The City of San Leandro and the San Leandro Police Department were just hit with a class-action lawsuit for false arrests and  issuing malicious press releases in their botched sting operations meant to catch men soliciting non-commercial homosexual sex in public areas.    Last year, when the Police Department issued a press release announcing one such sting operation, I wrote to Mayor Stephen Cassidy expressing my concerns with what appeared to be illegal and discriminatory behavior in the part of the Police.  When Mayor Cassidy expressed his approval of the SLPD’s methods, I spoke up at a City Council meeting.

One thing is clear: both Cassidy and the City Council well were aware that the SLPD’s actions were not only illegal, but they exposed the City to legal liability.

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Official e-mail correspondence between me (Marga Lacabe) and Mayor Cassidy, all from 6/24/12

My first e-mail

Dear Mayor,

As you know, last week two older men were arrested near the bathrooms at Marina park for “loitering in or about a public restroom for the purpose of engaging or soliciting lewd or lascivious acts.”  This was done as part of an undercover sting operation, and the two arrests were unconnected to one another.  The operation took place during a school day/hours.  The SLPD promptly issued a press release including the name and pictures of the two men who were arrested, one of whom was 76 years old.

I’ve been reading about the phenomenon of “bathroom sex” and talking to older members of the LGBT community about it. One of my sources summarized the phenomenon like this:

“[Bathroom sex is] very much a phenomenon of the closet, which in turn is a phenomenon of oppression and stigmatization. The guys who cruise the rest rooms are guys who don’t dare be seen (or are scared to be seen) at normal gay social gatherings.  And presumably they’re too marginalized to hook up via internet — the old, the poor, the uneducated. It surprises me that there’s still much rest room action going on.  Back in the 70’s, when I lived in backward, ultrahomophobic [midwestern state], it was virtually the only available contact for gay men.  In 2012, in the bay Area — really sad the practice still persists, and particularly sad that it’s the best these poor guys can do..”

It is just as sad that Police departments have used the anti-loitering laws (even in their very weakened state) as a tool to harass and shame men who are in the closet.   The fact that our Police Department rushed to publish their pictures shows that that was exactly their intent.  But this type of behavior should not go unchallenged.

For years, you have been outspoken about your support of gay marriage.  I would hope that you would be just as outspoken about your condemnation of the oppression of gay men by our police department.

You may also note that this is a lawsuit waiting to happen.  While the penal code criminalizes loitering around a bathroom with the intent to engage in lewd conduct, the meaning of this has been narrowed dramatically by the courts.  Basically, in order for the charges to stick, you need to have a sex act between the defendant and someone else which involves sexual touching, and it must be observed by someone other than a police officer.  The lawyer who argued some of the key cases on this issue has written a quick guide for defense attorneys that explains how the law plays out: http://www.brucenickerson.com/primer.html  It’s worth a read.  It would also be worth it to read the police report and see exactly what took place and find out whether charges were filed.  If it turns out that the police is entrapping gay men just to put their pictures on the internet, that can cost the city some.  Nickerson is in San Carlos, which I think is not too far away.

I appreciate you taking this case seriously, and doing whatever is necessary to stomp out any homophobia at the SLPD.  I will also appreciate if you pass a policy that requires the SLPD to inform the public of the legal disposition of any case in which they’ve issued a press release that is still available at the city’s website.  These men were arrested over a week ago, if they have been charged that information should be posted.

Thank you,

Marga

Cassidy’s response

Ms. Lacabe,

Thank you for your message and expressing your concerns on this important matter.   I will inquire further into the question of the SLPD informing the public of the disposition of any case in which the department issues a press release.  However, I see a number of practical constraints, including that the disposition of a case can be months and sometimes years from the arrest, and the prosecution is handled by the District Attorney.

No city wants their public restrooms – particularly ones in public parks frequented by children  – to be used as a meeting place for engaging or soliciting sex or lewd acts, which is way there is a provision in the state penal code prohibiting such activity.  Arresting individuals who have allegedly committed such an offense, and publicizing their arrests, is a means of seeking to deter others from using our public restrooms for similar illegal acts.  I appreciate that the nature of this alleged offense – and its publicity with the release of photos –  can be deeply stigmatizing and lead to vilification of those arrested.   However, no basis exists to support the conclusion that the arrests and press release were part of an attempt to harass or oppress persons based on their sexual orientation.

