Stings Aimed at Gays Biased, Court Rules

In a case involving police use of decoys aimed at arresting homosexuals, the California Supreme Court on Monday made it easier to prove discriminatory prosecution.

The unanimous ruling will allow gays to challenge arrests in which police use decoys to go after homosexual targets, but do not arrest heterosexuals for similar activities, lawyers in the case said.

“This will sound the death knell of cop sting operations everywhere that are focused on gays,” said Bruce W. Nickerson, a Bay Area lawyer who represented two of the defendants in the case before the Supreme Court. “No longer can the police with impunity arrest gay people for an activity which, when it is engaged in by straights, is ignored.”

The case stemmed from a police operation outside a Santa Clara County adult book store that catered to heterosexuals and gays. Police had received complaints of men masturbating in cars and urinating in the store’s parking lot, but none of the reports mentioned homosexual activity, Nickerson said.

Despite the lack of such complaints, police dispatched attractive, young male officers to the store to lure gay men into proposing sex. Some officers even suggested that the men have relations in their car. Once at the car, the decoys arrested the men for soliciting a lewd act to be performed in a public place.

Evidence showed that the decoys displayed a typical “cruising pattern of homosexual men” that invited proposals by other men, the court said. Some of the decoys watched homosexual videos in a room with the door ajar, and others made eye contact with other men to encourage proposals, said Jon Davidson, supervising attorney in Los Angeles for the Lambda Legal Defense and Education Fund, a gay rights group.

Ten men were arrested in the operation in 1991 and 1993. Two men whose case reached the California Supreme Court had already succeeded in getting their charges dismissed, but the state high court took the case anyway to clarify the law. Without ruling directly on the sting operation, the court set a standard for discriminatory prosecution that defense lawyers favored.

In an opinion written by Justice Marvin R. Baxter, the court said defendants need not prove that police were trying to punish them for belonging to a particular group.

Rather, the court held, the defendants must only show intentional and unjustified discrimination unrelated to legitimate law enforcement objectives.

“The purpose or intent that must be shown is simply intent to single out the group or a member of the group on the basis of that membership for prosecution that would not otherwise have taken place,” Baxter wrote.

“When there is no legitimate law enforcement purpose for singling out those persons for prosecution,” he continued, “the prosecution is arbitrary and unjustified and thus results in invidious discrimination.”

Mountain View police had not done sting operations at singles bars or other places frequented by heterosexuals and did not use female decoys to entice heterosexual men into proposing sex in cars, gay rights lawyers said.

The ruling will not affect sting operations at public restrooms because there is no similarly situated group of heterosexuals having sex in public bathrooms and escaping arrest, Nickerson said. The decision will help gays who are arrested for having sex in their cars in communities where police routinely decline to arrest heterosexuals in such situations, he said.