Civil-rights suit filed against SJ department

Charges filed from undercover stings targeting public sex between gay men were nullified against six targets in 2016

SAN JOSE >> A notable gay-rights attorney has filed a federal lawsuit against the San Jose Police Department over undercover lewd-conduct stings that targeted gay men, more than a year after a judge threw out six related cases and deemed the “decoy” operations unconstitutional.

While the complaint filed last week in federal court seeks monetary damages of at least $1 million for five of the six defendants cleared by the June 2016 ruling of Santa Clara County Superior Court Judge Jose S. Franco, attorney Bruce Nickerson is also seeking class-action status for the lawsuit, and is hoping it will help end the practice by police overall.

Nickerson has made a name for himself over the past 30 years defending gay men caught in the decoy operations where undercover police officers solicit and suggest sex acts in public places like city parks and arrest men who reciprocate interest.

“They’re invalid and discriminatory,” Nickerson said of the stings, “because they target malemale public sex and not also male-female public sex.”

San Jose police ended the stings two years ago when the lewd-conduct cases made their way through the court system and have not resumed them since.

“We have a responsibility to respond to complaints of crimes and are always looking for other ways to do so,” police Chief Eddie Garcia said in a statement. “We have not used these type of undercover operations in response to public complaints of unlawful lewd-conduct in the more than two years since these arrests occurred. We are still responding and enforcing the law by utilizing other techniques.”

The police department also pointed to its work

with LGBT issues, creating several positions on the force to improve its accommodations of LGBT officers and launching a vigorous recruiting campaign to bring in more officers from the community.

“The LGBT community often gets forgotten in efforts to increase trust with the police, but in the past two years, we are doing more than ever to make sure that is not the case in San Jose,” Garcia said. “We created an LGBT advisory committee, established an LGBT liaison officer program and launched a firstin-the-nation, police recruiting campaign featuring same-sex couples.”

The San Jose case at the heart of the current lawsuit involved undercover lewd-conduct stings at Columbus Park, which police said was spurred by citizens’ complaints and officers’ own observations of unlawful activity in the park on Taylor Street between Highway 87 and Coleman Avenue.

Around the same time the San Jose cases were dismissed, a Los Angeles County judge threw out similar charges involving Long Beach police. Police in Mountain View, San Leandro and Manhattan Beach have stopped conducting such stings in response to lawsuits over the tactic, which were argued to be violations of constitutional protections against unreasonable search and seizure, and equal protection under the law.

One of the defendants told this news organization last year that the park was a meet-up spot and that any sex with an interested partner would likely happen elsewhere. Nickerson said the undercover nature of the enforcement is what is problematic, arguing that it preys on men struggling with their sexuality and looking for a safe place to explore it without retribution from their families and co-workers.

“The guys that this catches are those who are half in and half out, the most vulnerable. For them this is the only way to explore their sexuality,” Nickerson said. “If they were completely out, they would go to a gay bar. Because they have this need, they go to quasi-public places, and use signals to avoid offending members of the public.”

Nickerson also emphasized that lewd-conduct crimes in California are based on whether conduct would “offend the observer,” which he said in the case of undercover stings is muted by the fact the decoy officer is expressing — albeit falsely — sexual interest.

“I have no objection to uniformed cops doing patrol,” he said. “But when they go decoy, that’s what makes it invalid.”

The arrests, Nickerson added, can “destroy” the psyches of the men caught in the stings.

“It’s one thing to be arrested. What’s worse is to be arrested and deprived of your liberties because you’re gay,” he said. “That’s essentially what’s going on.”