complaint in photo suit . . .

David Zaitzeff

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[email protected]

Plaintiff in pro per

Superior Court of Washington

In and for King County

David Zaitzeff, an individualPlaintiff,

vs.

the city of Seattle, a municipality

Defendant

Case No.: 15-2-21896-4 SEAAmended Complaint for Declaratory and injunctive Relief

 

Plaintiff David Zaitzeff, pro se, alleges the following complaint for declaratory and injunctive relief against the defendant, the city of Seattle:

  1. THE NATURE OF THE CASE

In approximately September 2002, the Washington state Supreme Court reversed the convictions of two persons who had been convicted of voyeurism for having engaged in “upskirt” photography. Subsequent to that ruling, the city of Seattle wrote a law against voyeurism in public places, and the Washington state legislature amended the RCW on voyeurism.

The new Seattle law, found in Seattle Municipal Code 12A.10.120 (“SMC”) prohibits viewing, filming, photographing or transmitting photos of a person’s “intimate areas,” if such areas are or have been covered by clothing. The SMC lacks as an element of the crime that the viewing or photography constitute a violation of a reasonable expectation of privacy.

The SCOTUS and all lower courts have adopted generally accepted rules and principles which must be met by laws which implicate speech, including photography.   These are that the law must not be unconstitutionally vague, that it must not be overbroad, and that it must be narrowly tailored to meet a compelling state interest. Because of the nature of women’s fashion, as well as of common athletic and recreational activities, and because of how women’s fashion and how their athletic and recreational activities intersect with public spaces, the SMC is overbroad and liable to be vague and not narrowly tailored.

In 1971, the SCOTUS ruled in the case of Cohen v California. This case was of an intersection of allegedly offensive conduct and allegedly protected speech. Cohen, a convicted defendant, had worn a jacket in a courthouse which said, “Fuck the draft,” and was appealing his conviction.

In this ruling, the SCOTUS restates and clarifies some important principles which govern laws such as SMC 12A.10.120. The SCOTUS says, in Cohen v. California, that laws which implicate speech are generally only allowable upon a showing that substantial privacy interests are being violated in an essentially intolerable manner.

The SMC is so broad that it criminalizes or is liable to criminalize some viewings and photography of the public performances of cheerleaders, athletes and dancers and where there is no expectation of privacy at all; the SMC criminalizes many instances of photography of celebrities or of ordinary persons at the public beach when the wind or waves or their sunbathing or athletic activities has dislodged, moved or shifted their underwear, shorts and/or bikini tops or bottoms. The SMC is so broad that it can criminalize the viewing or photography which includes exposed bra straps in a venue such as Greenlake, if and when such bra straps have been or are intermittently covered by a shirt, top, dress or other outerwear.

Because of the lack of the element of the crime being a violation of a reasonable expectation of privacy, the SMC is inherently overbroad and fails to meet the clear guidance found in Cohen v. California. It is inevitably liable to be used in cases in which there is no clear, meaningful and substantial violation of a privacy interest in an intolerable manner. It can easily be proven to apply–or be liable to be randomly and arbitrarily applied–to situations in which persons lack a reasonable expectation of privacy.

The city of Seattle has simply ignored the applicable precedent found in Cohen v. California.   Or, it has acted on the assumption that mere assertion will be sufficient to constitute a “showing” that photography of a person’s underwear or intimate areas, which they have covered earlier in the day with clothing, constitutes a substantial, unreasonable and intolerable violation of privacy—although situations commonly arise of cheerleaders, dancers, celebrities and other athletes whose underwear or intimate areas become revealed, either in situations such a public performance or, failing that, where public viewing is expected such as an event or the public beach or park.

Accordingly, plaintiff Zaitzeff brings this action for declaratory and injunctive relief, and asks this Court for an order that would require the city of Seattle to follow all applicable free speech precedents, including the guidance given in Cohen v California and elsewhere.

  1. PARTIES

Plaintiff Zaitzeff is a resident of the state of Washington in King County. Zaitzeff at times visits the city of Seattle, especially in parks, beaches and downtown areas. Plaintiff’s chosen recreation often includes walks and/or amateur photography. Plaintiff visits also Seattle events such as parades. Some of those parades and events have become clothing optional; some are not yet considered clothing optional. He has lived in Seattle.

Plaintiff takes photographs of a variety of scenes. Such scenes may be of car accidents or animals; the majority of plaintiff’s photographs are of persons or groups of persons.

Plaintiff Zaitzeff owns and maintains at least two websites. These websites tell stories of plaintiff’s walks downtown, at Greenlake or at various other locations and/or parades, events or other “venues.”   These websites include fun and/or funny and/or interesting and/or beautiful and/or illustrative and/or revealing and/or noteworthy photographs. These websites are greenlakewalking.com and greenlakewalking.net.

The gathering, production, selection and transmission of the content of these websites and their webpages constitutes first amendment expressive activity. These websites contain content which is meant to be fun, funny, beautiful and/or to contribute to understanding and solving social problems.   The content of the websites includes movie reviews, music video reviews, discussion of vitamin D deficiency of some Seattle residents and discussion of crime reduction in Seattle. Photographs increase the interest and value of these websites to viewers.

The SMC chills plaintiff’s speech and conduct in producing content for his websites. There are a number of photographs plaintiff would have taken or would take and/or share, but for SMC 12A.10.120.

The most simple of such photographs have been of a variety of gals at Greenlake who were sunbathing in various short skirts in 2014. These short skirts, as these gals were lying face down on the grass and as they were approximately perpendicular to the paved walking path, left exposed some of their underwear.

Moreover, the presence of such gals in such a position and such attire chilled the free and protected speech of taking photographs of gals in bikinis to the immediate left and right of any gal in the short skirt.

There are other situations or scenes of possible photography in which it cannot be reasonably foreseen how a court might rule if the viewing or photography is legal or not.   Moreover, a single police officer may choose to act by the letter of the law, in distinction to the majority of his colleagues or even in distinction to policy.

A person can imagine that some SPD officers might construe SMC as applying only where there is a violation of a reasonable expectation of privacy, but that one or several other officers take it literally and without that qualification, which is a qualification which is not found in the law itself.

In July 2014, it was reported in local news that a single SPD officer named Randy Jokela had written more than one half of the citations against marijuana use in public. Here we have what amounted to arbitrary enforcement of the law, resulting from the zeal of a single officer and the belief of other officers that such marijuana use in public would best either be generally ignored or solved by means of verbal warnings.

