Date: Thu, 2 Feb 1995 09:21:00 -0500 From: Chris Hagin To: Multiple recipients of list GLB-NEWS Subject: Court rules police sting is anti-gay Date: Thu, 2 Feb 1995 Citing anti-gay bias, court kills charges Wire Reports A state appeals court has dismissed charges against two men accused of sexual solicitation after finding that Mountain View police showed bias against gays. Bruce Nickerson, the attorney for the two, said the decision ``will start the death knell nationwide'' against sting operations used to arrest gay men. In its 2-1 decision Monday, the 6th District Court of Appeal ruled that Mountain View police targeted gay men in a decoy operation without evidence that gays, in particular, had been violating the law against sexual solicitation. Reasoning questioned ``No rational reason for the deliberate structuring of the decoy operation to focus on homosexuals was shown,'' Justice Franklin Elia wrote. ``. . . The conclusion cannot be resisted that no other reason existed other than hostility toward homosexuals.'' The court cited police records showing all 10 arrests for soliciting lewd conduct over a three-year period in Mountain View were of men soliciting other men. The court also cited a Municipal Court judge's findings that the police actions were unconnected to ``legitimate law enforcement interests'' and were motivated by a ``subconscious homophobia.'' Nickerson said he will try to get seven other cases reversed. He said he also represents eight people arrested in the sting who are suing Mountain View for false arrest. No bias now, chief says Police Chief Brown Taylor said Wednesday he had no information about the arrests, made during the summer of 1993. But he denied any current discrimination. ``We respond to complaints from citizens,'' Taylor said. ``Clearly (that) is not a discriminatory act.'' Nickerson said police staked out the Video Cassette Outlet on El Camino Real because of complaints about people masturbating in their cars and urinating in the parking lot as well as drivers backing into a fence. But the court noted that neighbors didn't complain that these problems were being caused by gay men. The court said police placed a young undercover officer at an adult bookstore to talk with male customers. If a customer tried to pick him up and suggested sex, the officer would refuse unless the customer proposed using the officer's unmarked car. At the car, the officer would make an arrest for soliciting lewd conduct to be performed in a public place. The cases did not involve payment for sex. Police are not obliged to arrest all criminals and can target groups that cause particular law enforcement problems, Elia said in his opinion. But he said the singling out of a group ``based on factors irrelevant to the general public welfare'' raises problems of discrimination. The two men represented by Nickerson were selected for arrest ``on an invidious basis for acts which would not have been detected, prosecuted or even criminal had it not been for the police conduct,'' Elia said. He said there was no need to prove, in addition, that an individual officer's motivation was to punish gays. Justice Eugene Premo joined Elia's opinion. Justice Patricia Bamattre-Manoukian dissented in part, saying the case should be returned to lower courts for more evidence about whether the arrests had discriminatory motives. S. CHRISTOPHER HAGIN | The Pledge of Allegance says: Atlanta 1996 | "With liberty and justice for ALL" chagin@mindspring.com | What part of ALL do you not understand? HATE IS NOT A FAMILY VALUE