Sunday, January 25, 2009

Lawsuit Against City And NIFS Raises Questions About Off-Duty Security Work By City Police

An Indianapolis physician is suing the City of Indianapolis, one of its police officers and the National Institute of Fitness & Sports (NIFS) and its manager in the U.S. federal district court for the Southern District of Indiana, alleging his constitutional rights were violated and his privacy invaded when he was arrested in NIFS' locker room by an undercover Indianapolis police officer and charged with public indecency. A Marion County criminal court later dismissed the charge on the grounds that the State's evidence against him did not demonstrate that a crime was committed. Discovery in the civil case has concluded, and the defendants have filed for summary judgment. Based on the briefs filed by the parties, the case raises serious questions about the relationship of the Indianapolis Metropolitan Police Department and the clients of its police officers who moonlight as private security officers.

According to the plaintiff's brief, NIFS employed off-duty IMPD officers as private security employees for the health club based on the recommendation of Sgt. Jim Waters. NIFS' manager, Jerry Taylor, also requested the assistance of IMPD to investigate allegations that some patrons of the club were engaging in inappropriate behavior, a request granted by Sgt. Waters. Police officers who conducted investigations at the club, numbering four to six, were granted free memberships at NIFS to perform undercover investigations. The value of these free memberships ranged from $5,530 to $10,815 over a 3-year period according to the plaintiff's brief. At least one of those officers asked Taylor to write an "attaboy letter" to his superiors, a request he granted.

To assist IMPD with the investigation, NIFS compiled a "watch list" of patrons to target for inappropriate behavior. A patron landed on the watch list based on such behavior as "following, staring, or getting too close to" other patrons. NIFS refused to furnish the plaintiff a copy of the watch list during discovery but assured plaintiff he was not on the list. Prior to the plaintiff's arrest, however, he had complained to Taylor about another member's concern that Taylor had made "derogatory statements about homosexuals" to another patron in discussing inappropriate sexual behavior in the men's locker room. Taylor made a note of the physician's complaint, but he maintains that he did not target him because of his complaint.

NIFS forwarded the names of people on the watch list to IMPD, and IMPD, breaking with its own policy, shared privileged investigatory information with NIFS that not even criminal defendants are allowed to receive as discovery in their own trial according to the plaintiff's brief. The plaintiff sought discovery of e-mails and communications between IMPD and NIFS, but the documents produced were so heavily redacted the plaintiff's complained they were of little value. The plaintiff's attorneys have asked the Court to sanction the defendants for refusing to supply or destroying the original communications by deeming that they included information targeting the plaintiff for arrest. NIFS also refused to produce a list of off-duty police officers who worked at the club, although the defendants say the arresting police officer was working undercover for the department at the time of the plaintiff's arrest.

Plaintiff claims that Taylor was "morally incensed that homosexual activity was occurring at his facility", referring to it as "perverted male behavior", "problem of perversion" and "male perverts". Plaintiff believes Taylor had a motive to get him arrested after he complained to him about derogatory statements he heard he had made to another patron. Taylor had also complained in notes that some of his own employees at NIFS were "not w[ith] the program."

In the case of the plaintiff, the arresting officer claims he saw him stroking himself and masturbating while showering. The arresting officer concedes that he had to peek through a small opening in the shower curtain for the shower stall in which plaintiff was showering to observe the alleged behavior. The officer claims the plaintiff followed him into the steam room and made repeated eye contact with him without engaging him in conversation. When the officer went to shower, he claims the plaintiff followed him and chose a shower stall diagonally across from his. Through gaps in their respective shower curtains, the officer says he observed the plaintiff make eye contact with him, fondle his genitals and masturbate with an erect penis. The plaintiff was later told by the police officer he was being placed under arrest. He was handcuffed in front of other club patrons, told that his membership privileges were being revoked and hauled away to the police station where he was booked on public indecency charges.

Plaintiff believes that he had a right to solitude and seclusion while he was showering behind a closed curtain, and that the police officer should not have been spying on what he was doing from an opening in his closed shower curtain. The plaintiff complains that the club terminated him without offering him an opportunity to explain his side of the story. NIFS and its manager insist they cannot be liable for violating the plaintiff's constitutional rights because they are not a public actor. The plaintiff, however, maintains that NIFS "conspired or acted in concert" with governmental officials to deprive him of his civil rights. A ruling from the Court on the defendants' summary judgment motion may not come for another three months.

Regardless of whether the plaintiff prevails on the merits of his case, the relationship between IMPD and NIFS raises troubling questions. The employment opportunities, free club memberships and "attaboy" letters NIFS offered to IMPD officers raises potential conflicts of interest in the execution of their law enforcement responsibilities. I have complained in the past that private security companies are able to employ IMPD officers in uniform, using their police patrol cars and equipment, without any compensation to the City. Other cities require payment and, in some cases, controls the off-duty assignments given to its officers. The FOP complains that this would result in the loss of work for city police by driving up the cost of their services and subject the City to liability. As this case demonstrates, the City is being sued for police officers' actions regardless of whether it received any compensation for the police officers' off-duty work. Because of the conflicts of interest which may also arise from their off-duty work, the City clearly needs to adopt policies to protect the public from law enforcement abuses to curry favor with the police officers' off-duty clients.


