Bruce W. Nickerson is an attorney in Santa Clara who specializes in police abuse of gay men. In 1996, in case called Baluyut v. Superior Court, he was able to get a unanimous conservative California Supreme Court to declare that police single out gay men for enforcement of “lewd conduct” and “indecent exposure” laws. The court pointed out that police seldom arrest straight people for doing the same things gays do. The court ruled that’s illegal.

Nickerson negotiated a settlement with new San Diego Police Chief William Lansdowne when Lansdowne was the chief in San Jose. I asked Nickerson for this thoughts on how Lansdowne would be on issues affecting the San Diego’s gay community. Nickerson said that Lansdowne knows the law and follows it.

Now that may not seem like a warm endorsement of the police chief. The reality is that prior police chiefs in San Diego (and throughout California) have not abided by the Supreme Court’s simple law that compels police and cities to treat gays and straights equally when enforcing the law.

Nickerson has won hundreds of cases involving gay men who have been charged with doing nothing more than what straight people do every day. He pointed out that every time, for example, a man touches his girlfriend’s crotch, buttocks or breasts, in public view, that’s lewd conduct, even if the touching is not skin-to-skin. It’s lewd conduct if the woman touches his crotch or buttocks.

Yes, it would absurd to jail every straight couple for doing this. Yet, as Nickerson’s hundreds of cases over the years prove, police will arrest gay men for the same thing, often through the use of sting operations involving undercover cops.

That violates the law. Cities can’t arrest a gay couple for doing exactly the same thing that straight couples do. That’s called selective enforcement of the law and the U.S. Supreme Court held it’s illegal.

Police departments routinely deny they are picking on gays. They contend that they are responding to complaints that gays are engaged in offensive public displays of affection. When gays and lesbians hug or kiss in public, the straight media refers to it as “the ick” factor. It’s okay to keep your sexuality in the bedroom, but don’t parade it in public.

Even if police can show that a gay man indecently exposed himself to an undercover cop, or police found two men having sex in a public park, police have to prove something else — that they don’t single out gay men for these crimes while ignoring straights.

In order to prove the police randomly enforce the law, Nickerson subpoenas the statistics from local police departments. Even assuming heterosexuals constitute 90 percent of the population, would it surprise you to learn that very few ever get arrested for lewd conduct? Yet gay men, who might be less than five percent of the population, typically account for almost all of the arrests for public sex.

Police argue it’s because straight people don’t engage in “offensive” public sex. But that’s not true. Whether it’s heavy petting or butt grabbing or oral and vaginal sex (while parked on lovers’ lane), it all falls under indecent exposure and lewd conduct law. (PC 314 and 647(a).)

Years ago a senior prosecutor in the city attorney’s office said the office had never prosecuted a case of heterosexual public sex (that wasn’t connected to prostitution). But the former prosecutor admitted that the police department regularly arrested gay men and lesbians for doing the same things heterosexual couples do all the time.

A former Assistant Police Chief, Norman Stamper, admitted the fact that SDPD historically harassed gay men. He indicated that SDPD regularly arrested and beat up gay men as a form of sport in the ’70s.

One of the first orders of business for Chief Landsdowne should be to eliminate the double standard in enforcing laws against gays and lesbians.

Just as “driving while black” should not be a basis for police profiling, neither should “cruising while gay” be a basis for abuse.

Police officers need to be fully educated about laws and how they apply. It is also essential that SDPD and the city attorney reveal the statistics on arrests and convictions involving “lewd conduct” and “indecent exposure” over the last twenty years. Local attorneys estimate that many people over the years have been arrested, charged, and, in most cases, have pled guilty to serious sex crimes they did not commit.

This needs to be corrected without a court order. It’s important to clear the air. Bill Lansdowne should lead this effort now.