false arrest

Jul 202013

The following note was left by San Leandro neighbor Tom Kunich as a comment to a previous article on the San Leandro Police Department.  I think his story deserves more prominent attention.  Ultimately, it’s the story of how the SLPD lost the trust of yet another San Leandro citizen.

handcuffedhandsOn Saturday July 6, 2013, I received a doorbell around 8 PM. I opened the door and it was a young Hispanic woman of perhaps 18 or so who asked to use my phone. I was reserved but let her in and let her use my phone making sure to lock the door. The person she called went to voicemail and she hung up. She was crying so I asked her what was happening and she said she went to visit her sister or girlfriend or some such that was difficult to understand because of the crying. She said that her sister’s boyfriend lived several houses down from me.

She said that he was there alone and demanded sex from her and when she refused he said that he was calling someone that would come over and beat her up. She believed this a credible threat so she ran down the street ringing doorbells and I was the only one to answer.

When she didn’t get an answer and explained to me I called 911 and gave them all of the pertinent information. The operator asked to talk to her and she told the same story over again.

While waiting, here I was lecturing her that in order to remain out of trouble she must avoid all people that are trouble. Only minutes later I discovered something a lot more frightening than that.

We waited approximately 10 minutes and the doorbell rang. Because of the threats to her I looked first through the peephole. There was no one within sight. So I walked around to my bedroom and looked out of the drawn curtain and there was no one on the porch. Fearing that someone might be coming around back or some such, since she had been threatened, I pulled my .38 revolver and took it out of it’s holster and looked out of several windows from drawn curtains until finally I saw an officer standing out in my driveway. His car was parked down the block in a position that wasn’t obvious.

I went over and opened the door with relief and told him he could come in. He saw me placing my pistol back in its holster and taking it back into my bedroom. Apparently he told me to stop and drop my gun from out in the driveway but I was too far away to hear him with the TV on and the young woman crying. I came back out and he was still standing outside so I went our to explain what was going on. I was wearing a T-shirt and pants and it was obvious that I didn’t have any sort of weapon on me. He drew his large caliber pistol and pointed it at my head from about a foot away. He demanded that I sit on the lawn until other officers appeared and then they HANDCUFFED ME!!! And made me sit out on the curb with all of the neighbors looking out and seeing the police leading me around in handcuffs. If they were so afraid that I might have a hidden weapon why didn’t they frisk me or even ask for an ID? This was done for one reason only – to give themselves time to ransack through my home looking for other possible weapons or drug or some such. And yet without a search warrant this was completely and totally illegal.

They angrily asked me where my gun was and I explained where I keep it. Three different officers asked me this same question and since I almost had to shout it through my anger, now half of the neighborhood knows where I keep my gun. Again the fact that I own a weapon is none of the police’s business in a case like this.

Several officers went into my house and the sergeant finally appeared and asked if he could check the serial number to assure it wasn’t stolen. Since the pistol is probably 100 years old I certainly don’t know how they would ever be able to assure themselves that it was registered to me. It might have belonged to my father since I can’t remember ever buying it. The pistol was patented over 100 years ago.

After perhaps 10 minutes or more they came out and released me and then started talking to the girl as an afterthought. As far as I know they didn’t even try to question the perpetrator of the threat.

This is my home and I have the right to have any legal weapon and brandish it as long as I do not threaten anyone save for legal protection. Not only did the police check my pistol but they, without permission, ransacked all of the drawers in the bureau, the closets in two rooms, the hallway closets and down into my garage. And left things in a mess and me so upset that I cannot go to sleep any more than an hour or two at night. They had no right whatsoever to ask for my pistol let alone look for more weapons. This was simply illegal. It was a criminal action committed by the police who are supposed to be trained to know what a criminal action is and so have no excuse.

The police were fully informed of the situation from the 911 call. They never once asked me for identification and treated me in this manner. They almost didn’t bother with the girl who was the subject of the entire episode.

Is this what happens when you attempt to do a good deed in San Leandro? I wonder what became of the neighbor who offered sanctuary to the women who escaped from ten years of imprisonment under Raul Castro. I suspect that the San Leandro Police would have beat him senseless with nightsticks and stuck a gun in his face and jailed him while looking the other way while claiming that there was no evidence to question Castro.

The actions of the police department of San Leandro were little more than that of a gang and they committed a criminal act against my person and property.

When I contacted the Chief of Police she turned it over to an assistant. After he heard my story what he essentially said was that once the police officer saw a gun he had free rein to do anything he and his gang members wished. This was entirely supported by the duty sergeant that was on the scene. The Chief’s assistant stated that I could lodge a formal complaint on a form if I wished and that he would send me one. He was polite but was nothing but another member of the gang. They have more than enough information to take this to a higher level and are accomplishing nothing more than a delaying tactic.

I have also contacted the San Leandro Mayors office and it was demoted to being “overseen” by the City Controller. I never heard from them again.

