Letter to the Editor: Selective Enforcement Is Unconstitutional

San Jose Inside,

There are some additional points I would like to make in regards to the July 27 story “Cruise Control” about San Jose police conducting undercover stings at Columbus Park off of Taylor Street.

The case started out with the Santa Clara County District Attorney’s Office, representing the San Jose Police Department, saying the sting operations were initiated because of 10 public complaints about lewd behavior involving gay men at the park.

The Public Defender’s Office, representing six gay men, brought up the point that the police only targeted gay men, which violated the defendants’ constitutional rights to equal treatment under the law.

After hearing this defense, the judge considered the case to have a “constitutional backdrop” and granted the defense’s request to look at two years of past police records concerning the sting operations to see if selective enforcement was going on.

This review revealed the actual records for the 10 complaints mentioned earlier. To the courts’ surprise, only one of the 10 complaints concerned gay men. The other nine were about: a man with a pistol, prostitution, a dog off its leash and other issues that had nothing to do with cruising by the bathroom.

The prosecutor had told the judge earlier—without knowing the records would eventually be made public and entered into evidence—that all 10 complaints were about gay men and lewd behavior. This was a significant deception to make because lewd behavior is defined as touching the buttocks, breasts or genitals. In order for someone to get a citation or arrest, someone has to first complain about it.

Regarding the constitutional nature of police enforcement toward gay people, one has to ask whether the police response to a single complaint merited 18-plus plainclothes stings over a two-year period using between one and five officers per operation. Also, the 647(d) provision in California law is not targeting actual crime happening, but rather “loitering with the intent to commit a lewd act.”

How do San Jose police afford the energy, drive and resources to enforce the law for a petty crime? How did gay men propositioning each other for sex get elevated to such a high priority for an understaffed police force?

Another detail that came out in the two-year discovery of police records was mention of a meeting between officers and higher ups in which they decided that something had to be done about gay men in the park. They decided they would carry out sting operations to protect families that used the park. The stings, however, were carried out mainly between the hours of 8 in the evening to midnight when no families would be at the park.

Most gay men who are cited for 647(d) never get to see the police records or get a sense of the bigger picture. So they miss out on the context and don’t get to demonstrate whether unconstitutional law enforcement might have factored into his arrest. In this case, the judge granted discovery to verify whether enforcement was being carried out competently or, if the officers were, as Deputy Public Defender Carlie Ware put it, “shooting fish in a barrel” at Columbus Park.


John Ferguson


  1. I feel so sorry for these gay men who were denied their right to have anonymous sex in a public restroom. I hope the judge’s decision has allowed them to return to this thrilling and wholesome activity without the threat of persecution. I’m sure it was just an amazing coincidence that so many happened to find their way to this particular restroom.

      • I’d feel the same way about heterosexuals who enjoyed public restroom sex. Do whatever you want…at home.

      • Just because a person would rather not walk into a public restroom, or worse still have their kids walk into a public restroom, only to be greeted by the sight of someone sucking the sausage or taking it up the Hershey Highway does not qualify a person as homophobic, Mr Buffoono. It merely means that person has some common decency. Or, with more folks like you about these days, perhaps it should be called uncommon decency. Hetero or LGBTQ–have your sex privately, not in public places.

        • You should learn how to read and spell before u post ur useless internet troll comments its sad that ur ignorance and Prejudice will allow you to conceive that I went in to use the restroom and that was it…so troll on

          • There are no misspelled words in my post, Buffoono, but there are several in yours.

    • Part of the police force living in trailers in a parking lot, and at least three quarters of them living out of the county doesn’t help either. If you think that sounds bad, the media wont even report on the state of your Fire Department. Take a look around you. This is what misguided jealousy, lying politicians, illegal ballot measures and corporate greed has done to San Jose. Whining about the “right” to have sex in a public restroom is a symptom of the overall sickness afflicting this city. This is not just a liberal microcosm, this is the thought process sweeping the Nation right now. Freedom? We have squandered our freedoms in place of misguided crusades and finger pointing, and blaming others for our conditions, with we the sheep having no desire, drive or fortitude to fix it. We are looking to the same criminals and corporate thieves to help us. Abandon all hope San Jose….you got what you wanted.

