While the police department concluded that the vice officers who made prostitution arrests of men in Manhattan porn shops in 2008 were poorly trained, the Bloomberg administration continues to defend the arrest of the gay man who blew the whistle on those busts.
“The undercover officer in this case, as a matter of law, had probable cause to arrest the plaintiff in this case,” said Victoria Scalzo, an attorney with the city’s Law Department, at an August 24 hearing before three federal appellate judges.
The panel is weighing the city’s appeal of a 2010 ruling against its motion for summary judgment against the whistleblower, Robert Pinter, in a civil lawsuit he has brought.
In 2008, Pinter, now 55, was approached by a young Asian man who aggressively flirted with him in an East Village porn shop. They agreed to a consensual sexual encounter in the young man’s car. As they were exiting, the young man, who Pinter later learned was an undercover cop, told Pinter he would pay him $50 for the sex act. Pinter said nothing. He continued walking with the young man and engaging in sexual banter. He was then arrested for prostitution.
“We believe that the totality of the circumstances add up to probable cause,” Scalzo said. “His actions demonstrated assent.”
Altogether, the Manhattan South Vice Enforcement Squad arrested at least 30 men for prostitution in six porn shops in 2008. Another 11 men and one woman were busted for prostitution in two spas that year. The same group of vice officers made most of the arrests.
The Law Department, the Mayor’s Office of Special Enforcement, and the police department’s legal unit cited the arrests in nuisance abatement lawsuits brought against those businesses.
Pinter went public with his story in late 2008.
In 2009, the police department’s Internal Affairs Bureau (IAB) concluded that “no misconduct occurred by members of Manhattan South Vice but that better training and tactics should be used to avoid possible entrapment defenses that may arise from prostitution arrests.”
In a 2009 meeting with Pinter, other activists, elected officials, and senior Bloomberg administration staff, Brian Conroy, then the head of the Vice Enforcement Division, said, “We do need to take a step back,” referring to the operations in porn shops, attendees at the meeting said.
On August 2 of this year, Conroy was promoted to assistant chief and placed in charge of the School Safety Division.
While Pinter initially pleaded guilty to disorderly conduct, that plea was vacated and the charges against him were dropped. He sued in federal court in 2009 as did another four men who were busted. The city settled with the four men earlier this year. A fifth man sued in state court and that case is ongoing.
In Pinter’s case, in early 2010, the city sought immunity from a lawsuit for Shari A. Hyman, director of the Mayor’s Office of Special Enforcement, and the officers who made Pinter’s arrest, arguing that they had probable cause. The city also asked for summary judgment in its favor, saying that Pinter’s rights were not violated by the arrest.
While the city did not ask Judge Shira A. Scheindlin to rule on every issue in the suit, had she found for the city, that would have effectively gutted Pinter’s case.
In her ruling last September, Scheindlin rejected every request that the city sought, except that she dismissed the case against Hyman.
“Defendants’ motion is denied in all other respects because Pinter has alleged a violation of the clearly established right to be free from arrest without probable cause,” Scheindlin wrote.
The city appealed.
Ralph K. Winter, one of the three appellate judges, appeared to doubt the city’s position. Winter was initially confused about who discussed money for sex.
“I have to say, my confusion was their case is actually weaker with the undercover offering money,” he said.
Judge José A. Cabranes seemed concerned with the consequences of any ruling the panel makes and asked the city and Pinter’s attorney, James I. Meyerson, to submit memos on that question.
The third judge, Joseph M. McLaughlin, did not speak during the hearing.
