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Cops to Answer for Gay Man’s Obscenity Arrest

(CN) - A gay man who touched the crotch of an undercover policeman's pants and was promptly arrested has a civil rights case against Michigan police, the 6th Circuit ruled.

"We have uncovered no authority that a brief touching of another person's crotch during a flirtatious conversation constitutes indecent or obscene conduct," the ruling states.

In October 2007, Randy Alman took a break from helping his mother move and drove to Hix Park in Westland, Mich., in a car belonging to his partner, Michael Barnes.

At the time Sgt. Robert Swope was heading up a Westland Police Department task force to investigate sexual activity at the park.

Kevin Reed, an undercover deputy with the Wayne County Sheriff's Department, was working on the task force and struck up a conversation with Alman.

Reed said Alman him if he wanted to "take a walk down the trail," to see if they could find "a big buck."

Alman denied making this comment, and claimed that left to take a walk and that Reed followed him. He said Reed then asked if there was a more secluded spot they could go.

As they continued talking in a small clearing, Reed allegedly flirted with Alman. He told Alman he was "a little nervous" and "new to this."

Alman reached forward and touched the zipper area of Reed's pants.

While Alman testified that he "brushed" his hand against Reed's zipper, Reed claimed that Alman "grabbed" his crotch with his "whole cupped hand" for "an instant, maybe a second or half a second."

When Reed stepped back, Alman went down on one knee and pretended to tie his shoe show that "everything was okay."

Reed then pulled out his badge and arrested Alman, while the Westland police towed his partner's car. Alman spent two hours in jail before posting a $150 bond.

The assistant county prosecutor, Luke Skywalker, dismissed the charges against Alman in December 2007. A Star Wars-focused blog,, reported in 1999 that the lawyer had changed his name from Gary Peters in 1977.

Barnes recovered his car with assistance from Equality Michigan, an LGBT advocacy organization.

In 2008, Alman and Barnes sued the arresting officers, Westland and Wayne County for violating their constitutional rights.

A federal judge in Detroit dismissed their claims, but the 6th Circuit partly reversed Monday.

The three-judge panel in Cincinnati found no evidence that Alman used force or concealment in his interaction with Reed, even in Reed's version of the story.

"There is no indication that Alman achieved the contact in question by power or compulsion, and there is nothing in the record describing circumstances that would be sufficient to create a reasonable fear of dangerous consequences," Judge Karen Henderson wrote for the panel. "There is no evidence that Alman physically hurt Reed, blocked Reed's exit path or led him to a place with limited access, made threatening gestures, resisted when Reed backed away, or did or said anything else to impose his will."

The court also found no basis for charging Alman with solicitation, disorderly conduct, or battery, and revived the civil rights claims as to these issues.

"Alman correctly argues that 'it could also be inferred from Alman's conduct that he was merely indicating sexual interest,' and that a reasonable officer 'would have needed more evidence of Alman's intentions before concluding that he was inviting Reed' to do a public lewd act," Henderson wrote.

"We have uncovered no authority indicating that a brief touching of another person's crotch during a flirtatious conversation constitutes indecent or obscene conduct, and based on the record before us, it cannot be said that the Westland police officers had probable cause that Alman was about to expose himself," the 26-page judgment continues.

As such the arresting officers do not enjoy qualified immunity.

"In our view, Swope's actions were unreasonable, and he did not have probable cause," Henderson wrote. "Swope testified that he could not hear the conversation between Reed and Alman and stated that he did not ask any follow-up questions before completing Alman's arrest after Reed told him that Alman had 'grabbed me or touched my crotch.' Without more facts at his disposal, he had no reasonable basis to believe that any of the offenses that Alman was charged with had occurred or were about to occur."

Since the officers did not have probable cause to arrest Alman, the seizure of Barnes' car was also invalid and a violation of his Fourth Amendment rights.

"The seizure of a vehicle in connection with an arrest not supported by probable cause violates the Fourth Amendment in the same manner that the arrest itself violates the Fourth Amendment," Henderson wrote.

The court upheld the dismissal of Alman's malicious prosecution and Barnes' abuse of process claims.

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