There needs to be major changes in the management of the police department and possibly the other city offices as well. Having a police force that believes that they are above the law cannot be allowed to stand.

Questions that come to my mind:

1. If the police had ANY reason to be worried about me in the first place they could have listened to the 911 recording. If they still had misgivings the single officer only had to wait a minute or so for the other cars to show up. Why did he ring the doorbell if he was frightened?

2. When I came out he acted as if he was frightened that I might have a gun on me still. If that was the case why even after handcuffing me was I never searched? The only reason has to be that because I was wearing a t-shirt and pants and it was obvious that I was unarmed and no threat. So WHY was I handcuffed?

3. Why was I never once asked to provide an ID? Obviously because I gave my name and address on the 911 call and was looked up.

4. Since I was outside of my home why did they not call the woman outside instead of illegally entering my home? Of what interest was my gun to the police? And why was my home illegally ransacked? Does anyone believe that after having a gun placed to my head and being handcuffed by little more than a gang that I should have refused them anything they were demanding?

5. Why was the man who provided safe haven and called 911 the person that suffered from this act of kindness and as far as I could tell the instigator of the threat left entirely alone?

6. Of what use at all is a 911 call system that results in this sort of police action? It is bad enough that it takes so long for police to arrive. In a serious case they could only arrive after any actions. Would I ever call such a so-called “service” again? A resounding NO! So why are we paying for it?

I do not know about the rest of this city but I do not want to pay my taxes to hire a police force that is so frightened that they act irrationally. This appears to be a matter for the state Attorney’s office to investigate since there’s no local actions equivalent to the seriousness of the crime.

And who am I? I am retired and living on Social Security. I was an engineer and scientist who spent the better part of my life developing medical instruments some of which may save your life some day. I’m a Vietnam Veteran.

Is this what you expect from San Leandro City officials and police?

Jun 112013

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.

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,


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
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.


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,


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!

Jun 062013

mengelsuitIs High School Teacher SLPD’s latest victim?

Earlier this week, the San Leandro Police Department issued a press release announcing the filing of charges for “possession of child pornography” against Rick Styner, a teacher at San Leandro High School.  In one day, the reputation of a man that, by all accounts, had been honorable and respectful of his students, has been destroyed, possibly beyond repair.  I don’t think any of us can imagine the social opprobrium the Styner family is experiencing right now.  And yet, a careful reading of the facts as reported in the news stories do not show any actual criminal conduct by Styner.   Regardless of what happens to the charges, whether they are dismissed or whether Styner is tried and found innocent, his life and career has been ruined by Chief Sandra Spagnoli and the San Leandro Police Department.  And he is not the only one.

False Arrests at Marina Park

Last year, the SLPD issued another press release, featuring the pictures of two older men and accusing them of loitering around the bathrooms at Marina Park to solicit men for sex.   The community reacted immediately, calling these men every name in the book and instantly assuming they were guilty.  Even I, while arguing that their conduct was not a crime unless they actually intended for someone else to unwittingly witness a sex act, assumed that the basic facts of the press release were true: the men were hanging out around the bathroom hoping to pick up other men for sex.  I was wrong in making that assumption.  Simply put, the SLPD’s press release was a lie.

The lie was most egregious in the case of Michael Woody.  Woody had stopped at the parking lot near the Marina Park bathrooms with the intention of using the facilities for their intended purpose.  An undercover SLPD officer was loitering around and tried to engage Woody in conversation.  When the officer followed Woody into the bathroom, Woody became understandably uncomfortable and decided to leave.  The officer followed him to his car and arrested him as he was turning on the engine.   Woody had never indicated any interest in engaging with the police officer on any activities.  No charges were filed against him.

Steven Mengel, on the other hand, did show interest when a twenty-something plain-clothes officer Matthew Barajas approached him as he was sitting inside his car, parked in a public street, and propositioned him.  They made a date to meet the next day at noon near the bathrooms.  When Mengel arrived, Barajas showed up with a “friend”, now identified as Sargent Brian Anthony.  They agreed that Anthony would serve as a “look out”, making sure nobody came, while Mengel gave Barajas a hand job in the bathroom stall.  Before he had the opportunity to do so, he was arrested.

As I mentioned after the men’s arrest, California law only criminalizes sexual conduct in public, when it’s done under the reasonable belief that it could be witnessed by others who would be offended at the sight.  Clearly, that was not the case in this case as officer Anthony’s “job” was precisely to make sure that nobody would witness the act.  Disregarding the law, the SLPD officers not only arrested Mengel but they issued a press release falsely accusing him of loitering with the intent of engaging in illegal acts.  He was actually charged with this offense – which suggests to me that we should give little credence to any charges the Alameda County District Attorney levies against anyone -, but the charges were dismissed by the court.