  2. philipcfromnyc
    Sadly, this does not surprise me in the least. Although all state sodomy statutes were declared unconstitutional as applied to consensual same sex sexual intimacy (gay sex) between adults in private settings by the US Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), homophobic police officers and police departments continue to push the limits of this decision and attempt to undermine its legitimacy by persecuting gay men (many of whom wearily pay the fine and go about their way, not realizing that they can fight back and win).
    Should any person reading this ever be confronted with charges of this nature, a few tips are in order:
    1) Use Websites such as http://www.cruisingforsex.com to determine if any entrapment operations are running in or about the area where you wish to cruise for sex;
    2) Turn on the recording function of your cell phone prior to entering the bathroom stall. Pretend, if possible, that you are making a phone call informing somebody that you are going to be late getting home — in fact, turn on the recording function so that your cell phone records every word which is spoken BEFORE you enter the restroom or the cruising area in question. Put the cell phone back in your pocket so that it is still recording everything.
    3) Do NOT, under ANY circumstances, resist arrest or attempt to flee!
    4) Carefully note EVERYTHING that occurs around you — the people involved, the name of the arresting officer, the exact location of the “offense,” the EXACT WORDS spoken by the arresting officer and the EXACT WORDS spoken by those involved who lured you in before you were arrested (yes, it may be difficult to maintain the necessary emotional composure to do this, but do the best that you can);
    5) SAY ABSOLUTELY NOTHING that you do not have to say. Volunteer absolutely nothing. Respond only to questions directed to you by the arresting officer until you see your attorney. Do NOT waive your Miranda rights;
    6) SEEK LEGAL COUNSEL, and give legal counsel the most accurate and informed account of the arrest and of the above, surrounding details;
    7) Obtain transcripts of previous arrests made by the officer in question. Almost certainly, this will uncover a particular pattern of behavior on the part of the arresting officer, and this pattern of behavior will reveal that it was the arresting officer (or his stooges) that initiated the sexual encounter, not the victim of the sting operation;
    8) FIGHT BACK by filing civil suit against the police officer and / or police department concerned. Bear in mind that qualified immunity may make it difficult to prosecute the officer criminally, but it may be possible to bring a credible civil suit against the police department concerned;
    9) Do NOT allow yourself to be tagged as a “sex offender” — this scarlet letter is very difficult to erase, and its collateral consequences can be extremely damaging.
    It is possible to beat such attempts to ruin your reputation. Keep the above in mind at all times.

    • Congratulations. Finally, an honest admission that your purpose in showing up to the restroom was to “cruise for sex.” Makes sense. The sights, smells and ambiance, along the excitement of risking being caught, must make it highly preferable to doing whatever you please behind someone’s closed doors.

    • “Although all state sodomy statutes were declared unconstitutional as applied to consensual same sex sexual intimacy (gay sex) between adults in private settings by the US Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003)..” THE SEX IN QUESTION TOOK PLACE IN AN APARTMENT. There is no constitutional protect for sex in a public restroom. You’re no Clarence Darrow, Daniel Buffoono.

  3. Lift your nose, post your snide comments, and feel as morally superior to the men acquitted to your twisted hearts content, boys. Because, in the end, when all is said and done, the court(s) WILL recognize the blatantly biased and unconstitutional actions of the SJPD, and so WILL THE REST OF THE COUNTRY. Like it, or not.

  4. The police targeted only gay men for soliciting? Straight women are arrested for soliciting all the time in public places. (I assume they are straight — they are soliciting men.)
    But the idea that, say,Senator Larry Craig (R-NRA) was unconstitutionally targeted has a certain appeal.

  5. So, taking the author’s (defective) reasoning to its logical conclusion, police officers should also NOT use women as john decoys in order to catch heterosexual men trying to solicit (gasp) women working as prostitutes.

    Further, he apparently feels we should discard prevailing public mores which hold that seeking and/or performing sex in a place accessible to the public is a behavior that is an affront to common decency and therefore to be eschewed.

    Memo to Mr. Ferguson and Mr. Bufano:

    No one with any sense of decency or good moral fiber wants to see anyone picking up others for the purpose of or engaging in sex in a public place. That goes for men and women alike, regardless of their sexual orientation.

      • I remember being surprised, the first time I stopped at the rest area on I-280 years ago, to see the signs reminding patrons that sex in the public restrooms was prohibited. “You need a sign?” I thought.
        Well now I understand.

Leave a Reply

Your email address will not be published. Required fields are marked *