For the men who cruise the 10th Street levee, the reward might be consensual sex, but the risk is being targeted for arrest. Attorneys say it’s really entrapment and discrimination.

Dennis Elliott returns to the path he took beyond the levee—it once ended in arrest, prosecution and almost his suicide.

Dennis Elliott returns to the path he took beyond the levee—it once ended in arrest, prosecution and almost his suicide.

Photo By Ken James

Back behind a North Sacramento neighborhood of tilt-up slab warehouses and discount furniture stores, North 10th Street ends its run from the state Capitol and dead-ends at the levee on the banks of the American River.

From there, if you climb the path that goes up the bank, pause on the gravel road that tops the levee and look toward the river, in front of you is a canopy of trees that covers a boggy margin, which the state, lacking a better term, calls a nature area. The state can’t quite call it a park, because it floods when the river overflows its channel, and it’s not a wilderness, because only a thin boundary levee separates it from the city’s industrial fringe.

This place, at the end of North 10th Street, where the roar of a nearby freeway drones behind the twittering of birds in the trees, has been a cruising spot for gay men for at least 50 years. Its serpentine paths and overgrown bushes provide some privacy. It’s close to downtown but isolated, so that very few people, other than some homeless people and men looking to have sex with men, go there.

It is one of a number of spots in Sacramento where men go to have quick anonymous sexual encounters with other men—but the men who come here don’t necessarily call themselves gay. Del Paso Park, a wooded area surrounding a creek that runs through North Sacramento, is sometimes known as married man’s park. And so, as the problem of public homosexual sex has become more visible, some leaders of Sacramento’s gay and lesbian community have tried to distance themselves from the goings-on behind the levee—because what happens here is a world distant from the 21st-century struggle for respectability, gay civil rights and marriage that is going on in the Capitol, just a mile and a half away. What goes on here looks more like gay life in the early 1960s, when police routinely made arrests at gay meeting places, before the New York Stonewall Riots gave gay liberation a name.

Sacramento police have been trying to stop the public sex in these places for as long as it has been going on, but certainly since the early 1990s, when these outdoor spots became much more popular after the city’s bathhouses were closed during the worst of the AIDS epidemic. In about 1992, some people in Sacramento’s gay community tried handing out fliers in Del Paso Park, talking about the importance of safer sex and suggesting that people go somewhere else. They even tried hanging plastic bags containing condoms and safer-sex literature in the trees, but in Del Paso, according to one person, the condoms ended up floating in the creek as children from the neighborhood played on its banks.

So now, on the levee, it’s still common to turn a corner and find men standing alone, staring off into the middle distance or apparently hiking, back and forth, cruising for consensual sex.

Police say they get complaints about the situation, particularly in Del Paso, because homes line the north boundary of the park. Their solution has been, very much like police do with prostitution, to send undercover vice cops into the area. Though they have made a few arrests of men caught having sex in pairs or in groups, most of the time, officers entice men—through provocative words and gestures and lots of eye contact—into doing something lewd, such as exposing themselves or touching the vice officer, and then cite them for lewd conduct and, usually, either indecent exposure or sexual battery.

Most often, the men who have been cited have pleaded guilty to the lewd-conduct charge, frequently in exchange for dropping the more-serious indecent-exposure or battery claims. Some of the men are married to women, but, for all of them, the embarrassment of the charge is the biggest penalty, so most plead guilty in the hope of putting the situation behind them as quickly and as quietly as possible. Usually, the sentence is a suspended jail term; a week of community service; three years of probation; and a fine in the hundreds of dollars, which is dwarfed by the legal fees for those who get a private attorney.

But a quiet rebellion is starting. For years, some gay and lesbian lawyers have said that this kind of enforcement is little different from the raids on gay bars that triggered the Stonewall Riots and other similar uprisings across the country in the late 1960s and early 1970s. Now, lawyers are starting to allege discriminatory enforcement, and they have started legal proceedings to stop it. They also question the validity of police claims regarding citizen complaints about this consensual sex beyond the levee.

