Thanks to a federal lawsuit, San Jose has joined the ranks of California cities who have stopped using undercover, decoy sting operations at public restrooms that target gay men for arrest.
Last week, the City of San Jose settled a lawsuit when the City Council approved a $125,000 payment to five men who were found factually innocent of lewd conduct. San Jose Police Department arrested the men in a series of undercover decoy operations between 2014 and 2015 that targeted and discriminated against the gay community.
Renowned civil rights attorney Bruce Nickerson represented the men and said he “extra ordinarily pleased” with the settlement and commended the City Attorney’s Office and San Jose police for their responses to the concerns addressed in the lawsuit. For example, the undercover officers instigated contact with the men, the conduct didn’t meet the legal definition of lewd conduct, and that police were discriminating against gay men.
“They deserve credit for good faith,” Nickerson said. “They came to the table and said, How can we resolve this?
“I’ve never seen that kind of response,” Nickerson said. “I need to give credit where credit is due.”
ENDING STING OPERATIONS
As part of the settlement, the police department will not stage any more decoy operations without first implementing other methods and consulting with the gay community.
In the past couple of years, other cities, such as San Leandro, Long Beach, Manhattan Beach, and Mountain View also have said they will stop using discriminatory, undercover decoy sting operations that target gay men. The police departments made the policy changes after judges threw out similar cases and admonished the police for their tactics.
LEWD CONDUCT ARRESTS
Also part of the San Jose settlement, the city has until November 12 to give Nickerson a five-year list “of individuals, other than the Plaintiffs, who were arrested by the San Jose Police Department, pursuant to ‘sting’ (undercover) operations” that led to similar lewd conduct charges.
The city must also cooperate with Nickerson’s requests to the Santa Clara County Superior Court to find information about factually similar arrests made by San Jose police during the past five years.
Nickerson might pursue rulings of factual innocence in these cases as well as a federal lawsuit against the city, he said.
Nickerson is well-known for defending men falsely accused of lewd conduct. In 2016, he won a landmark case in Long Beach when a judge ruled that the police discriminated against gay men in undercover sting operations. Last year, after a five-year battle, Nickerson got a Manhattan Beach man’s name cleared after he was falsely arrested for lewd conduct.
In the San Jose case, Santa Clara County Superior Court Judge Jose S. Franco dismissed charges against seven men in 2016, saying that San Jose police violated their constitutional rights to equal protection and discriminated against them. Five of those men were plaintiffs in the 2017 federal lawsuit against San Jose.
Phillip Zonkel can be reached at [email protected] or 562-294-5996.