Manhunt: the sequel
Judge says groping’s OK, but watch what you say
Bryan Lopez is pissed. He’s talking about suing. And he’s one of the 15 who actually got off—thanks to a court ruling that has some bizarre implications.
On June 24, Superior Court Judge Roland Candee dismissed 15 of the 87 cases of lewd conduct that Sacramento police charged in the year ending July 1, 2003. He ruled that the city’s police discriminated against gays in the way officers enforced the state’s lewd-conduct laws in Sacramento and targeted gay men in vice-squad sting operations [see “Manhunt” by Joe Dignan, SN&R Cover, April 29]. What’s strange is that Candee dismissed only the cases of defendants charged with groping officers, while he let stand the arrests of others for mere verbal solicitation or for exposing themselves to officers.
“He really cut up the baby,” said Chief Assistant Public Defender Karen Flynn, who tried the dismissal motion back in April.
At a hearing on April 23, Flynn handed over videotapes of straight couples cavorting around on blankets in Land Park and at the music festival last summer in Cesar Chavez Plaza in front of City Hall. It was “pretty much hands-down-the-pants stuff,” said Flynn. But police didn’t prosecute those people or even interfere.
By contrast, the vice division routinely sends officers into places that are popular cruising spots with gay men: the end of North 10th Street at the American River levee, Del Paso Park, Miller Park and about four other spots. Officers conduct sting operations, pretending to be gay men, and when a gay man touches an officer, the officer whips out the citation book. Candee ruled that is discrimination because officers didn’t bust any straight people doing it, just gays, and the tapes show they could have.
Candee also said that the police did not produce any citizen complaints that specifically involved gay guys groping each other.
But Candee let the majority of the cases, about 72, continue. All of them involved either verbal solicitation or a gay man exposing himself to an undercover officer. Candee ruled that because the defense attorneys didn’t produce evidence that straight people verbally solicit each other to have sex in public, he let those cases (about 20, Flynn estimated) continue to trial. Nor did the defense provide any evidence that straight people expose themselves or have sex in public without being prosecuted for it. So, Candee is letting those kinds of cases continue, too.
“It’s kind of difficult to catch those conversations. … It’s very difficult to get people on video actually doing it,” said Flynn, the public defender. “Do I, at public expense, use my investigators to go around getting pictures of people doing it in the bushes?” she asked. “I don’t know if that’s right, but that’s the standard of proof the judge is requiring.”
She vows to appeal Candee’s ruling on at least the verbal-solicitation cases.
Taken at face value, the ruling’s logic appears to suggest that if you’re a gay man cruising for sex in a public park—and you think the guy across from you might be a policeman—the one thing you can do, without fear of being charged with lewd conduct, is to grope him.
“I don’t think I’d do that,” said Assistant District Attorney Bill McCamy, who handled the motion to dismiss for the district attorney’s office. “You might get slugged.” McCamy said that this apparent absurdity (you can grab a cop by the crotch, but you can’t ask him politely to go into the bushes with you) is one reason he disagrees with Candee’s ruling. The judge also left open the possibility that police might charge cop gropers with simple assault—and never mind the lewd conduct.
“Happy days are here again,” said Lopez, when he heard about Candee’s ruling. (His is one of the 15 whose cases were dismissed.) But he is still planning on suing the city. He claims that he lost two jobs because of the lewd-conduct charge on his record. By trade, he’s a mortgage banker, and banks, he said, are very fussy about their employees’ backgrounds. He said two potential bosses, Citibank and Countrywide Financial, bolted with their $90,000-per-year jobs when they learned about his lewd-conduct charge.
Writs to appeal the ruling are due in the Superior Court’s appellate division on July 26.
One month after SN&R’s cover story ran, the National Gay and Lesbian Task Force (NGLTF), the New York- and Washington, D.C.-based advocacy group for gays, lesbians, bisexuals and transgenders, announced it was taking on what it said is a nationwide problem of discriminatory sex laws and discriminatory enforcement of lewd-conduct statutes.
In Michigan, unmarried people may not have sex or live together, and gays and lesbians cannot marry. Kansas has a Romeo-and-Juliet law that gives substantially reduced penalties for statutory rape when both members of the couple are under 18 and of the opposite sex—but not when they are of the same sex.
The Kansas statute put Matthew Limon in jail for 17 years in 2000 because he performed consensual oral sex with a 15-year-old one week after Limon’s 18th birthday. He is still in jail, but a heterosexual in the same circumstances would have been released after 15 months. Limon is not set to be freed until he is 35 years old.