Stephen Cassidy
Mayor
City of San Leandro
835 East 14th Street
San Leandro, Ca 94577

My response

Mr. Mayor,

I appreciate your candidness as to the fact that the City is publicizing the photos of the accused men in order to “deter others from using our public restrooms for similar illegal acts”.   Under the law, of course, the men are to be presumed innocent which makes your statement particularly troubling.

You state that the harassment of men seeking to meet other men at a public park was not based on sexual orientation, I wonder if you have any evidence that it was not?  Can you tell me if there has been a sting operation in San Leandro in recent memory aimed to enticing men to have sexual relations with female cops or women to have sexual relations with male cops, so as to then expose them?  I’m, of course, referring to circumstances of non-commercial sex.

Finally, I would encourage you to read the book Queer (In)Justice: The Criminalization of LGBT People in the United States which deals exactly with these issues.  Chapter 3 (which you can access at http://www.scribd.com/doc/49120847/Queer-In-justice-The-Criminalization-of-LGBT-People-in-the-United-States-excerpt) deals specifically with the tactic of “policing public sex” as a way to oppress this most marginalized social group.

I can only hope that you will change your mind and will put an end to these bigoted practices in San Leandro.  San Leandro has already too ugly a history about dealing with all kinds of minorities for you to want to continue with that pattern.

Sincerely,

Margarita Lacabe

Cassidy’s Final Response

Ms Lacabe – I referred to the arrestees as persons who allegedly committed the offense. As a lawyer who served as a deputy public defender, I am fully aware an arrestee is innocent until proven guilty.

And my final response

Mr. Cassidy,

In your statement you expressed support for a policy of releasing the name and photographs of men who have been arrested for loitering so as to warn others that this is what it will happen to them if they do something the police deems illegal.  You recognize that the men must be presumed innocent, and thus may not have done anything illegal, but you still believe it’s proper to “out them” to their communities and the worlds to accomplish your policy goal.  That is an immoral policy that I would have hoped you’d be above.

The fact that you were a former deputy public defender, and therefore know full well how little evidence the police needs in order to arrest a person for a crime, makes your position particularly troublesome.

Take care,

Marga

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Public Comment before the San Leandro City Council – July 8, 2012 (these were my prepared remarks, I might have changed them slightly while presenting them).

My name is Margarita Lacabe. I’m a San Leandro resident and an international human rights activist.

Today I’ve come to talk to you about a human rights issue.

About two weeks ago, the San Leandro Police Department arrested two men during a “sting operation” at Marina Park.  According to the press release the Police issued, the men were arrested for “loitering in or about a public restroom for the purpose of engaging or soliciting lewd or lascivious acts.”

The Police Department has refused to release the police reports on the arrests so we don’t really know what the men in this case actually are accused of doing. We do know that California law does not prohibit either solicitation or sex in a public place, unless those involved could reasonably believe someone could observe the sexual conduct and would be offended by it.

The Supreme Court ruled on the “loitering” section of the Penal Code back in 1988, but this has not stopped Police Departments statewide from carrying on raids like the one in San Leandro. The purpose of those raids – invariably carried out against men looking for homosexual sex, never heterosexual – is not to enforce the law but to use it as a tool of harassment against one of the most marginalized and oppressed populations still around: closeted gay men.

“Bathroom sex” is a creature of the closet. It arose because until recently gay men could not be public about their sexual orientations or preferences. Men who came out risked being ostracized, lose jobs and careers, be beaten up, even imprisoned. Things have improved but too many men carry the scars of all those years and are still in the closet. Even here, in the gay-friendly Bay Area. According to the research I’ve read, many of the men who still visit “tea rooms” as the bathrooms are known, are men who are still in the closet.

Now, I don’t know if this is true of the two men who were arrested, but I will note that they were both older men and one was 76!

The San Leandro Police did not just arrest these men, it also issued a press release with their names and photographs. Mayor Cassidy indicated over e-mail that he believes outing octogerians is justified by the greater goal of stopping whatever “illegal behavior” supposedly took place. I don’t agree.

The legal issues surrounding this arrest will be played out in court. I’m confident the men have access to a competent attorney and that justice will prevail.

But the ethical issues remain: people have a right to privacy, even beyond that protected by law. And that includes men and women in the closet, whether they hang out public bathrooms, the Police Station or City Hall.

I don’t have a formal request at this time, but I hope that this is an issue that you will keep in mind.  This is 2012, we should not be outing people in San Leandro!