In light of the recent primary elections, there is no question that the most important public office within the City of San Diego as far as the GLBT community is concerned is the Office of City Attorney (CA). That seems strange, but let’s look at some of the cases and issues:

A few years ago San Diego Police Department (SDPD) undercover vice officers attended a private party, in a private home, sponsored by a local club promoting safe S&M sex. Police arrested almost a dozen people for engaging in public sex inside a private home. Then, City Attorney Casey Gwynn prosecuted the case. A jury returned acquittals for all those arrested, and publicly chastised the CA for bringing such stupid charges and wasting their time and taxpayer money. In short, the S&M jury gave Casey Gwynn a spanking.

At the same time, a female who was dancing at a gay dance club revealed less breast than Janet Jackson did during the Super Bowl, but undercover police charged her with indecent exposure. A judge dismissed the charges on the grounds that she wasn’t attempting to sexually arouse 500 gay men.

Three years ago San Diego Community College police arrested 18 men at City College, most of whom were students. College police arrested one who walked into the bathroom with “attempting to engage in public sex.” There is no such crime. The City Attorney’s Office correctly refused to file charges in most of the cases. But, instead of doing so immediately, it made the men wait for a year.

Upon advice of City Attorney Gwynn, the city council leased 18 acres of a public park to the Boy Scouts of America (BSA), a religious group that refuses to allow gay or atheist members, to use public land on the same basis others. The City Attorney of Berkeley, reviewing a similar gift of public land to the BSA in Oakland, opined that such leases are illegal. The California Court of Appeal unanimously upheld voiding the Oakland lease. Despite the court holding, it has taken a couple of years and $1 million in taxpayer money for the city attorney to admit he was wrong.

Several years ago, a San Diego Police Department officer had a private adult website. He never indicated he was an SDPD officer on the website, but SDPD fired him all the same. The First Amendment protects public employees in their off-duty conduct. Straight police officers, male and female, appear in adult publications all the time. In fact, SDPD invaded the man’s privacy. Two weeks ago the Ninth Circuit of Appeals agreed with me.

Two men simply wanted to open an adult video store in San Diego. The city attorney indicated that there were few, if any, spaces where they could open. The men appealed their case to the Ninth Circuit Court of Appeals. The court criticized the city attorney for making it virtually impossible for anyone to open an adult business within the city of San Diego. The court noted that, while the city’s population has doubled in the recent past, adult businesses have been cut in half by regulatory efforts by the city.

The CA advises the city council on major policy matters, such as the lease agreement with the BSA. The CA decides whether to file charges in criminal cases like “lewd conduct” and “indecent exposure.” Statistically, these latter cases are disproportionately filed against gay men for the same conduct engaged in by straight men and women.

So it’s obvious that the CA has a great impact on our community. More important than electing a new CA, it’s more important to ensure that some of the problems we’ve incurred in the last eight years don’t happen again.

The city council should evaluate the role of the Office of the City Attorney. The last decade has proven that the CA’s office doesn’t have the expertise to defend complex civil matters. One case cost the city $100 million, largely, as some speculate, the CA didn’t bother to cross-examine the plaintiff. Had the city contracted for its defense, at least taxpayers would have a claim for legal malpractice against the firm.

It is also true that, in advising the city council, politics has prevailed over unpopular (but sound) legal judgment. For example, the CA advised the city council that the cross atop Mt. Soledad and the lease with the religious BSA were both lawful. But federal law was clearly against both.

On the criminal side, the city should consider contracting with the District Attorney’s Office to prosecute misdemeanors and infractions. Prosecutors who try rapists and child molesters know what a sex crime is. A woman dancing in a gay club with a partially exposed breast is not a sexual predator.

Prosecuting parking violators and jaywalkers is not a job a lawyer aspires to. Putting our city attorneys under the DA will allow them to try felony cases and it will also insure that serious crimes, not “political” crimes, get prosecuted.