Ed Walsh
6/23/2010
 He met a good-looking guy in a dark parking lot in Palm Springs' gay Warm Sands neighborhood. The man flirted with him. He appreciated the attention and flirted back. The attractive man asked him to show him his penis. He didn't want to do it and instead invited the man home with him to watch porn. But the man insisted on seeing his penis first. Against his first instincts, he exposed himself to the other man. But the man wasn't interested. He was a police decoy.
He wound up being among 19 men arrested in a Palm Springs police sting one year ago. The men are facing charges that could result in them having to register as sex offenders for the rest of their lives, in a database accessible only by law enforcement. The cases are sparking a firestorm in Palm Springs. Two closed-door meetings were held this month between city officials and police to discuss the sting, and anger is growing in much of the city's LGBT community.
A controversy within a controversy also emerged this month. On Monday, June 14, during a court hearing over the defense's discrimination challenge to the sting, it was revealed that a Palm Springs police officer jokingly referred to one of the suspects as a "cocksucker." The slur was caught on tape and was made by an officer who was in a police vehicle while recording a decoy officer as he interacted with a suspect. In referring to a would-be suspect, the officer quipped, "Are you a cocksucker? Yes." Another officer could be heard laughing.
The slur was pointed out by attorney Bruce Nickerson, who specializes in cases in which men are charged with having public sex with other men. Nickerson was an expert defense witness. According to the Desert Sun newspaper, he said that the slur did not necessarily show police animus to gays, but that the sting itself did show police animus because it focused on public gay sex rather than address a complaint from a resident about drugs and prostitution in the area.
On Tuesday, June 15, Palm Springs City Manager David Ready told Frontiers that the slur was "very inappropriate" and that the police department has launched an investigation. The city’s police chief issued a press release late on Tuesday calling the slur "inappropriate" and stating that it in no way reflects the policy of the department. The press release added that a joint meeting is being organized to bring together Warm Sands Neighborhood representatives with the city's police LGBT Outreach Committee.
Nickerson said that in his 30-year career of dealing with such cases, he's never seen such a "vicious" sting. He said the decoy officers pushed the men to commit more serious crimes even after they had something that had warranted an arrest.
Nickerson told Frontiers, "Every person was arrested for a registrable act—indecent exposure. In the video of the sting which I reviewed, there were many opportunities to arrest persons for the less serious lewd act in public. But the cops persisted in their enticement game until the person was cajoled into actually exposing himself and then and only then was the arrest made.
"In most sting operations,” the attorney continued, “there is an amalgam of arrests, some for soliciting, some for a lewd act, some for loitering and a few for indecent exposure. Here all were arrested for the one offense which is registrable."
According to attorney Thomas Hughes, a former Riverside County prosecutor, a deal was made before the sting between police and prosecutors to charge those arrested with penal code 314, misdemeanor indecent exposure, requiring a lifetime sex offender registry upon conviction. The charge is usually reserved for flashers. Also as part of the deal, according to Hughes, the men will not be able to plead down to lesser charges.
"It's unbelievable. I've never seen anything like this," said Hughes, who had been working in the Riverside County District Attorney's office when the charges were first brought. He added that he has never seen cases of consensual public sex being treated so harshly.
The Palm Springs Police Department and the Riverside County District Attorney's Office are denying that there was a deal. But in a sworn deposition, the Palm Springs Police official who supervised the sting, Sgt. Brian Anderson, corroborated that there was at least a tacit agreement. The sergeant said in a deposition that the department was disappointed in the past that the arrests for indecent exposure were pleaded down to a charge of 647(a), a lesser lewd conduct charge that would not require the defendants to register as sex offenders.
At the June 14 hearing, Palm Springs Police Lieutenant Dennis Graham lent credence to the defense assertion that there may have been at least a tacit agreement between police and the District Attorney. Graham said that the department and the district attorney’s office had reached a “general consensus” over the charges but there was no advance deal. Graham said that he supports the more serious 314 charge because lessor charges without the sex registry had not deterred public sex.
Michael Jeandron, a spokesman for the Riverside County DA's office, sharply disagreed with Hughes, his former colleague, and denied that there had been any prior agreement between law enforcement and the DA's office over how to prosecute the cases.
"That's not how we operate," Jeandron said.
The sting and the subsequent prosecution of the cases is sparking a debate over whether there is a double standard for how police and prosecutors handle public sex among homosexuals and heterosexuals. It is also raising concerns that the PSPD may be insensitive to gays, despite the fact that at least a third of the city of about 45,000 is estimated to be gay.
Jeandron said that his office has prosecuted heterosexuals with indecent exposure, but he didn't know if any of those cases had involved consensual public heterosexual sex. Jeandron said that the Warm Sands cases had not reached a discussion of plea bargains. Tansey, the defense attorney, said that all overtures to plead the cases down were rejected.
As to the allegation that the DA's prosecution of the case is homophobic and in any way discriminatory toward gays, Jeandron responded, "That's an outrageous and false accusation."
According to Tansey, in one case it took a decoy officer 20 minutes of convincing before a man agreed to display his penis. The attorney added that in some cases the police decoy massaged his own crotch in an effort to get the men to expose themselves.
