| BLADE Magazine article continued | |
Fourth Amendment rights by submitting to search and seizure by the police at any time during probation. Sometimes the terms include registering as 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." Some men may lose their jobs, their teaching credential, right to adopt top Security clearance, ability to receive a real estate license, and/or more drastically - commit suicide for being exposed and humiliated. Arrest for lewd conduct is considered a crime of “moral turpitude.” Many job applications will ask if one has ever been convicted of this offense. The above plea bargains offered four years ago, as harsh as they may seem, may be a thing of the past in some parts of California, including Orange County and Long Beach. Recently four men arrested on the beach near two popular gay bars in Laguna Beach at two o'clock in morning. They were having sex in a in secluded place out of public view, when a member of the vice squad snuck up on them. Of the four men, who have I have been offered a plea bargain of 30 days in offer of 90 days in jail, due to a previous offense, according to his attorney, John Duran. "In Los Angeles County, someone with a previous offense would be required to perform community service, such as Caltrans trash pickup," states Duran, who finds even the 30-day incarceration offer outrageous. If these four cases go to trial and they lose, the maximum sentence would be six months in jail, a hefty fine of $1,000 and a 200 percent penalty (raised on January 1, 2003 from 170 percent), totaling at least $3,000 plus attorney fees of up to $6,000. And yet, because of the humiliation of going to trial, one or more may accept the plea bargain, which several other attorneys consider unreasonable. George Michael' chose former Los Angeles Distridt Attomey Ira Reiner when he was arrested in a sting operation in Beverly Hills. He got "one of the worst plea bargains imaginable," according to Long Beach Attorney Stephanie Loftin - but that was before she heard about the recent offers in Orange County, which she finds "horrific." One would be wise to choose a specialist in lewd conduct cases, or better yet, no matter how tempted, avoid the behavior, the possible humiliation and other consequences, whether the arrest is invalid, or discriminatory, or not - and to vote wisely. LEGAL BEHAVIOR Nickerson, who does not mince words, has deemed himself "the best toilet lawyer in California," because he has taken juries and judges to "the scene of the crime" to see for themselves if they could see, what the police claim to have seen. "I've specialized for my entire practice in police sting operations against gay persons," says Nickerson, a bisexual man who has raised seven children: one his own, one adopted, two nephews and three from his second marriage. "The reason is two-fold: these arrests, when they are made by decoys, are doubly-damned. They are damned, first of all, because they are arresting people for legal behavior. By that I mean if you cranked 100 decoy arrests into a computer programmed with the elements of the offense as explained by the courts, and everyone is unanimous as to what the elements are, it would come out 'not guilty' in 99 out or 100 - maybe 99.9 out of 100. "If the arrest was made by a decoy, this is very important," he adds vehemently. "The reason is this: lewd conduct is a unique offense in California, because it requires that the perpetrator of the act, the actor, know or should know that the observer watching him is a person who is likely to be offended. That is unique in the penal code system. So if the observation has been made after 10 or 15 minutes of eye-contact, making suggestive conversation, and fake hand-washing around the bathroom, all of these signals are designed to tell the suspect, 'Hey, man! I like to watch.' If the person then proceeds to expose himself and masturbate, he does so with the reasonable belief that this guy is not going to be offended by of virtue of this play-acting. This has been the law since 1979." 1979 was the year California's Supreme Court passed the Pryor Decision, in which it defined the penal code section dealing with lewd conduct "to prohibit only the solicitation or commission of conduct in a public place or one open to the public or exposed to public view, which involves [specific lewd conduct acts] by a person who knows or should know of the presence of persons who may be offended by the conduct." Reyna had only been walking toward a restroom in a park in the Stanislaus County city, when, according to Nickerson, "Bazan made eye contact with [him] as he approached." The two struck up a conversation. "Bazan asked him if he knew of the 'things' that happened in the park. The two then discussed which sexual activities they enjoyed - Bazan placed his foot on the bench - exposing his crotch area to Reyna." Reyna brushed the back of his hand against Bazan's thigh, according to Nickerson, and the two consented to walk to another area of the park, where Reyna was arrested even though they had never discussed what they would do there. The presumption of innocence comes into play here. If no lewd activity is discussed, one is presumed innocent of