Lambda Legal Files Federal Lawsuit Charging Johnson City Police Department with Bias

(Johnson City, Tennessee, September 30, 2008) — Today Lambda Legal is filing a federal lawsuit in Tennessee on behalf of Kenneth Giles against Johnson City and its police chief. The lawsuit centers on the fact that the Johnson City Police Department (JCPD), in a highly unusual action for that Department, released photos of Giles and 39 other men who were arrested in a public sex sting operation.

"In America, the police do not get to add an extra punishment to people they don't like," said Greg Nevins, Supervising Senior Staff Attorney in Lambda Legal's Southern Regional Office based in Atlanta. "They also do not get to ignore the principle of innocent until proven guilty. The JCPD went out of its way to humiliate Mr. Giles and caused irreparable damage."

On October 1, 2007 the JCPD issued a press release, personally approved by the police chief, that included photos that were taken at the scene where 40 men, including Mr. Giles, were arrested in a public sex sting. The local news ran the story prominently along with the pictures and addresses of the men involved. Lambda Legal reviewed the police department's press releases for over a period of a year and found that out of approximately 600 other releases, none pertaining to arrests was accompanied by photos or personally approved by the chief. Of the 40 arrested, one man has committed suicide, and several others have lost their jobs, including Kenneth Giles, who was fired from his job as a nurse at the VA hospital.

"I don't understand how the police department can release photos of one group and not any others," said Kenneth Giles. "I lost my livelihood because my arrest was treated differently."

Lambda Legal argues that the JCPD violated federal equal protection law by singling out these men for harsher treatment by making their images available to the media. Indeed, the actions of the JCPD are the latest in a long history of the police going beyond legitimate law enforcement measures to take extraordinary action designed to target gay men for humiliation and harassment, as explained in the attached Background Information Sheet.

Greg Nevins Senior Staff Attorney in Lambda Legal's Southern Regional Office is handling the case, Giles v. City of Johnson City, et al. Lambda Legal's cooperating counsel in this case are John Winemiller of Merchant & Gould, P.C., and Lisa Linsky and Jill Basinger of McDermott, Will & Emery, LLP.

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Contact: Tika Milan; E: tmilan@lambdalegal.org

BACKGROUND TO GILES V. JOHNSON CITY

The actions of the Johnson City Police Department publicizing the photographs of men arrested as part of a sting operation targeting gay and bisexual men, while not similarly publicizing other arrests, are the latest chapter in a long history of police departments' unequal treatment of members of the public based on their actual or perceived sexual orientation. Set forth below are examples based on historical records of anti-gay activity by law enforcement agencies throughout the country.

Police departments have selectively targeted gay men for enforcement of public sex laws while failing to devote the same enforcement efforts to public sex between men and women. See Baluyut v. Superior Court, 12 Cal.4th 826, 829 (1996) (court found that arrested gay men "established all of the factors necessary to establish constitutionally impermissible discriminatory prosecution ."); see also Hope v. City of Long Beach, 2005 WL 6009954 (C.D. Cal. 2005); Brown v. County of San Joaquin, 2006 WL 1652407 (E.D. Cal. 2006).

Some officers, not content with arresting wrongdoers, have gone to great lengths to entice men to commit crimes. In July 2008, a judge in Florida threw out charges of indecent exposure, committing a lewd act, and battery, because the officer "initiated the topic of sexual acts and repeatedly asked the defendant 'what he was working with'" in order to entice the defendant to expose himself. City of Fort Lauderdale v. Marsh, In the County Court of the Seventeenth Judicial Circuit in and for Broward County, Florida, Case No. 70-018738MO10A, Order Granting Defendant's Motion to Dismiss.

In 2006, an appellate court in New Jersey reversed a conviction for lewdness, because the defendant presented "a persuasive attack on [the officer's] credibility, raising serious doubts about whether it was believable that a police officer could have had almost a hundred men approach him, pull out their genitals and start masturbating without any enticement by the officer at all." State v. Mamone, 2006 WL 2237733 *6 (N.J. Super.A.D. 2006).

As in the Johnson City case, the police often have sought to punish men arrested for lewd conduct, often before conviction of any crime, through unusual public exposure of these arrests. Many police departments have publicized the identity of men arrested for this activity in ways that they do not do for other crimes, even those that are much more serious. "These solicitation laws frequently have devastating personal, social, and economic effects for those arrested, even though criminal penalties typically are slight . . ." Richard D. Mohr, Gays/Justice, A Study of Ethics, Society, and Law (Columbia University Press, 1988), 54-55.