The NGLTF’s initiative is the first major effort by a national gay-rights organization to address such issues. Most national mainstream gay-rights organizations have shied away from these problems because they do not want to have their names—long associated with polite demands for equal rights, domestic-partnership statutes and the right to live like straight people—sullied by images of gay people having sex with each other, especially in unexpected locations.
Ironically, the man who was the centerpiece of SN&R’s coverage of this issue after the hearing in April, Dennis Elliott, would have walked away if he had been part of the group in this motion for dismissal. He touched an undercover policeman on the American River levee (he said on the stomach, but the policeman said on the crotch) in May 1999.
He was sentenced to serve 90 days in jail, which the judge suspended because Elliott has AIDS; to serve three years of probation; and to pay court costs and fees of about $2,400 and legal bills of about $5,000. He also was required to register as a sex offender. After a year of litigation, he convinced the appeals department of the Sacramento Superior Court to rescind the registration.
Elliott doesn’t want to speak for the record now. Friends say he’s had ongoing problems, his job has been threatened, and he is considering leaving town. “I want to live whatever life is left. I just want to be left alone” was all he would say.
But other police forces, like San Francisco’s, have dealt with lewd conduct very differently. When that city had a serious problem—and a barrage of complaints about public sex in two areas in Golden Gate Park and in the city’s South of Market area Ringold Alley—San Francisco police went into the cruising spots, well-established for at least 50 years, with both plainclothes and uniformed officers. They handed out fliers. They posted signs. They got the local gay press to write about the situation. They told the men, basically, to get a room. “We did it over a month period,” said Sgt. Lea Militello, who helped lead the operation. “We just leafleted the heck out of those places.” They say it worked and that only one outdoor gay-cruising spot in San Francisco remains: in the city’s Buena Vista Park overlooking the Castro.
“I don’t know. Is it really cleared out? Just because some woman officer says it is?” questioned Sacramento Police Department spokesman Justin Risley.
“Well, yes,” confirmed said woman officer in a follow-up interview. “It worked very well. You can either choose to do the proactive approach, or you can have a reactionary approach. The reactionary approach isn’t as effective—and it does basically ruin people’s lives. We had married people from Marin and Contra Costa Counties. … Who would have been helped if we arrested those men? What good would have been served?”
“This isn’t a conspiracy,” protested Risley. “We’re not making this stuff up. They’re breaking the law is the bottom line.”
As for the idea of using fliers, Risley said, “We’re certainly open to other ways. With this ruling, we’re just going to have some advice from the DA.”
McCamy, the assistant district attorney, said the police are continuing their sting operations “exactly as they did before”—but that isn’t exactly right. On Thursday of last week, Lopez was back out at Miller Park, one of the most popular cruising spots. He spotted one of the undercover cops in a green Ford Windstar van (he said he’d seen it before)—pulled up next to another car, talking to the other driver.
“Cop,” mouthed Lopez, pointing at the van and then at the car. Lopez drove away—and the van followed him for about two miles, Lopez said. Finally, the undercover officer pulled out his badge at a stoplight. “You need to pull that car over,” Lopez claimed the officer said.
“First, he accused me of spoiling his potential bust,” Lopez said. McCamy said the penal code makes it a misdemeanor to obstruct an officer in the performance of his duties.
According to Lopez, he and the officer shouted at each other for a while, by which time another undercover police car, a Ford Taurus, had pulled in behind him, and two more undercover police appeared.
“You people go into bathrooms and have sex with kids,” Lopez claimed one officer said. “They tried to search my car, and I told ’em no,” Lopez said. “It’s all about intimidation: I think they’re a bunch of rogue cops. They just hate fags.”
Lopez said he went to Flynn with the incident—but he said she told him to forget about it and not to file a complaint. “They’re going to harass you like you’ve never been if you do,” Lopez claimed Flynn told him. Flynn wouldn’t confirm or deny the conversation, except to say that she counsels her clients not to file any citizen complaints against the police until their cases are finished.
Subsequent calls to Risley concerning the incident Lopez described went unreturned as of press time.
For her part, Flynn is planning for what she calls “the class of 2004,” starting the whole process again for the men the police have charged this year. She said she’s hoping some heterosexuals who have had sex in public will step forward to help out, but she’s not exactly holding her breath.