BY ARTHUR S. LEONARD | The Sixth Circuit Court of Appeals has revived a lawsuit filed by a gay male couple caught up in a Michigan sex sting.
A three-judge panel, on January 7, held that District Judge Gerald E. Rosen erred in dismissing claims by Randy Alman and Michael Barnes, an Indiana couple, in connection with Alman’s arrest and the impounding of Barnes’ car at Hix Park in Westland, Michigan in 2007. The panel found that the two men, having made a plausible argument that there was not probable cause for these law enforcement actions, deserve to have their claims heard at trial.
In October 2007, Alman, sitting at a picnic table in the park after having driven Barnes’ car there, was approached by a handsome Wayne County undercover officer, Kevin Reed, who was part of a group assigned to “conduct surveillance at Hix Park to investigate complaints of lewd conduct and possible sexual activity taking place,” according to Circuit Judge Damon Keith’s opinion.
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Testimony from Alman and Reed differ about the nature of the conversation, but eventually Alman got up and walked down a trail, with Reed following, and veered off to a secluded spot. Alman contends Reed was acting flirtatiously and told him he “liked to watch,” while the officer testified he told Alman he was “a little nervous” and “new to this.” The two were standing close to each other and Alman reached out and “touched the zipper area on the front of Reed’s crotch.” Alman claimed he just “brushed” his hand up against the area, while Reed claimed that Alman “grabbed” his crotch. Reed stepped back and Alman went down on one knee, facing sideways and pretending to tie his shoe. Reed pulled out his badge and told Alman he was under arrest.
When Reed walked Alman back to the parking lot where other officers were waiting, he told his sergeant that Alman had “grabbed me or touched my crotch.” The sergeant had the car impounded and towed to the police department lot, and Alman was charged with Accosting and Soliciting and Fourth Degree Criminal Sexual Conduct, state offenses. Alman was held in a cell for two hours and released after posting a $150 bond.
When Barnes came to pick up Alman and retrieve his car, he paid a $900 redemption fee and signed a release stating it “precludes any action in this case regarding the vehicle and constitutes a final settlement of the civil nuisance abatement case.”
The assistant county prosecutor assigned to the case, Luke Skywalker — you can’t make this stuff up — filed a motion to dismiss the criminal charges against Alman because of a policy that “charges will not be pursued by this office if the officer’s conduct was designed to make the individual believe the act was invited or consensual.” At the same time, however, a Westland police officer issued Alman a ticket for violating city disorderly conduct and battery ordinances. A state court judge dismissed the disorderly conduct charge, finding it required “some exposure of bodily parts,” but put the battery charge on the calendar for trial. When none of the police officers showed up to testify on the trial date, the court dismissed that charge as well.
Alman claimed his arrest violated his Fourth and 14th Amendment rights and asserted a state malicious prosecution claim. Barnes raised a Fourth Amendment claim and a state abuse of process claim involving the impounding of his car. Both men asserted that their First Amendment rights had been violated, claiming the police activity would chill expressive activity.
The district judge granted summary judgment to the defendants, who included the officers, the city and county police departments, and the city and county, finding there was probable cause for both Alman’s arrest and the seizure of the car. Judge Keith found that there were factual disputes that should have precluded summary judgment and authorized Alman and Barnes to pursue some of their claims.
Specifically, since the statute under which Alman was charged with criminal sexual conduct requires elements of coercion or surprise, Keith found that that the varying descriptions of what happened did not support the arrest.
“Aside from engaging in flirtatious conversation and his brief touching of Reed’s crotch, there is nothing in the record that evinces” an intention to engage in public sexual conduct “on Alman’s part,” the judge wrote. “To the contrary, the only objective indications in the record about a state of mind relate to Reed, who stated that he was ‘new to this’ and that he ‘liked to watch.’ Under these circumstances, there was no probable cause.”
On the city’s charges of indecency, Keith found, Alman was correct that it had uniformly been interpreted to require exposure of genitals.
“We have uncovered no authority indicating that a brief touching of another person’s crotch during a flirtatious conversation constitutes indecent or obscene conduct, and based on the record before us, it cannot be said that the Westland police officers had probable cause that Alman was about to expose himself,” the judge wrote.
On the charge of battery, Keith noted, there was no element of “force or violence” in Alman touching Reed’s crotch to justify the arrest.
Given that the law on these charges is clearly established, the police officers do not enjoy “qualified immunity” from personal liability for making these arrests, the panel found.
And, if there was no probable cause for the arrest, then impounding Barnes’s car was improper as well.
The appellate panel, however, found no factual basis for claims of malicious prosecution or abuse of process.
Mary K. Kator of the Rainbow Law Center in Southfield, Michigan, argued the appeal for Alman and Barnes and the Triangle Foundation, a gay rights group that joined in the case. The Court of Appeals sent the case back to the district court for a trial on the claims it had revived.
Alman and Barnes could yet lose at trial, but the circuit court’s decision has the salutary effect of sending a message to Michigan law enforcement authorities engaged in the age-old cat-and-mouse game of entrapping gay men in public places. Law enforcement is put on record that arresting people for the kind of innocuous conduct described by Alman is inappropriate and may subject police officers to liability.