LIVE!!
from
The Floridian
Saturdays
10:00 a.m - Noon
WFTL 850 AM
GUESTS | NEWS SOURCES | ARTICLES | SPONSORS | ABOUT NORM KENT | LINKS
brought to you by
CLICK HERE
for
Advertising
Opportunities
The Art of Fighting Illegal
Arrests of Gay Men
by Norm Kent
This article originally appeared in the Champion,
the national publication of the NACDL in March Of 1997
Sooner or later, it happens in every city.
Police officers begin an undercover detail where they allege their goal is to interdict
"ongoing homosexual activity in a public park frequented by elderly retirees, families
and children."
The police swear in their affidavits that they are only responding to public complaints of
lewd and lascivious activity, in public restrooms or on neighborhood beaches.
The police reports inevitably record that an undercover officer in plain clothes was
suddenly and surprisingly approached by your new client, who, the officer would like you
to believe, without any provocation or inducement, grabbed the officer’s crotch,
offered him oral sex, or alternatively, pulled down the zipper on his fly, thus exposing
his sexual organs to public view.
As an attorney actively representing gay men who are routinely subject to unjust arrests
on similar fact patterns, I am here to tell you that there are effective and winnable ways
to fight these cases. I am also here to say that I am fed up with the criminal defense bar
for rolling over and copping a quick plea to these charges, pleas that wind up humiliating
and embarrassing an otherwise entirely innocent individual.
Police agencies routinely declare that gay men cruising in public parks is a social wrong
to be legally rectified. Many law enforcement agencies proffer that while they do not have
any problems with gay people, they nevertheless have a legal obligation to control lewd
acts occurring in public places. In a sense, they are right. Homosexuals should understand
that public parks are for kids, not for turning tricks. But in an equal sense, law
enforcement must learn to accept that the mere act of homosexuals offering to, or actually
touching each other, is not, per se, a lewd act.
When was the last time you went to court for defending a heterosexual couple that was seen
kissing each other on a public beach? The point is that even if you presume that law
enforcement’s goals in ‘cleaning up’ public parks are noble, the techniques
that are routinely utilized are legally offensive and morally outrageous. Here is what you
can do as an advocate to present numerous and effective defenses to these various types of
prosecutions.
Argue Entrapment as a Matter of Law
Almost all jurisdictions now articulate legal theories of entrapment that can be advanced
credibly by the defense bar. In Florida, for example, Entrapment has been reviewed by an
objective and subjective test.1 This allows for the reviewing court to make an independent
judicial determination as to whether or not the police behavior was initially so
egregious that the defendant’s predisposition is inconsequential as a matter of law.
From the origin of Supreme Court cases that address the issue,2 the quintessential
principle of all cases on entrapment is that police agencies may not, and cannot, create
the very activities they are there designed to control. When the objectionable activity
sought to be curtailed is created by the government’s (mis)conduct, that governmental
conduct cannot stand. It must necessarily fail. This doctrine has been enunciated and
reaffirmed in a litany of cases.3
Accordingly, today’s advocate advancing entrapment as a defense should proffer the
following questions to the reviewing court:
first, whether the government induced the accused to commit the offense charged;
second, whether the government facilitated the prohibited act, or whether the defendant
had a predisposition to do it, regardless of predisposition; or
third, whether the totality of circumstances warrants even turning these matters over to a
jury.
Looking at the police conduct in arrests of men for lewd and lascivious behavior cases,
there are certain constants that appear to exist in every jurisdiction. These constants
provide the foundation for your vigorous defense.
First, you know that your client was on a public beach or in a public park where he had
every legal right to be;
Second, that your client eventually comes into contact with an attractive and well-built
young man who willingly engages in a conversation with him that turns to matters of sexual
substance;
Third, that while at all times your client is free to leave, the undercover officer:
(a) as a matter of technique and approach, is friendly, engaging, receptive, and sociable;
(b) is enticing and inviting- by words, eye-contact, and body-language;
(c) is voluntarily, almost enthusiastically involved in the conversation, perhaps
intimating that he is sexually interested in your client;
Fourth, that unless, and until, the officers engaged your client in a conversation, that
the officers themselves pursued, they never would have had any justification for even
considering your client might become a suspect in the "ongoing criminal
activity" they were there designed to control;
Fifth, that prior to the defendant’s arrest for "exposing his sexual
organs" or "offering for a lewd act" your client had not only not engaged
in any articulable suspicious criminal activity, the arresting officers had no prior
knowledge of your client, and no foundational reason to believe your client was likely to
engage in the very lewd and lascivious activity the police were there intending to
control;
Sixth, that very likely, the police officer courted and followed your client into a
restroom, down a path, or into a private area of a park;
Seventh, that the arresting officers more often than not did not actually observe two men
engaged in an ongoing sexual activity that was illegal, but rather accused your client of
proposing said activity to that very officer there designed to control it;
This last point cannot be understated. Often these undercover details are preceded by
discoverable enforcement briefings, which provide you with legal fodder for arguing that
the police methodology, from its inception, was constitutionally offensive and legally
unacceptable.