The law re mj use in public itself was not vague. However, that perfectly clear law helped create abundant arbitrary and capricious enforcement. The law against voyeurism in public places in Seattle is rife with the potential for even worse abuse, given either animus and/or the circumstances to which it can easily be applied.

The SMC is so broad that applies at times to exposed bra parts which are photographed.

A Seattle police officer likewise might be one who is acting either with zeal for the letter of the law or with animus against certain persons and who would thus produce arbitrary and highly unpredictable enforcement of “SMC.” The “SMC” can be applied in cases of intermittently exposed bra straps or when a Latin or ballroom dancer’s skirt has lifted in such a way that permits the viewing or photography of her panties and/or butt.

The chilling of the taking of legitimate, meaningful and of public interest photos by plaintiff constitutes a chilling of speech. This chilling of speech constitutes an injury which grants plaintiff standing to sue.

It is common in the federal courts that standing is granted to persons and groups who are not defendants in a criminal case to sue the government in the case of a law or laws which chill free speech. One such case is the well-known Citizens United v FEC. There are many other such cases, and the SCOTUS and of Washington have recognized an exception to the usual rules of standing in the cases of the suppression of free speech. In fact, the case of state v Glas (2002) in Washington state has one or more sentences on these or similar exceptions to the rules of standing in cases of suppression of free speech.

Plaintiff Zaitzeff at times views or watches football games. Such football games commonly include cheerleaders who cheer, jump or dance as part of the game. It is common that cheerleaders begin their routines with their butt and/or thong or Brazilian panties covered with a short dress or a short skirt. In many cases, while dancing, jumping, being thrown or standing on the shoulders of others, cheerleaders may find that their butt or panties have become or are temporarily exposed to the view of passerby and photographers.

In some such cases, it also happens that such cheerleaders experience what may be called a nip slip or panty slip, in which the nipple or vulva becomes exposed. Per SMC 12A.10.120, photographing the butt, panties, nip or vulva of such a cheerleader in her performance is illegal, although her performance is generally considered to be a public performance and she has no reasonable expectation of privacy.

Plaintiff has included photos of cheerleaders on his blog. He hopes and intends to include photos of cheerleaders in the future.   But for the law, SMC 12A.10.120, he would at times include photos of cheerleader nip or panty slips, if and when they occur. They certainly do occur from time to time across the rest of the USA.

Plaintiff Zaitzeff at times views or attends tennis playing. Some female tennis players find that playing tennis results in their skirt being lifted and their panties or butt becoming temporarily exposed.

Plaintiff Zaitzeff at times views or attends Latin and/or ballroom dancing. Some Latin or ballroom female dancers find that if they are dancing in a short skirt, their skirt becomes lifted in a way that leaves their panties or butt exposed temporarily.

Defendant the city of Seattle is a municipal corporation and a first-class city organized under the laws of the state of Washington.

  • Jurisdiction and venue

This court has jurisdiction under RCW 2.08.010, RCW 7.24.010 and RCW 7.40.010.

Venue is properly under this court under RCW 4.12.020(2) and RCW 4.12.025(1).

  1. Factual allegations

Cohen v California, a 1971 Supreme court precedent, states,

The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.”

Cheerleaders, tennis players, ice skaters, Latin and ballroom dancers and persons who engage in “slacklining,” sunbathing, swimming in the ocean or visiting of “water parks” and “water-oriented theme parks” such as Wild Waves find not infrequently that their athletic activity, the wind and/or waves have moved or dislodged their skirt, panties, bikini tops or bikini bottoms resulting in the full or partial, ongoing, temporary or intermittent exposure of intimate areas as defined by SMC 12A.10.120.

Such persons lack any reasonable expectation of privacy, with the one single possible exception against a fellow who positions a phone, camera or mirror on the ground to view what is not normally within view from the viewpoint of a passerby, ordinary observer or photographer.

Kate Middleton is of the British Royal family by marriage. She is known for having worn short skirts at times. In April 2014, as she and her husband were leaving a helicopter’s landing area, the wind produced by the rotors of the helicopter lifted Kate’s skirt, exposing all or most of her butt. The amateur blogger Perez Hilton believes there have been 8 major times in which Kate has left exposed her panties or butt to upskirt photography.

The photos from 2014 themselves have led to small debates on the question of privacy.

There are hundreds and thousands of photos or images of women taken every year in the United States in similar situations as Kate Middleton and/or similarly situated cheerleaders whose skirt has been lifted, whose panties have moved or who are experiencing a “nipslip.” They are so common that we even see them at times on live TV.

As a result, SMC 12A.10.120 constitutes a dramatic and unprecedented expansion of the area of free speech being suppressed by this kind of law.

Women’s fashion includes various items of clothing which cover certain body parts or intimate areas from certain angles and leave those body parts or areas exposed from other angles of view. One major type of such fashion is called “sideboob.” In “sideboob,” a woman’s breasts are covered from the front, but they are visible or at least partly visible from the sides. In 2012, the online news organization the Huffington post had an article on “sideboob” fashion. Together with that article, there were 30 or more photos of celebrities in clothing showing “sideboob.”

There are other items of women’s fashion that are intentionally designed to cover the butt from behind but leave some of the butt exposed from the sides.

The natural movement of tennis players, dancers, cheerleaders, ice skaters and many others has the effect of creating fleeting exposures of various “intimate areas” which she has covered with clothing.

Viewing or photographing a woman’s “sideboob” is done through a gap in the clothing. However, viewing or photographing a woman’s butt or panties is done through a gap in the clothing. There are no distinguishing factors or elements of the law SMC 12A.10.120 which separate sideboob viewing and photography from upskirt photography.

Women in Seattle in warm weather and in athletic, casual or recreational situations and activities often leave their bra straps partly exposed or they allow them to become exposed.   These bra straps are viewed and/or photographed through one or more gaps in the clothing. Sometimes bra straps are left exposed somewhat continuingly and sometimes they are exposed intermittently, depending on the movement and garments of the woman with the partly exposed bra straps.

A woman whose bra parts are exposed intermittently or temporarily, after having first been covered by clothing earlier in the day, creates frequent possible occasions of violating of SMC 12A.10.120.

It is an easy matter to browse the web to find celebrities, cheerleaders, leading womens tennis players such as Maria Shaparova and Latin and ballroom dancers and others such as Kate Middleton depicted in photos showing them with nipslip, panty slip or in a lifted skirt which has been lifted or moved due to dancing, jumping, the wind or waves of water. Plaintiff hopes that defendant the city will admit to this fact, rather than creating a need for the plaintiff to provide the court a hundred or more such photos to be discussed in depositions.