In the year ending July 1, 2003, Sacramento police made more than 180 arrests for lewd conduct, and though their records are unclear for a few cases, all but five or six were of men arrested for having, or wanting to have, consensual sex with other men. The vast majority were made in one-on-one sting operations.

The police and the district attorney’s office liken it to the enforcement against prostitution, for which they made an approximately equal number of arrests last year. But the defense lawyers, including Sacramento’s public defender, say this enforcement is targeted discrimination—and is designed not just to take back certain areas for the public but also to deliberately harass and embarrass men who have sex with men.

And it’s easy prosecution, because so few contest the charges. But a few, such as Dennis Elliott, do. Elliott is a gay man. He’s 47 years old. He has AIDS and supports himself with a combination of disability payments and a job managing a small Sacramento apartment building. He was cited on the 10th Street levee on May 4, 1999, but his case continues, five years later, because he still has six months left on his probation term.

Chief Assistant Public Defender Karen Flynn argues in court to have the charges against a group of men dismissed. She found the police had no citizen complaints.

Photo By Larry Dalton

In the living room of his Sacramento apartment, decorated with Japanese art and framed swords, Elliott recalled what happened.

On a warm spring day, Elliott was walking with a knapsack along the gravel road at the top of the levee when, down in the bushes, he saw one of two men he had noticed earlier getting out of a van a few blocks away. Elliott claims that the man, with a dark complexion and curly black hair, started waving to him. The wave, Elliott said, was with his whole arm, “like he was on an island waiting to be rescued. He had kind of a butch look. He was very masculine, very alluring.” Finally, Elliott went down one of the trails from the road into the brush.

Elliott said the man had moved inside an overgrown area, a sort of room, like a kid’s fort, created of overarching foliage—cool, quiet and dark. Elliott walked in and put his knapsack down. They could see out, but, Elliott thought, nobody else could see in. Elliott claims the man leaned up against some branches, put his hands in his pockets, thrust his pelvis forward and then started playing with himself.

Elliott moved forward, and the man took his hands out of his pockets. “I reached over and touched, rubbed his stomach, with the first two fingers of my hand. I stroked his stomach, two or three times up and down,” Elliott said.

The man then moved away and asked if his friend could join the two. Elliott said he was surprised that the friend appeared so quickly. Elliott said he put his hand out to shake hands with the other man, and, at that point, Detective Scott Maldonado pulled out his badge and told Elliott he was under arrest.

At trial, Maldonado would deny waving at Elliott so vigorously and would say that Elliott hadn’t rubbed his stomach but had grabbed his crotch. Maldonado cited Elliott not only for lewd conduct, but also for sexual battery. The penalties for both are as high as 90 days in jail, three years of probation and 120 hours of community service. If found guilty of battery, or of indecent exposure, a defendant is required to register as a sex offender—for life.

After Maldonado told Elliott he was under arrest, the two detectives led him to a van they had parked on a side street. They took his picture and his thumbprints and went through his backpack. Elliott said they took his notebook and found an ad he was planning to put into one of the gay papers in San Francisco. “It was very sexual, very explicit. They asked if it was mine. I lied, ‘No, it isn’t mine. I found it.’ I was really frightened. ‘If I call this phone number, what will I get?’ Maldonado asked.”

Maldonado pulled out his cell phone and dialed, and Elliott’s answering machine picked up.

They wrote him a ticket, told him to report later for full pictures and prints, and told him to go home and not come back. Elliott said he started to get angry. “I walked to the train. The further I got, the madder I got. I walked back to my house, and I started to cry. I fell apart. I sat there for 20 to 30 minutes trying to pull myself together,” he said. Elliott found an ad for an attorney who specializes in lewd-conduct cases in one of Sacramento’s gay newspapers, and dialed.