Tansey said that if police wanted to find heterosexuals having sex in public they wouldn't have to go far from Warm Sands. Tansey documented that it is commonplace for opposite-sex couples to have public sex in the parking lot of a nearby heterosexual bar as well as a public water park.
"The police spend thousands of dollars to set up stings for what is a victimless crime," Tansey said.
Tansey said that during the June 14 hearing, Palm Spring Police admitted that they were aware that heterosexuals had been having public sex in a water park, but that the department has never set up a sting aimed at cubing public heterosexual sex. Tansey sought a court order to get Palm Springs Police to turn over statistics on arrests for public sex over the past ten years. On Thursday, June 17, Riverside County Superior Court Judge David Downing handed Tansey a partial victory, ruling that the Palm Springs Police Department must turn over two years worth of statistics on arrests for public sex.
Tansey said that if what police are charging is correct, the men deserve to be arrested and should be prosecuted, but for section 647(a) of the penal code, a lewd conduct charge that applies to someone who engages in lewd behavior in a public place. That charge does not require those convicted to register as sex offenders.
Palm Springs resident Robert Stone is on the advisory council of the Warm Sands Neighborhood Organization. He also represents Warm Sands on the Palm Springs Neighborhood Involvement Committee. He believes anyone caught engaging in public sex should be arrested, but that a prosecution that would require those convicted to register as sex offenders is excessive.
Stone noted that for two weeks prior to the sting operation, the Palm Springs Police Department reported that they had observed men engaging in public sex. Stone questioned why the men weren't simply arrested instead of police executing an elaborate and expensive sting operation. Stone said his neighborhood organization had been doing an effective job cutting down on the problem of drugs and sex in part by working with police. Stone said the sting operation has left him angry and it has shown the department's lack of sensitivity to the gay community.
"I'm appalled, totally appalled," Stone said.
Stone said that he knew of no openly gay men who were on the 99-member Palm Springs Police Department and he knew of only one out lesbian officer.
Stone was also sharply critical of the city's elected officials' silence over the sting.
Palm Springs Mayor Steve Pougnet, who is openly gay and currently running for Congress, and the other four people on the City Council did not respond to calls and emails requesting comment.
Palm Springs City Manager David Ready spoke on behalf of the elected officials.
In response to Stone's complaint about the lack of out gay men in the police department, Ready said that the department actively recruits officers from the gay and lesbian community. The city manager said that there were gay and lesbian officers on the force, but that he didn't know whether they were publicly out about their orientation.
Ready added that Palm Springs is a very gay-friendly city and he noted that Pougnet and one of the city council members are out gay men and that another councilwoman is a lesbian. The Palm Springs City Council is made of five people, including the mayor.
The city manager also denied that there had been a deal in advance to charge the men with the more serious 314PC charge or to deny those arrested the option to plead down to a lesser charge.
When asked if he thought the publicity about the sting could hurt Palm Springs' image as being gay-friendly and ultimately hurt tourism, the city's lifeblood, Ready noted that gay and lesbian tourism is an important niche market that the city welcomes and aggressively promotes.
Ready said that the city had set up sting operations aimed at heterosexual prostitution. The city manager said that if the city had received complaints about public heterosexual sex it would respond the same as it had in the Warm Sands. Tansey wrote in court filings that there has never been a sting aimed at consensual heterosexual public sex.
Ready said the sting operation was initiated as a result of gay inn owners in the Warm Sands area. But Tansey said that despite his repeated requests, no substantiation of those complaints has ever been produced.
"The defense contends that the sting operation was therefore based, not on a vast horde of complaining citizens, but instead arose because of the Palm Springs Police Department's unlawful homophobic animus," Tansey wrote in court papers.
Ready said that most of the complaints were informal, word-of-mouth between inn owners and the city's leaders and he thought a few might have been from e-mails, but that the complaints themselves were not formally documented. During the June 14 hearing, Graham, the Palm Springs Police lieutenant, said that the sting was initiated over an email complaint from a resident over drugs, crime, prostitution and the “sex trade” in the neighborhood.
Ready also said that the managers of the gay resorts in Warm Sands should have been advised of the sting in advance so they could warn their clientele not to engage in any behavior that could put themselves in legal jeopardy. But Ready said that wasn't done in this case because of confusion about whose responsibility it was to notify the innkeepers. The plan to notify the hotels was put in place under a previous police chief and the ball was dropped in the transition after the current police chief, David Dominguez, was hired in 2008.
The vice president of the Gay Desert Guild Association, John Williams, said that he didn't think any of those arrested were guests at any of the Warm Sands resorts. Williams and his partner own the InnDulge resort in Warm Sands and he serves on the Palm Springs Police Advisory Board. Williams said that although he opposed the sting and the severity of the charges, he has high regard for the Palm Springs Police Department and Chief Dominguez.
"We continue to have a good relationship with the Palm Springs police," Williams said. "They are responsive and never seem to show any bias toward the gay community."
