By GAIL OBER, LACONIA DAILY SUN
LACONIA — The town of Gilford has asked Judge Jim Carroll of the 4th Circuit Court, Laconia Division, to reconsider his ruling that topless sunbathing is not a crime because it is not included in the state criminal code.
Attorney Justin L. Pasay argues that RSA 41:11-b grants authority to town governing bodies to manage all of the real property it owns and to regulate its use, meaning the town believes the court erred in its ruling.
Pasay argues that anyone who violates the town ordinance against "topless sunbathing, skinny dipping, nude tanning or the exposure of genitalia" at the Gilford Town Beach "shall" be guilty of a violation.
He said that it appears the court overlooked this and so there are grounds for granting reconsideration.
Reconsideration is based on the premise that the court allows the town to intervene in the case, which is a request made after the decision was rendered. Until that time, the state, as represented by Gilford Sgt. Prosecutor Eric Bredbury and Lilley and MacKinnon, who are represented by attorney Daniel Hynes, were the only parties to the case. Both have assented to allow the town of Gilford to become a third party to the case.
Gilford resident Heidi Lilley and Barbara MacKinnon were cited on Sept. 6 for violating the ordinance when they and a few of their friends went to Gilford Beach. Both are members of the Free the Nipple campaign, which says women should be allowed the same rights as men when it comes to exposing the top parts of their body. The campaign also addresses what it calls the "body-shaming" culture of the U.S.
In his five-page ruling issued in early February, Carroll ruled the ordinance was constitutional but that, because there is no state law in the New Hampshire Criminal Code prohibiting female toplessness in public, the ordinance is unenforceable.
Lilley and MacKinnon have also filed for reconsideration but for the opposite reasons – namely that their actions are protected by the First Amendment as free speech and under the equal protection clause of the Fourteenth Amendment.
Hynes could not be reached Friday afternoon.
All of the motions are being reviewed by Carroll in chambers and The Laconia Daily Sun was unable to get a copy of Hynes' request for reconsideration.
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