Judge Slams Police in San Jose Park Sex Case

A Santa Clara County judge recently dismissed charges against several men who had been cited for cruising at a San Jose park, saying police had discriminated against them by singling them out because of their same-sex attractions.

The case involved six men who'd been arrested at San Jose's Columbus Park between June 2014 and November 2015 for allegedly violating section 647(d) of the penal code, "loitering near a public restroom with the intent to commit a lewd or lascivious or unlawful act."

All six pleaded not guilty in court.

In the operation, police had gone to a dingy bathroom in a corner of the park pretending to look for sex. Police and prosecutors defended their actions by saying that they were responding to complaints about sexual activity at the bathroom, which is a few feet away from a softball field.

In a June 17 ruling, Santa Clara County Superior Court Judge Jose S. Franco was unequivocal about how he felt about the police department's actions.

"The way in which the San Jose Police Department conducted its investigations for violations of Penal Code section 647(d) at Columbus Park demonstrates that it intentionally targeted men who engage in homosexual sex," Franco said.

He said that "by conducting themselves in a way that mimics 'cruising' behavior of the suspects targeted, the undercover officers demonstrated the intent to target this group to the exclusion of other perpetrators of lewd conduct" in San Jose.

"Unpopular groups have too often been made to bear the brunt of discriminatory prosecution or selective enforcement," Franco added. "The unconstitutional selective enforcement of the law as seen in the cases before this court undermine the credibility of our legal system and risks eroding public confidence in our ability to achieve just results."

One of the men who had been cited was John Jerome Ferguson, 55, of Morgan Hill.

San Jose police Officer Samuel Marquardt wrote in his report that soon after he entered the men's room at about 5:15 p.m. May 14, 2015, Ferguson stuck his fingers through the glory hole that had been cut into the wall of the bathroom stall.

In his summary, Marquardt explained what a glory hole was, then said, "By the subject placing his fingers through the hole, it was apparent that he was soliciting me to engage in sexual acts involving my penis."

He engaged Ferguson in "a very brief, casual conversation," he said. Eventually, another man walked into the restroom, took out his penis, "and began to masturbate while looking at me," Marquardt wrote.

Ferguson soon moved into the stall's doorway and started "rubbing his penis through his jeans," which were unzipped. He was about to show his penis, Marquardt wrote, when another officer walked in and Marquardt, who was in plainclothes, identified himself as a police officer. Both Ferguson and the other man were cited and released at the scene.

Other reports depict similar encounters. In a June 2015 incident, Marquardt engaged a 23-year-old man in conversation and asked him "if he was looking to get into anything?" and soon followed up with "Do you suck dick?" The man replied "Yeah" and they talked about exchanging oral sex before Marquardt identified himself as a police officer. The man was cited and released.

In an interview, Ferguson said, "I think the judge was very thorough. I didn't know how this was going to go ... . I think the discrimination toward gay men is shadowy. This shines the light into that a little bit."

In his report, Marquardt noted graffiti inside the stall said, "I eat man cum," "Blow jobs Tuesday 12:30," and "Feed me your cum."

Those messages were gone when the Bay Area Reporter visited the bathroom at about 5 p.m. on a recent Saturday, and the glory hole had been covered over.

A softball game was underway as L.J. Johnson, 39, of Palo Alto, walked toward the restroom.

Johnson, who's gay and was visiting the park with a friend, said he hears sexual activity "all the time" when he visits the park.

"It's not just gay people," he said. "Everybody does it."

The activity happens mostly in some bushes at the park, Johnson said.

19 reports

In October 2015, Santa Clara County Deputy Public Defender Carlie Ware filed a motion seeking to have the cases dismissed. An intern at the public defender's office had gathered 19 police reports from the park alleging 647(d) violations.

"All 19 arrests involved a male undercover police officer," the intern found. "There was no mention of heterosexuals in any of the 19 reports" and "There was no mention of money in exchange for sex in any of the reports." There were also no minors involved.

The prosecution and the defense stipulated that the 19 reports represented all the SJPD's documented arrests and investigations for 647(d) violations between June 2014 and December 2015.

Ware wrote, "These cases result from a pattern and practice by SJPD to focus its law enforcement efforts on gay men ... and not straight people" who "regularly and openly engage in this exact behavior outside the bars and nightclubs in downtown San Jose, near public toilets, and are not singled out for prosecution."

In a response she filed in December, Deputy District Attorney Judith Sklar said the operation "began after the police started getting complaints from people running the trails and playing softball in the fields next to the bathrooms that men were loitering around the bathrooms and engaging in sexual acts in and around the bathrooms."

Sklar said the operation "was not aimed at any particular group, other than those committing crimes in the park and in and around those restrooms. There is not a scintilla of competent evidence proffered by the defense to show invidious discrimination or that a particular group was selected for special prosecutorial treatment, or that any constitutional principles were violated."

In his ruling, Franco made clear that he didn't agree.

"The prosecution's position that the selective enforcement practices of the San Jose Police Department are narrowly tailored to addressing a compelling interest in the abatement of lewd conduct ... is unpersuasive and with minimal merit," he said. "There was very little evidence presented of citizen complaints and the specific substance of those alleged complaints."

Franco also noted, "13 of the 19 arrests or citations occurred after 8 p.m. - not typically a time when families would be present at a park."

In an interview, Ware said, "I'm happy the police department decided to stop these sting operations" after the public defender's office took action. "I'm extremely proud of the judge's ruling. ... The judge was very careful in reviewing the evidence and went beyond the rhetoric and imagery that surrounds cases like this," she said, adding that Franco "discarded" the "allusions made to gay interaction being dirty."

The judge's ruling meant, "people shouldn't be afraid to be gay in public, and they shouldn't be targeted," Ware said.

Sergeant Enrique Garcia, a San Jose police spokesman, said of the case, "We have an obligation to respond to concerns that citizens bring to our attention, and we need to take appropriate action. ... We don't do sting operations. This was as a result of citizen complaints."

Garcia said if there were more complaints, officers may respond.

In an email, Assistant District Attorney James Gibbons-Shapiro said, "We do not believe the San Jose Police Department engaged in discriminatory actions. Their investigations were based on numerous complaints from residents who live near or visited the park."

He said that "many months before" Franco issued his ruling, the SJPD "had already moved away from undercover operations of this kind and were instead attempting to address such community concerns through a campaign in cooperation with our office and the county's public health department. We will continue with those efforts."