COVER STORY :: JULY 28, 2004

The two sides of the Holt rest stop sting operation
By JASON MIKULA

Jason Mikula/City Pulse The Holt rest stop on U.S. 127-North was the site of a Michigan State Police sting operation that resulted in the arrests of a dozen men on June 11 and 12 on charges of solicitation and inappropriate sexual touching.

John was on his way home from a local business he owns on the night of June 12 when he stopped at the Holt rest area to use the bathroom.

This is what happened, in his own words: “This guy cruised me in the rest room. I didn’t pay attention. I went to buy a soda, and he cruised me again. I went to my car and he cruised me a third time. He was very attractive, so I stopped to talk to him. I asked if he wanted to go have a drink, because I don’t cruise rest areas.” While they talked, John touched the man’s thigh in the parking lot.

The attractive man was a Michigan State Police undercover agent. His written report gives this version of the incident:

The officer says he entered the restroom after John had been in there for an extended period. Upon entering, he says he observed John standing at the center urinal and moving his hand back and forth near his genitals.

When he was washing his hands, the officer made eye contact with John. The two proceeded behind the rest area and made general conversation. The officer alleges that during their conversation, John squeezed his genital area, at which point the officer activated the arrest team.

The difference between John’s version and the police report is just one of the issues that has been raised by the sting operation that resulted in the arrrests of a dozen men at the Holt rest stop on June 11 and 12.

Both opponents and defenders of the sting operation have been very vocal. Points of contention between the two range from whether this specific sting was justified in the first place to whether these types of sting operations should ever be used. Many in the gay community deny that pubic sex in rest areas is a problem and consider the stings to be harassment and grounded in prejudice, while law enforcement officials see them as a legitimate method of dealing with the genuine problem of public sex. Critics of the mid-June sting point to what they say is a small number of citizen complaints in asking if the sting was, in fact, justified. Leading the charge has been Todd Heywood, a GLBT activist who came close to being arrested himself. According to Heywood, he was using the rest area when he was approached by a man who asked him, “Do you come here often?”, to which Heywood responded, “No, I’m out for a drive.” When Heywood was attempting to leave the rest stop, his car was blocked in by police.

Heywood was asked to get out of his car, frisked, and, he alleges, inappropriately fondled by the officer. Soon after, the undercover officer who originally attempted to ensnare Heywood came over and allegedly said, “No, that’s the wrong fag, the one we want is back in the woods. He’s cool,” at which point Heywood was told immediately to leave the scene.

Gary Nix, the commander of the Lansing post of the Michigan State Police, said that Heywood’s allegations are under investigation, and that until the investigation is concluded, he cannot comment.

Since then, Heywood has filed a Freedom of Information Act request with the Michigan State Police asking for all citizen complaints that were used to validate the sting.

The police turned over one complaint that wasn’t directly related to public sex in the rest area. Rather, it was a complaint from a rest area worker that suspected drug dealing activity at the rest stop. While investigating that complaint, a male rest area attendant reported that he had observed “two male subjects in one stall with their clothes down” on more than one occasion.

Asked about the lack of documented complaints, Sergeant Kyle McPhee of the Michigan State Police, who assisted in conducting the Holt sting operation, said, “Just because someone complains doesn’t mean there’s a report generated. The word complaint means that people have called numerous times about this activity.” McPhee added that if an official report were created for each complaint, “the reports would fill a building. People just don’t understand the way these operations work.”

McPhee also cited a 911 call log, which was not included in the documents turned over because it is part of the Ingham County Sheriff’s files. The Freedom of Information Act request was made to the Michigan State Police. The log contained 11 complaints over a period of more than three years.

Although the 911 call log has been used to justify the sting, it has yet to be made available in response to Heywood’s FOIA request. He is appealing that decision.

Regarding the call log, Heywood said, “If there are 11 complaints since February 2001, that works out to be just slightly over three calls per year. I do not see this as the ‘real’ problem that the Michigan State Police claim it to be.”

Although there is little documented evidence of a problem at the rest area, the Michigan State Police feel their sting was justified. “I don’t know why we have to justify having an operation if we have results from the operation,” McPhee said. He also pointed to the interviews conducted with the 12 men subsequent to their arrests. Many of the men indicated that they frequent the rest area multiple times a month looking for sex.

Heywood countered, “I believe the people could have been responding to please the interrogators and not truthfully. I also do not think you can take 12 men’s arrests and draw direct conclusions from those arrests.”

Many in the gay community consider the stings entrapment operations and harassment.

According to the police reports obtained from the Freedom of Information Act request, a typical sting went something like this: An undercover police officer would enter the restroom and would be approached by or make eye contact with a suspect. The two would leave the restroom and go to the nearby picnic table or woods. If the suspect did not make direct overtures to the officer, the officer would sometimes ask the suspect what he liked or wanted. If the suspect replied that he wanted a sexual act, touched the officer or exposed himself, then the police arrest team would take the suspect into custody.

Even if asked explicitly if he were a police officer, the undercover agent would reply that he was not.