There are several nipslip or pantyslip photos found at http://popnom.com/22-hottest-cheerleaders-of-the-new-football-season and its pages such as “/2” or “/3.”   Many such photos would be prohibited by “SMC.”

Seattle is the venue for 3 or more clothing optional events each year. Seattle has parks and those parks include at least two parks which are regarded by general use and the news media as “clothing optional.”

There are at times persons at clothing optional events and venues, whether those in Seattle or those elsewhere, who choose to go nearly nude but not fully. In some such cases, various body parts and intimate areas of that person are visible from some angles and not from others. In at least some such cases, various intimate areas are partly covered and partly exposed or, they are covered from some angles of view and exposed in other angles.

Even apart from clothing optional venues and events, plaintiff Zaitzeff has seen one or more women shopping in King County while in a dress that was “sideboob” showing.

There is a case of state v Casad. Casad was a previously convicted felon who was carrying two rifles to a pawnshop.   These rifles were partly concealed and partly exposed. Of course, the law prohibits carrying concealed rifles by a felon, but the question for the courts was whether or not police had good cause to justify a Terry stop of Casad, based upon rifles which were also partly exposed.

At the 2015 Pride parade and/or festivities, plaintiff Zaitzeff observed a number of women with body parts partly concealed and partly exposed.

The fact of partial concealment and partial exposure of intimate areas is liable to create questions and problems for a jury trying a case, although such partial exposures are a common part of women’s fashion.

There are in our society–and at times in Seattle–burlesque dancers. Female burlesque dancers frequently wear nothing on each breast other than a small nipple-covering less than 2 inches in diameter. However, professional burlesque dancers also report that at times their nip-coverings fall off.

SMC 12A.10.120 would make some photographing of a burlesque dancer whose nip-covering has fallen off illegal. This is especially true of amateur dancing in parks without explicit permission to view.

Seattle parks at times include persons doing brief, amateur dancing in the parks for fun.

SMC 12A.10.120 is a law which implicates speech. As a result, SMC 12A.10.120 must be measured by strict scrutiny. Strict scrutiny includes within its examination requiring that the law be narrowly tailored to achieve a compelling state or governmental interest. All cases to which SMC 12A.10.120 applies and which are not also prohibited by the RCW are ones in which the person being viewed or photographed lacks a reasonable expectation of privacy.

In cases measured by strict scrutiny, the law itself is presumed to be unconstitutional. The state or other legislative body bears the burden of proof to establish that the law in question meets all applicable constitutional requirements. If the state or legislative body fails to meet the burden, the law should be struck.

There have been and continue to be one or more females who wear at Greenlake park skirts of length such that the hem is higher than her fingers when her arms are at her sides.   One photo of a gal in such a skirt is visible at http://www.greenlakewalking.net/greenlake-short-skirt/.

Other gals, in short skirts or shorts, have engaged in “slacklining” at Greenlake. Zaitzeff’s blog has a page with photos for the day Saturday, August 22, 2015. On that day, among several others who were “slackling,” there was a gal in shorts or in a short skirt with a hem at mid-thigh was “slacklining” at Greenlake.

To “slackline” is to attempt to walk across a wobbly “line” extended between two fixed points, often over several dozen yards or more. The “slackline” is itself not stationary. The usual result of attempting to slackline is falling off or jumping off of the slackline. A photo of a gal “slacklining” in shorts or in a very short skirt in a Seattle park is the first of several photos found at http://www.greenlakewalking.net/saturday-august-22-2015/.

At least for some cheerleaders of some national football teams, falling and/or jumping leads to photos including their butt or panties exposed under their skirts.   “Slacklining” in a short skirt is therefore liable to create exposures of panties or butt.

The Seattle anti-voyeurism law, or, SMC 12A.10.120 (or “SMC”) lacks mention of the prohibited viewing or photography being contrary to a reasonable expectation of privacy as a required element of the crime.

The decision by SCOTUS in Cohen v. California includes a discussion of the seeming triviality of the case, but says it is necessary and important to be decided to defend 1st amendment constitutional liberties.

SMC 12A.10.120 includes the following definitions: “Intimate areas [IA] that the person has covered with clothing” does not include intimate areas visible through a person’s clothing. “Intimate areas” [IA] means any portion of a person’s undergarments, pubic area, anus, buttocks, vulva, genitals, or female breast.”

Unless all the edges of the clothing worn are always touching the skin, the natural result will be that some IA are covered or exposed, depending on the angle of view.

Some women’s swimwear is designed and worn with ruffles on the edges in back. These ruffles cover or leave exposed parts of the butt, depending on the angle of view.

Some women may purchase and wear a “swim skirt” or other very similar short skirts for beach recreation. “Swim skirts” (“swim skirtinis”) are sold by Target. A swim skirt is generally intended to be quite short and to cover the butt only and not the thighs. Most of the lower edge of the swim skirt is often not touching the skin. As a result, some of the butt or panties of the woman wearing a swim skirtini will be covered from view or exposed to view depending on the angle of view, presence of a slit, walking or any other recreational or athletic activity. One might consider this problem to be trivial . . . but some women do recreation that includes tumbling, handstands, being lifted and standing on the shoulders of others or in a cheerleader pyramid formation.   Some chosen recreational and athletic activities done in a “swim skirt” will make it highly likely that some of the butt or panties become inadvertently exposed to ordinary view, even to those viewers and photographers acting “innocently.”

Some cheerleaders wear uniforms with a short skirt of similar length to the “swim skirtini.”

SMC 12A.10.120 is so broad it could criminalize viewing performances such as were used to produce a G-rated Disney movie, if such performances were done in public or semi-public.

Disney has recently released for public viewing the movie Descendants. This G-rated movie has a song-and-dance routine set to the music of the song “Set it off.” This song-and-dance routine may be viewed on youtube at https://www.youtube.com/watch?v=E-e7U_JqWco.

In the youtube video for “Set it off,” from the G-rated Disney movie Descendants there are several persons and groups shown dancing. Among these persons is a female in knee-length pink skirt.

At 2:31 of this music video clip, as found on youtube, some of the butt of the female dancer is shown as her dress is lifted up as a result of her twirling while dancing.

Approximately once a year or more, Alki beach is the setting for amateur Latin dancing. The Seattle city law would criminalize viewing, photographing amateur ballroom or Latin dancing of women in a short skirt, if done at Alki, unless police, prosecutors, judges and juries engage in speculations about implied or reasonable consent to view the butt or panties of those who do amateur Latin dancing on Alki beach.

