Class-Action Lawsuit: San Jose Police Unfairly Targeted Gay Men

The San Jose Police Department unfairly targeted gay men when conducting lewd conduct stings, according to class-action lawsuit filed this week in federal court.

Storied civil rights attorney Bruce Nickerson filed the 19-page claim in the U.S. District Court on Wednesday, naming the city, police Chief Eddie Garcia, Capt. Anthony Ciaburro, Sgt. Mario Brasil and the ringleader of the allegedly discriminatory stings: Officer Samuel Marquardt.

Last year, a Santa Clara County Superior Court Judge Jose S. Franco dismissed charges against six men arrested after undercover cops solicited them for sex outside a public park bathroom. In his 2016 ruling, Franco blasted SJPD for engaging in unconstitutional selective enforcement by singling out gay men, or men perceived to be gay.

In the year since, Nickerson—who’s known as the “toilet lawyer” for his expertise in these kinds of cases—managed to help several of the acquitted men secure findings of factual innocence, which completely clears the arrests from their records. The District Attorney could have appealed those motions but never did.

One of the men declared factually innocent was Salinas resident Fernando Ruiz, who reached out to Nickerson after reading San Jose Inside’s July 2016 report about the attorney’s plans to represent the wrongfully arrested men in a class-action lawsuit.

According to the class-action suit, Officer Marquardt approached Ruiz around 8:30pm on June 20, 2014, while he was walking along the Guadalupe River by the Taylor Street bridge in San Jose. The lawsuit claims that the officer, “a good-looking man on a bicycle,” asked Ruiz if he had anything to “party” with.

“[Ruiz] asked him what he meant,” per the lawsuit. “The man who was Defendant Officer Samuel Marquardt, undercover and acting as a decoy said he wanted to have oral sex but wanted to do drugs first. [Ruiz] told the man he did not do drugs. The decoy asked [Ruiz] if he had a girlfriend and asked what he liked to do sexually.”

“What’s up? Do you want to mess around?” Ruiz asked, according to the claim.

Marquardt allegedly replied that there were too many people around and urged him to meet further down the street.

“[Officer Marquardt] then asked if [Ruiz] wanted to suck his dick,” according to the lawsuit. “[Ruiz] agreed. The decoy suggested the nearby rest room. [Ruiz] said that was OK because the restroom was very dark. They agreed to meet inside the dark restroom in a private stall. No one else was around. [Ruiz] entered the restroom and waited. The decoy never joined him.”

When Ruiz exited the bathroom, the decoy identified himself as Officer Marquardt and placed him under arrest for violating Penal Code 647d, loitering around a toilet. Unlike the other defendants, who denied the allegations leveled against them, Ruiz pleaded no contest to the misdemeanor charge.

“His case was adjudicated a year before the other ones,” Nickerson said. “He paid his fine, completed probation and tried to put the whole thing behind him until he read about me in the paper. He said, ‘Can I be part of this, too?’”

Nickerson said that never in his near-four decades of practicing law had he been able to obtain a finding of factual innocence for someone who pleaded out. But on Aug. 20 this year, a judge allowed Ruiz to withdraw his plea and ordered his arrest record expunged.

“This is very significant,” Nickerson said. “His case could apply to thousands of people. It could open the door to thousands of persons across the state with cases exactly like this. … That would be the dream.”

San Jose City Attorney Rick Doyle offered no comment on the case, which he has yet to review. Though SJPD suspended its “gay cruising” crackdowns last year, agency officials have consistently denied that they were prejudiced in the first place.

Jennifer Wadsworth is a staff writer for San Jose Inside and Metro Newspaper. Email tips to [email protected] or follow her on Twitter at @jennwadsworth.

9 Comments

  1. what if two people live together – split expenses w/ one helping the other w/ mortgage payments. Under the new SJ Measure G tax code – if you “rent” out a room – you must get a business license (tax) – isn’t this a violation of civil rights? does this mean your home could be classified “commercial” and get higher prop tax bill? Do the liberal fascists come into your house and count beds? a story needs to investigate this – -

    • First why is it so concerning people are trying to live there Life and isn’t this invadaing there privacy it also falls under civil rights and unless surviallance has been installed illegal and invadaing and violation of privacy

  2. What is this world coming to when people can’t meet each other for sex in public restrooms? Isn’t the right to get it on in a bathroom stall at a public park mentioned somewhere in the Constitution?

  3. This is nonsense, half of SJPD are Gay, Lesbian, Transgender and just plain Queer. GED Certificates, Drug Backgrounds, Crime Backgrounds are the half of it. When the State and the Courts closed the public’s door into their perverse violent and sexual behavior they all had SH–t on each other and the silence took preference. Millions paid for wrongful death and brutality complaints with all the White City Attorneys so close to retirements they just keep quiet. Bankruptcy for the City is close by.

    Illegals, Sanctuary City, Sam Liccardo and the Licker Lawsuit scam were just the beginning. No integrity, no truth, sexual deviance rule till bankruptcy. I went on to achieve financial independence so I enjoy the destruction of this City, not on a hill but in a ditch.

    • Crazy old man…. Folks we have another Roy Moore here… The self righteous outspoken are usually the dirtiest. LMAO

  4. How does this work now? 10 y/o at Boy Scout camp, one night gets invited along w/ 5 other lads into the tent of an adult male “leader” ostensibly to look at pictures of girl “boobs” and while sitting in a circle on the floor of the tent the boys are encouraged to play a game of “lets pull out our wieners and play with each other”. Next morning the rest of the adult leaders announce that this particular leader was “escorted” out of camp and will not return. Today this clever leader would have his rights violated for not being allowed to go camping, in the woods with the Boy Scouts. People scream about the pedophile priests and then preach about discriminating against a fellow “so inclined” who wants to go camping w/ boys. Jenn – what is the answer to this?

  5. What gives SJI? a piece was written about 10 y/o Boy Scouts and their “surprise” game in tent of older man on camping trip and you delete the story? So when do some people’s “rights” have precedent over others? Is SJI biased, prejudice against innocent victims?

  6. Boy Scouts are now all inclusive allowing girls in that might want to be boys, gay men that want to play with boys, and boys that might want to play with your daughter.

    Was’n’t it great when scouting was about camping, making fire, telling ghost stories, and helping little old ladies across the street and being great Americans!.

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