Pubdate: Thu, 08 Sep 2005
Source: Nashville Scene (TN)
Copyright: 2005 Nashville Scene.
Contact:  http://www.nashscene.com/
Details: http://www.mapinc.org/media/2409
Author: John Spragens
Bookmark: http://www.mapinc.org/corrupt.htm (Corruption - United States)

NEW TWIST IN THE 'POLICING GAYS' DRUG STING

A Lab Report Reveals That The Defendant Is Charged With The Wrong Crime

Four months after a gay Nashville man was beaten and Tasered by
undercover Metro police officers using an informant's chat room offer
of drug-fueled sex to lure him to a Stewart's Ferry apartment, a lab
report reveals that the man did in fact have illegal drugs on him-not
the legal drugs he thought he had or the fake drugs police thought he
had. Meanwhile, the police department's internal affairs office is
about to wrap up its comprehensive investigation into the conduct of
three officers involved in the man's violent arrest.

It's the latest twist in a public episode that provoked condemnation
from members of Nashville's gay community and prompted police Chief
Ronal Serpas to meet with gays and lesbians in an effort to quell
their concerns about the department's selective use of confidential
informants, or CIs. On the department's watch, CIs were cyber-seducing
gay men with promises of sex and drug use but failing to run similar
stings in straight chat rooms.

Advocates said the situation smacked of selective enforcement by a
department that had already drawn national media attention for its
controversial use of CIs in prostitution stings. Law enforcement
officials, for their part, said they were simply going where tipsters
took them to look for illegal activity.

The case that prompted recent attention was the arrest of a Nashville
man whom the Scene decided to identify by the fake name "Steve." Late
one Friday night in May, Steve met someone online in a gay chat room;
the athletically built man, whose gay.com profile included a selection
of nude photos, instant-messaged Steve with requests to "come on over"
and "bring the amyl"-amyl nitrite, a muscle relaxant used by some men
for increased sexual arousal and anal stimulation. Eventually, Steve
agreed to meet the man at a Stewart's Ferry apartment complex with
what he claimed was a bottle of "amsterdam amyl."

When he arrived at the townhouse's front door, he was greeted by a
group of plain-clothes police officers he assumed were malicious
rednecks out for some Friday night gay-bashing. After resisting their
grasp, he was beaten and shot with three five-second bursts of
electricity-measuring 50,000 volts each-from a police-issued Taser
gun. That's what it took four Metro cops to subdue a 6-foot, 180-pound
computer programmer who looks even slighter in person.

He was arrested and made to sit in custody while the gay chat room
sting continued-allowed, he says, a Dairy Queen banana split for his
troubles after being kicked, Tasered and mocked by police.

The cops later charged Steve with delivering a counterfeit controlled
substance because he "intended to trick the informant into thinking
that the liquid was amyl nitrate [sic] just to have anal sex with
him," according to an arrest affidavit signed by Officer Michael Dunn.
"The suspect admitted to police that the substance was counterfeit and
not as promised during the agreement." The only thing is, amyl nitrite
isn't explicitly banned by state law, so Steve wouldn't seem to be
guilty of delivering a counterfeit controlled substance.

At any rate, police and prosecutors didn't know.

Steve's attorney, John Herbison, says that his client denies ever
representing the bottle in his pocket as anything other than amyl
nitrite, which he reiterates is not a controlled substance.

But a TBI lab report issued in July shows that Steve actually
possessed isobutyl nitrite-a Schedule VII narcotic-which seemingly
threw everyone involved with the case for a loop. So keep in mind: he
was charged with possessing a counterfeit controlled substance even
though the substance he represented himself to have wasn't
definitively a controlled substance. Now it's apparent that the
substance he actually had was in fact a controlled substance.

But did he knowingly possess a controlled substance, as the statute
requires?

That will be the crux of the prosecution's case, says Herbison (who's
made news lately as Perry March's attorney). "Everybody on the scene
acted under the assumption that it was amyl nitrite," he says,
including cops and his client.