The movie Take the Lead has a tango scene near the beginning of the movie. This tango scene is available for viewing by those who obtain the movie from libraries or those who view the Tango scene on youtube at https://www.youtube.com/watch?v=E6VvR3hkePI

The Tango scene of this movie includes several instances in which the female dancer’s butt is mostly exposed, although at the beginning of her dancing it was covered it with her skirt.

SMC 12A.10.120 has an exception clause. This sentence reads, “Intimate areas that the person has covered with clothing” does not include intimate areas visible through [it. added] a person’s clothing.”

This exception is unconstitutionally vague. The question about this sentence is the following. Does seeing a body part through the clothing refer only to cases in which a person sees through transparent clothing, or does it also include the cases in which a person sees through the clothing because there are one or more gaps in the cloth or also because the cloth itself is not skin-tight and does not cover the body part or underwear from all angles of view?

This question is not a trivial question. If to “see through the clothing” refers to cases in which there are gaps in the clothing, then, upskirting is exempted from prosecution because the upskirt photos are taken through the gaps in the skirt or shorts of the woman.   However, if to “see through the clothing” refers only seeing through see-thru clothing then, many cases of “sideboob” viewing and “side-boob photography” are illegal.

If a woman is wearing opaque clothing that fully and continuously covered the breast, butt or vulva, it would not be possible to view or photograph that “intimate area.”   The only successful times that a person can view or photograph that IA, or, part of a body part is when it or a larger part is partly covered and partly revealed, or when the person is wearing see-thru clothing or when wind, the waves of water or athletic activity has shifted the clothing to the side or knocked it away or when there are gaps in the clothing.

Other than viewing a body part through see-thru clothing, no ordinary member of the public can know as to which of these conditions will be considered to be part of the exception clause with any certainty.

No ordinary, reasonable member of the public foresee whether or not dancing, tumbling, jumping or swimming by a person will lead a jury to regard that person as having covered or as no longer having covered her (or his) intimate areas with clothing.   Of course, some members of the public know that a woman dancing, cheerleading or swimming should know that such activities may create the possible risk of her vulva, nip, butt or panties becoming exposed. Would we or a jury go by her intention that her nip or vulva or butt not be exposed, or by her activities such as dancing or swimming which result in exposing those body parts, at times unintentionally?

As a result, the police, the judge and/or the jury will be left to create unpredictable decisions.   Speech that is to be protected and which does not violate a reasonable expectation of privacy will be chilled.

The fashion of sideboob and other similar things shows us that some body parts are commonly covered from one angle and exposed from another.

The exact same “body part” or “part of a body part” may be covered from the point of view of the front–or behind–but exposed from the point of view of the side or an angle.

As a result of these problems, police, judges and juries would be liable to make arbitrary decisions. At least some police will take the law as broadly as possible, leaving things to courts to straighten things out.

Moreover, police with an animus against certain persons have discretion to arrest a person and courts might order a seizure and search of his property based on an expansive reading of the law, a law so broad it may criminalize at times photographing exposed bra straps or the torso including the butt of a gal imitating a cheerleader.

In Kolender v Lawson, the SCOTUS affirmed striking down a law because it “vests virtually complete discretion in the hands of the police to determine whether the suspect has satisfied the statute”.

In one or more other cases, the court has struck down laws because they were likely to give rise to arbitrary enforcement.

SMC 12A.10.120 is rife with the potential for similar arbitrary enforcement. Absent the privacy violation element, any single police officer, acting by either animus, zeal or a literal reading of the law, could enforce SMC 12A.10.120 in cases of photography of persons with some exposed bra straps, and of cheerleaders and ballroom and Latin dancers whose skirts have been lifted by wind or by their jumping, dancing and a body part of theirs thereby becoming briefly exposed.

There is a “solution” which is sometimes adopted in some cases in which a law was written in such a way that it is per se overbroad. That “solution” is to give a dubious law a “limiting construction.”

For example, in the case of Osborne v Ohio, in a question of child pornography law, the Ohio law originally prohibited photos of kids nude. However, in the process of that law being challenged, the Ohio courts then gave the law a “limiting construction.” They “read into” the law an additional requirement that the nudity be sexually oriented. In a different case, the Wa state SC reversed a conviction after reading into a law an implied, but unstated, exemption for clergy.

Plaintiff suspects that the law in Seattle was written with the escape of a limiting construction in mind.   The city may have believed that, if pushed on the constitutionality of the law, courts would simply give it a limiting construction to save it from constitutional attack or that troublesome conduct would be forbidden by RCW.

If pushed, the city of Seattle is likely to attempt to give the SMC 12A.10.120 a similar “limiting construction,” by explicitly restricting its application to cases in which there is a violation of a reasonable expectation of privacy. In the meantime, the law is or can be taken to prohibit a wide variety of views or photography which lack a violation of “a reasonable expectation of privacy.”   And, until such time, the law will suppress speech and/or create needless and unreasonable arrests, searches, seizures, prosecutions & convictions.

The city of Seattle lacks any meaningful interest in prohibiting photography of persons who go to public beaches, parks, events, festivities and parades and there engage in athletic, recreational or parade activities which create fleeting, partial or intermittent exposures of “intimate areas.”

The city of Seattle lacks any meaningful interest in prohibiting the viewing or photography of gals who dress in a short skirt and sit on a bench or chair in such a way that their panties or vulva are exposed to ordinary view from viewpoints other than a few inches above the ground. Those photos are not an unreasonable invasion of privacy against those who choose to wear the short skirts and sit in certain positions.

Such instances do occur.   Actress Halle Berry was photographed in 2011 in New York simply sitting with vulva exposed at FIFI awards. It took no devious, surreptitious or ground level viewpointed photography to take the photos of Halle Berry’s vulva. The photos of Berry may currently be viewed at http://www.mycelebrity.eu/halle-berrys-hot-pussy-upskirt-from-2011-fifi-awards/

The photo or photos as shown of Halle Berry would likely be prohibited to be taken or transmitted in Seattle by SMC 12A.10.120.

Halle Berry lacks a reasonable expectation of privacy in their being taken and viewed. It is certain that taking those photos of what is visible naturally in public does not constitute an intolerable and substantial invasion of her privacy. If it was, she would simply have chosen to wear panties or a longer skirt.

In the space of a few hours walking from August 8 to August 11, 2015, plaintiff Zaitzeff observed a dozen or more women or girls running or walking with partly exposed bra straps at Greenlake and in downtown Seattle. These bra straps are often visible because of a gap in the tops worn by the women—a gap which SMC 12A.10.120 does not distinguish from the gap found in the lower part of skirt, the gap which leaves exposed panties, butt or vulva. Plaintiff has observed more or less of a bra being exposed, depending on a woman’s movement.