Echoing the sentiment of many in the GLBT community, Jay Kaplan, of ACLU-Michigan’s GLBT project, said, “I would consider the police’s conduct in the Holt sting to constitute both ‘gay profiling’ and ‘harassment.’ It’s clear that gay men or men they thought were gay at the rest area were targeted for this approach. I don’t think it’s fair to assume that sexual activity occurring in the men’s rest room only involves gay people.”

In the wake of a similar sting operation in Wayne County, the Triangle Foundation, a GLBT advocacy group, sued the Detroit police department for illegal and unethical police operations. According to Sean Kosofsky, the department “settled almost immediately for $175,000 for our six plaintiffs.”

McPhee said these busts aren’t about targeting homosexuals. He said, “We can’t have open sexual acts at a public rest area where children go to use the facilities.”

Jason Mikula/City Pulse Dunnings

Stuart Dunnings III, Ingham County’s top prosecutor, believes the State Police did an excellent job. He said, “Before they went out on the operation, they called here and spoke with the attorney that handled the cases the last time this came up and asked what the problems were the last time.

“The Michigan State Police were told the problem was when the suspect wasn’t specifically indicating that the sexual conduct was going to take place then and there, in public. So when the troopers were discussing this matter with the suspects, it was clear to the troopers that these individuals wanted to do it there and then, in public. But the problem was, the suspects didn’t actually say it. The officers had such a strong feeling that they made the arrest. The officers couldn’t say ‘you mean here and now?’ because that would be entrapment.

“The state troopers thought, if we can’t get them because they’re soliciting for sex here and now, we can get them for soliciting for an immoral act, because they’re soliciting for a homosexual act.”

But, because of the recent Supreme Court case Lawrence v. Texas, that is no longer true. The police, evidently, were not aware of this. Said Dunnings, “I daresay that if you would conduct a public opinion poll asking if homosexual conduct is immoral, 50 percent or more would say that it is. I can’t fault the police for their actions, because in their minds, the man is soliciting for a homosexual act, which is an immoral act.” Added Dunnings, “We have nine Supreme Court Justices, and they can’t be unanimous on it, so I can’t fault the state police.”

John, who was arrested for criminal sexual contact in the fourth degree and solicitation to commit an immoral act, was not charged because the contact was implied to be consensual and the act which he was soliciting is not, in the eyes of the law, immoral.

Ultimately, Dunnings could only file charges against half of the 12 men who were arrested. This has further complicated the question of whether this type of sting operation should be used by calling the effectiveness of the operations into question.

Heywood does not see the police’s current methods as appropriate or effective. “I believe there are less costly, less abusive ways to carry out operations to stop public sex in a rest area,” he said. “Let’s try putting signs up saying the area is under surveillance. Let’s try uniformed patrols. The gay community and police should work together to create bridges to stop this stuff if it is a problem.”

Kosofsky echoed Heywood’s sentiments. “The police are wasting time and money busting non-violent, non-predatory, and in many cases, perfectly legal behavior. If the state wants to stop any public sex, regardless of your sex or sexual orientation, have signs posted saying that sexual or inappropriate behavior will be prosecuted or send in uniformed police.”

The police estimate the sting cost taxpayers around $3,000.

Kaplan believes the police’s methods just don’t make sense. “It’s just not a good use of resources. Couldn’t a marked police car patrol the rest stop [or] an officer patrol the restroom?”

Commander Nix, head of the Michigan State Police’s post in Lansing, said that state troopers do patrol rest areas on a daily basis as part of their regular beat. He added, “It has minimal effect. It’s just not a deterrent at all.” McPhee also said that the State Police don’t have adequate personnel to post a uniformed officer in the rest areas.

On posting an officer at the rest area, Dunnings added, “That is a stupid argument. Ideas are like assholes: Everybody’s got one.”

When asked if the Michigan State Police will change their tactics, as many of the men arrested in the sting will not be charged and because of the criticism from the gay community, Commander Nix replied, “As judges change, as prosecutors change, as laws change, we change. We made arrests based on accepted procedures that have worked in the court system. If the prosecutors tell us that they won’t prosecute based on our undercover tactics, then we’ll have to change our tactics.”

McPhee added, “I seriously thought after the first year or two of these stings that people would get the idea. But they’re not stopping. We’ll have to reassess how we’re going to try to stop the problem.”

Dunnings refused to comment on his plans for prosecuting future cases of this nature.

Meanwhile, John remains angry about being subject to arrest.

“It just pisses me off because I did nothing wrong,” John said. “If I went there and did something and got caught, I could be pissed at myself. But I didn’t do anything wrong.”

He added, “Without a doubt these stings are harassment. Mental anguish and the whole thing. They could just say, ‘We’re having a problem at the rest area, don’t do this.’ I didn’t do anything!

“I might be gay, but that doesn’t mean I cruise rest areas trying to pick up everything that walks. I just got out of a long relationship, and this really good-looking guy hit on me three times. It wasn’t exactly my ideal location, but I wasn’t going to have that stop me.”