Lawsuit against alleged gay-bashing cops allowed to go forward
Old prejudices die hard. One would have thought that by now that members of San Francisco’s police department would be trained to avoid engaging in gay-bashing, but an October 3 decision by U.S. District Judge Claudia Wilken suggests otherwise. The opinion relates Andrew Marconi’s allegations of his brief but horrific experience at the hands of some plainclothes officers in the wee hours of March 7, 2004.
Marconi and some friends from out of town were in San Francisco celebrating the college graduation of Marconi’s sister. At around 2 a.m., they showed up at the End-Up, a late night gay club, where there was a long entry line. But when you gotta go, you gotta go, and Marconi and one of his sister’s friends, Eric Piedra, had to go real bad, so they went around a corner into a dark alley to pee.
Marconi was relieving himself when “a car abruptly stopped in the middle of the street and then reversed into the alley to where he was standing,” wrote Wilken. This was not a marked police car, and its three occupants were not wearing uniforms. Marconi and Piedra were frightened that they were about to be mugged.
The occupants of the car were Sergeant Jason Fox and Officers Simon Chan and Ian Furminger, on late-night plainclothes assignment. According to Marconi, Fox and Chan approached him without indicating they were cops and asked what he was doing. Marconi replied, “Nothing,” and Fox and Chan then asked if he was taking a leak, and he confessed to it. Fox grabbed him, asked, “Do you think the people of San Francisco want your faggot ass to pee in the city?” and pushed Marconi against the wall and frisked him.
Marconi recounts that Fox “patted his hands onto my chest and dug his hands into my hips, ran his fingers through my waistband, put his hands into my pockets and yanked them out with such force as to leave red marks where his fingers gouged into my legs.”
Then, according to Wilken’s opinion, Fox turned Marconi around, “grabbed him by the shoulders and pushed him down to his knees, asking him how he was going to clean up the urine. Fox was holding a flashlight within inches of Marconi’s face. Chan then called Marconi a ‘fag’ and told him that he should clean up the urine with his shirt. Marconi took off one of the two T-shirts that he was wearing and began to wipe the ground where he had urinated. Fox asked Marconi how he intended to clean the urine off of the wall behind him, then ordered him to sit on the ground with his back against the wall. Fox grabbed Marconi’s hair, pushed his head against the wall and pushed it back and forth across the wall, wiping Marconi’s hair in the urine and abrading Marconi’s head. Fox asked, ‘Do you think we want your gay AIDS in our city?”
Piedra luckily had not been urinating when the incident started and claims he watched Marconi crouched on the ground and overheard Fox and Chan speaking in a “smart-ass, arrogant fashion,” saying, “We don’t have to worry about this one, he’s cleaning up his own mess.” Piedra recalls hearing them say something about HIV or AIDS-infected piss or urine.
Furminger let Piedra go after checking his ID and the man headed back to the club’s entrance to get help from Marconi’s sister, Abbie, and her boyfriend, Eric Gora, who, ironically, are both police officers. Piedra took them back to the alley and Gora showed his badge to Furminger, who turned to Fox and said, “He’s a cop.” The three alleged abusive cops immediately got back in their car and drove off, but not so fast that the others did not memorize their license plate numbers. After tracking them down, Marconi filed a lawsuit against the officers and the city. One can only speculate what the cops might have done to Marconi had Gora not flashed his badge.
Urinating in public is illegal and the officers had a right to stop and investigate when they spotted Marconi in the alley. But Wilken, even though she dismissed some claims, found that Marconi had alleged several valid claims against the officers—including assault and battery against Fox, excessive force and illegal search against Fox and Chan, and failure to intervene with those two cops against Furminger.
Wilken found that Marconi’s allegations against the city for failing to adequately train and supervise police officers were insufficient to maintain because he would have to show that the city had a deliberate policy to avoid providing this oversight. The case is surely, however, an indictment of the city’s effectiveness in managing its police.
Fox, Chan, and Furminger deny many of the details of Marconi’s claim and those disputed facts will be settled at trial.