The lawyer, Bruce Nickerson, defended Elliott’s case pro-bono, along with another Sacramento lawyer, Kyle Knapp. Because of the sex ad in his backpack, Elliott said, the district attorney’s office wouldn’t allow him the usual plea-bargain arrangement to avoid a sex-offender registration. His case finally went to trial on May 7, 2001. The trial stretched over eight days. Nickerson and Knapp tried to punch holes in Maldonado’s testimony, but, in the end, the jury believed Maldonado.

Elliott was sentenced to 90 days in jail, but his lawyers argued that that would be cruel because he had AIDS. The judge suspended the jail term but sentenced him to three years of probation. He is still required to check in with his probation officer once a month. He also was required to pay all court costs and fees, which amounted to about $2,400, plus his legal bills of approximately $5,000. He did 120 hours of community service—and was told to register as a sex offender.

“I held myself together until I got home. I cried, just jags. I tried to call some people. I finally got a friend on the phone, and I told him what happened.” Elliott got out the .38 special he had bought years earlier after he had been robbed several times. He loaded it. “The moment I was going to pull the trigger, my friend walked in the door. ‘There wouldn’t be much of a world without you,’ he said.

“Even though I knew the rest was unfair, the registration was the hardest part. You’re registered in a computer for anyone who wants to pull you up. It’s open to anyone.” Elliott fought his sex-offender registration up to the appeals department of the Sacramento Superior Court, where, by a 2-1 vote a year later, the court rescinded it.

Defense attorney Bruce Nickerson has built a career out of the legal problems gays encounter because of their sexuality.

Photo By Larry Dalton

Police say this undercover enforcement by the vice squad is the agency’s response to citizen complaints and that, if police didn’t do this, the problem would be much worse.

But, at the suggestion of Nickerson, a gay attorney from San Carlos who has made a sort of mini-career out of defending these cases, Sacramento’s chief assistant public defender, Karen Flynn, filed a motion alleging discriminatory enforcement of the lewd-conduct laws, because of the overwhelming preponderance of men arrested, and asked for a dismissal of all the cases from the year ending in July 1, 2003.

On a March afternoon in Flynn’s offices, in the basement of the County Administration Center downtown, a receptionist buzzed clients into an anteroom from behind bulletproof glass. The door latch clicked, and in bustled Flynn with a stack of files in her arms and some legal background.

California law prohibits uneven enforcement of laws against any one group. That prohibition dates back to the late 19th century, when, in a case called Yick-Wo v. Hopkins, San Francisco laundry operators had to apply to the city’s board of supervisors to run a laundry in a wooden building (most San Francisco buildings were wooden at the time). Nearly all of the laundries run by white people were approved, but of the more than 200 that were run by Chinese, none was approved. The case went to the California Supreme Court. Since then, discriminatory-enforcement cases have been brought mainly for racial discrimination. But in 1975, in a case called Murgia v. Municipal Court, the California Supreme Court found that those same discriminatory-enforcement precedents could be applied to gay men in lewd-conduct cases.

Flynn is married, with two children, and she has worked in the public defender’s office for 18 of the 20 years she has practiced law. [Disclosure: Flynn’s husband, Dan, writes for SN&R.]

Flynn’s Murgia motion was filed along with those of 15 other lawyers representing more than 80 of the defendants. One of the most important tests in these cases is evidence that the police acted on their own in choosing to enforce the law against one group (in this case, homosexuals) but not against another (heterosexuals).

In July 2003, Flynn went to court and got a judge to require the police to produce their lewd-conduct arrest records—and copies of the complaint logs.

When the data came back, she said, leaning forward in her office chair, she was slightly surprised at the overwhelming percentage of gay, male sex arrests: all but five out of 180-plus cases. That meant, she said, that all the arrests for consensual sex were for men having sex with men. But she said the figure that made her decide to pursue her motion was the number of documented complaints the police recorded during the same period.

