One Man Challenges Police Videotaping in Restroom
Gay
People’s Chronicle, September 28, 2001
P.O. Box 5426, Cleveland, Ohio 44101
Fax: 216-631-1052
Email: chronicle@chronohio.com
By Eric Resnick
Toronto, Ohio—A man challenging police use of video
cameras inside a public restroom is attempting to suppress the resulting tape.
James Henry is the only one of 13 men arrested in the case to mount a
challenge to the tactic, saying it violates the right to privacy.
Police in Saline Township hid video cameras earlier this year inside a
highway rest stop on Ohio 7 at Ohio 213, about a mile south of Wellsville,
near the Ohio River.
The cameras, running for at least eight hours every day from January to May
of this year, videotaped men as they used the restroom, in an attempt to catch
public sex.
Police then mailed arrest notices to 13 men, which arrived July 5, a day
after their names appeared in local newspapers. Twelve of the men
plea-bargained and paid fines for a lesser charge. Henry, 45, of Empire, is
fighting his charges of public indecency and disorderly conduct.
Henry is an openly gay maintenance supervisor for the Jefferson County
Sheriff’s Department. His boss, Sheriff Fred Abdalla, is outraged at the
police tactics. He says that the arrests were not proper, and suggested that
some of the evidence used to make the arrests was groundless.
"I am not going to condone anyone breaking the law," Abdalla
said, "but arrests need to be clean, and these were not."
Abdalla has been subpoenaed as a defense witness at Henry’s trial.
Restroom privacy guaranteed
At a September 25 hearing, Judge Joseph Corabi granted Jefferson County
prosecutors a one-day continuance in Henry’s trial, but declined to rule on
his motion to suppress the video evidence.
Henry, and his attorney, Sam Pate of Steubenville, argue that the hidden
video cameras constitute an illegal search, and cite U.S. Supreme Court case
law guaranteeing the right to privacy in public restrooms, locker rooms,
dressing rooms, and jail cells.
Jefferson County Prosecutor Bryan Felmet and Saline Township Police Chief
Ken Hayes, who designed and supervised the investigation, did not obtain a
search warrant to mount the cameras. They say there is no privacy violation
here because, Felmet said, "the cameras didn’t see anything that couldn’t
be seen by anyone just walking into the restroom."
Assistant prosecutor Richard Ferro told the judge that he needs the
additional day due to scheduling conflicts. The trial is now set for October
4.
Informant solicited Henry
The video submitted by prosecutors shows Henry in the restroom a total of
47 seconds on May 9, most of it standing at the urinal. Felmet said it
supports the public indecency charge against him.
Prosecutors added audio evidence to their disorderly conduct charge against
Henry at the September 25 hearing. These were added to video log sheets
accumulated over six months from viewing the videotapes and observations of
undercover officers, that have entries like "J.H. waving arm" and
"J.H. drives through lot and leaves."
The audio recording was made by informant Jack Howard for the township
police. According to Henry, Howard, who was wired at the time, approached him
in the parking lot of the rest area and attempted to solicit him, which Henry
refused.
The date of the audio recording is April 17. But according to the bill of
particulars delivered by Ferro, the incidents supporting Henry’s disorderly
conduct charge occurred April 2.
On the disorderly conduct, the bill accuses Henry of causing
"inconvenience, annoyance or alarm" for "no lawful and
reasonable purpose."
Ferro defines that as "entering and leaving the rest area three
separate times in less than two hours," and flashing "headlights and
taillights at vehicles on several occasions."
The bill defines the public indecency charge stating, "Defendant did
engage in conduct that to an ordinary observer would appear to be sexual
conduct or masturbation."
It continues, "in plain view and while in the presence of another
individual attending the restroom . . . Henry, moves his hand up and down the
shaft of his penis in the form of masturbation."
The Gay Peoples Chronicle has obtained copy of the videotape, which
shows that the only other person in the restroom with Henry was in the stall
with the door closed. The two men did not visibly acknowledge each other’s
presence.
However, another man, who arrived in a car with a woman, entered the
restroom 15 minutes after Henry left. He walked around the restroom with his
genitals exposed, then pulled his pants up before leaving.
That man was not arrested.
"Of course not," said Henry. "He showed up there with a
woman."
"This whole Goddamned case is ridiculous," said Pate, who
contends that with or without the videotape, no jury will see anything illegal
in what Henry did.
"This place is being watched"
Henry said he remembers when the solicitation was made at him that is now
being entered into evidence.
"I was in my truck and he approached me," said Henry.
"He asked how it was going, and said that if he was in Youngstown
right now, he would have a woman sucking on his cock.
"I told the guy, ‘You are not in Youngstown and you better be
careful because I have heard this place is being watched.’"
According to Pate, part of his strategy in defense of Henry is for the
purpose of alerting the court of appeals to what the prosecutor and police
chief are doing.
At least two of the 13 men were charged with importuning, an Ohio law ruled
unconstitutional by the Eighth District Court of Appeals September 13. The law
makes it a crime for a person to ask someone of the same gender for sex, if it
would offend the other person.
When asked how people were charged with importuning using a silent video,
Felmet responded, "I don’t know."
One man charged wasn;t there
Another man, Malvin Lilley, 74, of Toronto, was charged with public
indecency, felony pandering obscenity, importuning, and disorderly conduct.
Lilly paid the fine and costs of the disorderly conduct in exchange for the
other charges being dropped, even though he was not at the rest area and is
not the man in the video.
"My car was there, but I was not," said Lilly.
Lilly said he knows the man who took his car to the rest area, and
described him as "significant" in his life.
Lilly said the other man "couldn’t take it," and "I
pleaded to make the whole thing go away and keep his name out of the
public."
Lilly’s attorney, Dennis McNamara of Columbus, said the man in the video
is not Lilly. "Mal is shorter than the guy on the tape, and in order for
his head to be as high to the window as the man in the tape’s is, Mal would
have to be on a stool."
Felmet insists that Lilly is the man in the tape, and they were right
arresting him.
"You would expect the prosecutor to say that," said McNamara,
"but his assistant, Ferro, knows it isn’t so, and that is why they let
it all go for $100 on disorderly conduct, even though there were two felonies
pending."
McNamara said he believes that Lilly would have prevailed had he fought the
charges, but would have been worse off in the end.
According to Lilly, the other man has suffered a minor stroke as a result
of the ordeal, and Lilly’s hairdressing business has lost customers from
having his name published in the newspaper.
Lilly says he is not sorry he took the disorderly conduct plea and paid the
fine.
Regardless of the outcome of the case, Henry and Pate are considering a
federal suit against the county and the parties involved.
McNamara said Lilly could file a suit of his own, but doesn’t think it
would be a strong case, unless evidence came out showing that the arrests were
made due to malice, not mistakes.
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