intending such behavior. In Reyna's case, no lewd conduct was performed in public or even discussed, and Nickerson maintained that after reviewing Modesto records over the past three years, he could not find one arrest of heterosexuals (excluding prostitution) in which police decoys were involved. Nickerson reiterates that such conduct "is only lewd if it is done in the presence of a person you know, or should know, is likely to be offended." And though that’s been "the law since 1979 [the police] ignore that element completely - except when it comes to heterosexuals. They never make a decoy arrest for male/female non-monetary sex." Stephanie Loftin has won many such cases though she does not describe herself as "a toilet lawyer"). She took the City Attorney of San Pedro, along with the whole office, to a public restroom where police had claimed to see a man masturbating through a crack in the door. All agreed that was impossible. Her client was set free, sued the local police and won. SOLICITATION According to Nickerson. Kern County has not carried out a sting operation in four years, "because they made some of the dumbest arrests around - by last count, four arrests under the scenario where the person says, 'Let's go to my house' and each one of those has cost them big bucks. The Mussinger Police Dept. made one of those arrests. That helped my Supreme Court case. 'Me Supreme Court could not believe the stupidity of that arrest." A college instructor reports having a policeman put his eye to the crack in the door at a local community college where he taught, when he was alone. "They arrest you for that. I will, without question, get you a minimum of $10,000 for false arrest. Not only that, I will get you a writ of error if the court was dumb enough to take your plea and if an attorney advised you - this happened - to plead out, I will sue him successfully for malpractice." Lawyers could also be sued for malpractice if they do not motion to suppress evidence illegally obtained, including an arrest made through the sole use of an enhanced, vision device, such as infrared binoculars the Long Beach police have been observed using, because the activity did not take place in plain view. Nickerson describes another legal solicitation, in which the decoy is asked if they can go to his place, but the decoy says no because he has a straight roommate. The other man then suggests going to his place, but the officer claims he is uncomfortable going to a stranger's house. "Then [says the target] - 'How about over there in the bushes? There's no one around.' That is a legal solicitation - you've intended to do it in a public place, but it's not a place where a third person is likely to observe the proposed ' conduct and likely to be offended." Nickerson is speaking from experience, having had 15 such cases dismissed at once in Sacramento. Aside from public restrooms, he has taken a Sacramento judge to the American River basin and proved that no one in the bushes in broad daylight could be seen by casual passers-by, because the bright sunlight would make it impossible for the eyes to adjust to the darkness inside. Similar undercover operations are still occurring in Orange County, Long Beach, and elsewhere throughout the state and country, In Los Angeles, the number of arrests has decreased drastically, according to Simons. "I used to get three to five cases a week, now I only get one, at the most, two a month." This he attributes to important causes: he worked with the Lewd Conduct Working Group under the Parks Administration to help bring this about, and also attributes Internet dating to the reduction of arrests. Simons also believes that the police saw gays as such "easy targets," that they considered arresting unarmed gays, who did not put their lives in jeopardy. Newly-appointed Los Angeles Police Chief Bratton has set targeting violent crimes as his priority, says Simons. He believes that the tough stance in places like Orange County is due, in large part, to the amount of press given to molestations by priests, and expects a change in attitude by authorities once the hype dies down. Although the Fresno Police has halted sting operations since they lost the Magos case to Nickerson, the Sheriffs Department has recently been conducting a large "decoy sting operation to arrest persons for simply meeting. They're not arresting them on the spot, they're waiting three and four months later and arresting them at their job, or their home; that's how badly the authorities are prepared to do it," says Nickerson. In his usual bold manner, he has jumped on the case: "I have organized a band of local attorneys and the public defender's office to fight these arrests." Recent stings have occurred at Boston University and other college campuses. "Foxnews" reports: "Some gay students say persecuting I participants in this so-called 'tearoom' culture is discriminatory." ("Tearoom" is a whimsical euphemism, known as a "beat" in Australia or a "cottage" in England, for a bathroom where gay men can meet.] "Heterosexual couples exploring sex on lovers' lane is romanticized, but same-sex sex is treated with disdain". | |
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