A panel of the U.S. Court of Appeals for the 6th Circuit has revived a lawsuit filed by a gay male couple who were caught up in a sex sting operation at Hix Park in Westland, Michigan, in October 2007. The court held that Chief District Judge Gerald E. Rosen (E.D. Mich.) erred in dismissing all of the plaintiffs’ claims, finding that plaintiffs had made a plausible argument that there was not probable cause to arrest one of them or to impound the car owned by the other. Alman v. Reed, 2013 Westlaw 64370 (January 7, 2013).
On October 12, 2007, Randy Alman took a break from helping his mother move into a new apartment and drove the car owned by his domestic partner, Michael Barnes, over to Hix Park nearby. After sitting in his parked car listening to the radio, he got out and sat at a picnic table under the pavilion near the parking lot. A handsome Wayne County undercover officer, Kevin Reed, who was part of a group assigned to “conduct surveillance at Hix Park to investigate complaints of lewd conduct and possible sexual activity taking place in the park,” according to the opinion by Circuit Judge Damon Keith, walked over and struck up a conversation with Alman.
Testimony of Alman and Reed differ about the content and nature of the conversation, but eventually Alman got up and walked down a trail, Reed following, veering off to a secluded spot. Alman contends that Reed was acting flirtatiously, and that Reed told him that he “liked to watch,” while Reed testified that he told Alman he was “a little nervous” and “new to this” type of activity. The two were standing close to each other and Alman reached out and “touched the zipper area on the front of Reed’s crotch.” Alman claimed he just “brushed” his hand up against the area, while Reed claimed that Alman “grabbed” his crotch. Reed stepped back and Alman went down on one knee, facing sideways and pretending to tie his shoe. Reed pulled out his badge and told Alman he was under arrest.
Reed walked Alman back to the pavilion where other officers were waiting to handcuff him and placed him in a squad car. Reed told his sergeant that Alman had “grabbed me or touched my crotch.” The sergeant had the car impounded and towed to the police department lot, and Alman was charged with Accosting and Soliciting and Fourth Degree Criminal Sexual Conduct, state offenses. Alman was held in a cell for two hours and released after posting a $150 bond.
Alman and Barnes live in Indiana. Alman contacted Barnes about the arrest, and Barnes came to pick up Alman and retrieve his car. He paid a $900 redemption fee to the police department. In order to get the car back without any further fuss, Barnes signed a release stating that it “precludes any action in this case regarding the vehicle and constitutes a final settlement of the civil nuisance abatement case. This settlement is independent and has no effect on any criminal charges that may arise from the same incident.”
The state charges against Alman were dismissed on the prosecutor’s motion after the assistant county prosecutor assigned to the case, named (I kid you not!) Luke Skywalker, determined that prosecution would not be consistent with the County Prosecutor’s policy, which included the statement that “Charges will not be pursued by this office if the officer’s conduct was designed to make the individual believe the act was invited or consensual.” Evidently, after reviewing the accounts of what happened, the County Prosecutor’s Office determined that charges should be dismissed.
However, on the same date, a Westland police officer issued Alman a ticket for violating city ordinances for disorderly conduct and battery. A state court judge dismissed the disorderly conduct charge, stating that such a charge required “some exposure of bodily parts,” but put the battery charge on the calendar for trial. When none of the police officers showed up to testify on the trial date, the court dismissed that charge as well.
Alman claimed violations of the 4th and 14th Amendments and asserted a state tort claim of malicious prosecution. Barnes raised a 4th Amendment claim and a state law abuse of process claim involving the impoundment of his car. Both men asserted a violation of the 1st Amendment, claiming that the police activity would chill expressive activity.
The district judge found that there was probable cause for the arrest and impoundment as a matter of law, and granted summary judgment to the defendants (the police officers involved, the Wayne County and Westland City police departments, the county and the city). In partially reversing and authorizing Alman and Barnes to pursue some of their claims, Judge Keith undertook a careful analysis of the various statutes under which charges were brought, and found that there were factual disputes that should have precluded the grant of summary judgment.
Among other things, he found that “no reasonable officer in Reed’s position would have thought that Alman had committed or was about to commit” criminal sexual conduct in the 4th degree, if Alman’s account was believed, since that crime involves coercion or surprise, and he also found that the varying descriptions of the conduct did not clearly support an arrest for solicitation or accosting. “Aside from engaging in flirtatious conversation and his brief touching of Reed’s crotch, there is nothing in the record that evinces” an intention to engage in public sexual conduct “on Alman’s part,” he wrote. “To the contrary, the only objective indications in the record about a state of mind relate to Reed, who stated that he was ‘new to this’ and that he ‘liked to watch.’ Under these circumstances, there was no probable cause.”
Keith also found that the district court erred as to the City charges, finding that Alman had correctly argued that the “indecent” person statute had uniformly been interpreted to require exposure of genitals. “We have uncovered no authority indicating that a brief touching of another person’s crotch during a flirtatious conversation constitutes indecent or obscene conduct, and based on the record before us, it cannot be said that the Westland police officers had probable cause that Alman was about to expose himself.” As to the battery charge, the court found that the statute requires that an assailant used “force or violence” to accomplish the touching of another person, and neither Reed nor Alman had described such conduct.
The court also found that the police officers were not entitled to “qualified immunity” from personal liability for making these arrests, since the law was clearly established and, construing disputed facts in Alman’s favor, the officers should not have made the arrest. Furthermore, the court found that if there was no probable cause for the arrest, then the impoundment of Barnes’s car was improper as well.
However, the court found that the plaintiffs’ other tort claims were properly dismissed, finding no factual basis for claims of malicious prosecution or abuse of process, or a constitutional tort claim against the county and city for failing to properly train the police officers. As to this last charge, the court found Alman’s allegations to be “too generalized to support municipal liability.” The court of appeals did not specifically address the 1st Amendment claim made in the complaint.
Mary K. Kator of the Rainbow Law Center in Southfield, Michigan, argued the appeal for Alman and Barnes and the Triangle Foundation, a gay rights group that joined in the case. The court of appeals sent the case back to the district court for a trial of the claims that its opinion had revived. It is still possible that Alman and Barnes could lose at trial, but the circuit court’s decision has the salutary effect of sending a message to Michigan law enforcement authorities engaged in the age-old cat-and-mouse game of entraping gay men in public places. It is also possible, given the tenor of the circuit court decision, that Alman and Barnes might win a renewed summary judgment motion on at least some of their remaining claims. What the message is to law enforcement may be subject to differing interpretations, but at least it says that arresting people for the kind of innocuous conduct described by Alman is inappropriate and may subject law enforcement authorities to liability.