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.