Long Beach police discriminate against gay men in lewd conduct arrests, judge said

Stephanie Loftin, right, and her client, Rory Moroney, inside the Long Beach Courthouse minutes after a judge dismissed his lewd conduct case because it was discriminatory enforcement and prosecution. Photo: Courtesy of Reba Birmingham.

Stephanie Loftin, right, and her client, Rory Moroney, inside the Long Beach Courthouse minutes after a judge dismissed his lewd conduct case because it was discriminatory enforcement and prosecution. Photo: Courtesy of Reba Birmingham.

LONG BEACH- Department S 20 at the Governor George Deukmajian Courthouse isn’t the type of courtroom one might expect a case to become a milestone or a historic ruling to be delivered.

The Long Beach courtroom is used for misdemeanor cases, such as drunk driving and lewd conduct, but it was a case of a Long Beach gay man who had been arrested for lewd conduct and indecent exposure at a public bathroom that became precedent setting with a historic ruling for the gay community.

THE RULING

A superior court judge not only dismissed the case, but also delivered a blistering assessment about the Long Beach Police Department’s treatment of gay men. The judge determined that this treatment is manifest in both the intention and tactics of the lewd conduct sting operations that are deployed at public restrooms, declaring that the department is hostile toward and intentionally targets gay men in those operations.

In his ruling, the judge said “the presence and tactics of the decoy officers actually caused the crimes to occur” and nobody was present who would be offended by the conduct — a vital requirement when defining lewd conduct, according to a landmark 1979 California Supreme Court case.

The unprecedented ruling on April 29, 2016, came in the case that Long Beach City Prosecutor’s Office mounted against Rory Moroney, 50, who was arrested Oct. 15, 2014, at Recreation Park and and booked with two misdemeanors: lewd conduct and indecent exposure. At the arraignment, City Prosecutor Doug Haubert charged Moroney with one count of indecent exposure and one count of lewd conduct. If Moroney had been convicted of indecent exposure, he would have been required to register for life as a sex offender as required by California law.

The judge also had scathing remarks for the City Prosecutor’s handling of the case, saying the only way it could justify the police tactics and move forward was “in the rhetoric of homophobia that seeks to portray homosexual men as sexual deviants and pedophiles.”

HISTORIC RULING

The ruling by Superior Court Judge Halim Dhanidina was historic because it was the first time a Long Beach superior court judge had dismissed a lewd conduct case  — during an evidentiary hearing — that involved a gay man being arrested in a public bathroom by Long Beach police. Various defense attorneys during the past two decades had made numerous attempts at having similar cases dismissed during the evidence stage, but none of prevailed.

In his ruling, Dhanidina threw out the case saying that the Long Beach police violated the equal protection clause of California and U.S. Constitution by using discriminatory tactics against gay men in its lewd conduct sting operations at public bathrooms.

“By utilizing undercover officer decoys in a pre-planned, lewd conduct sting operation designed to ensnare men who engage in homosexual sex without any relationship to citizen complaints of lewd conduct at Recreation Park, the Long Beach Police Department has demonstrated its intent to discriminate against the defendant and other members of this group,” Dhanidina wrote in his ruling. “The defendant would not have been prosecuted expect for this invidious discrimination.”

‘RULING SENDS A MESSAGE’

Veteran defense attorney Bruce Nickerson — who identifies as gay and traveled from the Bay Area to handle the case and has won has won several cases against gay men trapped in lewd conduct sting operations at public restrooms — said Dhanidina’s ruling sent a powerful message.

“This judge knows discrimination when he sees it,” said Nickerson, the lead attorney, who won a unanimous decision in 1996 from the California Supreme Court, which ruled that the Mountain View police discriminated against gay men when the department targeted them for lewd conduct arrests. “His ruling is powerful because it sends a message far beyond this case. It sends a message to police departments throughout the state who do these decoy operations for lewd conduct cases.”

Co-counsel Stephanie Loftin said she has been trying lewd conduct cases for 25 years in Long Beach, and Dhanidina’s ruling was the first time in Long Beach court history that a judge has granted a motion for dismissal based on discriminatory enforcement.

PROSECUTOR, POLICE RESPOND

Outside the courtroom, neither Prosecutor Arlene Anderson nor Det. Raymond Arcala, the Long Beach Police officer who followed Moroney into the public restroom and made the arrest, responded to numerous requests for comment on the judge’s ruling.

In a statement, City Prosecutor Doug Haubert said: “Until we review the judge’s ruling we cannot know whether there is any basis for believing the police did anything wrong. After we review the transcript we will make a decision and possibly comment.” (Notably, Haubert didn’t appeal Dhanidina’s ruling.)