One common practice has been sending reports of the arrests of gay men to their employers and landlords. Robert K. Woetzel, "Do Our Homosexualitly Laws Make Sense?", Saturday Review of Literature, 48, p. 23-25, Oct. 9, 1965.

"[T]he overwhelming majority of abuses, along with the customary notification of employers and publication of names in local newspaper, was simply endured." Gary David Comstock, Violence Against Lesbians and Gay Men (Columbia University Press, 1991), p. 13.

"Very often, the charges were thrown out, but by that time, damage was done: local newspapers had published the names of the people charged, and their jobs, marriages, and positions in society were all at risk." Simon LeVay and Elisabeth Nonas, City of Friends: A Portrait of the Gay and Lesbian Community in America (MIT Press 1995), p. 44.

Over the years, police departments have engaged in large-scale roundups of gay men for "questioning" with no charges. One of the most well-known of these anti-gay campaigns involved the rounding up of 1400 men in Boise, Idaho in the 1950's. John Gerassi, The Boys of Boise (Seattle: University of Washington Press, 2001).

Police in Miami Beach admitted to a similar practice, with the Miami Beach police chief that his force would "harass" gay men "and let them know in no uncertain terms that they are unwelcome on Miami Beach." One, Vol. II, No. 1 (Jan. 1954), p. 19.

The Vice Squad director in Tampa confessed in almost verbatim words that this also was true in his jurisdiction; One, Vol. IX, No. 12, p. 9 (Dec. 1961) (the "harassment routine . . . will continue until we're sure these people know without a doubt they are not wanted in Tampa."). One incident reflected the Tampa police department's hostility toward lesbians, in addition to gay men. There, the police held twelve women without charge on "general investigation,' to be fingerprinted, questioned, and subjected to mug shots. If their records are clean, said the vice chief, 'We'll have to let them go for now, but we're going to keep after them until we run them out of town.'" One, Vol. V, No. 8 (Oct.-Nov. 1957), p. 19.

Law enforcement officials falsely have suggested that gay men are more responsible than heterosexuals for sexual assaults on children. For example, in Dade County, a police commission official stated that there was a "connection" between the open operation of gay bars and increased complaints of child molestation in the community; One, Vol. II, No. 1 (Jan. 1954), p. 21. Indeed, not only have scientific studies failed to prove a link between men's interest in other men and pedophilia, but some studies have shown that such an incidence is very rare. See Gregory Herek, Facts About Homosexuality and Child Molestation, http://psychology.ucdavis.edu/rainbow/HTML/facts_molestation.html (citing study of 175 men convicted of sexual assault against a child where, of the 60% who were primarily attracted to adults, none of them were primarily sexually attracted to other adult males (citing Groth, A.N., & Birnbaum, H.J. (1978). Adult sexual orientation and attraction to underage persons. Archives of Sexual Behavior, 7 (3), 175-181); citing a study of abused children in the Denver area where the abuser could be identified, only 2 of the 269 children were abused by a gay man or a lesbian (citing Jenny, C., Roesler, T. A., & Poyer, K. L. (1994). Are children at risk for sexual abuse by homosexuals? Pediatrics, 94(1), 41-44)).

Police have engaged in extortion schemes targeting gay men, exploiting these men's concerns over public trials that would expose their sexual orientation. For example, a grand jury in Pittsburgh uncovered a racket by Pittsburgh police "of framing men on 'morals charges' then arranging, through 'cooperative' attorneys, to drop charges after 'payments' were made." One, Vol. V, No. 4, p. 11 (Apr. 1957).

A nearly identical scheme was uncovered in Chicago, in which the lawyers would kickback some of their excessive fees to the arresting officers. Robert L. Jacobson, " 'Megan's Laws' Reinforcing Old Patters of Anti-Gay Police Harassment," 88 Geo. L.J. 2431, 2438 n.50 (July 1999).

Over the years, there has been a significant improvement in many police departments' recognition of their obligation to "protect and serve" all members of the community, regardless of sexual orientation or gender identity. Many departments actively train their officers to respond to the needs of all segments of the community and some have created a liaison officer position to respond better to the needs of the LGBT community. Nevertheless, as this case reflects, much work needs to be done to ensure that the men and women charged with keeping our communities safe live up to the highest ideals of the public trust vested in them.