There is yet another area of ambiguity and doubt in the city law. While it is true that most voyeurs view or photograph only or chiefly such “intimate areas” as are listed in the law, people often take photos of the whole body or the torso of a person, and they may include–without focusing on–the “intimate area” or bra strap that is visible and also forbidden because of being partly covered and partly exposed and/or intermittently exposed.

Are such whole body or torso photos prohibited which merely include, without focusing on, an intimate area which is partly exposed? There are some judges and some juries who, at the urging of a prosecutor, might say yes and others who would say no.

Maybe most of us at some recent Latin dancing exhibition at the dance studio within the city of Seattle were all criminals, because some took photos of the whole body of a woman dancer, photos which included showing some of her butt or thong exposed while her skirt was flying!!

The 2011 photo of the Halle Berry upskirt is one of several that is important because it shows an upskirt photo which is taken without an unreasonable violation of privacy, but one which is likely forbidden by SMC 12A.10.120. The photo was taken from a normal height and angle and without surreptitious photography or subterfuge. It is a normal thing for photographers to take photos of celebrities and at times, those photos show vulva in a way that some would call upskirt, if the female celebrity has chosen to not wear panties.   It was taken 2011 at some FIFI awards gathering in NYC.

Underneath short skirts, cheerleaders at times wear an inner covering that is part of their skirt. At some times and with some skirts, however, they wear separate panties or thongs. As a result, those panties or thongs are considered intimate areas by Seattle law.   One or more photos of cheerleaders wearing thong panties partly covered by their skirt is found at the link found above on page 8, line 8.

On one or more occasions while walking at Greenlake, plaintiff Zaitzeff has observed amateurs imitating cheerleaders by jumping, throwing or being thrown into the arms of each other. On many occasions while walking at Greenlake, plaintiff Zaitzeff has observed persons engaging in “acro-yoga.” “Acro-yoga” is done in teams of two in which the woman of a two-person team is held above the ground on the legs or arms of a partner.

One likely defense which might be used by the city is that while Zaitzeff has identified areas of the law’s being overbroad, those areas are not substantial in comparison to the legitimate scope of the law. However, this defense must fail, because the law must also be narrowly tailored to meet the compelling state interest. If the city admits that there are problems of overbreadth in the law, and that there is exists a superior alternative such as the state law, then, the city law must be struck down in favor of the state law or a law quite similar to it.

A partial discussion of the standing to sue is found in state v Glas. There the court says, A third party challenge to a law as overbroad is permissible if the law in question chills or burdens constitutionally protected conduct. Luvene, 118 Wash.2d at 840, 827 P.2d 1374. Courts will permit such a challenge because of the importance of fundamental constitutional rights. Id. (citing State v. Motherwell, 114 Wash.2d 353, 370-71, 788 P.2d 1066 (1990)). Thus, an enactment may be invalidated for overbreadth where it would be unconstitutional as applied to others, even if not as applied to the litigant. Id. This is an exception to the general rule that a litigant cannot rely on hypothetical conduct to argue the unconstitutionality of a statute. State v. Lundquist, 60 Wash.2d 397, 374 P.2d 246 (1962).

The federal courts have frequently permitted challenges to laws as violations of free speech by those who were not being prosecuted. One such case is that of Citizens United v FEC. There are a variety of others, and in federal and state law; the right to sue is such cases is so accepted that some similar SCOTUS rulings do not even include discussions of standing.

The subject of this complaint is parallel to the case Cohen v California.

Cohen v. California was a free speech case decided by the SCOTUS in 1971.

A portion of society then and today regards the use of the word “fuck” as unnecessary and offensive.   Moreover, the use of the word fuck in relationship to the draft would be emotionally agitating or upsetting to some persons in that day, especially those who had family members serving in the war. Such upset provides a parallel to irritation or alarm of an occasional cheerleader or that of a sunbather or parade participant who finds that her garments did not cover all she expected.

It may seem to the defendant or to this court that this question is of little or only small consequence in terms of constitutional importance.

In parallel, the SCOTUS says of Cohen, “This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance.” Cohen v. California

The Seattle city law may be used to prosecute in situations in which there is no violation of a reasonable expectation of privacy.

The SCOTUS says in the parallel case of Cohen that this is wrong.

The SCOTUS says in Cohen v California, “We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated.”

And SCOTUS says, “[I]t is not so obvious that the First and Fourteenth Amendments must be taken to disable the States from punishing public utterance of this unseemly expletive in order to maintain what they regard as a suitable level of discourse within the body politic. [n5] We [p24] think, however, that examination and reflection will reveal the shortcomings of a contrary viewpoint.” Cohen v. California

And SCOTUS says, “The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.” Cohen

In order to prohibit the photographing of panties, butt, nip, and vulva of cheerleaders, tennis players and any others similarly situated, and of persons who have dived or swam in water with the result their bikini top or bikini bottom has slipped, shifted or fallen off, Seattle must show that “substantial privacy interests are being invaded in an intolerable [way.]”

A Seattle resident or visitor who visits the park, beach or downtown and whose clothing has been shifted chiefly due to wind, water, athletic activity or walking, in a way that exposes an intimate body part or underwear, has no reasonable and substantial privacy interest violated in an intolerable way when he or she is viewed or photographed.

It takes no violation of privacy for an onlooker to see the bare behind of Kate Middleton, the panties of Shaparova the tennis player, the butt of various Latin or ballroom dancers or the panties and vulva of a variety of cheerleaders who have chosen to perform for the public. It requires no violation of a reasonable privacy for an onlooker to view those sunbathing at Greenlake in a short skirt, whose panties may or may not be exposed.   It is no violation of a reasonable expectation of privacy for persons to observe or view or photograph exposed bra straps and similar parts of underwear, or, for that matter, sideboob.   There was no violation of reasonable privacy for a photographer to have caught a photo of Halle Berry’s vulva or pubes and her not wearing underwear in 2011 in New York City.

Therefore, by the teaching of Cohen v. California the Seattle city law SMC 12A.10.120 must be struck and the city of Seattle be enjoined from enforcing it or any law with similar constitutional defects.