The technique is for you to deposition the arresting officers, and see if they have
maintained audio transcripts of the encounter, which they will often do for security
purposes. These transcripts are strikingly valuable, because they will more often than not
establish your case, showing that the police agency induced the suspect activity. Further,
I have repeatedly found that the transcripts of these episodes provide remarkable and
discoverable information reflecting that the officer’s inducements are far greater
than you will ever read on a probable cause affidavit supplied to the first-appearance
magistrate.
In one rather astounding case in Broward County, a Broward Sheriff’s deputy sustained
a forty-five minute conversation with a defendant, indicating repeatedly that he saw
"nothing wrong with sucking a little dick now and then" and reflecting, at the
same time, how sad it was that he got thrown out of the Navy by George Bush for his
"alternative lifestyle." Well, a conservative jurist, Judge Robert Diaz, threw
his case out of court, too. 4
In fact, in a similarly provocative decision, Judge Leonard Feiner of the Broward County
Court carefully listened to and reviewed a thirty minute audio transcript of one
citizen-police encounter in Coconut Creek, Florida. He then ruled that if anyone was
guilty of solicitation to commit a lewd act, it was the officer- who instigated and
carried the conversation to its fruition. 5
The defense technique necessary to prepare and win a case on this basis begins with a
lengthy and probative deposition of the arresting officer, in which you necessarily elicit
his modus operandi, and carefully scrutinize the probable cause affidavits of other
individuals so arrested on that same day or in that same operation. You will inevitably
discover a sameness that bespeaks lies and untruths that other arrestees will corroborate.
In one case I recently litigated in Dade County Court, a jurist dismissed charges against
two individuals simultaneously accused of masturbating in a public restroom when each
showed up at the other’s trial and offered to testify for the other. Each defendant
shared a story about police misconduct that was virtually identical. As neither had
previously met, the judge had to give significant credibility to the veracity of their
testimony. You will find that in a multiplicity of these arrests, when the police often
roust many individuals at once, they will be unable to recall specific facts or recollect
specific individuals. Inevitably, this works to your advantage.
Argue that Lewdness Did Not Occur in that Time or Place
Since many statutes that define lewdness require a judicial finding that the offered acts
offend the rights of others, advocate within your defense also that the (a) officer
induced the proposition; (b) that the officer was alone with the defendant, and
‘others’ were not affected; and (c) that the officer alone cannot be the
‘victim’ of lewdness.
Defense counsel can advance the proposition that an officer alone cannot be the
‘victim’ of a lewd act. This has been sustained in various prosecutions.6
Additionally, the location where the act occurred is also relevant in determining whether
the alleged act was lewd.7
As you prepare the defense, scrutinize the legal definitions of such buzz words as
solicit, entice, procure or induce within Black’s Law Dictionary. Induce, for
example, is defined as to ‘bring on or about, cause, or affect, or influence an act
or course of conduct...’8 It is very often the police officers’ own
actions and conduct that engineers their legal derailment.
The words lewd and lascivious behavior when used in a statute to define an offense
generally means that the proponent of the act is willing to presently engage in a
simultaneous act that has an unlawful indulgence in lust, or sexual depravity.
A close scrutiny of the law might provide you with a unique defense. If there is no
present intent to commit the offense, the charge may fall. Further, since many of these
statutes were articulated years ago, and fall under an umbrella of vagueness, you might
explore whether there interpretation has a common sense application today. You the
advocate can effectively argue that a mere offer for oral sex is not an act of sexual
depravity.
It is important to convey that there is a growing gay consciousness in America. While the
average gay man does not actively solicit sex in public places, charges such as these
cause arrestees sleepless nights and restless evenings. They affect and impact on
individual self-esteem and self worth. Arresting agencies routinely demonize and humiliate
the arrestee as "perverts, queers, and faggots." This is unacceptable, not only
socially, but legally. You as a defense attorney must aggressively attack, and not
passively roll over for the simple plea. Here are some other legal ways to attack these
gay-focused arrests.
