Leonard Link: Gay Entrapment - Somebody Fights Back!

A man who was arrested after rebuffing the attempts of an undercover cop to get him to violate a sexual solicitation law will get his day in court, as U.S. District Judge Thomas L. Ludington rejected most of the qualified immunity assertions made by the undercover cop in defending the man’s subsequent civil rights lawsuit. McCumons v. Marougi, 2009 WL 1470332 (E.D.Mich., May 26, 2009).

Contested facts underlie Judge Ludington’s decision to deny Officer Marougi’s motion for summary judgment as to many of Eugene McCumons’ constitutional claims. The case stems from McCumons’ arrest on August 10, 2007, charged with accosting, soliciting or inviting "another person in a public place or in or from a building or vehicle, by word, gesture, or any other means, to commit prostitution or to do any other lewd or immoral act," in violation of Mich. Comp. L. Sec. 750.448. The criminal charges against McCumons were subsequently dismissed, and he filed suit against Officer Marougi and the police department under 42 USC 1983, alleging violations of his First, Fourth and Fourteenth Amendment rights. Judge Ludington granted summary judgment on qualified immunity grounds on the 14^th amendment equal protection claim, but denied summary judgment on the 1^st and 4^th amendment claims.

The opinion includes extensive quotations from the complaint and motion papers, giving each man’s account of what happened. It appears that Hawthorne Park in Pontiac, Michigan, was known as an active gay cruising place, and Officer Marougi had staked out the park in plain clothes in his SUV, looking for action. McCumons drove into the park and conversation ensued between the two men, sitting in their respective vehicles with windows down. From both accounts, it appears that Marougi was working very hard to keep his comments opaque but inviting, that flirting was going on, but that McCumons decided not to go ahead with any kind of sexual activity and drove away. Nonetheless, Marougi signaled to fellow officers, who arrested McCumons, who also suffered impoundment of his car for several days, under a statute authorizing impounding of a motor vehicle that was used to commit any of various offenses, including sexual offenses. McCumons claims that some of what Marougi put in his official report was fabricated and provided the basis on which McCumons was charged.

McCumons alleged that Marougi’s actions violated his right to free speech, and that the arrest and the impoundment of his car involved his right to be free of unwarranted seizure of himself and his property. Marougi’s s.j. motion relied on the doctrine of qualified immunity, under which a public official cannot be sued for the discharge of discretionary functions unless his actions violated a clearly established legal right of the plaintiff. The burden is on the plaintiff to show that the defendant is not entitled to qualified immunity. If the existence of the established right depends on how disputed facts are resolved, then summary judgment can’t be granted.

In this case, Judge Ludington found that McCumons had sufficiently demonstrated that based on his version of the facts Marougi had violated clearly established constitutional rights involving speech and seizure of the person and property of the plaintiff. If Marougi’s version of the events was believed, however, the qualified immunity defense could apply. In light of that, a trial is necessary to determine the facts, and McCumons survives the motion for summary judgment.

However, Judge Ludington found that McCumons had not shown selective enforcement that would invoke an equal protection claim. Ludington observed that 6^th Circuit precedent required a plaintiff to demonstrate three things in a selective enforcement case: "First, [the state actor] must single out a person belonging to an identifiable group, such as those of a particular race or religion, or a group exercising constitutional rights, for prosecution even though he has decided not to prosecute persons not belonging to that group in similar situations. Second, he must initiate the prosecution with a discriminatory purpose. Finally, the prosecution must have a discriminatory effect on the group which the defendant belongs to."

"Here, Plaintiff has not identified someone from outside of the class that Defendant decided not to prosecute," wrote Judge Ludington. "Rather, Plaintiff argues that this requirement is irrelevant in this context because the record is replete with evidence of anti-homosexual animus." Ludington concluded this was not enough under circuit precedent, and concluded that McCumons could not establish an equal protection claim, so Marougi was entitled to immunity from that portion of the complaint.

Most people caught up in anti-gay police entrapment activity will do anything to avoid publicity and put the case behind them, so this kind of activity usually has little risk for the police officer who, as McCumons alleges in this case, falsifies a factual report to support an arrest in a situation where the arrested person has not actually violated the law. (Marougi stated in his report that McCumons had told Marougi that he wanted to "feed him his load" and had requested permission to enter Marougi’s vehicle for the purpose of engaging in oral sex, while McCumons denies both of these allegations which were undoubtedly central to the prosecutor’s determination to prefer charges against him.) Thus, it is refreshing and exciting to see a victim of this kind of set-up step forward to file a constitutional suit against the police officer to seek vindication of his rights.