Moreover, the SCOTUS says, “At the outset, we cannot overemphasize that, in our judgment, most situations where the State has a justifiable interest in regulating speech will fall within one or more of the various established exceptions,” Cohen v. California

Regulating the viewing and photography of panties of tennis players and cheerleaders does not fall within a recognized exception to the presumption that speech is protected.   Yet, regulating the viewing and photography of the panties or butt of tennis players, cheerleaders and others similarly situated to them is exactly what SMC 12A.10.120 does.

The general philosophy and approach given by the SCOTUS in Cohen v California gives more helpful

guidance for this case. There the SCOTUS says, “To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and [p25] even offensive utterance. . . the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us.” Cohen v. California

The SCOTUS says, “we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. . . “[w]holly neutral futilities . . . come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons,”” Cohen v. California

They say, “It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive [“fuck”] a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be Reversed.” Cohen.

It appears moreover that by the conduct of the city of Seattle that the city implicitly admits that it does not need or wish to use all the power it has usurped re photography of women’s butt, panties and/or sideboob.

Plaintiff Zaitzeff reads the local news websites and at times reviews articles on them on various topics. So far as the enforcement of SMC 12A.10.120 has been in practice, it appears to be, from news reports, that the SMC 12A.10.120 has only been used or nearly only been used, if at all, against cases of surreptitious upskirt photography by a person who had placed a cell phone, camera or mirror on or near the ground.

The city of Seattle does possess teams of cheerleaders and some of those teams of cheerleaders engage in routines that include throwing cheerleaders into the air in such a way that a cheerleader’s butt or panties may be exposed. We know this from a photograph found at the online version of the seattle pi found at http://www.seattlepi.com/news/slideshow/Friday-Night-Special-6345/photo-761216.php

In the photo found at the above link, a cheerleader is depicted after being thrown into the air and/or spinning. She is in a longer skirt than usually worn by many other cheerleaders. There are teams of cheerleards and of drill teams in the greater Seattle with shorter skirts in use. Any photo of such a cheerleader is liable to have shown some of the Seattle area cheerleader’s butt and/or panties, if any, the cheerleader was wearing.

It seems inevitable that some amateur photographers have attended local football games and it is likely that some of them have not known the details of Seattle’s anti-voyeurism law. It is reasonable to suppose that there are dozens to thousands photos similar to the one just linked above from the Seattle pi in the possession of private, amateur photographers. Off-duty or on-duty Seattle police, attending local football games, could add to their arrests for the week by checking the cameras of some of the photographers during or after half-time shows.

That no such arrests or prosecutions are being reported in the local news, suggests that police and prosecutors really believe that they have more important matters to be concerned with–matters other than the temporarily exposed butt of a Seattle cheerleader who has been thrown or spun into the air or who has been jumping or standing on shoulders of someone else, thereby creating fleeting exposures of a butt covered with clothing.

If that is the case, then, the defendant city of Seattle should simply plainly admit that their law is a broad and unnecessary expansion and misguided attempt in the suppression of free speech, and that the only difference between us is over a view or photograph such as was taken of Halle Berry’s vulva in 2011 on a day of an awards show when she was in a short skirt, sitting down and not wearing undies.

Plaintiff is willing to agree with the prohibition of photos taking by means surreptitious photography using a camera at ground level and which would be found to be an unreasonable violation of privacy by most juries in case under the RCW, but not with prohibiting taking photos taken of a woman’s vulva when that photo is taken openly and from a normal and ordinary angle and point of view.

The four words “has covered with clothing” is part of SMC 12A.10.120. These four words seems superficially to be clear and straightforward.

However, the phrase “has covered with clothing” is often meaningless or misleading in a variety of circumstances and scenes considered worthy of photography by many in the public.

These activities include cheerleading, dancing, ice skating, slacklining in a short skirt, swimming in strong waves and walking over air grates or in the presence of gusts of wind produced by a helicopter.

The four words “has covered with clothing” become misleading in situations which include the influence of factors other than the clothing, factors such as wind, dancing or tumbling which result in partial, fleeting or intermittent exposures of the body part or undies, intimate areas which are otherwise usually covered by clothing.

The four words “has covered with clothing” are meaningless or misleading, without additional qualification, in the following actual or hypothetical scenes, circumstances or viewed body parts:

  1. A) The ballroom dancing of Antonio Banderas and his partner in the movie Take The Lead and any other similar actual or hypothetical dancing done by a female ballroom or Latin dancer. Has or had the woman covered her butt with clothing? Yes she had, but she had also danced in a way that left her butt intermittently uncovered.
  2. B) The butt of Kate Middleton in early 2014 in the photos known worldwide from gusts of wind created by the helicopter rotors or any similar hypothetical photos or any similar actual or hypothetical butt exposures. Has or had Kate Middleton covered her butt with clothing? Yes she had, but she had also walked in an area with strong gusts of wind causing her butt to become briefly uncovered.
  3. C) The vulva of Halle Berry when she was photographed with her vulva exposed in 2011 in New York at FIFI awards or any similar actual or hypothetical vulva exposures of others. Has or had Halle Berry covered her vulva? From some angles yes and from other angles no. When standing yes. When sitting and viewed from the side, yes. When sitting and viewed from the front, no.
  4. D) The model Jourdan Dunn was photographed at one or more events in September 2015 in which she was wearing a dress showing side-boob or any other similar actual or hypothetical photos and views of any other woman. Has or had she covered her breasts with clothing?   From the front, yes. From the side, no.

D1) One such photo may be found on the Net at http://www.seattlepi.com/entertainment/slideshow/Many-faces-Jourdan-Dunn-stunning-at-GQ-event-116857/photo-8624734.php in the online Seattlepi.

  1. E) A cheerleader who is thrown into the air or who is standing on the shoulders of others or any actual or hypothetical scenes viewed, photographed or depicted. Has or had she covered her butt with clothing? Yes, but it is not currently covered with clothing for she has also engaged in activities that leave it exposed to view.
  2. F) A woman lying on a clothing optional beach with a small item of clothing loosely partly draped over her pubic area and which covers her vulva from the front and not from the sides or any actual or hypothetical such scenes.   Has or had she covered her vulva with clothing. From the front, yes. From the side, no.
  3. G) A cheerleader who has been dancing, jumping, tumbling or been thrown into the arms of others with the result that her vulva or part of her vulva is showing or any actual or hypothetical scenes, views and depictions.   Has or had she covered her vulva with clothing? Yes, but it is not currently covered with clothing for she had engaged in activities that left it exposed to view.
  4. H) A celebrity who swims in the ocean wearing initially normally a bikini and exits the ocean with her bikini bottoms moved to the side in such a way as to leave exposed her vulva or part of it. Has or had she covered her vulva with clothing? Yes, but she has also engaged in activities that left it uncoverd.
  5. J) A female tennis player who hits a serve or smash while wearing panties and a short tennis skirt that becomes lifted up. Has she covered her butt or panties with clothing? Yes, but it is not currently covered because of her activities.

