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.