Undercover Decoys Targeting Calif. Gay Men?
In October, two men in a University of California-Berkeley restroom foot tapped beneath neighboring stalls and passed a note planning a hookup. After the two agreed to discuss a location outside; one exited his stall and waited for the other to follow. When the student emerged, he found himself face to face with the man who was bearing a police badge and handcuffs. He quickly learned officers were going to arrest him for loitering outside of a public restroom to solicit lewd conduct.
So reads the police report detailing the arrest of the student, now represented by attorney Bruce Nickerson. The self-proclaimed "toilet lawyer of California" has all but sued gay cruising sting operations out of the northern part of the state.
A judge threw out the student’s loitering charge in January, but he now plans to sue the UC Board of Regents for false and discriminatory arrest.
"Innocent people are being arrested for conduct which does not break the law and they’re being arrested discriminatorily," said Nickerson. "They’re doubly damned."
Lieutenant Alex Yao of the UC Berkeley Police Department would not comment on lewd conduct sting operations or the aforementioned arrests. "We decline to comment on issues of a pending litigation," he told EDGE. "However we’re confident that if given the opportunity to present our case in court, we would be exonerated of the accusation."
The majority of men charged in these cases quickly plead guilty to avoid further embarrassment.
In response to complaints, undercover decoy squads go into public restrooms-often in parks or beaches-to catch sexual encounters. Long Beach attorney Stephanie Loftin said undercover officers often try to engage people into initiating them, as opposed to scoping out possible lewd acts. And she added these officers’ targets are almost invariably gay men.
"They hang out in the bathrooms, make eye contact with people, walk up to them and look over the four foot wall at a guy’s dangly bits," said Loftin. "They have their hands under their shirttails like they’re masturbating, make eye contact, look over at the guy’s dangly bits, and look back at his eyes. If the guy responds or looks gay, they will arrest him."
Her current case involves a man who suffered brain damage as a child that essentially left him mentally retarded. An undercover decoy arrested him for lewd content after he caught him allegedly masturbating in a park restroom.
"They kicked out his legs from under him, put him down on his face and bruised him terribly and treated him very badly," alleged Loftin. "I’m having a hard time dealing with [the Long Beach Police Department]."
The LBPD conducted another decoy operation in 2009 in the Granada lot, a cruising area between the beach and popular gay bar Ripples. When police arrested a man who was allegedly masturbating in front of a decoy in a Granada lot restroom; Loftin’s client, who maintains he was using a toilet a few stalls away, was also arrested. Despite of never being convicted, Loftin said her client was fired from his teaching job.
She added roughly half of her clients in these cases did engage the decoys.
"If the officers are acting like gay men cruising, and somebody responds to them because they act like they’re interested, there’s no crime, but they’re arresting them anyway," said Loftin. "The police use the Penal Code to arrest people and the Penal Code has been superseded by case law, but the officers don’t read that and as many times as I’ve tried to make them aware of the 1979 case, Pryor v. Municipal Court, they won’t pay attention to it."
The California Supreme Court’s ruling in the Pryor case redefined lewd conduct as committed in public view "if the actor knows or should know of the presence of persons who may be offended by his conduct."
Nickerson, Loftin and other lawyers argue the officers falsely arrest suspects in undercover stings because decoys engage them prior to their alleged lewd behavior. "[Pryor v. Municipal Court] created the ’knows, or should know’ element, and the cops are never taught that case," said Nickerson. "What happens at trial is the cops deny any of the affirmative conduct."
The city of Long Beach in 2002 paid $250,000 in damages to a man who claimed officers falsely arrested him during a similar bathroom operation.
"What they’re doing with the people at the beach here is gay bashing under cover of authority," said Loftin. "There have been gay men who have been told, ’If I see you back on my beach, I’m going to make sure you’re arrested again and again and again until you stop coming.’ I’ve had a couple of people tell me that."
An LBPD spokesman could not be reached for comment as of deadline, but the department has a gay and lesbian advisory committee.
As for Nickerson, he is taking on more cases in southern California. He is currently representing a man he claims Bakersfield police officers discriminated against him because they arrested him in a park restroom.
The city of Anaheim paid another one of Nickerson’s clients $50,000 in damages late last year after he claimed officers falsely arrested him in 2007 for allegedly masturbating in front of a decoy in a public restroom. "There were only two people in that bathroom, and they’d been playing the song and dance act for 30 minutes," said Nickerson. "The sole issue before the court was my client’s belief that the cop would not be offended, a reasonable belief in view of all the interaction between the two. And [the judge] said, ’I cannot find that element present. You’re not guilty.’"
Neither the Bakersfield nor Anaheim Police Departments returned requests for comment.
Experts say men caught cruising in restrooms are often deeply closeted or repeating traumatic experiences they suffered in childhood.
Loftin said she is disappointed with the police department’s response to criticism from LGBT activists. And she added she would like to see a class-action lawsuit filed someday.
"I used to sit on the police chief’s advisory group for years and I tried to bring this whole litany of problems to them," she said. "I’ve offered and had a training with them and given then copies of the case law."
Nickerson said he has reviewed more than 10,000 police reports of cruising operation arrests, but none involving opposite sex decoy scenarios. He said he believes these stings are symptomatic of widespread homophobia in the police force.
"The police department is a paramilitary group and a lot of people are ex-military. What was the last of our national institutions to finally open its doors to gays? The military; and they did it less than three months ago," he said. "It’s going to take some time for this to filter down, but in 10 years you won’t have this anymore. The police department will be filled with ex military people who have served with gays. They won’t go for this."