In every case listed above from A to J, a straight and unqualified “Yes” or “no” to the question of whether or not the body part or undies have been “covered with clothing” is misleading by itself, without additional qualification.

It is possible that when dealing with a scene, viewing or photograph of sideboob such as we see of Jourdan Dunn, defendant the city of Seattle will attempt the escape of dividing the breast into parts. Defendant the city of Seattle may allege that SMC really only should be taken, in the context of sideboob, as speaking parts of breast by part.. Perhaps, in the context of sideboob, the defendant the city of Seattle may allege that part of the breast should be considered “covered with clothing” and another part of it considered “not covered with clothing.”

If that is the explanation of defendant Seattle, there is still a major problem. Unless the clothing worn in side boob showings is skin-tight, then, parts of the breast will be “covered with clothing from some angles” and the same parts will be “not covered with clothing from other angles more to the side.”

If and when a voyeur has photographed a woman’s panties, butt or vulva by what is commonly considered to be upskirt photography, it is also because the panties, butt or vulva are “covered with clothing from some angles,” and “not covered with clothing from other angles and points of view, especially those which originate within a few inches of the ground.”

Before the rediscovery of idea of the movement of the planets around the sun, the generally accepted model of the movements of the planets in Europe was the Ptolemaic model.   The Ptolemaic model included epicycles to explain the apparent and observed retrograde motion of some planets from the point of view of the earth. However, as more data accumulated, astronomers began to realize that they needed epicycles upon epicycles. As explaining the data became more problematic, astronomers added epicycles, till they finally gave up.

In re photos of sideboob or of dancing cheerleaders being prosecuted or not, defendant Seattle may be compelled to resort to convulted explanations similar to epicycles, to save still prosecuting one and not others.

It is easy to hypothesize that there are or will   be cases of sideboob showing and sideboob photos which arise from clothing which is not skin-tight. Such clothing will create or it already has created views of the breast of the women which are visible from some angles and not from others.

There are women who intentionally wear garments with slits. Some women wear clothing which covers body parts from some angles and not from others to create allure, mystery and, intrigue.

Einstein said that the mysterious is the most beautiful thing we can experience. Singers, dancers, cheerleaders and performers such as Britney Spears, Shakira, Mariah Carey, Alexanra Stan and others have chosen to wear clothing with slits and/or use intermittent exposures of body parts for the purpose of creating mystery, allure or seduction. We see such choices of clothing or exposures in the music videos for Toxic by Britney Spears, Las de la Intuicion by Shakira, Touch My Body by Mariah Carey and We wanna by Alexandra Stan or any other similar actual or hypothetical music videos.

If and when a woman is wearing clothing with slits or clothing which covers a body part from some angles and not from others, or clothing which has one or more gaps which create the possible viewing of a body part, the phrase “has covered with clothing” without additional qualifications is often misleading when applied to an area which has been partly covered, intermittently covered, fleetingly covered, or covered from some angles and not from other angles with clothing.

If and when a woman has chosen clothing with slits, gaps or which creates intermittent exposures of a body part and/or which leaves a body part exposed from some angles of view and not others, it is not a violation of a reasonable expectation of privacy, without more, to view or photograph her torso including that body part.

No normal and reasonable person regards it as a reasonable violation of privacy to view or photograph a cheerleader during a public performance of hers or of her team.   This is so even if her performance has caused her butt or panties to become exposed and even if her vulva or nip has become exposed to view.   Therefore, SMC 12A.10.120 includes within it applications which do not arise from a violation of privacy.

Logically speaking, the defendant city of Seattle has three main options: to admit that its anti-voyeurism law sweeps within it applications which do not violate a reasonable expectation of privacy, or, to claim that all views and photographs of body parts which are photographed through a gap in clothing or from an angle of view are always a violation of privacy constitute an invasion of privacy even though clothing is often chosen by women to allow for sideways, partial or intermittent exposures of body parts, or, to claim that SMC 12A.10.120 must be read and applied only with the unstated element, “violating a reasonable expectation of privacy.”

The only option which saves the constitutionality of the law is to claim that it must be read and applied only to cases of violations of a reasonable expectation of privacy. If defendant Seattle choose this option, plaintiff requests a short signed statement to that effect, addressed to him and all others, be provided to him and that such a statement be distributed to all current and future Seattle police and that such a statement be binding on all future Seattle police, prosecutors and courts with jurisdiction which might hear a case involving SMC 12A.10.120.

This complaint makes reference to several photos or music video clips which are found on the internet.

Defendants may allege that plaintiff has not directly submitted them to the court and to themselves, except by the means of internet link or by their names and creators.

A person may challenge a law which chills free and protected speech on the sole basis of hypothetical conduct. If it be denied that plaintiff Zaitzeff has properly submitted such items to the court at this point, it is a simple matter to hypothesize the existence of such photos and such music videos.

The fact that there are hundreds and thousands of such photos and music videos on the Net merely proves how widespread and how overbroad the SMC 12A.10.120 is. It does not change the fact that we may hypothesize such exposures due to women’s fashion, allure, athletic activities, wind gusts or ocean waves.

In the music video Touch My Body by Mariah Carey, at shortly after the 3:00 mark, Carey is wearing a short blue plaid skirt.   It is of a type similar in length to that worn at times by some cheerleaders.

In that music video, Carey afterwards stands up and runs away with her back to the camera. This simple movement creates fleeting and intermittent exposures of her butt and panties.

Even if this music video did not exist, it would be easy to hypothesize a cheerleader wearing such a skirt, with identical results, that her standing or running creates fleeting, intermittent exposures of butt & panties.

All the arguments that plaintiff has made by referring to actual photos and actual music videos can be made without including the actual internet link to them and by merely describing them as hypothetical situations, viewings or photographs that the SMC 12A.10.120 sweeps within its ambit. The actual links found in this complaint help suggest that these hypothetical kinds of photos described by plaintiff are both real and numerous.

Defendant the city of Seattle might admit that the hypothetical scenes and exposures plaintiff has described or listed are conceivable but deny that they are real or numerous.

That would have the unfortunate effect of bogging down the proceedings of this court by inducing plaintiff to submit numbers of such actual photos and/or actual music videos into evidence . . . when their existence is a matter of common knowledge.