The Long Beach Police Department said in a statement that it was “taking this court ruling seriously” and would evaluate how it responds to lewd conduct complaints.

In the statement, Chief Robert Luna said the department is “100 percent committed to civil rights and equality for all people, including the LGBTQ community.”

POLICE TACTICS

For decades, members of the LGBTQ community have criticized the controversial Long Beach police tactics that were used to arrest Moroney.

Arcala and three additional undercover Long Beach police officers were sitting in their cars as part of an undercover vice sting operation at Recreation Park. When Moroney entered the bathroom, Arcala, the decoy, got out of his car and followed him inside.

Arcala said Moroney exposed and touched himself, causing Arcala to walk outside and signal the waiting officers to make the arrest, according to court records.

Moroney, however, said Arcala’s initial, flirtatious eye contact and posturing indicated he wanted to have sex and wasn’t offended by Moroney’s actions, according to his testimony.

Porter Gilberg, executive director of the Long Beach LGBTQ Center, the police department’s vice decoys and sting operations in public bathrooms don’t improve public safety, are cruel and should be abolished.

“The Center strongly opposes the use of vice stings which specifically target gay men,” Gilberg said in an email. “The use of police resources to punish gay men for engaging in consensual behavior with other adults compromises LGBTQ public safety and trust in law enforcement. It’s unconscionable that people are being forced to register as sex offenders as a result of these tactics.

“Law enforcement entrapment of gay men belongs in the history books, not in 2016 in one of the most diverse cities in the United States,” Gilberg said.

INDICTMENT OF POLICE

In his 17-page ruling, Dhanidina slammed not only police behavior in the Moroney case, but also made a sweeping indictment of the department’s overall tactics in its lewd conduct sting operations.

During a six-day evidentiary hearing in April, Arcala and three former vice unit police officers (Sgt. Eric Hooker, Officer Eduardo De la Torre and Det. Kevin Ong) testified that they had never arrested any women for lewd conduct, only gay men.

Dhanidina said there was no evidence to confirm the police department’s claim that lewd conduct cases are driven by complaints from the public, and the prosecution’s claim that the police department’s lewd conduct arrests are in the best interest of the community “are without merit.”

POLICE DECOYS CAUSED CRIMES

Although the officers testified and wrote in their reports that they only acted as a neutral observers in the sting operations, “the facts suggest otherwise,” the judge wrote in his ruling. They engaged in repeated non-verbal communication with their “targets, including head nodding, smiling, exchanging glances, and prolonged eye contact, all of which would be highly unusual for a person intending to use the restroom for normal purposes,” Dhanidina said.

In fact, Dhanidina said, “the presence and tactics of the decoy officers actually caused the crimes to occur.”

In his ruling, Dhanidina also mentioned several points that lead him to conclude that the police department “harbored animus toward homosexuals in its undercover investigations of lewd conduct”:

  • All undercover officers involved in lewd conduct investigations at Recreation Park included the same misleading information in their reports
  • The reports began with the same boilerplate recitation of inaccurate information
  • Each report mentioned a claim of citizen complaints about lewd conduct, despite the fact that none of the officers were aware of any complaints, and department records didn’t show any either
  • Reports mentioned alleged proximity of the park to Wilson High School — despite the school being a football field away from the men’s bathroom in Recreation Park and none of the reports mentioned students being anywhere near the restroom during the operations
  • No legitimate reason to include the reference other than to inflame the passions of people reading the reports

Dhanidina also had scathing remarks for the City Prosecutor’s office.

“The only way the prosecution could justify the discriminatory prosecution in this case would be to show that the singled out group, men who have homosexual sex with men, constitute a ‘criminal organization’ or a ‘gang of lawbreakers’ with certain “criminal proclivities’,” he wrote in his ruling. “This position only finds support in the rhetoric of homophobia that seeks to portray homosexual men as sexual deviants and pedophiles.”

In his closing remarks, Dhanidina said, “The arbitrary enforcement of the law as seen in this case undermines the credibility of our legal system, eroding public confidence in our ability to achieve just results. This court is determined to do its part to prevent this from occurring.”

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About the author

Phillip Zonkel

Award-winning journalist Phillip Zonkel spent 17 years at Long Beach's Press-Telegram, where he was the first reporter in the paper's history to have a beat covering the city's vibrant LGBTQ. He also created and ran the popular and innovative LGBTQ news blog, Out in the 562.

He won two awards and received a nomination for his reporting on the local LGBT community, including a two-part investigation that exposed anti-gay bullying of local high school students and the school districts' failure to implement state mandated protections for LGBT students.