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A Line in the Sand
by John Rabe
January 17, 2000
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St.Paul Police have arrested dozens of men in recent months at a Mississippi River beach as part of a crackdown on public sex. Gay activists and lawyers for the men say the crackdown is discriminatory, but the police and residents say it's simply a matter of keeping the neighborhood livable.

ON JULY 6TH, Steven Pinkal was on a beach along the Mississippi when a uniformed police officer arrested him for indecent conduct. The police report says Pinkal was masturbating.
Pinkal: I guess I was in shock. I came right out and said, "Honestly, I was not doing that," I told him what I was doing; I was just sitting there having a cigarette. And he cited me anyway.
Pinkal was charged with a misdemeanor, which could lead to 90 days in jail and a $700 fine. The case has been wending its way through the justice system and is currently awaiting trial in Ramsey County District Court.

The 32-year old gay man, a printer by trade, used to live in the Twin Cities, but he recently moved back to his home town in central South Dakota. Pinkal is one of more than 100 men whom attorney Kyle White has defended over the last seven years on similar charges. But Pinkal is the first one willing to fight the charge, which White says is discrimination rooted in homophobia.
White: If society sees two gay men hugging or embracing in any kind of way, for the mainstream society it can be an offensive act in and of itself. Our concern is that private biases of individuals should never be given any kind of indirect or direct effect by the law, and in fact it is.
At most, White says, heterosexual couples caught in lovers' lanes get a warning, not a ticket, a claim supported by interviews with several Ramsey County judges; who say they've seen only a handful of straight couples in many years of hearing cases of this sort.

White claims arrest statistics show the city's indecent conduct ordinance is used to unfairly target gays.

Steven Pinkal was arrested at Pieffer's Beach, a well-known gay cruising area where two-thirds of the city's 80 or so indecent conduct citations were issued in the last year.
Maloney: Okay, where we are, we're just upstream from the Lake Street Bridge, which is to Saint Paulites the Marshall Avenue Bridge. The Minneapolis Rowing Club is right across the water there.
Desnoyer neighborhood activist Jack Maloney lives about a block from Pieffer's beach. He says families used to come down here a lot, years ago, but now they avoid it because of incidents like the day Maloney's brother-in-law took the grandkids for a walk.
Maloney: They set out and started down those stairs that we came down. They got down to the bottom, started down the river, and immediately had to turn back, because there was a group of men engaged in sexual activity on the riverbank.
"The language that's of concern actually states that no person shall appear in any street or public place in a dress not belonging to his or her sex. Now, that specific language is clearly homophobic and heterosexist."

- Attorney Kyle White
It's a steep climb from East River Road, down the limestone bluff, to Pieffer's Beach. In the summer, trees and bushes overgrow the area; but in late autumn, it was no trick to locate one of the nooks where used condoms and other evidence of sex is obvious.
Maloney: Oh, we're in one of the little seclusion areas. Looks like an old pair of abandoned underwear there. Condom wrapper.
Maloney says in good weather, dozens of people come to Pieffer's Beach every day. He ran a check on the license numbers of cars parked along the road and found mostly suburban Twin City addresses, plus a few Wisconsin cities. Neighbors complained to police about the traffic and the incidents, and police spokesman Michael Jordan says his department responded.
Jordan: Different communities have different concerns. In Frogtown, prostitution, open-air drug dealing is a major concern. In the Highland Park area, people speeding and disobeying traffic laws is a major concern. It just happens in this particular case around the Pieffer Beach area, this open display of sexual activity was a concern and it was one that we addressed.
Attorney Kyle White says complaints from the neighborhood don't justify applying the law unequally. A California court has ruled a police department can't actively pursue gays in this way if it isn't also seeking out straight people having public sex.

But Hamline University law professor Joe Daly says the courts are extremely wary of considering such cases based solely on statistics.
Daly: Suppose the police stop speeders on a specific highway stretch, and it turns out 98 percent of the people who get tickets for speeding are white. Well, it may be that all the people who live in this county or along this stretch of highway are white.
Daly says you need more.
Daly: You need memos from the police for example saying, "Let's go and arrest some gays tonite."
So far, Attorney White doesn't have that kind of evidence. The judge has yet to decide if the officer's personnel record is germane to the case, and police spokesman Michael Jordan says he won't find animus against gays in his department.

But White says not only the department but the law itself is homophobic, and that's the second part of his constitutional claim: the ordinance that defines indecent behavior also makes it illegal to cross-dress in public.
White: The language that's of concern actually states that no person shall appear in any street or public place in a dress not belonging to his or her sex. Now, that specific language is clearly homophobic and heterosexist.
White says it's a throwback to a 1881 law called the Chicago Rule, which was specifically designed to fight open homosexuality. He says it taints the rest of the law, and the law should be thrown out because it violates the state's human rights law. However, legal experts say this, too, will be hard to prove.

Back on the riverside, Jack Maloney wants to build a fishing pier and improve the pathways down to Pieffer's Beach. He thinks if he can make the beach more accessible and attractive to the public, it will no longer be attractive to men seeking anonymous sex. It worked just upstream: the notorious river flats area was cleaned up after former state senator John Chenoweth was killed there in 1991.

Even if making improvements would solve the neighborhood's problem, the men would probably just move to another part of the river. They'd also keep getting ticketed - unless, perhaps, Steven Pinkal wins his case.
Pinkal: The public needs to be aware that it's discrimination. You know it wasn't my intention in the beginning. I was just goin' to clear myself. Now, it's turned into a lot bigger issue and I think it needs to be dealt with.
If Pinkal is found guilty, he and Attorney Kyle White say they'll appeal the decision.