Is That a Badge in Your Pocket? Or are you just happy to see me?

Are OC's cops a little too excited about busting men for gay sex?

Snugly wrapped in blue jeans and a sweat shirt, a sweet-and-sturdy piece of work parades back and forth in front of me, dispensing meaningful eye contact and suggestive lip twitches and converting every premeditated step into maximum back-porch swing. We're the only two people in Estancia Adobe Park, a swath of historic greenery on a hilltop at the western edge of Costa Mesa. It's one of those syrupy-sunny afternoons that so often follow a midwinter rain, and it is getting toward evening. My heart is pounding apprehensively.

Is that love in the air?

Or is it a sex-crime bust?

The happy heinie that has been scanning the park like radar is hanging off the hips of a man, which isn't surprising. Estancia Park has long been a popular place for gay and bisexual men to rendezvous. It's even mentioned-along with lots of other Orange County locations-on the Web site

But there's also a pretty good chance that the dog this tail is wagging is attached to a lawman. According to a sampling of recent arrest and court documents, the restroom at Estancia Park is among the places the Costa Mesa Police Department (CMPD) most frequently sends undercover officers to troll for men who may be interested in homosexual sex. (Those reports show that the CMPD vice squad also spends lots of time in the restrooms of the Orange Coast College business building and on the third floor of the Macy's department store in Crystal Court.) Men who interact too cordially with the undercover officers are arrested and charged with lewd conduct.

"We'd been getting lots of complaints, so we stepped up our enforcement efforts beginning in March of last year," acknowledges CMPD Sergeant Bob Phillips. "Since then, we've made more than 50 arrests." Undercover officer Mike Delgadillo has participated in nearly three dozen of them.

The arrested men are charged with violations of California penal code sections 647a and 647d. The first, 647a, makes it a crime to solicit or engage in lewd conduct in a public place. The second, 647d, outlaws loitering in or near a public restroom for the purpose of soliciting or engaging in any lewd or unlawful act. The offenses are misdemeanors, technically boiling down to disorderly conduct.

However, because they are sex-related crimes, 647 arrests often carry consequences that go far beyond the terms of what's usually a plea-bargained punishment package consisting of about $1,000 in fines and court costs, three years of probation, picking up trash alongside the freeway, and an order to stay away from the place they were arrested. Sometimes punishment includes relinquishing Fourth Amendment rights by submitting to search and seizure by the police at any time during probation. Sometimes the terms include registering as a sex offender. A 647 arrest can ruin a person's reputation, relationships and employment opportunities. It isn't so great for somebody's self-esteem, either.

The Orange County district attorney filed a total of 631 of these lewd-conduct charges in 1997 and 1998 (561 of them 647a's, 70 of them 647d's). But although lots of people are having all kinds of sex in many public places-along lovers' lanes, at the beach, under the pines, in parking lots behind singles bars-the repercussions of the 647 law thunder almost exclusively through the lives of men having homosexual sex.

"Almost 100 percent of lewd-conduct arrests are of gay men," points out attorney Audrey Stephanie Loftin, who is active in the gay-and-lesbian community and is running for a seat on the Long Beach City Council. "Since gays and lesbians are supposedly only about 10 percent of the population, I think it indicates a violation of equal-protection laws. I think it suggests that lewd-conduct [laws] are being enforced selectively and unfairly."

Law-enforcement officials insist that the reason gays are most often arrested for 647s is that gays are most often those who violate the law. "Basically, it's a homosexual activity," says Lieutenant Ron Smith, who deploys the detectives among the 150 members of the CMPD. "Heterosexual sex would fall into that [lewd conduct] category, but it just doesn't seem to occur frequently among them."

Rebecca Birmingham, an attorney in Loftin's office, disagrees. "That (647a) law defines lewd conduct as 'the touching of the genitals, buttocks or female breasts in any public place,'" she says. "If you think about it, every guy who puts his hand on his girlfriend's ass is committing lewd conduct if it's done in a public place. Fortunately, the police use common sense in those situations. Unfortunately, they don't when it comes to homosexuals."

Newport Beach attorney Dave Haas says the 647d law is also rife for selective enforcement. "It allows the police and the courts to arrest and sentence people who are near a public toilet based on speculation about what is in their minds," he says. "Our system is supposed to be based on the presence of criminal conduct accompanied by mental guilt, not speculation."

This is a two-pronged cause for Loftin and Birmingham. They have sponsored support groups for 647 arrestees, the better to help them cope. They are also collecting sworn declarations from people-homosexual and heterosexual-who have been interrupted by police while getting passionate in a public place. If these accounts show a pattern of law enforcement that differs based on the sexual orientation of the participants, Loftin and Birmingham intend to file suit alleging discriminatory enforcement and prosecution.

Next Page »