Argue Homosexuality as a Defense
In many of these cases, your clients are charged with offering to commit a lewd act in
violation of some law relating to sodomy . Often, the officer will effectuate an arrest
and charge your client simply by offering to provide oral sex, regardless of whether it
was a commercial proposition for money. When it comes to gay sex, police reason, all of it
is illegal. But not all jurisdictions sustain that proposition anymore.
In the past, many states were like Florida, controlling homosexuality by statutes which
declared that "abominable and detestable crimes against nature, either with mankind
or beast"9 were criminal. Currently, many jurisdictions have adopted
regulations eliminating homosexual restrictions. Twenty four states, in fact, as well as
many local governments, now protect homosexual activity. There are even more
municipalities that have now passed laws protecting gay citizens as a class. Check your
venue. This can be used to a practitioner’s advantage in a court of law.
The next time you have a defendant charged with offering to commit a lewd act in a case
you are handling, move to dismiss the charges on the grounds that the statute is
unconstitutional as applied. Note the local ordinances concerning sexual freedoms. Argue
that homosexual acts are neither per se lewd or lascivious but customary and normal
routine sexual behavior between members of a protected class.10
We used one jurist’s judicial prejudice against gay acts in our favor in one
particular case. After listening to the testimony of an encounter in a public park between
a police officer and my client, the judge was torn over the credibility of each’s
testimony. In dismissing the case, he decided in favor of the defendant, ruling that
"for him to be so candid and forthright about his sex, lifestyle, and desires, in a
forum like this courtroom... well, I just have to give him the benefit of the doubt that
he would not have done anything but for the officer’s consent and
inducements."11
Advance the argument that normal sexual intercourse between consenting gay adults may
necessarily involve both oral, or even, anal sex. Confront the judge that to
prosecute a gay person for offering to engage in this activity but not to prosecute
heterosexual persons similarly situated is to selectively enforce the law on a class of
citizens unfairly, to wit, homosexuals.
These may be novel defenses and unusual arguments. But judges need to be educated and
police agencies need to be advised that an entire class of gay citizens are no longer
going to roll over for their unjust prosecutions. You can make your client feel he is
fighting not just for an acquittal or dismissal, but a greater cause that is going to
protect others he does not yet know.
The gay client does not want to hear that the acts he routinely engages in are indecent or
obscene, lewd , unnatural or lascivious. Do not be afraid to have your client take the
stand in a motion to dismiss and have him matter-of-factly describe those sexual practices
that homosexuals engage in which are routine and common to heterosexuals, including
petting, kissing, massaging, and oral sex. Bring a sexual therapist in to sustain the
validity of those practices. Call a psychologist to affirm that even the American
Psychological Association
considers homosexual practices normal. For good measure, conclude your case with a city
commissioner who voted to pass an equal rights ordinance in your community. If you are
getting run out of town, you might as well get in front of the crowd and make it look like
a parade.
Argue Free Speech and Privacy
Many jurisdictions have granted to their citizens even more protection than the U.S.
Constitution provides for. In Florida, we have adopted, for example, a Right to Privacy
amendment.12 While this does not protect people from unlawful acts, it does open up
yet another defense when your client’s offer to engage in a sexual act with another
does not involve a monetary proposition.
Florida’s right to privacy extends "to every natural person the right to be left
alone and free from governmental intrusion into his private life." The citizens of
Florida have thus opted for more protection than the Federal constitution, creating a
freestanding constitutional provision which expressly and succinctly provides for a strong
right of privacy. This can be used to a defense attorney’s advantage in a criminal
prosecution.
Very simply, you should advance the argument that private and non commercial sexual
conduct between consenting adults is not a crime, but that is protected under the zone and
umbrella of privacy the state constitution affords. You then argue that it necessarily
follows that an offer to engage in such conduct cannot be criminalized. Many of the gay
encounters that police agencies target are significantly different than undercover
heterosexual decoys who offer themselves for prostitution.
In prostitution stings, the proposition to engage in oral sex is deemed illegal
because it is accompanied by a cash offer, no matter how small-the offer, that is. In gay
encounters, police agencies have arrested and prosecuted persons simply for making the
offer, regardless of whether money is offered, or where the act is to be performed. If no
money is offered, and the sexual act is to be performed back at home in a non-public
place, then the offer of one man to perform a sexual act on another man is no different
than a college frat guy propositioning a co-ed home from a nightclub to his bedroom to
‘rock her world.’ Argue free speech as a defense.
