Last edited: July 27, 2003

Court Okays Police Cameras in Restrooms

Gay People’s Chronicle, December 27, 2002
P.O. Box 5426, Cleveland Ohio 44101
Fax 216-631-1052

By Eric Resnick

Youngstown—An Ohio appeals court has ruled that police can hide video cameras in public restrooms without warrants from courts. The decision puts Ohio at odds with U.S. Supreme Court rulings that people in public restrooms have a "reasonable expectation of privacy."

In a December 18 ruling, the Seventh Ohio District Court of Appeals in Youngstown upheld the public indecency conviction of James Henry of Empire by a Jefferson County jury in October, 2001.

The U.S. Supreme Court has routinely ruled against secret surveillance in public restrooms, locker rooms, jail cells and dressing rooms, saying that such cameras constitute illegal searches and thus violate the Fourth Amendment.

Henry, an openly gay man, was arrested as a result of an investigation conducted by Saline Township Police Chief Kenneth Hayes and Jefferson County Prosecutor Bryan Felmet at an Ohio Department of Transportation rest stop on Ohio 7 near the Ohio River between Toronto and East Liverpool.

During the five-month investigation of sexual activity there, video cameras hidden in light fixtures recorded the action of every man who entered the men’s restroom for shifts of eight hours at a time.

Henry, 47, was one of 13 gay, or suspected to be gay, men who were notified of their arrest by mail in July. One of the men arrested had never been to the rest area, though his car had.

Since two of the cameras monitored the parking lot, police could see if men were accompanied on their visit to the rest area. Police did not arrest men who arrived at the park with women, although in some cases those men walked around the restroom with their genitals exposed.

Henry was in the restroom for a total of 47 seconds on May 9, 2001. The tape shows Henry entering, standing at the urinal, and leaving the restroom.

But at the trial, prosecutors convinced a jury that because Henry stepped back from the urinal before fastening his pants, his conduct could have been interpreted as masturbation by someone walking into the restroom.

Prior to trial, Henry’s attorney, Sam Pate of Steubenville, attempted to suppress the tape on constitutional grounds.

Jefferson County Common Pleas Judge Joseph Corabi allowed the tape, which then became the only piece of evidence at the trial.

In their unanimous opinion, the three-judge panel said that Henry had "no reasonable expectation of privacy so long as he remained in the common area."

Chief Hayes had removed the privacy dividers between the urinals in order to give the cameras a clearer view.

Those dividers have since been replaced. But that information did not come out during the trial, and was not known by the appeals court.

Judge Mary DeGenaro wrote the decision for the court. At the August hearing, DeGenaro made it clear to Pate that she would focus on Henry’s conduct at the urinal, not whether or not the cameras constituted an illegal search.

DeGenaro cited a 1987 Fifth District case where two male defendants were arrested in a rest area pit toilet with no door lock having oral sex. That court also said that the defendants had no right to privacy.

But unlike Henry’s case, where the only witness to any restroom activity was a camera, an Ohio highway patrol officer had observed the men prior to their arrest.

Another legal reference used by the court was a 1982 First District decision where the court allowed University of Cincinnati security officers to look under the short stall doors and through openings between the stall frames to arrest people for sexual activity.

But unlike in Henry’s case, that restroom was marked with a sign reading in bold red letters: "No Loitering—Under Police Surveillance."

A third case cited as supporting by the court involved cameras hidden behind ventilator screens in a bathroom wall in 1980. In that case, the First Ohio District Court of Appeals ruled the cameras constitutional. But unlike in Henry’s case, the stalls in that restroom did not have doors and the police taped only suspected offenders for short periods of time.

DeGenaro wrote that since the defendants in those cases had no reasonable expectation of privacy, "we believe that an individual would have even less of an expectation in the common areas of a restroom."

The judges then agreed with the prosecutor’s argument that Henry "clearly wished to perform his sexual act of masturbation or simulation of masturbation in plain view in the common area of the restroom . . . "

"Even if Henry did expect to keep his actions private, Ohio courts have found society is not prepared to recognize as reasonable an expectation of privacy by persons engaging in behavior in restrooms that goes beyond the intended purposes of the restroom . . ." wrote DeGenaro.

The judges contend that because the video cameras did not see anything that could not be seen by someone walking into the restroom, there was no search.

The judges noted that there is "uneasiness and discomfort" with the idea of video cameras being placed in restrooms, but again, treated Henry’s case as unique by saying, "camera placement in the present case limited the view of the police officers to the common areas of the restroom."

"We concede that this type of continuous videotaping of a restroom may catch unsuspecting innocent people in the act of doing embarrassing things," conceded the court, but "the common areas of public restrooms remain just that, common and public."

Pate disagrees.

"The camera is not an ordinary observer," he said.

Pate also takes issue with the court’s upholding the unclear language in the state’s public indecency law.

Throughout the trial and this appellate decision, Henry was accused of behavior that "could" or "might" offend someone, though the prosecutors had to concede at trial that no person was offended, because no person saw what the camera saw for 47 seconds.

For that reason, Pate wanted the use of the indecency law to be declared unconstitutional.

"What is proof beyond a reasonable doubt with all this "could have," "might have," and "should have"?" said Pate. "It wasn’t."

While Judge Joseph Vukovich concurred with DeGenaro and Judge Gene Donofrio, he wrote a second opinion expressing his unease with police putting video cameras in restrooms without a warrant.

"I find it ironic that a sign warns a motorist that they are entering a public area of the roadway where speed limits are enforced by radar, but a motorist using a public restroom at a highway rest area has no warning that their visit might be the subject of video surveillance," wrote Vukovich.

"The fact that the foregoing analysis of this court is correct as a matter of law does little to ameliorate the repugnancy of such a practice."

"I could come easily to a different conclusion with any change in the facts presented in the appeal," Vukovich concluded.

Pate maintains that the video cameras violate the Ohio and U.S. constitutions.

He and Henry have 30 days to file an appeal with the Ohio Supreme Court, and will decide in January if they will do so. "We’re still swinging the bat," said Pate.

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