Particularly ironic is the fact that the cops' undercover
informant-who at the time of the sting was consulting with officers on
his end of the private chat-specifically told Steve to bring "the real
amyl.not butyl," seemingly betraying an assumption that amyl was
illegal and butyl, legal.

Of course, it was just the opposite: Steve brought illegal butyl
instead of legal amyl.

Can a clumsy, misinformed undercover operation lead to a felony
conviction?

"Cross-examining these police officers will be about as much fun as a
person can have with clothes on," says Herbison, not one to shy away
from a public fight with law enforcement. (March hired him for a reason.)

Meanwhile, the police department has only a few more interviews to
conduct in its internal investigation into the violent tactics used by
the Hermitage Crime Suppression Unit in Steve's case. Some interviews
have taken a while to set up, says Kennetha Sawyers, director of the
department's Office of Professional Accountability (OPA), because
officers under investigation have a right to be questioned with an
attorney present. "I don't expect it to take very much longer, but we
do have some additional interviews to do," she tells the Scene,
refusing to comment on the specifics of her office's
investigation.

Sawyers says that at the outset of any internal investigation, the OPA
makes a preliminary finding and gives police officers the chance to
accept its disciplinary offer and make a full statement about the
facts of the case. "And if we find out at a later date that that
officer has not been truthful, then that officer will be terminated
for untruthfulness," she says. In this case, none of the policemen
under investigation for using force improperly or excessively came to
a disciplinary agreement with the OPA, but Sawyers said that shouldn't
be taken as a sign that her office is bringing the hammer down on
them; sometimes she recommends that officers await the outcome of a
full investigation because there doesn't appear to be any misconduct
and they will likely be exonerated. Still, she cautions, OPA
investigations are wide-ranging and thorough, and their findings may
differ from the preliminary report.

The recommendations in this case are anyone's guess.

One important difference between Steve's version of events and the
OPA's is the presence of a video camera.

He says his entire ordeal was filmed by a man, presumably a
plainclothes cop, with a camera on his shoulder. Sawyers says her
investigation has found no such thing. Another person who was arrested
in the sting says he doesn't recall a camera being present-although he
agrees that the department's undercover enforcement tactics were
particularly relentless.

As far as the DA's office is concerned, their next move remains
undecided. A "strong possibility" is that Steve could be charged with
possessing a Schedule VII drug-it's a class E felony punishable by one
to two years in prison-but it could also be pled down to some sort of
misdemeanor charge.

Like everyone else, the DA's office awaits the results of the police
department's internal investigation, but in the meantime, they're
proceeding with this case in anticipation of a Sept. 28 hearing in
General Sessions court.

In the past, the DA's office and the police have been at odds over the
cops' controversial use of confidential informants-including their
now-ended practice of paying informants to have sex with prostitutes.
But Tammy Meade, a high-ranking assistant DA, defends the department's
actions in this case, saying that the cops simply went where the CIs
said the crime was happening.

They weren't, she maintains, simply targeting gays. She compares
stings in gay chat rooms to policing efforts in various neighborhoods:
"If we're going to go to Green Hills, it's going to be overwhelmingly
one socioeconomic background. If we're going to go to the Cayce homes
[public housing projects], it's going to be another one," she says.
"We're investigating crimes here, not targeting people."

But Steve says he's not sure if even the cops themselves knew what
they were doing.

On the night of his arrest, he says, the police made a phone call for
technical assistance. "They called into what I believe was a
toxicologist and read what I believe was the brand name over the
phone," he says. The apparent toxicologist, Steve says, told them the
brand of poppers he was carrying wasn't illegal. "I can remember the
whole room freezing, and everyone looking around like, what do we do
now?" he says. "And then someone said, 'counterfeit.' It was something
that could have been looked up."

Steve says a friend bought the bottle for him in the novelty section
of an Atlanta bar. Like the cops, he had no idea that what was
actually in it-isobutyl nitrite-was illegal. "I didn't know and I
didn't care. That's the truth," he says. "Now I care."
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MAP posted-by: Larry Seguin