In dismissing one arrest, Broward County Judge Ilona Holmes ruled that "a late
night private conversation between ‘consenting’ adults, on a beach alone,
coupled with the lack of physical contact, suggests that no violation of law
occurred". Another jurist added that to criminalize such conduct would require her to
shut down every bar in Fort Lauderdale. 13
Argue Apparent Consent in Battery Cases
The easiest cases for the State to prove are those cases where the officer alleges that he
was the victim of an unlawful touching without his consent. Correspondingly, they are the
toughest cases to beat.
How many times have you had an officer simply say that your client reached out and touched
his crotch, and thereby committed a battery ? A thoughtful article by a Gulfport, Florida
lawyer, Richard Sanders, Esquire, in a recent Florida Bar newsletter attempts to address
even this issue.14 The defenses articulated are universal and can be applied to any
jurisdiction.
While it may be insurmountable to win a case like this on a motion to dismiss, there are
two clear arguments you can advance for your client. First, show by a totality of
the circumstances that led up to the touching that the alleged touching was perfectly
consensual.
Second, advance the argument that the crime of touching cannot be proved solely by a
general intent to touch another. Advance the proposition that it further requires a
specific intent to touch "against the will" of another, a wholly separate
element, and the measure of the requisite intent is the defendant’s state of mind .
As Sanders writes: "Construing a battery statute as just requiring merely an intent
to touch would lead to absurd results... This can best be shown by the following example.
The defendant is walking down the street when he sees an old friend approaching. The
friend smiles broadly and sticks out his hand. The defendant grasps his friend’s hand
and shakes it. The friend recoils, and says "I did not consent to that
touching," and he has the defendant arrested by a police officer who happened to be
right there to observe the encounter.... Is the defendant guilty of battery?"
Concluding that the defendant is not guilty, Sanders nevertheless points out that the
touching was both intentional and non-consensual. But it isn’t enough. It would run
afoul of legislative intentions and due process statutes that are susceptible of
application to innocent activities.
Of course, the State will argue that grabbing someone’s crotch is hardly innocent,
but if you can demonstrate through a totality of the circumstances that the arresting
officer induced and encouraged that touching by engaging in a sustained conversation with
your client over a period of time, and that conversation openly discussed or intimated
sexual situations, you have a valid claim to advance before a judicial forum. That is also
why having a transcript can be so valuable.
Summary and Conclusions
The bottom line here is that when a walk in the park ends with your client’s arrest
you do not have to roll over and play dead.
You do not have to run to the prosecutor and beg for a plea to save your client from
humiliation and embarrassment.
You can argue due process claims and selective prosecution.
You can argue that his acts were non-commercial and protected by free speech and privacy
claims.
You can argue that homosexuality is not only not grounds for a prosecution, but that it is
a foundation for a defense.
You can argue that the officer has consented to, and induced, the alleged illegal acts.
You can argue entrapment as a matter of law. So do it. More than just Nike will be proud
of you .
The criminal defense bar needs fighters to stand up for the rights of gay men not to be
targeted for unjust prosecutions.
Return to Published Articles Index
Footnotes and Commentary
1. Section 777.201, Florida Statutes (1987), outlining objective and subjective methods
for entrapment as a matter of law to occur.
Interpreted most recently and definitively in Munoz v. State of Florida, 629 So. 2d 90
(1993). This is a key case which also stands for the proposition that if the factual
circumstances of a case are not in dispute, and the accused establishes that the
government induced the accused to commit the offense charged, and the state is unable to
demonstrate sufficient evidence of predisposition, then the judge has the authority to
rule on the issue as a matter of law.
2. The defense of entrapment was first recognized by the United States Supreme Court in
Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210. 77 L. Ed. 413 (1932). In holding
that law enforcement officials could, on occasion, appropriately provide opportunities for
the commission of crimes, the Supreme Court stated that a ‘different question gets
presented when the criminal design originates with the officials of the government, and
they implant in the mind of an innocent person the disposition to commit the alleged
offense and induce its commission...’ at Sorrells, 287 U.S. at 442, 53 S.Ct. at 212.
For a continuing discussion of federal entrapment cases, see also Sherman v. U.S, 356 U.S.
369, 78 S.Ct. 819, 2 L. Ed. 848 (1958) through the now-famous
Jacobson v. U.S. post office case, 503 U.S. 540, 112 S. Ct. 1535, 118 L. Ed. 2d 174 (1992)
3. For criminal defense attorneys, there are few publications as exhaustive or
illuminating as The Entrapment Defense, by Paul Marcus, available through the Michie
Company. An acknowledged authority on constitutional issues, Professor Marcus’s text
not only outlines individual state defenses to entrapment, it cites a history of leading
entrapment cases such as Sherman, Jacobson, supra., and U.S. v. Jannotti 673 F.2d 578 (3rd
Cir. en banc 1982), the famous ABSCAM case which delineates judicial involvement into
government overreaching.
