Attorney Misconduct, Bad Ideas, Nude Dancing, Orin Kerr, Scott Blauvelt

If We Ever Get Arrested, Our One Phone Call Will Be to Orin Kerr

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We’ve blogged a fair amount about Scott Blauvelt, the Ohio prosecutor charged with public indecency for walking around his office in the nude. His lawyer, Michael Gmoser, seems to be laying the groundwork for an insanity defense. In a statement issued yesterday, Gmoser said that his client was seriously injured in a 2005 car accident, suffers from mental illness, and is “an American with a disability.”*
But Orin Kerr, blogger and criminal law professor extraordinaire, offers a more persuasive defense:

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. § 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.

Good stuff. Professor Kerr is one academic who actually knows his way around the real world of law. (This should come as no surprise. Before joining the ranks of the Elect, by clerking for Justice Kennedy, he was an Honors Program trial attorney in the Justice Department’s Computer Crime and Intellectual Property section.)
We have offered some irreverent commentary on Scott Blauvelt’s case. But for the record, we are all in favor of working in the buff. Isn’t that one of the best aspects of working from home?
* Query: Might it be a “reasonable accommodation” under the ADA to let Blauvelt walk around naked?
The Strange Case of the Naked Prosecutor [Volokh Conspiracy]
Earlier: The Case of the Naked Prosecutor, and A Brief Note on Owning It
Scott Blauvelt Needs a New Office Chair

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