Officials have settled a lawsuit by five men who alleged discrimination when they were arrested in undercover gay sex stings conducted by police at a city park in 2014 and 2015.
The City Council approved Tuesday a $125,000 payment to resolve a federal suit filed last November that initially sought at least $1 million in damages. Noted gay-rights attorney Bruce Nickerson, who represented the plaintiffs, said he was “extraordinarily pleased” with the resolution, and commended the City Attorney’s Office and San Jose Police Department for being receptive to the concerns aired by the lawsuit.
“I want to give them full credit for their response,” Nickerson said. “They were good faith personified.”
He pointed to policy changes by police and the city’s agreement to allow him to find and identify other people who might have arrested by officers running decoy operations that have since ceased.
“We want hearts and minds to be changed by this,’ said Nickerson. “This will change more hearts and minds than if they got 10 times that amount.”
The lawsuit involved undercover lewd-conduct stings conducted over a 17-month period between 2014 and 2015 at Columbus Park, which police said were spurred by citizens’ complaints and officers’ own observations of unlawful activity in the park on Taylor Street between Highway 87 and Coleman Avenue.
In June 2016, Santa Clara County Superior Court Judge Jose S. Franco dismissed related misdemeanor lewd-conduct charges against six men — five of whom are plaintiffs in the lawsuit — after deeming the police operation constituted selective discriminatory enforcement in violation of the men’s equal protection rights.
Nickerson, who has spent nearly four decades suing cities over the use of these kinds of stings, has long argued they unfairly prey on men struggling with their sexuality and looking for a safe place to explore it without retribution from their families and co-workers.
Under the settlement, the city must also meet a Nov. 12 deadline to provide Nickerson with a five-year list “of individuals, other than the Plaintiffs, who were arrested by the San Jose Police Department, pursuant to ‘sting’ (undercover) operations” that led to similar charges as the plaintiffs. The city is also required to cooperate with Nickerson’s requests with the Santa Clara County Superior Court “to discover information about factually similar arrests by the SJPD during the last five years.”
When the lawsuit was initially filed, Nickerson voiced intentions for a class-action suit. He said these stipulations will help reveal the full scope of people affected.
“They’re going to continue to search the database for past cases and clients who would have been class members,” he said. “We may be able to resurrect those cases.”
Around the same time the San Jose cases were dismissed, a Los Angeles County judge threw out similar charges involving Long Beach police. Police in Mountain View, San Leandro and Manhattan Beach have also stopped the clandestine operations in response to litigation.
When the lawsuit was filed, San Jose police asserted that they ended the practice three years ago as the plaintiffs’ cases made their way through the court system. Police officials have supported LGBTQ causes, including creating several positions on the force to improve its accommodations of LGBTQ officers, participation in the Silicon Valley Pride Festival, and launching a vigorous campaign to recruit more officers from the community.
Police Chief Eddie Garcia said his department has adopted policies that make it a priority to gather insight from the community in the affected area when responding to concerns about suspected lewd conduct in public places like parks. He added that police have worked with city staff to suggest changing features of some places to make them less amenable to shrouded activity.
“We’ve always been responsive and are always looking for ways to improve our methods,” Garcia said.
But the chief noted that does not mean police are not going to address problems when they’re called.
“Our officers will still respond and make arrests as necessary,” Garcia said. “But we want our solutions to be more community engagement oriented than enforcement oriented.”