prosecutor we need an independent investigator NOW. The guys lawyer is an idiot. If he finds a physician to say this guy undresses do to a seizure that physician is also a nut job. Doesn't mean he can not find one and pay the physician enough to testify under oath. Everything including the truth is for sale in the court rooms of the USA.
10.12.2006 10:18pm
OrinKerr:
Therut,

Huh?
10.12.2006 10:22pm
s806:
I guess it's not as enjoyable to streak in the home-office.
10.12.2006 11:08pm
bearing (mail) (www):
I think what therut is trying to say is exactly what my husband and I were saying when we discussed this: that if he's mentally ill enough to be making poor decisions like this, he is too mentally ill to be a prosecutor.

Side comment: that's the building where we got our marriage license. Ew.
10.12.2006 11:39pm
Donald (mail):
Professor Kerr's analysis is spot-on: if the case is tried, Mr. Blauvelt's defense will no doubt be that he was in a place in which he wasn't likely to be viewed by others. The prosecutor's response will be that in a public building, there's always a significant chance that someone (a cleaning crew, a security guard, or fellow night-owl in the same or another office) will be around. And I suspect that if there's a trial, it will be to the court, not to a jury.

But if I had to guess: Mr. Blauvelt will probably be permitted to plead no contest to a minor misdemeanor charge of disorderly conduct.

Disclosure: I'm a criminal defense attorney in Cincinnati, just down the road from Hamilton. But my knowledge of the case is limited to what's been in published news reports.
10.12.2006 11:40pm
John Burgess (mail) (www):
bearing... did you realize that the licensing clerk was naked under his/her clothes? Ew indeed!
10.13.2006 12:35am
ReaderY:
Is a camera a member of the public? It would appear to be an object. Otherwise, the statute would cover actors in nude seens, since the public could view the films. I don't see the difference. Whether Ohio might want a statute covering this or not is another matter. But the statute it has does not appear to apply to this conduct. I see no need to reach any First Amendment issues.
10.13.2006 12:37am
Jiffy:
I wonder what expertise therut and bearing are basing their comments on. I have personally observed a person compulsively remove his clothes in the immediate aftermath of a seizure, walk around, and remember nothing about it later. Aside from his seizure problem (which has eventually been brought under control), this person is highly competent.
10.13.2006 12:40am
Clayton E. Cramer (mail) (www):
One of the signs that the dot-com stuff was reaching absurd bubble stage was about 1999, when I was solicited by a recruiter for a job with a South of Market ecommerce company, and one of the benefits of the job was, "clothing-optional workspace."
10.13.2006 12:52am
Lev:
I don't know if it is related to the water or something, but Hamilton is just north of Cincinnati, where Charles Keating made a national name for himself going after porno and pervs, before he went west and became a bigtime crook.
10.13.2006 1:30am
Midatlantan (mail):
One would hope that the other prosecutors in the office (the one's doing the charging, not the walking-around-naked, also bothered to Google the actual Ohio indecency statute before prosecuting. But unlike Orin, they don't seem to have done so. The facts as reported so far indicate the defendant/prosecutor wasn't likely to be seen by the public, nor be in physical proximity to a member of the public -- as the statute requires. Perhaps the Hamilton/Butler County prosecutor's office has (or thinks it has) valid reasons for pursuing a criminal case. Maybe there was a witness (like a cleaning person) or a prudish security guard who's threatening to make a stink (or claim hostile work environment or something). Or perhaps, if defense counsel's story about past brain trauma is to be believed, the office is trying to force the guy out of his job or avoid having him out on paid disability or something. Or perhaps its some sort of sideshow in an ongoing battle between different various arms of city/county law enforcement. Maybe. But given the absolute ridicule the filing of the case and its associated publicity, have brought to the Hamilton city/Butler county prosecutor's office, based on what's been revealed so far, the prosecutor whose competence should be questioned is the one doing the prosecuting, and not the one doing the after-hours streaking.
10.13.2006 1:50am
Public_Defender (mail):
therut has a point buried in his rant. It's one thing to claim a head injury, it's another to prove it. But the lawyer was quoted assigning a specific cause (car accident). The lawyer also said there was at least one other way that the injury has manifested itself (seizures).

The claim is verifiable--were there noticable changes in behavior and judgment after the accident? At a minimum, the claim is plausible and cannot reasonably be dismissed out of hand.

The real tragedy of the ciminal justice system is not how many people try to fake mental illness to get a benefit (very, very, very few, possibly in part because there is rarely any "benefit" to having a mental illness). The real tragedy is how many people with treatable mental illnesses just get shuffled in and out of the system with no real care.

If the head injury caused this prosecutor's judgment lapse, then I hope he gets the treatment he needs.

And maybe this incident can teach his colleagues a little compassion.
10.13.2006 6:42am
huggy (mail):
Is this better or worse behavior than the prosecutor in the Duke case?
10.13.2006 9:01am
Brian Kennedy (mail):
the time traveler's wife's husband?
10.13.2006 10:53am
Jiffy:

If the head injury caused this prosecutor's judgment lapse, then I hope he gets the treatment he needs.


I would go farther and say that it may not be a matter of the head injury causing "judgment" problems. It is possible that the prosecutor's actions were entirely unconscious.
10.13.2006 12:45pm
raj (mail):
His condition and actions may call into question his fitness to remain as a prosecutor, but it strikes me a bit of a stretch to suggest that the county should consider using scarce resources to prosecute the man for a crime. Unless, of course, the Butler County prosecutors have too much time on their hands.
10.13.2006 12:57pm
Anonymous888:
Therut should be prosecuted for exposing his naked thoughts, unclothed by anything resembling proper grammar, within view of us all on a public blog. And if he is a lawyer or professor his ability to perform his job should be called into question. Ew!
10.13.2006 8:45pm