May 5, 2016

2016 and Vice Stings After Gay Men in Bathrooms and Parks-Still Goes on




                                                                          
                                                                          

   
The police reports all began with the same boilerplate language: Citizens had complained of lewd conduct in several public bathrooms around Long Beach, California—bathrooms known as popular spots for cruising, or semi-public sex between gay men. These complaints, the reports explained, prompted the vice detail to investigate. Undercover officers entered the bathrooms in question as neutral observers and were quickly solicited for sex by gay men. Once the men exposed themselves, the officers arrested them and charged them. Over several years, the Long Beach police arrested scores of gay men this way. Or so their reports claimed.

There was one problem: The police reports were false.

On April 29, Los Angeles County Superior Court Judge Halim Dhanidina issued a seething ruling indicting the Long Beach Police Department for “harbor[ing] animus toward homosexuals in its undercover investigations of lewd conduct.” The department, Dhanidina found, consistently lied in its police reports, ensnared gay men in a borderline entrapment scheme, and “deliberately singled out” gay men for arrest “on the basis of [their] sexuality.” This “discriminatory prosecution of men who engage in homosexual sex,” Dhanidina held, is barred by the Equal Protection Clauses of the federal and state constitutions. His decision is a startling reminder that anti-gay animus continues to infect policing in 2016—even in those liberal bastions where gay men feel most safe.

The trouble began for the Long Beach Police when they arrested Rory Moroney in the fall of 2014. Moroney was about to leave a public park bathroom when a man walked in, entered the largest stall, left the door open, and stood at the toilet without urinating, holding his hands near his crotch. The man stared at Moroney intensely and smiled. Moroney placed his hand near his own crotch and the man smiled again. Having performed a classic cruising ritual, Moroney allegedly pulled down the waistband of his shorts for several seconds. Suddenly, the man walked out, and the police entered the bathroom to arrest Moroney. The man was Detective Raymond Arcala, an undercover officer in the vice unit.

Moroney, believing he had been unfairly targeted or even entrapped, hired Bruce Nickerson, one of the country’s foremost experts in defending gay men against undercover sting operations. Nickerson, sensing that the problem extended beyond Moroney, swiftly requested records and information from the Long Beach Police pertaining to its lewd-conduct investigations. The police department vigorously fought the request, striving to keep its records secret. It lost. The trove of information the police were compelled to produce revealed a discriminatory scheme more far-reaching than Moroney could have imagined.

Vice units across California are now on alert that judges will not unquestioningly countenance discriminatory prosecution of gay men.
For years, the Long Beach Police have insisted that its policies do not target gay men, but simply respond to complaints of lewdness—which, it asserts, disproportionately involve homosexual acts. The department’s records tell a different story. Officers routinely receive complaints about lewd conduct involving men and women engaged in heterosexual acts at parks and beaches within the city. For at least the past six years, the vice detail has followed up on exactly zero of these complaints; by its own admission, the detail does not even utilize undercover investigations in responding to complaints of heterosexual lewdness. In fact, none of the officers involved in the unconstitutional sting scheme ever arrested a single woman, despite the uncontested fact that many women were reported to be engaged in lewd public behavior.

Instead, the department zeroed in on a handful of public bathrooms that were known to be frequented by gay men seeking to cruise. The vice detail trained officers to mimic cruising rituals, acting as decoys in order to lure men into cruising them. Often, vice officers would stand at toilets with the stall door open for lengthy periods, their bodies positioned to give the impression that their genitals were exposed, seeking out eye contact with other men. When their targets took the bait, nearby officers moved in for the arrest—though not always right away; at least once, an officer watched a suspect masturbate for 45 seconds before he was arrested.

During Moroney’s trial, members of the vice detail maintained that, as Dhanidina phrased it, “they only acted as neutral observers while undercover.” After hours of testimony from officers, witnesses, and Moroney himself, Dhanidina rejected that claim. It is “evident,” he wrote, “that each undercover officer acted as a decoy as part of a sting operation designed to specifically target the defendant and other men like him who engage in homosexual sex. Each of the undercover officers intentionally engaged in conduct designed to communicate receptiveness to the sexual advances of their targets.”

Surveying this evidence, Dhanidina ruled that “the Long Beach Police Department harbored animus toward homosexuals in its undercover investigations of lewd conduct.” Dhanidina noted that, in addition to singling out gay men for prosecution, the vice detail prevaricated in its reports, falsely stating that citizens had complained about lewd same-sex conduct where they had set up their stings when no such complaints were ever lodged. Moreover, every report about one particular restroom dwelt on its purported proximity to a high school—“despite the fact that the school was nearly a football field away,” that “none of the reports contained any reference to students from that school being present anywhere near the public restroom at the time of the investigation,” and that many investigations occurred “at night, after school hours.” Dhanidina explained that the reports were clearly attempted to depict cruising as a threat to children, then concluded:

This position only finds support in the rhetoric of homophobia that seeks to portray homosexual men as sexual deviants and pedophiles. To the extent that the Long Beach Police Department has tried to appeal to this view by gratuitously referencing school children in the reports of their lewd conduct investigations, the court rejects it wholeheartedly.
Dhanidina ultimately dismissed the charges against Moroney on the grounds of discriminatory prosecution. Finally, Dhanidina castigated the Long Beach Police for their unconstitutional practices. During Moroney’s trial, the defense called experts to testify to the fact that law enforcement officers across the country have long persecuted gays by singling out cruising spots and arresting the men who frequent them. In a striking peroration, Dhanidina gestured toward this dark history:

Equal treatment … is the cornerstone of our Constitutional democracy, the glue that binds the disparate components of society together. Our commitment to it is a necessary precondition to achieving a fair and pluralistic society. Too often in our history has an unpopular group been made to bear the brunt of discriminatory tactics by law enforcement. The fact that members of these groups might be vulnerable to abuse requires the law to be a shield rather than a bludgeon. The arbitrary enforcement of the law as seen in this case undermines the credibility of our legal system, eroding public confidence in our ability to achieve just results. This court is determined to do its part to prevent this from occurring.

As Phillip Zonkel of the Long Beach Press-Telegram reported, Nickerson, Moroney’s lead attorney, was thrilled with the ruling, saying it was “powerful because it sends a message far beyond this case. It sends a message to police departments throughout the state who do these decoy operations for lewd conduct cases.” That is surely correct: Vice units across California are now on alert that judges will not unquestioningly countenance discriminatory prosecution of gay men. But that’s California—a dark blue state with fairly progressive policing. Gay cruising stings still occur across the country, from Delaware and Louisiana to Texas and even New York. Dhanidina’s ruling can’t put a stop to these constitutionally dubious policing practices. It can only remind officers that the Constitution’s guarantee of equal protection binds government at every level—from the legislature all the way to the vice squad.


 is a writer for Slate. He covers the law and LGBTQ issues.

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