Court finds no obligation to report off-duty information about sexual activity of youth
A California appeals court upheld a lower court finding that an openly gay policeman in Visalia could not be fired for failing to report about the sexual activities of a 16-year-old gay youth known to him. The state’s 5th District Court of Appeal affirmed a ruling by Tulare County Superior Court Judge Paul A. Vortmann that Visalia’s police chief, Jerry Barker, had abused his discretion in firing Bryan Pinto and that he should be reinstated. However, the court found that Pinto was still subject to discipline for having briefly lied during a related criminal investigation.
The May 25 ruling turned on a difference of opinion about whether police officers are on duty 24/7 and are thus required to report any information they acquire—whenever and in whatever capacity it might come to them—about sexual abuse involving “children.”
An openly gay recruit, Pinto joined the Visalia police force in 2001. In late 2002, sitting in a coffee shop off-duty, but in uniform, he was approached by a woman who identified herself as the stepmother of 20-year-old Justin Helt, a gay man who complained that a younger man who was his ex-boyfriend was stalking him. Pinto later advised Helt to file a police report and get a restraining order against the ex-boyfriend, a 16-year-old identified in court papers as C, but Helt was unwilling to take official action.
Pinto and Helt later met socially, at which time Pinto also met C, who later “came on” to him when they met again after a chance online encounter in a gay chatroom. Pinto declined to have sex with the underage youth, but the two stayed in touch by telephone. Pinto learned that C had sex with “Aaron,” an HIV-positive man, under circumstances that this court ruling indicated were not totally consensual.
Subsequently, perhaps during questioning in an ensuing police investigation, Pinto came to conclude that “Aaron” was the same man with whom he had once “hooked up” for sex.
The police investigation arose when C filed a police report about his sexual encounter with “Aaron” in which he also alleged that he had sex with Pinto several times. Though Pinto was criminally charged and tried for sex with a minor, he was acquitted, when the jury apparently concluded C was not credible. During the criminal investigation, Pinto at first said he had never had sex with Aaron, the man C had filed the police report about, but then corrected himself later in the questioning.
The police department launched an internal investigation of Pinto, which resulted in departmental charges of failing to report information about child abuse and lying during an investigation. The department terminated Pinto, a decision upheld by an arbitrator, and the gay cop took the matter to court, claiming that he had not violated the reporting rules and that his firing was a violation of his right to due process of law.
Judge Vortmann agreed with Pinto on the main points, finding that Pinto’s information about C’s sexual activities was not acquired in the course of duty, so was not subject to any reporting requirement. The judge specifically rejected the police chief’s testimony that a cop is always on duty with regard to reporting requirements. Vortmann found that Pinto had no specific knowledge of sex between Helt and C. However, the judge agreed that Pinto had lied, at least initially, and could be disciplined by the police department.
Writing for a unanimous three-judge court of appeal panel, Justice Gene M. Gomes rejected the police department’s argument that any officer who lies during an investigation is subject to immediate discharge because his future credibility is ruined, since his testimony against criminal defendants could be impugned by defense attorneys.
Gomes pointed out that under California law a defense attorney would be barred from raising the issue five years after the 2003 incident, and that in any event, Pinto could explain the circumstances, which mitigated the offense, since he later corrected himself during the same interrogation, thus not hobbling the investigation.
Gomes also found that discharging Pinto was a complete abuse of discretion by the police department, which interpreted its own reporting requirement in a way not supported by its department manual. The court noted that the lie was an isolated incident in Pinto’s record, which otherwise reflected a reputation for honesty.
Openly gay police officers, as perhaps many others, are undoubtedly put in a difficult spot when they see or hear about things going on in social settings that might subject people to arrest if an on-duty police officer were present. Where to draw the line between official duty and private life is a vexing question. Visalia’s police department argued that there should not be such a line, and the court responded that there is one and Pinto did not cross it in this case.
The court awarded attorneys fees and court costs to Pinto, though he remains subject to some department disciplinary action.