Partial City Win on Porn Shop Busts

Robert Pinter fails on false arrest, prosecution claims

In a ruling like to draw ire in the gay community, a unanimous federal appeals panel, reversing a district court ruling, has granted summary judgment to the City of New York, Mayor Michael Bloomberg, and individual law enforcement defendants, finding the individuals enjoyed qualified immunity from liability for a gay man’s claims of false arrest and malicious prosecution for prostitution at an adult video store in 2008. The city was successful in arguing that one arrest could not demonstrate an official policy.

Robert Pinter, who was 52 at the time of his arrest, has alleged he was caught up in a sting operation carried out by the NYPD against gay men patronizing stores selling sexually-oriented materials in order to support attempts to close the stores as “public nuisances.”

Pinter's bust and those of several dozen other gay and bisexual men under similar circumstances that year were widely perceived in the queer community as false arrests.

On November 18, the Second Circuit panel –– comprised of Judges Ralph K. Winter, Joseph M. McLaughlin, and José A. Cabranes –– reversed District Judge Shira A. Scheindlin’s denial of summary judgment for false arrest and malicious prosecution, but upheld her decision to let Pinter’s claims of abuse of process, sexual orientation discrimination, and denial of the right of free association proceed.

Pinter, whose arrest and claims against the city were first reported in Gay City News, visited the Blue Door video store in October 2008, where a young man stared at him, flirted, and initiated conversation, asking, “What do you like to do?” Pinter responded that the man was “good looking” and said he liked oral sex. The young man responded in kind, voiced hesitancy about doing anything in the store, and suggested his car was parked nearby. Pinter walked to the exit, followed by the young man, who in fact was an undercover police officer, identified in the opinion as UC 31107.

As they were leaving the store, UC 31107 said he would pay Pinter $50 for oral sex. Pinter made no verbal response, though he later testified he immediately decided that any possibility of doing anything with the young man “was over.” After they exited the store, the young man gestured in the direction of his car, which he and Pinter headed toward, engaging in “flirtation,” when suddenly two plainclothes officers rushed up and arrested Pinter, spiriting him away in a police van. An officer told Pinter he was being arrested for prostitution, to which he responded, “You've got to be kidding me… Your officer approached me, butted his nose into my business, and created this whole incident.”

A few days later, Pinter pleaded guilty to a reduced charge of disorderly conduct and was sentenced to conditional discharge, five counseling sessions, and a $120 fine. Soon after that, however, Pinter thought better of his decision to take the plea and contacted Gay City News with his story. When subsequent reporting suggested a pattern of entrapment of middle-aged gay men who were clearly not prostitutes and gay community members and political leaders responded with criticism of the arrests, the district attorney's office dismissed some pending prosecutions. After Pinter filed a motion to vacate his conviction, the DA announced he would not oppose it, even while stoutly maintaining there was “probable cause” for his arrest.

Pinter, represented by attorneys James I. Meyerson and Jeffrey A. Rothman, then filed suit against the city as well as city officials and police officers, asserting claims of false arrest, malicious prosecution, malicious abuse of criminal process, sexual orientation discrimination in violation of his equal protection rights, and violation of his right to freedom of association. Pinter alleged there was a city policy of “making probable cause-lacking false arrests for the purpose of obtaining a data base of arrests which was to be utilized in independent nuisance abatement civil litigations instituted by the City of New York against certain targeted businesses, among them the Blue Door.”

Gay City News has reported that the Manhattan South Vice Enforcement Squad arrested at least 30 men, many of them middle-aged, 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.

The city and the individual defendants moved for summary judgment on all claims, arguing the police officers enjoyed qualified immunity and that the city's liability could not be premised on a single arrest. Scheindlin denied their motion for summary judgment.

Qualified immunity applies to an arrest when a police officer could have believed they had probable cause to make the bust, regardless of whether they in fact did. Explaining why a qualified immunity defense did not apply, Scheindlin wrote, “In sum, no competent officer could reasonably believe that it was probable that Pinter committed prostitution where the undercover knew that he (the officer): initiated the contact, steered the conversation toward sex, took steps toward the location where the sex act was to occur, raised the issue of cash-for-sex, faced silences as to whether Pinter meant to accept the cash, continued walking toward the specified location, initiated further conversation about sex, and knew that Pinter was 52 years old. And there was no impediment to prevent the undercover from quickly pursuing a simple inquiry to ascertain additional information about whether Pinter had accepted or declined a fee offer.”

The defendants successfully persuaded the Court of Appeals to disagree with Scheindlin's “characterization of these events.” The panel found that the standard for reasonable belief in probable cause by a police officer was much more lenient than her decision would suggest. The undercover cop could have “been more explicit in ascertaining whether Pinter was truly relying on financial remuneration in return for allowing the undercover officer to perform oral sex on him,” the appeals panel acknowledged, but it stated that the “qualified immunity analysis is not an inquiry into best practices or a reconstruction of events viewed in hindsight.”

Pinter's failure to explicitly tell the undercover he was not interested in money for sex, while continuing to walk and flirt with him, weighed heavily in the appeals panel thinking. “In view of the totality of the circumstances, even as seen in the light most favorable to Pinter, we hold that defendants acted reasonably –– that is, not incompetently or in knowing violation of the law –– in arresting Pinter,” the court wrote.

Without analyzing whether Pinter’s arrest was a case of entrapment, the panel framed the summary judgment issue not as one of whether the police had probable cause to arrest Pinter, but rather whether a reasonable officer in those circumstances could have believed he had probable cause.

Pinter still has the opportunity to argue that the city was misusing the criminal process in order to shut Blue Door down on grounds that it is a location that harbors male prostitutes –– and that his was not an isolated arrest but rather part of a policy targeting gay men who were merely out shopping for legally distributed matter at a variety of adult establishments officials hoped to close down.

Responding to the ruling, Pinter, in a written statement, said, “I am disappointed. It is a bad, legally flawed decision, laced with deep-seated homophobic assumptions about the facts. Regardless of the legal outcome, I felt morally compelled to come forward three years ago… The outcry against the corrupt, unethical police operation that generated these arrests became so pervasive that in March of 2009 NYPD Commissioner Kelly gave an order that, in effect, shut it down.”

While never acknowledging wrong-doing, officials from the mayor and district attorney on down have acknowledged that the 2008 arrests raise questions, and the city is not free of the obligation to do some explaining in court.

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