Flynn held up her left hand and touched her forefinger to her thumb, making a “0.”

“None. They couldn’t produce a single complaint,” she said. Flynn claims that the police are deliberately targeting men who have sex with men. “It’s offensive,” she said.

This March, Nickerson and several other attorneys won a similar Murgia motion in Fresno. There, about 40 men were caught in a sting operation in Fresno’s Roeding Park in 2002. As in the Sacramento cases, police in Fresno used decoys to arrest men in the bathrooms around the entrance to two children’s playgrounds. Also as in the Sacramento cases, the police couldn’t produce any documented complaints. In the preliminary decision in March, a Fresno judge found that there was discrimination. Nickerson and the other lawyers go back to court this month to argue that the cases should be dismissed.

But John Duran, a lawyer from Southern California and the mayor of West Hollywood, has defended more than 1,000 of these cases in his 17-year practice. He says that, though Nickerson has won a few of the motions, he himself hasn’t won any in more-conservative Southern California. All of his motions have been settled, when it looked like he might win, or have been denied.

Duran, more strongly than Flynn, says that these sorts of cases are discriminatory. “It’s clear that it’s one of the last bastions of discrimination,” he said, “left over from when police regularly raided gay bars. … It’s the government targeting people who are gay or suspected to be gay. … Without the enticement of the officer, it wouldn’t happen.”

Prosecutor Bill McCamy says it is men who are being arrested for public sex because it is men who are engaging in it.

Photo By Larry Dalton

Success in Fresno may not translate to success in Sacramento. Sacramento lawyers have tried Murgia motions at least twice, once in 1997 and again in 2000, according to Assistant District Attorney Bill McCamy, who is opposing Flynn’s motion.

But in the Sacramento cases last year, Flynn said, the evidence of enticement by police is in the arresting officers’ own reports. Police, she said, routinely follow possible suspects.

“You want to give me head?” asked one detective, just before arresting the man who said yes.

“Do you need a hand with that?” asked another detective standing within three feet of a defendant.

“Are you giving blow jobs?” asked a detective after following a defendant into a public bathroom.

And, probably most typical, an officer on the vice squad followed a defendant to a secluded area in a park, pointed to the other man’s penis and asked, “Is that for me?”

Flynn says all this is “purposeful solicitation” by the police.

Just a mile from the levee, on Friday, April 23, in the city’s modern courthouse, Flynn, McCamy, Nickerson and some of the 15 other lawyers and 80-plus defendants in the case converged in the courtroom of Sacramento Superior Court Judge Roland L. Candee to argue Flynn’s motion.

Candee heard arguments in what even Flynn called a difficult decision for any judge—to dismiss every single case of lewd conduct in Sacramento for the past year and possibly open the city up to civil lawsuits.

Flynn said that all of the arrests were made because the officers solicited the men, not the other way around. The Sacramento police are targeting gay males, she said. “What’s the justification?” she asked. “I would not be standing here arguing if there were just one complaint with the name of the person who complained. But there is not one name. Not one date.”

Just before the hearing, the district attorney solicited affidavits from two of the vice cops and a park ranger saying that they had had complaints about the activity. “Vague declarations by two officers and one park ranger,” Flynn said. “It’s a little too little and a little too late.”

McCamy countered that the reason that only men wanting to have sex with men have been arrested is that nobody else is doing it in public places. McCamy asked how the police could be discriminating against gays if many of the men who have been arrested don’t call themselves gay. Nickerson later called that argument a distinction without a difference.

At the end of the hearing, Candee took the case under advisement. Flynn had been worried that he would rule, negatively, from the bench. What does she think will happen? “We’re still alive,” she said.

Is it discriminatory prosecution? Judge Roland L. Candee has a difficult decision.

Photo By Larry Dalton

So, these new cases are getting more attention, from more groups, than in years past. Tamara Lange, a staff attorney at the American Civil Liberties Union (ACLU), warned that the city of Sacramento could be facing civil litigation. “The bottom line is that selective prosecution is unconstitutional. … The officers involved can be personally liable for constitutional violations, and they should be protecting themselves from the 180-odd lawsuits that could come in one year.”

