Tri Phan, who identifies as gay, wanted to find some companionship and went to Romantix, an adult bookstore in Garden Grove that is well known in the gay community as a cruisy place where men go to meet each other.
Inside the bookstore’s private arcade area, Phan, 57, thought he might have found Mr. Right — A handsome man was flirting with Phan, but he was Mr. Wrong.
The man was Det. Erick Leyva, an undercover decoy from the Garden Grove Police Department’s Special Investigations Unit who was part of a lewd conduct sting operation at the bookstore.
Within minutes, Phan’s life was turned upside down. A second undercover decoy suddenly appeared. Phan was arrested, shackled in handcuffs, and taken to jail.
The police said Phan had engaged in lewd conduct in January 2017. They said he showed his penis to the decoy officer who had been flirting with Phan inside the bookstore’s private arcade that was showing gay porn movies.
Several legal experts said it’s problematic that a police department would initiate a lewd conduct investigation in an adult-orientated business without complaints from the community, especially when adults present are familiar with the business they have entered.
Attorney Stephanie Loftin, one of Phan’s lawyers, has a name for this type of arrest.
“This is a bag-a-fag arrest,” Loftin told Q Voice News. “The Garden Grove police need to stop filing these arrests. There isn’t a good undercover decoy arrest for lewd conduct,” she said. “They’re all false arrests.”
For more than 20 years, Loftin, whose law firm is based in Long Beach, has represented numerous gay men who have been arrested for alleged lewd conduct in public places such as parks and restrooms.
Police departments in California and across the United States have a long standing history of engaging in homophobic targeting of gay men in private business, such as bars and clubs, and public spaces and arresting them for lewd conduct.
Prosecutors have been more than willing to cooperate with law enforcement and criminalize gay men and treat them like sexual deviants, legal experts said.
Loftin said her clients have told her stories that mirror Phan’s experience. The only difference is that Phan’s arrest happened at a private business. Garden Grove police and the Orange County District Attorney’s Office claimed Romantix is a public place.
Lewd conduct sting template
Here’s the scenario. The police organize a lewd conduct sting operation in a public place, usually a park or bathroom frequented by gay men, and send in an undercover decoy, who initiates contact with another man.
The decoy conveys nonverbal signals — nodding his head, raising his eyebrows, and simulating grabbing his crotch — that indicate an interest in sexual conduct with the man.
Shortly after the unsuspecting man reciprocates the decoy’s advances and shows his penis, another undercover cop rushes onto the scene and arrests the man.
What is lewd conduct?
According to the state Supreme Court, if the conduct takes place in a public place, and the defendant has a reasonable belief that nobody would be offended, it’s not lewd conduct, and the state has no interest in prosecuting the case.
In other words, it’s not illegal. That’s been the law for more than 40 years, since 1979, when the California Supreme Court made its ruling in the case Pryor vs. Municipal Court.
Sgt. Jeff Hutchins with the Garden Grove police said that “until we get a different direction from the Orange County District Attorney, we will continue to do these operations.”
Hutchins said the Garden Grove police does not target gay men in undercover, lewd conduct sting operations.
Hutchins also said the department had not received any lewd conduct complaints about Romantix, but nevertheless felt it was necessary to conduct the January 2017 sting operation.
Aditi Fruitwala is a staff attorney with the ACLU’s LGBTQ Gender and Reproductive Justice Project.
“Police and prosecutors are hoping that a jury and judge will interpret the Supreme Court ruling in a way that favors them, which is essentially resting in deep homophobia,” Fruitwala said. “They are hoping that no jury could possibly find that someone wouldn’t find this offensive. Of course everyone will find this offensive because it’s same-sex intimacy.”
Garden Grove case
Romantix adult bookstore has a private arcade area with its own door. Customers have to pay an admission to enter, and people inside the arcade hear a buzzer when someone enters the room.
The arcade area is dotted with several peep show-style booths where customers can watch gay porn movies. The booths have 5-foot walls, which allow men to stand and survey the room or look over the partitions and watch other customers.
Leyva, the undercover decoy, made eye contact several times with Phan and enticed him to his cubicle not once but twice, Phan said on the witness stand during his December 2019 trial.
Police set their trap
During his testimony, Phan said Leyva’s flirting and signals convinced him to approach Leyva’s cubicle. Phan briefly showed his penis to Leyva, who had his hand on his crotch, but Phan left the booth when he saw that Leyva was preoccupied with his cell phone.
A short time later, as Phan was walking around the arcade, he noticed Leyva making eye contact with him again and returned to Leyva’s booth. Leyva’s hand was on his crotch again, and Phan briefly showed his penis, Phan said on the stand.
Leyva also had his cell phone out. Phan left the booth because he thought Leyva lost interest in him.