Unfortunately, it will ultimately be San Leandro residents that have to pay for the SLPD’s misconduct – the city has been hit by a class-action lawsuit filed on behalf of Mengel, Woody, and all other men who have been subjected to similar actions by the SLPD.   While the lawsuit does not specify an amount for damages, similar lawsuits have resulted in settlements in the six and seven figures.  So much for Mayor Cassidy’s argument that the City should give Chief Spagnoli a raise because she would save the city money on lawsuits.

The Styner Case

(Update: the actual court documents in this case show that the charges are bogus).

What happened in the Marina Park should warn us against jumping to conclusions on the Styner case as well.  Indeed, a close examination of the facts on this case show that it’s not only weak but suspicious.

Rick Styner is a Computer Science teacher at San Leandro High School.   On April 16, he was teaching his class how to transfer files between devices, when he accidentally clicked on a file in his dropbox folder, opening a nude photograph of himself.  The police have not described this photograph, but according to what a student of Styner’s wrote on Facebook, it actually focused on the tattoos that Styner sports on his thigh – he gets one after he completes a marathon -, and only incidentally showed his genitalia.  *Update*.  After writing this part I looked through Styner’s facebook page and found a picture of the tattoo.  It’s actually on his right hip, and while this particular picture is cropped, it’s reasonable to believe that the original might have shown part of his genitalia and might have been the one the students were exposed to.  It’s clear that the purpose of this picture was to show off the tattoo.  Styner got it in August 2012; the little balls signify the marathon’s he’s completed, the number signifies the distance of the marathon (26.2 miles) and the phrase means “will run” in a Tolkien language.

Immediately after this incident, Styner notified the school authorities and surrendered his school-issued laptop computer.  An unidentified school district employee proceeded to look through the computer where s/he allegedly found material that s/he considered to be disturbing.   The district notified the police, without first notifying the School Board.

The material in question seems to mostly consist of written erotica and is fully protected by the first amendment.  According to news reports, one of these stories concerned incest between two teenage siblings (update, this story appears to be “Flowers in the Attic” by V.C. Andrews) , and it included a naked picture of a woman who looked like she might be underage.  The Police has not said whether they have identified the woman or confirmed that she is, indeed, underage.  The picture has not otherwise been described, so we don’t know if it is actually pornographic (not all naked pictures of minors are; “Pretty Baby” can still be shown in theaters in California even though it shows a naked, pre-pubescent Brooke Shields.  Did you click on that last links? You are now in danger of having the SLPD arrest you for possession of child pornography.).

The police have also not stated whether the story had actually been authored by Rick Styner, or whether he had downloaded it.  If the latter, the police must show that Steiner actually knew the story contained a pornographic picture of an underage girl.  After all, it’s extremely common for people to download large story collections, and not necessarily read or examine every single one.  It’s also very easy to unwittingly receive material – specially via a dropbox account – that one did not seek or is aware of.  And it’s not always easy to be able to tell the age of a model by her picture alone, much less determine whether the picture is actually pornographic.  Is this picture of Brooke Shields child pornography? You tell me – but if you look, beware that the picture will be downloaded to your computer and you’ll be potentially just as guilty of possessing child pornography as Rick Styner.   Which is likely, not at all.  “Possession of child pornography” is an intent crime, so unwittingly downloading pictures that you don’t know to be pornographic is not a crime.

My personal feeling is that if Styner was, indeed, interested in child pornography, there would have been hundreds of child porn pictures in his computer, not just one of someone who looks like she may be underage and who is not apparently engaged in actual sexual conduct.

The second charge against Rick Styner is even more bizarre.  He is accused of going into the home of a friend, who had given him the key, and taking pictures of her underwear and running clothing.   He is also accused of putting the picture of the woman’s head on pictures of naked bodies.   Apparently, he also took something from the woman’s home, which the police would not identify.

Now, I understand that the Police is trying to suggest that he took pictures of the clothing because of some weird sexual kink – but I find it interesting that the pictures also included the woman’s running gear.  Could it be that Styner – a marathoner – was actually more interested in the brand and style of the clothing?  I don’t know if he actually removed an item of clothing from his friend’s house – the police has shown that it’s not above lying in print and they might have made this up so that they can charge him with burglary -, but  could it not have been for a similarly innocuous reason, such as showing it to his wife to see if she’d like one like it?

As for the photographs – putting someone’s head on someone else’s body, however disturbing, is definitely not a crime, which begs the question of why the police would make such a big deal about it.

I have not personally met Rick Styner – though he is a facebook friend of this blog -, and I have no insight into who he is.  I do know, however, that when I googled him, what I first found about him (other than stories on these charges) were stories about how when SLHS teachers were protesting having to put anti-LGBT-bullying posters on their classrooms, Styner said he would put two.   Given the clear anti-LGBT bias that the SLPD has shown, and which still lingers at the school district, it makes me wonder if there could be a connection there.

In any case, so far it does not appear that Rick Styner has committed any crime, at least no more than what I did when I googled images of “Brook Shields Pretty Baby” and automatically downloaded several of her underage and naked into my computer.  Then again, I would not be surprised if the SLPD was knocking at my home next.