Is That a Badge in Your Pocket? Or are you just happy to see me?
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 www.cruisingforsex.com.
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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.
Birmingham summarizes their early findings this way: "If police officers find a straight couple having public sex, they'll usually tell them to take it home. But two men kissing will get arrested."
She chuckles and adds: "And if the police come across two lesbians? They'll probably pay to watch."
Santa Ana attorney John Covas remembers defending a case in which he pored over 18 months of 647 arrest reports from the Anaheim Police Department. "They all read like they were from the same script," says Covas. All but one were arrests of gay males or men the officers assumed were gay. The only exception was a straight couple arrested for doing it in the parking lot at Disneyland."
It's not only the demographics of 647 arrests that trouble defense attorneys and others familiar with these cases, but also the law-enforcement tactics employed to make the arrests. "They almost always use undercover operations," says Loftin. "And they design these stings to target gay or bisexual males."
Arrest reports indicate that officers loiter in or around men's restrooms and other known sex-cruising spots. ("We don't get complaints about women's restrooms," says Phillips.) Beyond that, they are often accused of employing the suggestive nonverbal signals of willing sexual cruisers-from tapping a foot on the restroom floor to touching their genitals through their pants to, in a recent case in Long Beach, lingering in a health-club shower with a hard-on.
Phillips won't comment on the CMPD's strategy-"This is, after all, an undercover assignment," he points out-but he makes no apology for it. "If a perpetrator perceives that there is a willing partner in the restroom and performs a lewd act, an arrest is made," he says.
However, most law-enforcement agencies acknowledge they rarely if ever undertake similar undercover efforts to target lewd heterosexual conduct, such as sending out attractive female vice officers as non-prostitution bait (that is, women indicating they're available for free, consensual sex) for straight men. Other typically heterosexual sex crimes-like flashing or indecent exposure-are usually handled by uniformed officers.
"So why is this kind of police work done undercover when it comes to gay men?" Loftin asks. "What are the police hoping to accomplish? If they are just trying to stop the behavior, wouldn't a patrol by a uniformed officer be a better deterrent? Even parking an empty police car near one of these restrooms-wouldn't that send a discouraging message?"
He's got an olive complexion with a medium build and a flat stomach. He's very attentively groomed. His beard is black and trimmed into a path that diligently follows the line of his jaw. His hair is full and wavy-kind of like Liberace's, except styled with gel instead of a blow dryer. He's wearing hiking boots. His hands are mostly in his pockets, deep in his pockets. It's obvious that all of his fingers work because beneath the denim and cotton fleece you can see them squirming.
He wasn't here when I got to Estancia Park. In fact, the grounds were completely empty, which kind of surprised me. This place is supposed to have a bustling tea room (the refined euphemism for restrooms where men meet and often have sex with one another).
That's what it said on the Cruising for Sex Web site (www.cruisingforsex.com), which lists tea rooms throughout Orange County. And that's good enough for the CMPD. "We get some of our intelligence information from that Web site," says Phillips. Some of the places tea rooms exist seem so unlikely. Such as the one at John Wayne Airport, near the United Airlines gate. Or the Bolsa Chica Wetlands in Huntington Beach. Others are almost legendary, such as Hillcrest Park in Fullerton, Santiago Park in Anaheim, Heisler Park in Laguna Beach, and the Dana Point Marina.
One theory has it that tea rooms derive from an era when homosexual sex was even less accepted and more persecuted than it is today. There is evidence that tea rooms still tend to serve a clientele, if you will, that is secretive, embarrassed or afraid: closeted homosexuals and bisexuals, as well as other men, many of them married, who are curious, experimental, compulsive or otherwise periodically indulge that aspect of their sexuality. Others insist the arrangement goes back much further. "I would assume it's been going on since the beginning of time," says Keith Griffith, founder of the Cruising for Sex Web site, which provides worldwide listings of tea rooms, glory holes, bath houses, bookstores, bars and all kinds of other man-on-man sex hangouts, as well as suggestions about cruising etiquette, tips about health, and advice for dealing with the law. "Anywhere that men have their dicks out at the same time, some of them are going to be aroused, and some of them are going to act upon it. It's only natural. It has always been."
But there wasn't any tea party going on when I arrived at Estancia Park, and that was fine with me. All I wanted was a brief look at the park's 5-acre geography and the layout of its tiny restroom-the better to understand its many mentions in police and court documents. But about 30 seconds after parking my car, as I walked toward the gardens and the old adobe that commemorate when Estancia Park was a way station for the Spanish missionaries of 18th-century California, a man driving a late-model Jeep Sport scooted into the lot and backed into the space right next to mine.
Suddenly, I became a little concerned, felt a little vulnerable. Not because I was worried this guy might be cruising for sex-rather, it was because I was afraid he might be a vice cop. A warning I'd received the day before from a former prosecutor in the Orange County district attorney's office recurred to me. "After the thousands of lewd-conduct undercover stings I've come across over the years, as overzealous as these guys can be," he'd told me, "I wouldn't even think of going into a public restroom in a park by myself. Not under any circumstances."
