It may cost thousands of dollars to get them back, even if no law is broken

by Eric Resnick

Columbus--A lawmaker running for attorney general has introduced a bill that could lead to police confiscating the cars of men cruising in parks, whether they violate any law or not.

Men who have broken no law could still be required to post thousands of dollars bond to get the vehicles back.

The measure was announced three weeks ago by state senator and Democratic attorney general candidate Marc Dann of suburban Youngstown. He introduced it October 26 without removing the worrisome seizure provision.

Dann, who is trailing Republican Betty Montgomery in the polls, has been attacked by his campaign opponent for defending sex offenders. He is a defense attorney.

Dann is joined by three Democratic co-sponsors of S.B. 388: Robert Hagan of Youngstown, Teresa Fedor of Toledo and Tom Roberts of Trotwood.

The 176-page bill classifies as �contraband� anything used to violate any part of the law dealing with all sex offenses, and allows police to seize it on the spot.

One of the infractions the law includes as a sex offense is �public indecency.�

Public indecency is a misdemeanor that includes masturbation or exposure of body parts that is offensive to someone who is not a member of the offender�s household.

However, since the Ohio Supreme Court struck down the law against �importuning�--asking someone of the same sex for sex--in 2002, police have been using public indecency as a pretext for arresting gay men.

Often, the men have done nothing more illegal than flirting with the undercover officer--who approached them.

If Dann�s bill becomes law, these officers can seize the men�s vehicles for up to 72 hours for �the purpose of inspection, investigation, and the gathering of evidence of any offense or illegal use� before the men are convicted or even arraigned.

If law enforcement wants the vehicle longer than 72 hours, they can ask a court to grant permission at a hearing.

If no charge is brought and the court doesn�t grant an extension, the vehicle can be returned after 72 hours--but only if the owner signs a sworn statement.

The vehicle�s owner can also be required to post a bond--equal to the value of the car--to guarantee its return if police want it back, even without a trial.

The scenario is similar to what happened when Detroit passed a �nuisance abatement� ordinance in 2001. Intended to fight prostitution, the measure had a similar seizure provision.

Overzealous police officers began entrapping gay men and taking their cars. Even when courts threw out the public indecency charges, the men still had to pay $960 in towing and storage fees to release the vehicles.

The measure was ruled unconstitutional by a federal court after the ACLU and the gay and lesbian Triangle Foundation sued.

Dann introduced his bill under the premise of protecting children, though none of it is specific to crimes against children.

�My proposed legislation in combination with the federal law will protect children from sex offenders and will offer law enforcement new tools to effectively prosecute and punish those who prey upon children,� Dann said at an October 10 press conference announcing his intent to introduce the bill.

Dann�s bill also removes the statute of limitations on rape. He did not return calls for comment on the bill, and neither did senate staff working for the Democratic caucus.

According to retired gay park ranger Mark Shrader of Columbus, undercover officers often entrap their targets, which he describes as police misconduct, and nearly lost his job in 1991 for protesting.

In 2004, Shrader described a typical undercover sting operation as one where an officer, usually young, dresses and poses as �gay,� then goes out to flirt with the targets. Sometimes, according to Shrader, the undercover officers engage the men in �chit chat� which is sexual in nature, and then encourage them to expose their genitals or engage in oral sex.

If the officer gets any kind of positive response, even just a verbal one, the target is immediately arrested.

Shrader said the public indecency charges are often dubious, too, because they require someone to be affronted by the behavior.

�If they pose as though they want it,� said Shrader, �how can they then claim to be affronted? If no one sees sexual activity, it is not a crime.�

Dayton attorney Larry Denny, who defends men arrested in parks and theaters for public indecency, said the arrests are often made so officers can claim that the area is a nuisance.

�The officers often create the crime,� said Denny. �I have seen more targeting of these areas when things get slow on DUIs, drugs, and domestic violence.�

Dann�s bill takes none of this into consideration.

The measure has almost no chance of passing before the session ends December 31. However, a majority Republican lawmaker could introduce some or all of it next year, increasing its chances of passage.