The Port Authority Police Department has agreed to end undercover stings by plainclothes officers that critics claimed targeted and entrapped restroom users — primarily gay and bisexual men — resulting in them being prosecuted on trumped-up charges of “public lewdness.”
The Port Authority of New York and New Jersey, the body that oversees the regional transportation infrastructure, including bridges, tunnels, airports, and seaports for the New York City metro area, claims that the undercover patrols in men’s restrooms haven’t been conducted in years.
But in 2017, two men sued the Port Authority, the Port Authority Police Department, and several individual officers as part of a federal class-action lawsuit accusing the agency of engaging in a pattern of “unlawful discrimination, targeting and false arrests” of people perceived to be gay, bisexual, or gender-nonconforming.
Enlisting the help of the Legal Aid Society and the law firm Winston & Strawn LLP, the lead plaintiffs, 35-year-old Cornell Holden and 51-year-old Miguel Mejia, alleged that plainclothes officers would “pretend to use urinals” next to individuals in men’s restrooms, and would then step back from the urinal to see behind the privacy partition.
Upon exiting the restroom, the individuals would then be arrested on charges on charges of public lewdness or indecent exposure, based on an individual officer’s discretion.
In Mejia’s case, he claimed he was at the urinal when he felt he was being watched. Glancing to his right, he saw a man in blue shorts smirking at him.
Mejia ignored him, but was arrested and charged with public lewdness for allegedly trying to “initiate an encounter” with another man. He ultimately went to trial but was acquitted. He later said he thought officers may have targeted him because of the jewelry he was wearing.
In Holden’s case, a plainclothes police officer stood next to him at a urinal, then stepped back to try and look around the urinal partitions to catch a glimpse his hands and genitals.
The officer later claimed that Holden had been masturbating at the urinal. Holden claims he overheard the officer who arrested him call the colleague who has sidled up to him at the urinal “the gay whisperer,” according to The New York Times.
Holden was charged with public lewdness, but the Manhattan District Attorney’s Office later dismissed the charges against him.
As part of the lawsuit, the Legal Aid Society alleged that the increase in lewdness arrests in Port Authority bathrooms throughout the 2000s and 2010s was part of a coordinated effort by officers to boost “quality of life” arrest statistics, a term referring to minor infractions that allegedly create an unsafe and disorderly environment where serious crimes can more easily flourish.
The Legal Aid Society charged that Port Authority police continued to engage in undercover restroom stings — primarily targeting men perceived to be gay or bisexual — in full knowledge of the fact that most of those arrested would “ultimately plead guilty to lesser charges to avoid public embarrassment and humiliation, costly legal fees, and jail sentences, as well as suffer reputational and professional harm associated with the false charges.”
The Legal Aid Society noted that many of those arrested in 2014 accepted plea deals for “violations” in order to make the charges against them go away. (Violations are a class of offense that are not considered crimes but can potentially carry sentences of up to 15 days in prison.)
Others who were arrested reported similar experiences, insisting that the alleged behavior for which they were arrested had never occurred.
According to testimony from one man who was arrested and accused of public lewdness, the arresting officer refused to tell him why he was being arrested, only remarking “you gay people.”
He pleaded guilty to a violation, paid a fine, and attended court-ordered therapy, but says the experience negatively impacted his mental health. He now tries to avoid public restrooms and claims he experiences panic attacks when he sees uniformed police.
According to the Times, several other plaintiffs have claimed police would peer over urinal dividers, move their arms suggestively, or try to make eye contact with targets in order to entrap them.
Since 2014, arrests for public lewdness have dropped, but a former Port Authority police commander, John Fitzpatrick, acknowledged that complaints of sex in the men’s restroom — which presumably were the genesis for the stings — were “few and far between.”
As part of the Legal Aid Society’s federal lawsuit, John Pfaff, a Fordham University law professor, analyzed several years of Port Authority police data, finding that arrests for lewdness spiked around 2014, composing about 13% of all arrests that year — a significant increase for infractions that typically comprise only 3% of annual arrests.