And, by most accounts, the sting enforcement doesn’t stop public homosexual sex. But other cities have tried other approaches, and San Francisco, in particular, has managed to reduce—though not eliminate—that city’s public-sex problem.

Sgt. Lea Militello is a 20-year veteran of the San Francisco police and is the head of San Francisco’s gay and lesbian police officers’ association. In 1999, San Francisco had similar problems with two areas of Golden Gate Park that were well-known cruising spots for many years: one, near the Polo Field; and the more popular, near the windmills by Ocean Beach. She said the police started to get lots of complaints from horseback riders and soccer players at a newly renovated field.

She said that the San Francisco cops went to the areas as decoys in plainclothes. But instead of citing people, they handed out leaflets. The fliers said that public sex is illegal. “They told these guys, basically, ‘Get a room,’” she said.

San Francisco police kept it up for about two months, and it worked. Today, those areas are largely free of public-sex problems. But San Francisco is a bit different from Sacramento. Though the Golden Gate Park cruising areas are history, there are other venues to take up the slack. There is still an active public-sex scene in the city’s Buena Vista Park. But, more importantly, according to Militello, though San Francisco closed its bathhouses at about the same time as Sacramento, there are still at least four sex clubs in the city, where men go for anonymous encounters—and they are bathhouses in all but name.

What does she think of Sacramento’s approach? “To set up a sting operation with no communication, it’s totally counterproductive,” she said. “One of the men I talked to in [Golden Gate Park] was a married man from Contra Costa County,” Militello said. “Can you imagine what happens if we arrest this man? What’s the point in ruining someone’s life?” she asked.

Duran, West Hollywood’s mayor, says that in Southern California, police have controlled public sex by patrolling cruising spots in uniform and by parking a patrol car near the areas.

But those approaches are rare. Arrests for public sex are the cause of about six suicides every year across the country, claims Patrick Califia, author of the book Public Sex: The Culture of Radical Sex, who says he has been following such cases since the late 1970s. Califia is the author of 12 books and is a psychotherapist who has devoted a lot of time to understanding public sex and its aftermath.

Califia cites the case of a Plainfield, Conn., man, Stuart E. Denton, who was arrested in 2002 in Johnston, R.I. He was the 55-year-old chair of the town Republican committee, an ex-Air Force captain and the divorced father of one son. The local newspaper published his name and pictures of him and the five other men arrested in a raid on an adult movie theater. Denton killed himself shortly after his arrest. “In order to get to these men,” Califia said, “the [police] had to pay two admission charges, and it’s not even clear [the accused] were having sex.” Two of the men pleaded not guilty and ultimately were acquitted. The other three pleaded no contest to disorderly conduct. “If [Denton] had stuck it out, his case probably would have been dismissed,” Califia said.

Califia says that when he sees increasing problems with public sex in a city, it is almost always linked to a lack of other venues, such as bathhouses and sex clubs.

Sacramento police still are grappling with the problem. In October of last year, then acting-Sacramento Police Chief Albert Najera went to a meeting with the leaders of the city’s gay community. Najera is a 31-year veteran of the force and was campaigning to be named to the job permanently, which he later was.

The evening was moderated by Marghe Covino, the grand-dame of the city’s gay community, who has been the president of the lesbian, gay, bisexual and transgender community center. The meeting was dominated by discussions of public sex—and the lack of out gay and lesbian officers in Sacramento’s police force.

She said that though there are a few out lesbian officers in the department and though there are some male officers who are openly gay in their private lives, none of those men are out on the job. She asked Najera if gay men in the force are afraid for their safety.

Despite his arrest and prosecution, Dennis Elliott returns to the cruising spot two or three times a week.

