With a trial date set for a gay man’s lawsuit against New York City stemming from his 2008 arrest outside an adult video store on prostitution charges, there are signs the city might be prepared to settle the case.
The arrest of Robert Pinter, who was then 52, and those of other gay men on prostitution charges in adult video stores in 2008 and early 2009 –– reported in detail at the time in Gay City News –– are widely viewed as illegitimate by the LGBT community and many elected officials. Pinter’s conviction, after he was advised to plead guilty to lesser charges, was later vacated and his case dismissed, and the Manhattan district attorney also dropped prosecutions of some other gay defendants.
In an April 10 hearing before US District Judge Shira Scheindlin, Pinter, represented by attorneys Jeffrey A. Rothman and James I. Meyerson, and Dara Olds, a senior counsel at the city’s Law Department, agreed to a trial beginning on July 28, with the possibility it could start as early as July 7. Meyerson told Scheindlin he expects a trial would last about seven days.
Meyerson, however, also informed the court that he and Rothman had engaged in preliminary discussions with the Law Department about a possible settlement in the case. Those discussions, which had previously yielded no progress, became more serious, Meyerson explained, once the city dropped its “no-pay” policy, under which it had ruled out any financial settlement with Pinter.
The hearing and the change in the Law Department’s position came in the wake of a decision by the Second Circuit Court of Appeals to deny the city’s appeal of an October 2013 ruling by Scheindlin that Pinter could proceed with his lawsuit against the city. The Second Circuit had earlier dismissed his claims against individual officials, including former Mayor Michael Bloomberg and former Police Commissioner Raymond Kelly, based on their “qualified immunity” from liability in such cases.
Scheindlin, on April 10, authorized the two parties to schedule a settlement conference with Magistrate Judge James Francis, but also worked to establish a schedule for a trial should those talks break down. The conference with Francis will take place beginning April 16.
In an October 2008 incident at the Blue Door in the East Village, Pinter was approached by a young undercover police officer, with whom he agreed to leave the store to have sex. According to Pinter, as they approached the exit, the other man turned to him and said, “I want to pay you $50 to suck your dick.” Pinter said he was caught off guard by this and did not respond, but quickly decided there was no possibility he would in fact have sex with this man. Instead, he said, he started walking toward his apartment, keeping up “playful banter” with the officer. At no time did he indicate he would accept money for sex, he said, and the undercover made no further mention of that.
Suddenly, other police officers appeared, pushed Pinter against a fence, and arrested him. According to his account, he was tightly handcuffed and placed in a police van, which drove around for several hours until depositing him at a police station. Although he complained about the tightness of the cuffs, the officers refused to loosen them. Pinter subsequently required medical treatment for injuries sustained from this experience.
He initially pleaded guilty to a reduced charge of disorderly conduct, but when he found out that other men were being arrested under similar circumstances he filed a motion to vacate his conviction, which was not opposed by the Manhattan District Attorney’s Office. An assistant DA submitted a statement to the court stating it was unlikely Pinter went to the Blue Door intending to solicit money for sex.
Pinter’s lawsuit, which included claims against city officials as well as the city itself, led the Second Circuit Court of Appeals to dismiss all claims against individuals. In October, however, Scheindlin ruled the city could still be held liable for many — but not all — of his claims. She concluded, for example, that his allegations did not support the claim he was targeted because of his sexual orientation.
However, Scheindlin found that a reasonable jury could conclude, based on Pinter’s allegations, that there was no actual probable cause for his arrest, making it wrongful; that under the circumstances the district attorney’s decision to prosecute him could also be wrongful; and, that if he proved the scheme he was alleging –– that the city was using spurious prostitution arrests to support nuisance claims against adult businesses –– he would have shown abuse of process in trumping up an arrest for ulterior purposes.
The judge also ruled that Pinter’s allegations were sufficient to support claims for excessive force and detention arising from his treatment in the police van. Evidence provided by city officials themselves, she noted, demonstrate that the NYPD failed to train officers about their obligations concerning treatment of arrestees.
The city, therefore, may be subject to significant liability in Pinter’s case. Now that the Law Department has been turned back in its effort to appeal the October ruling, it is not surprising that it is weighing a financial settlement with him.
Mayor Bill de Blasio, who came to office with a long record of supporting LGBT political goals, is facing pressure from the community, as well. In a March 13 letter to the head of the Law Department, Corporation Counsel Zachary Carter, which was written before the Second Circuit denied the city’s appeal, the six gay and lesbian members of the City Council urged him to drop the appeal.
“As LGBT New Yorkers and representatives of sizeable LGBT populations, we are deeply troubled by what our city has forced Mr. Pinter to endure,” the caucus wrote. “His lawsuit involves insidious entrapment of a gay man. Such policing tactics, especially when a gay man is involved, bring up very painful memories of an oppressive time in this country when such actions were even more widespread.”
The letter urged Carter “to sit down with Mr. Pinter’s lawyer to work out a settlement rather than perpetuating the injustice done to Mr. Pinter by prolonging litigation. It is time to move beyond the policing policies of the previous administration that raised serious concerns about the civil liberties of people of color, youth, and the LGBT community.”
Similar arguments were made in a February 21 letter to Carter signed by seven community leaders and organizations, including the New York City Anti-Violence Project, Rabbi Sharon Kleinbaum, who leads Congregation Beit Simchat Torah, and the Reverend Pat Bumgardner, senior pastor at the Metropolitan Community Church.