During his testimony, Leyva said he was on his cell phone because he was contacting another decoy about arresting Phan, which occurred shortly after Phan walked away from Leyva’s booth.
Prosecutor doesn’t comment
Phan, who had no criminal record, was charged in January 2017 with one count of lewd and one count of indecent exposure.
The Garden Grove police booked Phan only for lewd conduct. The Orange County District Attorney added the indecent exposure count.
Under California law, if someone is found guilty of indecent exposure, they are required to register for life on the state’s sex offender list.
During the December 2019 trial, Adam Zamora, who prosecuted the case for the Orange County District Attorney’s Office, said it was in the public interest to stop this behavior and punish Phan.
Outside the courtroom, Zamora refused to explain why he thought Phan, if found guilty, should be branded a sex offender.
Bruce Nickerson is Phan’s other defense attorney. Nickerson is a renowned civil rights lawyer from the Bay Area who has a track record of winning cases and lawsuits against California cities and police departments that have falsely arrested gay men in lewd conduct sting operations.
In 2016, Loftin and Nickerson made history in Long Beach. They won a landmark case against the Long Beach Police Department for falsely arresting a gay man in an undercover, lewd conduct sting operation. In the monumental case, a Los Angeles Superior Court judge issued a scathing ruling against the police department for discriminating against gay men in their contentious vice operations.
Criminalizing gay people
In Phan’s case, Nickerson was outraged that the district attorney added the indecent exposure count.
“To hit a person with a lifetime registration as a sex offender for something as innocuous as showing his equipment to another man when he got signals from the decoy that he was interested is horrendously vicious,” Nickerson said.
Historically speaking, police have criminalized gay men and prosecutors have forced them to register as sex offenders.
“What’s embarrassing is that this is taking place in 2020,” Fruitwala said. “In the 1800s, California laws criminalized sodomy, oral copulation, and social vagrancy. Now the laws have moved to public spaces and are lewdness and disorderly conduct and indecent exposure, but it’s all with the ultimate goal of criminalizing same-sex intimacy and ultimately being able to target and criminalize LGBTQ people.”
For example, during the Black Cat protest in Silver Lake in 1967, police arrested gay men for kissing at the neighborhood bar, and prosecutors charged them with public lewdness. Those patrons had to register as sex offenders.
“What’s considered public lewdness has evolved in the past several decades, but charging LGBTQ people under this particular penal code section for lewd conduct has been a staple of police action,” Fruitwala said.
“Another goal of this is to terrorize the LGBTQ community,” Fruitwala said. “They want to keep people in fear of police officers and to keep them in fear of doing anything in public, even things that are not explicitly criminal behavior.”
Many law enforcement departments in California have stopped the undercover sting operations in public places, such as bathrooms and parks, due to lawsuits or backlash. The Los Angeles County Sheriff’s Department as well as law enforcement agencies in Anaheim, Bakersfield, Beverly Hills, Laguna Beach, Glendale, San Francisco, and San Jose had not used such tactics in years.
Phan’s five-day trial took place at the West Justice Center in Westminster. The 12-person jury deliberated approximately two hours before finding Phan not guilty verdict on both counts.
Loftin hopes the Garden Grove police get “the message from this jury and stops making these arrests. I hope this verdict shows them the error in their ways.”
It doesn’t sound like the verdict had any impact on the police.
“If the district attorney continues to prosecute these cases and lose them,” Hutchins said, “they might reach out to us and say, ‘We aren’t going to prosecute these anymore.’ If they aren’t going to prosecute them, we would change our policy.”
Fruitwala said that these type arrests and prosecutions are a waste of taxpayer money.
“It’s undeniable that these arrests and prosecutions have a disproportionate impact on LGBT people compared to the general public,” Fruitwala said. “Anyone who looks at these statistics and makes decisions about where to put county resources would see that this isn’t worth it. If they are truly going to protect and serve communities, this is not where their resources would go.”
Q Voice News made several attempts to talk with Orange County District Attorney Todd Spitzer, but he did not respond to emails and phone messages.
Spokeswoman Kimberley Edds refused to arrange an interview with Spitzer or Susan Price, the deputy district attorney in charge of the Westminster courthouse.
In a statement, Edds, in part, said, “The defendant’s sexual orientation and lifestyle choices had no impact on the filing decision of the prosecution of this case.”
Price also is the Long Beach city councilwoman representing District 3, though she uses the name Suzie instead of Susan.
Price has called herself “an ally” of the LGBTQ community and rode on a float during last year’s Long Beach Pride Parade.
When reached by phone and asked why she supported the false arrest of a gay man and wanted to punish him with registration on the state’s sex offender list for life, Price said she needed permission from Edds to speak on the case.
Price never called back.
Fruitwala added: “It is hypocritical to claim to support the LGBTQ community while simultaneously criminalizing the LGBTQ community.”