On the subject of coverings which leave items exposed to view, plaintiff Zaitzeff has walked repeatedly at Greenlake. On many of these walks, plaintiff has seen a piano placed on or near the West Greenlake beach. This piano has a canopy for a covering, but the piano is plainly visible from the sides. It is covered from the point of view of on top, but not from most other points of view.

A simple photo of this piano would show how easily a covering leaves things exposed from the sides when that covering is not skin tight or, in this case, piano-tight.

Plaintiff, by proceeding pro se, risks a small failure in the area of proper service.

The Rules for Superior Courts and/or King County courts allow for the judge to use discretion to allow for the service of process to be amended so it may be properly accomplished, if necessary.

If plaintiff Zaitzeff has erred in the service of process, he requests that the court guide him in accomplishing it so that this complaint may be heard on its merits.

This complaint is a matter of general public and constitutional interest.

The federal courts in fact forbid laws against burning the American flag without more. Such conduct is highly offensive to a lot of people and even includes at times a minor risk of provoking assaults. The courts say that even though such flag burning is seriously and strongly offensive to many people, it is not sufficient reason to justify suppressing such speech.

This Supreme court decision and precedent which found unconstitutional the conviction for flag burning is Texas v Johnson. It contains helpful guidance for this case.

  1. Causes of Action

First cause of action for declaratory relief: vagueness re the exception clause

Plaintiff realleges and repeats all previously alleged allegations as if fully set forth herein.

SMC 12A.10.120 contains an exception clause which says “intimate areas covered by clothing” does not mean areas which are seen through clothing.

This exception clause is unconstitutionally vague because it depends in practice on different meanings being used for “being seen through clothing” in order to separate out upskirt photography from the photography of sideboob or the photography of persons with exposed bra straps walking at Greenlake.

Second cause of action for declaratory relief: vagueness re “has covered with clothing”

Plaintiff realleges and repeats all previously alleged allegations as if fully set forth herein.

The four words “has covered with clothing” found in SMC 12A.10.120 (B) are unconstitutionally vague.

Prosecutions of upskirt photography using this phrase “has covered with clothing” depend on giving that phrase one meaning in order to prosecute in cases of upskirt photography, but another meaning by which the city abstains from prosecuting photos of sideboob, or exposed bra parts or bra straps such as we commonly see while walking in summer.

Moreover, the words “has covered with clothing” has no predictable meaning when a cheerleader, dancer, ice skater, sunbather, swimmer or tennis player intentionally engages in activities which unpredictably, intermittently or fleetingly result in lifting up her skirt, or which result in a nip slip, or when a gal swims in waves of water which completely dislodge her bikini top or move her bikini bottom in such a way as to expose her vulva.

The phrase “has covered with clothing” has no predictable meaning when one’s butt or panties being “covered” changes from moment to moment as a result of dancing, tennis, ice skating or other sports.

It is misleading in re those swimming in strong waves that shift a woman’s bikini top or bottom.

The set of words “has covered with clothing” is misleading in re when the English Princess Kate M in a short skirt is walking near a helicopter’s rotors which is creating gusts of wind and thereby lifts her short skirt.

The fact that a person is viewing or photographing an intimate area of another person means that, in fact, that area isn’t “covered.” At least, it was not fully &/or continuously “covered,” or, not from all angles.

Prosecutions which must inevitably give it one meaning for upskirt prosecutions and another in parallel cases of photography including other exposed intimate areas and/or bra straps which are left without prosecution.

If it be denied by the city that the words “has covered with clothing” has no predictable meaning in such cases, plaintiff Zaitzeff will seek to submit to the court several representative photos of Kate Middleton, Halle Berry and others, and to ask a representative of SPD in depositions if the butt or vulva of the various celebrities shown in such photos is well described by the words “has covered with clothing” at the time the photograph was taken.

If by chance the city wishes to deny that “has covered by clothing” is at times a misleading phrase, without additional qualifications, there are a number of photographs of cheerleaders plaintiff believes we should review.

Third cause of action for declaratory relief: being rife with potential for arbitrary enforcement with SMC 12A.10.120

Because of the variable possible meanings of “covered by clothing,” the SMC 12A.10.120 allows for individual police officers to allege that certain body parts or underwear are “covered by clothing” when such “intimate areas” are partly covered by clothing or when “intimate areas” are covered with clothing from some angles and not others or when such areas are intermittently uncovered or fleetingly uncovered or when such areas are briefly unintentionally uncovered although intentionally and generally covered.

Since such brief, fleeting, partial and partly-concealed-partly-exposed coverings are a common part of women’s fashion and since they are a part of the allure of dancing, cheerleading and women’s evening wear, this discretion would allow for an individual police officer such as Randy Jokela to arrest and/or search and/or seize in many situations such as cheerleading, tennis matches, Latin dancing and Seattle clothing optional events and activities in which a person is wearing slight and skimpy clothing and is photographed.

Fourth cause of action for declaratory relief: unnecessary overbreadth and not being narrowly tailored

SMC 12A.10.120 is liable to be used by an individual officer–and is perfectly capable of being used by others–in situations in which photographers take photographs of persons engaged in public performances whose skirt becomes lifted by dancing or cheerleading and who have no expectation of privacy at all. Moreover, those applications of SMC 12A.10.120 which go beyond state law into those situations lacking as an element of the crime the violation of a reasonable expectation of privacy are clearly and completely contrary to the precedent of Cohen v California, also when the persons being photographed are not part of a public performance or event.

Fifth cause of action, for injunctive relief

Plaintiff Zaitzeff realleges and repeats all allegations made above as if made herein.

As a result of the problems in the law as described and proven above, plaintiff’s free and protected speech is being chilled.   Therefore, plaintiff Zaitzeff is entitled to an order forbidding the city from enforcing SMC 12A.10.120 and any similar laws against voyeurism which suffer from the identified and proven constitutional defects of the SMC and/or which fail to follow the precedent of Cohen v. California.

  1. Request for Relief

Therefore, plaintiff Zaitzeff requests that judgment be entered against the defendant as follows:

  1. Declaring that defendant’s actions in passing and enforcing SMC 12A.10.120 were and are contrary to the United States and Washington state constitutions guarantees of freedom of speech and of the press, contrary to ordinary and fundamental constitutional standards and contrary to Supreme Court precedents as found in Cohen v California;
  2. Awarding plaintiff’s fees, costs and disbursements incurred in this action as the court finds just and equitable;

Dated this     of September, 2015.

David Zaitzeff, pro se, xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

[email protected]

2 thoughts on “complaint in photo suit . . .

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