When asked about Dominguez, Williams said, "I think he's done an excellent job." But Williams added that he strongly disagrees that those caught up in the sting should be made to register as sex offenders. The innkeeper said that that penalty was too severe for the crime.
Williams said he has not heard that any of his fellow inn owners had complained about public sex in Warm Sands prior to the sting, but that he thought some residents may have complained about the traffic as a result of cruisers driving through the area. Williams said he thought they had been making headway against the problem of public sex before the sting. Williams said he welcomed police to Warm Sands and said that one of the best ways to head off problems in the neighborhood was through extra police patrols.
Ready, the city manager, said that the sting was needed because other methods of ending pubic sex, including simply asking people to move along, weren't working.
Thomas Van Etten, a member of the Palm Springs' LGBT Police Advisory Committee, is calling for Dominguez to step down. Van Etten, 66, is a former San Francisco resident who has lived in Palm Springs for 10 years. He called for the chief's job at a city council meeting earlier this month.
At the hearing, Van Etten said, in part, "There is a malignancy developing on the political landscape of the city of Palm Springs. That malignancy is the current chief of police. That malignancy must be excised by City Manager David Ready and you city council folks.
"For a chief of police to refute a sworn deposition by one of his own sergeants and a statement by a former assistant district attorney that there was collusion between the Palm Springs Police Department and the Riverside County District Attorney's office is repugnant and immoral.
"I have not lived this long to let this one go. I have already contacted state authorities asking for their help. I will not give up this fight. I will not see my community hurt by this kind of injustice and homophobia any longer. It is time for the chief of police to leave his office."
But the Palm Springs gay community is not unanimous in condemning the sting. In a letter to the editor of the city's Desert Sun newspaper, David Cobb wrote: "The 'victims' are complaining that they have to register as sex offenders for the rest of their lives as punishment. I think, as a gay white male, it is a crime. If that's what it takes to deter more from exposing themselves, and/or having sex in a public bathroom, then I think the punishment fits."
An editorial in the Desert Sun on Wednesday, June 16 supported the sting, but said that the charges seemed excessive. That editorial and news articles in the paper generated hundreds of online comments from readers. The consensus among most was that while public sex is unacceptable, those arrested do not deserve to be prosecuted so severely. Many also suggested that police time could have been better spent on other crime.
One person wrote: "People are forgetting that this took place late at night in bushes around a gay resort in a predominately gay neighborhood. The police had to use night-vision binoculars and infrared cameras to catch them. It's crazy our PD has so much time to bother with victimless crimes. This is certainly regrettable behavior but not worthy of lifetime sex offender status."
Wrote another: "The offenders caught in this deplorable sting operation were adults enticed into sexual activities with another 'consenting adult'—the undercover officer. There can be no justification for the DA charging the men with a violation which would result in the requirement that they register as a sex offender for the rest of their lives. That is just as wrong as the actions of the offenders."
On the other side, one writer said Cobb's opinion supporting the tough prosecution hit the mark: "David Cobb—you are right on—many won't like your opinion, but these men were adults and should have known better."
Dominguez, the police chief, said that there was no deal before the sting over how the cases would be prosecuted. Dominguez told the Desert Sun newspaper that Anderson merely "expressed his personal opinion that he was concerned but that's not the policy of the police department."
Mike Balasa, of the Palm Springs/Desert Communities Parents, Families and Friends of Lesbians and Gays, said that he planned to publish a column in the local PFLAG newsletter this week critical of the tough prosecution of those arrested. Balasa and his wife, Carol, are also members of the Palm Springs LGBT Police Advisory Committee and are co-presidents of their PFLAG chapter.
Balasa wrote that he and his wife have always found the Palm Springs officers to be "very professional" and "concerned about treating all minorities fairly."
But Balasa said he and his wife are concerned about reports that a deal was made before the sting to prosecute the men under a penal code section that would require them to register as sex offenders upon conviction.
"This would destroy professions and give the men an onerous stigma," he wrote. "In the past other persons caught in similar violations were charged with public lewdness. That carries a much less serious consequence."
Balasa said he and his wife planned to ask Dominguez probing questions about the sting at an upcoming meeting.
"We want to know if there were any conversations with the prosecutor," he wrote, "who in Warm Sands made the complaints (members of the Warm Sands Hoteliers have insisted that none of their members ever complained), how was the sting conducted and if the serious charge is consistent with other similar cases? There have been rumors and charges made by others, but we feel it necessary to withhold judgment until we hear all sides. We want to believe that our Police Department is serious about reaching out to the LGBT community, and serving all citizens equally with respect and dignity."
Tansey said, if convicted, the men would be subject to up to six months in jail for a first offense and a year for a second offense. But Jeandron, the DA's spokesman, said that because of jail overcrowding, misdemeanor convictions result in home detention or the offender being assigned to a weekend work detail rather than jail time.
Palm Springs Police Chief David Dominguez told Frontiers that a community meeting over the sting controversy was held on June 8 and another will be held July 13. Next month's meeting will include Sgt. Don Mueller of the Los Angeles County Sheriff’s Office who specializes in police diversity training, hate crimes and police relations with the LGBT community.
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