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A Nov. 18 ruling from a unanimous three-judge panel of the U.S. Second Circuit Court of Appeals continued a nearly three-year pattern in which elected officials, law enforcement authorities, and now the federal courts have responded both shamefully and facetiously to clear evidence that the New York Police Department engaged in a witch hunt against gay men in adult video stores, arresting them on false charges of prostitution as pretext for bringing legal action against the establishments themselves.
The stories first emerged in late 2008 when Robert Pinter, who was 52 at the time he was arrested in an East Village porn shop, contacted our sister paper Gay City News with an extraordinary tale of being approached by a handsome, much younger man, with whom he discussed leaving the premises to engage in consensual sexual conduct.
As they got to the door, the younger man, who turned out to be an undercover officer, said he would pay Pinter $50 for the privilege of performing oral sex on him. The comment raised a red flag for Pinter, who later testified that any chance he would have sex with this now seemingly dubious young man “was over.” Still, he left the store with the undercover and was promptly arrested for prostitution.
Subsequently, Gay City News identified more than 40 men who had recently been arrested on prostitution charges at video stores and spas by a small group of vice officers. A good number of those men were also middle-aged; two were German tourists.
The city’s Law Department, the Mayor’s Office of Special Enforcement and the Police Department’s legal unit cited these arrests in nuisance-abatement suits seeking closure of the video stores and spas.
Last month’s ruling threw out a district court decision that had denied the city summary judgment regarding Pinter’s false arrest and malicious prosecution charges. “…[W]e hold that defendants acted reasonably — that is, not incompetently or in knowing violation of the law — in arresting Pinter,” the court said.
This astounding conclusion is deeply troubling. First, if the undercover wasn’t acting improperly, why was he the one to raise the question of compensation in a conversation that until then had been about consensual sex?
Second, although there is a Fourth Amendment, this ruling means that if an officer suggests illegal behavior, in order to avoid arrest, we are presumed guilty unless we announce our innocence out loud. That is an outrageous assertion.
Initially, the N.Y.P.D. stated, “The fact remains that the locations had become notorious for solicitation of sex acts,” as though that had anything to do with any one individual’s conduct.
Later, the Police Department’s legal unit expressed agnosticism over using entrapment, saying, “The Department prefers to avoid entrapment but it is not a set policy.”
Mayor Bloomberg basically shrugged off the issue, saying he had discussed it with Police Commissioner Ray Kelly, who he thought might be “doing an investigation” with which he didn’t want to interfere.
Manhattan District Attorney Cy Vance’s actions are no more satisfying.
In a confusing series of responses to discovery requests made by Pinter and several other gay men caught in the trumped-up stings who were suing the city, Vance’s office failed to offer convincing evidence that a thorough investigation, promised by his predecessor, was done. It sounds like only the original prostitution defendants — and none of the vice cops — were probed.
The underlying issue is the simple question of whether we all enjoy basic constitutional protections, even if we drop into a store the city is eager to shut down.