Then, that admonition seemed a little excessive. Now, I reconsidered it. Instead of inspecting the notorious restroom, I walked across the park to the historic little adobe, where I absently examined a commemorative plaque and the display of rusty farm implements. I was buying time, reminding myself that I had every right to be here. When no one joined me in the park after a few minutes-when I felt safe again-I began walking toward the restroom. But then, down in the parking lot, the Jeep's door slammed. I walked a little faster.
After 20 seconds in the empty restroom, I'm sitting at a nearby picnic table with a pen and a notebook, jotting down what I have seen: toilet, urinal, sink, check, check, check. For being in such a nice neighborhood, Estancia Park's facilities are very poorly appointed, just about as rustic as that adobe. The stall doesn't have a door on it. The urinal is made of metal and is streaked and rusty. There is no mirror above the sink. Not exactly my idea of a love nest. And then, suddenly, there he is-the guy from the Jeep, up from the parking lot, walking nowhere in particular, wandering almost, except that he always remains near me.
Normally, I wouldn't have given this guy a second thought. Either that, or I would have said hello. But now, the possibility that my reaction to him might result in my arrest has me on guard. I'm trying not to look at him while keeping track of exactly where he is.
He also exudes an exaggerated indifference as he parades back and forth in front of me, then down to the adobe, up to the restroom, around the back, in through the door, back out again. But then, abruptly, he seems to be suggesting a larger purpose: his eyes transfixed on me and his eyebrows arching, he grabs and adjusts himself through his pants with a nimble flourish. Taken altogether, it's a rather peculiar manner-a combination of playing hard to get and playing to get hard. I avert my eyes and keep writing, describing the restroom, his appearance, my assignment, whatever. I'm trying to be a good reporter, but I can't stop thinking that these notes may have to be my alibi.
"I'm the best toilet lawyer in the state of California," proclaims Bruce Nickerson in a voice that gushes through the phone with the unapologetic pomp and rattle of bad plumbing. "I have taken juries out to bathrooms to see for themselves if it was possible to see what the police officer insisted he could see. I've taken judges out to sit in stalls and stand next to urinals. I've taken courtrooms to restrooms in parks and shopping centers and schools. When you're a toilet lawyer, those are the scenes of the so-called crime."
The "so-called crime," Nickerson calls it, because he is convinced that most of the arrests made in the name of California penal code section 647a and 647d are illegal themselves. The "so-called crime," Nickerson adds, because he has convinced so many juries, earned acquittal for so many clients, and followed up those victories by filing so many big-money lawsuits, that arrests for violation of California penal code sections 647a and 647d have become almost nonexistent in several northern California counties.
"In my area, they just don't do it anymore," says Nickerson. "I live in San Mateo County, and we haven't had one here in 10 years. It has been quite a while in Marin and Santa Cruz, too. And Santa Clara -I mean, I won a six-figure judgment from the city of Mountain View in a Supreme Court case. And San Jose. San Francisco was cleaned up before my time. But I don't think there will be many more in Modesto after the $1 million class-action suit I filed a couple of months ago, after their sting operation was ruled illegal. When they have to pay through the nose, they stop doing it."
Nickerson isn't alone in his high opinion of himself. Many Orange County attorneys who still struggle against long odds to defend clients arrested in sting operations that remain in wide practice by Orange County police and sheriff departments consider him something of a guru. He has cases active in the cities of Fullerton and Newport Beach, in addition to Modesto, Alameda, Fresno and Contra Costa counties.
"I'm prepared to go anywhere in the state and assist local attorneys in these cases," says Nickerson. "Most of them don't have the foggiest idea how to go about it. And a lot don't care. But anybody who is dedicated to beating these things can do it."
The key to Nickerson's defense of a 647a lies in the last of three instructions that the judge must give a jury. That instruction requires that anybody convicted of lewd conduct "knows or should know that a person is or will be present and may be offended by such conduct."
"That makes any arrest by a decoy invalid!" asserts Nickerson excitedly. "See, an officer becomes a decoy to gain the confidence of the people he is going to arrest. And as soon as he does that, he is implicitly telling those people, 'Relax, man; I am not likely to be offended.'"
How does this differ from other undercover operations, in which officers are decoys in drug or prostitution stings? "Those activities are illegal unto themselves," Nickerson explains. "But sex in public is not illegal, surprise-surprise! It becomes illegal only when you do it around someone likely to be offended. When undercover officers make these arrests, they are alternately playing two roles-the willing decoy and then the offended party. But I say they can't have it both ways. And I've never had a jury disagree with me."
The problem, say defense attorneys, is convincing their clients to take these cases into open court. "These are very winnable cases when you go to trial, but they can be very embarrassing," says Loftin. "That's one of the things the police and DA count on. It's mortifying to put your penis into evidence."
And that kind of discovery isn't unusual when the evidence consists of testimony from an officer about exactly what he saw. "But God does smile on you sometimes," says Nickerson. "Once I had a client who had a Prince Albert-that's a stainless-steel ring-through his penis. But there was no mention of the ring in the police report. Or from the officer on the witness stand when we asked him to describe the defendant's penis. So we showed the jury-and we had the sales receipt to prove exactly when it had been installed."