Pfaff claimed that the difference was not explained by increased enforcement overall, since other categories of arrests fell. He claimed that only five officers — including those who had arrested Holden and Mejia — accounted for nearly 70% of all public lewdness arrests in 2014.
He said the arrests occurred during times of the day when such acts — generally performed covertly — were least expected, such as during morning and evening rush hours, when restrooms were more likely to be crowded with travelers.
Similar accusations were made back in 2005 during a federal lawsuit involving Alejandro Martinez, who was arrested by Port Authority Police on a public lewdness charge. According to Gay City News, the evidence in that case, which Martinez ultimately won, alleged that Port Authority police had “quotas” for public lewdness arrests that officers were required to meet.
Testimony provided by a Port Authority police officer during that trial showed that a large number of arrests occurred during a few hours in two years or over a period of four months in one year — which suggested police were not responding to specific complaints of lewd behavior, but compiling arrest numbers.
In February 2021, Judge John Koeltl, of the Southern District of New York, found that Mejia and Holden’s legal team had submitted enough evidence to proceed with their lawsuit alleging that Port Authority Police had violated their constitutional rights under the Fourth and Fourteenth Amendments to the U.S. Constitution. That decision prompted the Port Authority to enter talks with the plaintiffs’ legal team, resulting in a settlement reached earlier this week.
Under the terms of the settlement, Port Authority Police do not have to admit to any wrongdoing or violations of rights, but agree to cease all plainclothes sting operations in restrooms going forward (or ensure they continue not to be carried out).
In the event that such stings become necessary because of legitimate concerns over public lewdness, exposure, or sexual activity, any plans for such operations must first be reviewed and approved by senior Port Authority Police officials.
The settlement requires Port Authority police recruits, beginning in 2022, to undergo mandatory LGBTQ sensitivity and awareness training, facilitated by members of the Gay Officers Action League.
At some point within the next three months, Port Authority police officials will be required to read a pre-written script as part of an “instructional memorandum regarding bias-based policing” at roll call for all tours of duty over a single 24-hour period.
Officials within the department will also read a scripted instructional memorandum “regarding the use of boilerplate language in incident reports and arrest reports” at roll call for all tours of duty over a single 24-hour period at some point within the next three month.
In all cases, Port Authority Police are expected to inform the Legal Aid Society of the progress the department has made in meeting its obligations under the settlement.
The settlement calls on the Port Authority Police Department’s Chief of Agency Affairs to serve as a point of contact and liaison for members of the LGBTQ community using Port Authority facilities, and for the department to update a complaint form to include information on a complainant’s sexual orientation or gender identity.
The department will be required to link to the updated form from the “frequently asked questions” page on its website under “How do I file a complaint against a Port Authority police officer?”
The settlement requires the Port Authority Bus Terminal to replace current restroom signage with a sign reading, “This restroom may be used by any person regardless of gender identity or expression.”
The Port Authority will also agree to pay $15,000 to Holden, and $25,000 to Mejia, though each plaintiff and defendant involved in the case will be responsible for paying their own attorneys’ fees.
The Legal Aid Society celebrated the settlement, with Marlen Bodden, a lawyer with the organization’s special litigation unit, saying in a statement that Port Authority Police had long engaged in “egregious misconduct” that led people, especially Black and Latino men suspected of being gay, bisexual, or gender-nonconforming, to be falsely arrested “when they simply were using the restroom during their commutes.”
“This settlement not only brings an end to those practices, but also ushers in critical reforms to address future discriminatory practices,” Bodden said.
“I’m proud of the difference we’ve made by standing up against the PAPD’s bias-based policing,” Mejia said in a statement. “As a commuter who passes through Port Authority facilities on a daily basis, I will feel safer knowing that the reforms we fought for have been put in place, making it so that people like me aren’t arrested just because of who we are or what we look like.”
“No one should have to go through what I went through, and I hope that the PAPD will change as a result of this lawsuit and settlement,” Holden said in a statement. “Now that the case is settled, I’m eager to put it behind me and focus on growing my cake-baking business.”