Battle over the right to bare more than arms

Tuesday, March 26, 2002

By Tom Gibb, Post-Gazette Staff Writer

America's a nation where a person is free to say what he wants, vote as he chooses and now, maybe drop his trousers in the back yard on a hot summer night.

Charlie Stitzer, 63, is no slave to modesty. As a concession to heat, he said, he would routinely don a thong to mow the back lawn of his home in Pleasant Gap, eight miles northeast of State College.

Then, on oppressive summer nights, he'd loll on the garage stoop, dressed but in nature's own, garden a little and maybe have a smoke.

Neighbors tolerated the thong.

But one evening in June 2000, a woman three back yards away called the police on the naked stoop-sitting. By the time he walked out of Centre County Common Pleas Court seven months later, Stitzer was on two years probation for indecent exposure and disorderly conduct.

Now, a three-judge panel of the state Superior Court has thrown out the exposure conviction.

Judges Maureen Lally-Green and John Bender and Senior Judge John Kelly, in an opinion filed Wednesday, pondered the state indecent-exposure statute and decided that key parts of it didn't apply to Stitzer.

His back yard couldn't be deemed a public place, he wasn't doing anything to call attention to himself and the offended neighbor, 65 yards away, was too distant, the judges reasoned

"At last," Stitzer said yesterday. "I don't know what the hell I'm going to do now."

Sit outside naked, maybe?

"I might at night if it gets hot enough," he said.

Not that the judges endorsed summertime naked stoop-sitting.

"Contrary to [Stitzer's] belief, his behavior may not conform with the norms of the neighborhood or society at large," the memorandum says. "While we do not condone this behavior ... the commonwealth failed to prove a violation of the indecent exposure beyond the shadow of a doubt."

"The message is that the government has no interest in policing what people do in their back yards," said State College lawyer Andrew Shubin, who carried the case to the appellate court. "If people don't want to see what's going on in his back yard, they can avert their eyes. It was a civil rights issue."

For Stitzer -- an unmarried retiree branded by a former lawyer as "eccentric but harmless" -- whatever it was, it was an obsession.

He fired four lawyers in getting this far. He showered the court with handwritten treatises on free expression. Last year, Stitzer went to jail for six months when he wrote one neighbor complaining about tires stored in the back yard of the woman who complained about him -- and found that the letter was a violation of a non-harassment provision of his probation.

Now, it seems, it's case closed.

"Even in the post-Sept. 11 world," Shubin said, "the government has no interest in policing this kind of behavior."

Maybe. Maybe not.

Assistant District Attorney Lance Marshall said he won't appeal the ruling. But he noted that the lesser disorderly conduct charge wasn't appealed and so wasn't struck down.

"If need be ... we could prosecute again for disorderly conduct," he said.

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