Nickerson is laughing now, but he is fiercely passionate about the prejudice he reads into 647 arrests. "When you think of the thousands of discriminatory arrests for legal behavior, it's really horrible," he says. "And I'm convinced that most of this so-called lewd behavior is fabricated by undercover officers who know they can get easy arrests. It's prosecuted by district attorneys who realize they can compile impressive conviction records and collect lots of easy fines. If this was happening to any other group, there'd be a hue and cry, and it would be stopped. But these are gay men, and society is saying, 'Even if we can't arrest them in bars or their bedrooms like we used to, goddamn, we'll bust their asses.'"
It is a mistake to generalize tea-room behavior across gay culture-as inaccurate as extrapolating singles bars and swinging across the heterosexual landscape. And indeed, many in the gay-and-lesbian community have strong feelings against such overt promiscuity. "Personally, I don't believe people should have sex in bathrooms," says Loftin. "Generally, the people who do this-whether they are the tea-room queens out for thrills or the closeted man trying to live in the gay and straight world or the compulsive sex addicts-have some kind of problem. I have a hard time with the behavior, but there are better solutions than ruining their lives with an arrest or putting them in jail."
Opinion in the gay community tends to come together against lewd-conduct laws because that's where lewd-conduct laws tend to flex their muscles. Peruse the gay yellow pages and see how many attorneys advertise a specialty in defending lewd-conduct offenses.
"Public lewdness laws are weapons against gay sexuality," says Myron Dean Quon of the Lambda Legal Defense and Education Fund's Southern California office. "While they do not refer to gay sex specifically, they are enforced almost exclusively against people perceived to be gay."
Jack Sullens, an assistant deputy district attorney in Orange County for 20 years, disagrees. "I don't see it as the police focusing on a particular sexual preference," he says. "The police generally do not go out and begin to conduct investigations until they get calls from the public."
"The police and district attorney invariably cite public complaints as the reason for their undercover operations, arrests and prosecutions," says Covas. "But I have yet to ever have them come up with evidence of such complaints."
Says Sullens, "A lot of times, those people [the complainers] don't want to get involved."
Birmingham says the focus on public complaints loses track of a more important legal point. "Public prejudice is not enough to justify enforcement of a specific law against a group of people," she says. "In this case, it has to be more than, 'We just don't like homosexual conduct, but heterosexual conduct doesn't bother us.' It has to be more than that."
With a sigh, Smith denies that his department is acting out of prejudice. He insists he would prefer that the CMPD undercover detectives not focus on restroom cruising. "It's a low priority for me for a couple of reasons," he says. "Often, it's a 'victimless crime.' And there are plenty of other things we need to be doing. We are forced to take action because it's a public annoyance, but none of us like working it. It's really degrading."
The sun is going down in Estancia Park, and I've run out of notes to take. As I sit in the dimming light, the could-be cop in the sweat shirt and jeans swishes past me again. I'm trying to act naturally, but I'm having a difficult time figuring out what "natural" is. I feel cornered. Finally, when he gets about 50 feet away, I make a move-walking briskly toward my car, writing down the license number on the Jeep as I approach. But I hear footsteps behind me. I turn and confront him, with what I hope is a smile that cannot be misconstrued as anything more.
"Are you Mr. Delgadillo?" I ask, dropping the name of the Costa Mesa police officer I've read on so many reports.
"Huh?" he asks flatly. It certainly is not the kind of enthusiasm that might be expected from someone who has been trying so hard to get my attention.
"Are you Mr. Delgadillo?" I repeat.
"No, uh-uh, no,'' he says, just as flatly.
I try again. "Are you from the Costa Mesa Police Department?"
"No," he says, unflustered. This time, it's his lack of reaction to my mention of the police-in an area where they make a lot of arrests-that doesn't ring true.
"Well, I'm doing a story about lewd-conduct busts at this park, and I wondered if that's what you were here for," I offer. "Are you working undercover?"
"No," he says impassively. "Can't help you."
I get into my car, and he begins to walk back toward the park. I roll down my window and call after him. "Well, if you're not a cop, be careful because they make a lot of busts here."
He doesn't even acknowledge me.
Later, when I phone Smith, he says he doubts the man was an undercover officer. "The description doesn't sound like any of our guys," he says. "And I don't think we have a Jeep."
But when I phone defense attorneys whose clients have been arrested by Delgadillo, their description of the officer coincides very closely with who I saw. As cops are so fond of saying, he matches the profile.
But a couple of weeks later, when the license-plate check comes back, it shows the car is registered to a private citizen.
What does that mean? Well, that I didn't need to be afraid of that guy. I didn't need to hurry home from the park. I could have said hello, or I could have ignored him-or I could have minded my own business and remained as oblivious to others' harmless walks through the parks on beautiful winter evenings as I was before I learned that undercover cops are skulking around public restrooms.
"Like I said, we don't do it much," says Smith. "Just enough to send a message."
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