Firestorm erupts over Palm Springs sex sting
by Ed Walsh
He was walking home from a birthday party one evening last June. He saw a good-looking man hanging out in a dark parking lot at one of the gay resorts in Palm Springs' Warm Sands neighborhood. The man flirted with him and eventually asked him to show him his penis.
He did so.
But the guy wasn't interested. He was a police decoy. The man who exposed his penis was arrested and is being charged with misdemeanor indecent exposure, penal code section 314, a charge that is usually reserved for flashers. If convicted, he would have to register as a sex offender for the rest of his life in a database that is accessible only by authorities.
That man is among 24 men arrested last June in a sting operation in the Warm Sands neighborhood. The cases are setting off a firestorm in Palm Springs, a city of about 45,000, with a gay population estimated at 30 percent to 40 percent. The city appears to be in full-scale damage control mode now over the public relations fallout over the sting. The Bay Area Reporter has learned that just last week and again this week, closed door meetings with the police chief and other city officials were scheduled to discuss the arrests.
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.
One of those most critical of how authorities handled the sting is a former county prosecutor, Thomas Hughes, who was working in the Riverside County District Attorney's office when the sting was planned.
"It's unbelievable," Hughes told the B.A.R. "I've never seen anything like this."
Hughes left the district attorney's office last year and is now in private practice. He told the B.A.R. that in his nearly three years with the DA's office he has never seen cases of consensual public sex being treated so harshly.
Hughes said that there was an agreement prior to the sting between the DA's office and the Palm Springs Police Department. The agreement was that the men who were arrested would be charged with indecent exposure, 314 PC. Also as part of the agreement, the men would not be allowed to plead guilty to a lesser charge, as has been routine in the past, the former prosecutor said. Hughes reiterated that he has never heard of 314 PC charges being pursued for consensual public sex.
Michael Jeandron, a spokesman for the Riverside County DA's office, sharply disagreed with Hughes 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 told the B.A.R.
But Hughes's claim of a prior agreement between the DA and the police is backed by the man who helped supervise the sting operation. Palm Springs Police Sergeant Bryan Anderson said that the department had reached an agreement with the DA's office over the charges. 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.
Jeandron said that his office has prosecuted heterosexuals with indecent exposure, but he didn't know if any of those cases had involved consensual pubic heterosexual sex. Jeandron said that the Warm Sands cases had not reached a discussion of plea-bargains.
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."
'Seeing the goods'
According to Roger Tansey, a public defense attorney representing five of the accused men, in one case it took a decoy officer 20 minutes of convincing before a man agreed to display his penis. In another instance, a man insisted on going to his hotel room but the decoy insisted on "seeing the goods" before he would agree to go home with the man. Tansey noted that the area where the sting took place was a dark parking lot of a gay resort. 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 told the B.A.R. 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. "A crime for which no one has complained. And only blocks away men and women are doing the same thing."
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.
B.A.R. contributing writer and Palm Springs resident Robert Julian Stone, who uses the pen name Robert Julian, 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.
The B.A.R. phoned and e-mailed Palm Springs Mayor Steve Pougnet, who is openly gay and currently running for Congress, and the other four people on the City Council. Palm Springs City Manager David Ready returned the call to respond on behalf of the mayor and council.
In response to Stone's complaint about the lack of out gay men in the police department, Ready told the B.A.R. 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 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 told the B.A.R. 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.
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 he has high regard for the Palm Springs Police Department and 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, told the B.A.R. 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 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 last week. Van Etten, 66, e-mailed the B.A.R. a copy of his statement, which says 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."
Mixed reaction to sting
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."
Articles in the Desert Sun last month generated hundreds of online comments from readers. The consensus among most was that while public sex is not acceptable, 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, told the Desert Sun that there was no deal before the sting over how the cases would be prosecuted. Dominguez said 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 the couple is co-presidents of their PFLAG chapter.
Balasa e-mailed the B.A.R. an advance copy of his column. He 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 GLBT community, and serving all citizens equally with respect and dignity."
The next court hearing on the cases is scheduled for June 14. Tansey is seeking a court order to require the Palm Springs Police Department to release its records of sex stings for the past 10 years. The defense attorney says he is confident that the records will show that the department has a history of dealing with public sex among heterosexuals differently than public gay sex.
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.