Photo By Ken James

Najera stood in front of the group for more than an hour. He said, no, he didn’t think that gay men in the department feared for their safety, but he did tell the group that gay men probably don’t feel comfortable being out in the department and that the department has a lot of work to do in ending what Covino called its hyper-masculine culture. Najera was remarkably frank about potential prejudice against gays on the force and how he worked against it. He volunteered a story of a friend, a gay man, who had been on the force with him for 32 years—and had never come out. Najera said that the man wrote him a note after he retired, thanking him for speaking at his last roll call, and then closed the note with an epitaph to his time in the department. “'I just want you to know that it feels good to be free at last,’” Najera said the man wrote. “'Thank God. I’m free at last.’”

But again, Najera insisted that Sacramento’s public-sex arrests are driven by public complaints and said the department’s enforcement practices are not negotiable.

So, where is Sacramento’s gay political establishment in this controversy? Even with all of these cases, Sacramento’s gay political establishment has tried to distance itself from the public-sex problems in the city.

Dan Roth is the president of Sacramento’s year-and-a-half-old Stonewall Democratic Club and a staffer for a state assemblywoman. In his busy Capitol office, he said that the club and its members don’t want to get too close to the issue.

“We don’t want to be seen as the advocates of public sex,” he said. He said there is division within Sacramento’s gay community on what its political leaders should do. Last week, seven very respectable straight members of California’s Assembly voted to give marriage rights to same-sex couples. What would they do if they heard gay advocates clamoring for gay marriage—and defending public sex at the same time? Like many gay community leaders, Roth said, “As we take up marriages, as we enter into stable relationships … politically, it’s a problem for the gay-rights movement.”

Roth has good company. The gay movement should “totally disavow the practice of public sex by gay men and definitely disassociate the gay-rights movement from such behavior,” wrote a respected columnist in a Washington, D.C., gay newspaper after a sex scandal involving a congressman.

But author Califia, and most other writers on the subject, say the problem cannot be stopped. Maybe it can be moved to other places, but it cannot be stopped. The instinct is too much a part of human nature.

“For men, it’s about getting off. Maybe it’s only 20 minutes, and off you go,” said one of the men who was arrested last year in Sacramento. “My partner and I have been together 23 years. It doesn’t diminish that at all. … But you can’t get that hot kind of passion after all that time.”

In 1970, a sociologist named Laud Humphreys studied the problem and found that 54 percent of his subjects were married and living with their wives; 38 percent, Humphreys said, were neither gay nor bisexual. The motivation, he concluded, was the excitement, the newness, even, and the thrill of possibly being caught.

These people, said the same Sacramento defendant, don’t want to give up their marriages, their children or their families. “I don’t want a new boyfriend,” he said. “I love the one I have.”

But on the levee, or in a married man’s park, these men have a much better chance of getting, and spreading, sexually transmitted diseases—especially HIV. So, some members of the city’s gay community are suggesting that the city needs some kind of other venue, where men can go—and at the same time get safer-sex messages.

At the meeting with Najera, Terry Sidie, who owns Faces, Sacramento’s largest gay club, volunteered that if the city council and Najera would back the idea, he would consider opening a gay sex club or bathhouse in the city. “Personally, I think it’s a better place to have people having sex than in the parks and along the river,” he said. His proposal got a wan smile from Najera, probably imagining himself standing in front of the city council suggesting that what Sacramento really needs is a gay bathhouse.

A visit to the levee shows the police department’s enforcement tactics aren’t stopping the illegal behavior.

“It hasn’t stopped me completely, and it hasn’t stopped anybody else, either,” said one of those arrested.

And it hasn’t stopped Dennis Elliott. On a spring day this March, in his leather jacket, with an epaulet pin that said “Slut,” he was walking the paths of the levee—partly admiring the view and partly not. “I’ve been coming down here for 20-plus years,” he said. “Most of my friends, I met down here. I go two or three times a week. I just feel comfortable being here.”