Jason said...

Okay, I'm confused. Was the officer who made the arrest working for the city or NIFS at the time?

I see where you're coming from in saying that the city shouldn't be liable for damages if the officer in question isn't working for the city during the alleged incident, but they shouldn't and there are policies in place to ensure that doesn't happen. If it does it has more to do with the Plaintiff's lawyer than policies of IMPD or the city.

Part of community policing is responding to complaints from citizens and/or businesses. I've always heard of NIFS as having a reputation for this sort of behavior, and by calling it perverted I think it has more to do with the context in which it was taking place than the sexual orientation of the parties involved. The same people who complaint about men and men in the sauna would probably complain about men and women in the sauna as well. To try to paint himself as being subjugated because of his sexual orientation and not his behavior makes all homosexual people look bad. How would anybody even know he was gay if he wasn't doing these things on the premises?

I've never heard of NIFS offering free memberships for officers who work part-time, but it's certainly not unheard of. They offer discounts for many government and private sector employees based on who they work for, and also offer student discounts. At one point Brighthouse offered discounted cable packages instead of monetary compensation for officers. It's just bartering, IMHO.

Advance Indiana said...

I was confused too, Jason. NIFS never would give up the names of the officers it hired for off-duty security work. It is claimed by the defendants that the officer who arrested him was working undercover and not as a security employee for NIFS at the time. It wasn't clear to me what the off-duty security officers did on the premises as opposed to the undercover police officers. NIFS acknowledged that the same officer who recommended off-duty officers accepted the request to provide undercover police officers to investigate the activity. The activity I heard about through the grapevine was that sex between men was taking place out in the open in the sauna and elsewhere in the locker room. All of the arrests I've read about involved the actions of a single man alone in a shower stall. This plaintiff wasn't alone in having his case dismissed. I also heard about a man from New York who was a visiting member of the Indianapolis Symphony getting arrested by this sting operation. He was given a guess pass by his hotel to visit NIFS and got busted in the shower when he used it. I'm told he was stunned that what he did behind a closed shower curtain could lead to his arrest. I think the sexual orientation and gender makes a difference. I've never heard of a woman getting busted for this sort of activity in a woman's locker room. I think women's sensibilities on these matters differ from some men.

Advance Indiana said...

I should add, Jason, that the plaintiff does not concede he was doing what the undercover police officer alleges he was doing.

Steve said...

I would be interested in other cases such as these, it seems the legality as usual has been walked on a very fine line. I mean peeking in at people in a shower, is that not illegal in itself?

Advance Indiana said...

Steve, The plaintiff alleges the undercover police officer invaded his privacy through his actions.

Jason said...

Well, in my experience the Plaintiff is going to deny any and everything so that's more to be expected than believed. It brings to mind the Larry Craig "wide stance" defense.

At the same time I find it hard to believe that a police officer is either going to make something up or go peeking in shower stalls where he's not invited just to get a stat. There's plenty of shenanigans going on over there to where it's not all that difficult...

I wouldn't think the case itself would have anything to do with whether or not the officer was on duty, but if the Plaintiff is playing deep pocket theory it would definitely come into play.

artfuggins said...

Jason,...I dont know what was or was not going on but I find your statement that "you find it hard to believe that a police office would just make something up" as being very has already been noted that letters were being placed in officers' personnel files for their work there. What more of an incentive does a officer need than to get a letter of compliment......

Anonymous said...

#1: It is common that when men who are looking for gay "sex" at a public place to develop signs and signals. Some guys are perfectly satisfied just seeing another guy naked. Thus they go to a private area, completely close themselves off, and do whatever it is they want to do in 100% complete privacy. Other guys might do something different, like leave stall doors open, shower curtains pulled less than 100%, etc.. Usually this is so another guy, looking for the same sexual satisfaction, can see the other guy. Kinda like "I'll show you mine if you show me yours!"
#2:IUPUI got very serious with this kind of activity at the natatorium. It seems to have moved to NIFS even though it is members only. However, I believe a person can pay a per day fee. Say the fee is $25, that is cheaper way to get in to see naked men than some other mediums.
#3:The cops would go as far as they legally can to get stats because NIFS wants this activity stopped. If the guy left the curtain open, he is guilty as far as I am concerned. Arguments can be made as to how much the curtain was open. I think once a federal jury hears the facts, this guy may end up with nothing. Sounds to me like if he left that curtain open, there was probable cause for an arrest. A lot of people think just because a judge let them off or the prosecutor's dropped the charges, that they were somehow wrongfully arrested. This would be a great case to go to the jury.
#4: It doesn't matter if a police officer is working on-duty, off-duty, or is off-duty just out and about. If an officer takes police action at anytime, the governmental unit will always be liable if something goes wrong. Courts have already ruled that in Indiana, a police officer is a police officer 24/7, regardless of the status of his/her time clock.