4. State v. Harlan, (1994), Judge Diaz reviewed an amazing transcriptwhich had the officer
all but induce the defendant to take off hisclothes and go skinny-dipping. The officer
then arrested the defendant on a charge of public exposure of sexual organs. Citing the
Munoz holding, at 629 So. 2d 90, at 100, the Court found the government’s inducements
‘egregious’ and dismissed the charge without it ever going to a jury.
5. In State v. Adams (1996) Case No. 95-1417MM10, Case No. Broward County Court Judge
Feiner noted that the defendant "had been charged with unlawfully enticing,
procuring, soliciting, or inducing Deputy Storer to commit a lewd act, specifically anal
or oral sex. But the contents of the probable cause affidavit doesn’t jibe with the
actual transcript.... Having read the transcript, I think Officer Storer is the guilty
party.."
6. Schmitt v. State 590 So. 2d 404 (Fla. 1991), cert. denied _ U.S._,112 S.Ct. 1572, 118
L. Ed. 2d 216 (Fla. 1992), where the Florida Supreme Court stated that for one to be found
guilty of a lewd act, the alleged act "causes offense to one or more persons viewing
it or otherwise intrudes upon the rights of others." 590 So. 2d at 410. See also
Cheesebrough v. State, 255 So. 2d 675 (Fla. 1971).
7. In a Palm Beach County Court case, Judge Stephen Cohen refused to find that a topless
dancer who lapdanced against the crotch of a law enforcement officer had done anything
illegal. The Court found that the agent willingly and knowingly placed himself in an adult
entertainment lounge designed for that purpose: "While the Court does not necessarily
condone the acts complained of, the fact that it took place in an adult entertainment
facility as opposed to the common are of a neighborhood
shopping mall is significant. By definition one must believe that those who patronize
adult entertainment facilities would likely not be offended by the behavior of the
defendant herein." State v. Tammy Schmidt , Case No. 93-010064 MMA02, ably
represented by the law offices of Craig A. Boudreau. See also Campbell v. State, 331 So.
2d 289 (Fla.1976)
8. Black’s Law Dictionary ...look up induce, entice, solicit, procure, lewd,
lascivious, and all such similary situated words for a complete picture.
9. Now abolished, Section 800.01 of Florida Statutes was found to be unconstitutionally
vague in Franklin v. State, 257 So. 2d 21 (1971) Many jurisdictions still nevertheless
construe lewd acts to be unlawful.
.
10. For example, in a civil case, where pro footballer Brian Cox of the Chicago Bears is
suing former WIOD radio personality Phil Hendrie (nowwith KFI in Los Angeles) over a
satire wherein Hendrie intimated that Cox was gay, one of my affirmative defenses is the
argument that there is nothing slanderous about being gay in 1996, in Broward or Dade
County, Florida, jurisdictions which provide numerous equal rights protections for
homosexuals. The irony is sweet. Where homosexuals were once sent for psychological
treatment to ‘cure them of their illness’, we are now asking that Cox be
psychologically examined for his
aberrant on and off the field behavior.
11 . State v. Regalbuto (1996), Case No. 95-1417MM10 Broward County Judge Zebedee Wright.
Note that you can send these recorded decisions in to your local state law weekly so you
can develop a jurisdictional track record on otherwise unreported county court cases.
12. Article I, Section 23 of the Florida Constitution (1968) reads that : ‘every
natural person has the right to be let alone and free from governmental intrusion into his
private life.’ Amidst some social consternation, gay men are now considered
‘natural persons’, though I bet there are still legions who would like to argue
otherwise...
13 . State v. Niter (1996) Case No. 95-12600MM10, Broward County Judge Ilona Holmes; and
State v. Munoz (1996), Case No. 95-14169MM10 Judge Mary Rudd Robinson, concurring. In each
decision dismissing the charges, the jurist cited elements of footnote 7, supra, where the
court took into the account the time and place of the alleged act, as well as the validity
of the claim that a party was actually ‘offended’.
14. Criminal Law Section Newsletter, Volume XIX, No. 2, April 1996, The Florida Bar. To
get a copy of the full article, contact the Florida Bar Publications, 650 Appalachee
Parkway, Tallahassee, Florida 32399.