Patterico's Pontifications


Is This Entrapment? You Be the Judge (Updated)

Filed under: Crime — DRJ @ 9:21 pm

[Guest post by DRJ]

Let’s start with what we know: It’s legal to sunbathe topless in the Columbus, Ohio, city parks. Beyond that, it gets complicated:

“Robin Garrison, an off-duty 42-year-old firefighter, was walking in Berliner Park in Columbus, Ohio, in May when he saw a woman sunbathing topless under a tree.

He approached her and they started talking and getting comfortable, the woman smiling and resting her foot on his shoulder at one point. [Note: Photo at the link. — DRJ]

Eventually, she asked to see Garrison’s penis; he unzipped his pants and complied. Seconds later, undercover police officers pulled up in a van and arrested Garrison; he was later charged with public indecency, a misdemeanor, based on video footage taken by cops who were targeting men having sex or masturbating in the park.

While topless sunbathing is legal in the city’s parks, exposing more than that is against the law.”

It’s no surprise that the police and defense counsel view this sting operation in different lights:

Law enforcement officials say that such sting operations are an extremely effective means of lowering crime rates and stopping the criminally minded before they commit worse offenses. From early 2006 to the spring of 2007, there were 160 citations for public indecency in the city, according to an investigation by 10TV News. Among those who were caught in the stings: an Ohio State University doctor, government employees and a retired highway trooper.

But such operations veer dangerously close to entrapment, say lawyers, civil libertarians and defendants who’ve been caught in sting operations. At Garrison’s trial, his attorney argued that it was a case of entrapment. “Columbus police utilized this topless woman to snare this man,” said Sam Shamansky. “He sees her day after day. He’s not some seedy pervert.”

The argument failed to sway a Franklin County Municipal Court jury that found Garrison guilty of public indecency last month. He was ordered to stay away from the park, placed on a year’s probation and fined $250. Currently, Garrison remains on paid desk duty while the fire department conducts an internal investigation into his behavior.”

What is the legal standard for entrapment?

The definition of entrapment is police activity that induces somebody to commit a crime that they otherwise wouldn’t do,” said Gabriel Chin, law professor at the University of Arizona. “It’s not entrapment to give somebody an opportunity to commit a crime.”

Chin explains that entrapment involves an officer cajoling and persuading someone who’s resistant to the idea of committing a crime. “Just preying on a predisposition is not necessarily entrapment.”

UPDATE 12/29/2007: An article from the Columbus Dispatch has more detail that makes me believe this woman was not a police agent. See this comment.

***** Click MORE for additional entrapment stories. *****
[Edited to add the MORE code. — DRJ]

The article also discusses property-related stings in New York City and this one in El Paso, Texas:

“Another sting operation that made headlines involved police in El Paso, Texas, and U.S. Marshals sending out messages to wanted felons stating that they had “won” free Xbox 360 consoles and/or big-screen plasma TVs. The operation led to 115 arrests last month and the police picked up more than $25,000 in traffic fines.”

(In the Ramos/Compean case, the family of Osvaldo Aldrete-Davila said he was arrested after being lured to the US based on promises of money for his children. I wonder if the mechanism of his arrest was inspired by this sting?)

Operation Lucky Bag, the New York City sting, may be the most interesting and borderline of the group:

“In New York City, nearly 300 people, many of whom had no criminal record, have been snared this year through the NYPD’s Operation Lucky Bag, in which undercover officers leave a wallet, iPod or cell phone in a subway station and wait to see who picks it up. Although deputy police Commissioner Paul Browne says the program has helped cut subway grand larcenies by half, critics say that the police have gone too far.

“It’s pretty straightforward that this is a police-created crime,” said Legal Aid Society lawyer Alex Lesman, who defended a man arrested for taking a bag containing an Xbox video game box, a Sprint cell phone and cash. “The police set this whole thing up. They shouldn’t be doing that and luring people in that situation, especially in this age of terrorism where the transit system is always telling you to be on the lookout for suspicious bags.”

The judge agreed with Lesman, acquitting his client, Antonio Arroyo. “The police should concentrate their noble efforts on behalf of the city on countering real crimes committed every day,” wrote Kings County criminal court judge Matthew A. Sciarrino Jr. “They do not need to manipulate a situation where temptation may overcome even people who would normally never think of committing a crime.

Other lawyers have argued on behalf of their clients that the operation may also violate New York’s personal property law, which allows someone who finds property worth more than $25 10 days to turn it in to the owner or the police.

An NYPD spokesperson emphasized that Operation Lucky Bag does not use abandoned property; rather it is property actively left by an officer who is still in the vicinity. In addition, it is used at stations where similar crimes have been reported.”

Law professor Chin also thought Operation Lucky Bag went too far, criminalizing behavior that is wrong but understandable:

“Very few people who see a drunk with gold chains or an old lady with money sticking out of her purse succumb to temptation and assault that person,” he said. “But lots and lots of people wouldn’t turn in a wallet when it’s full of money.”

Operation Lucky Bag is troublesome because of the NY lost property statute but also because it might be hard to prove an intent to steal the goods. On the other hand, I’ve never heard of the temptation defense. I’m especially tempted by books but that doesn’t mean it’s okay to take any book I see. Plus, I like the policy of stopping small crime before it becomes big crime. Just because most people won’t assault an old lady for her purse is no reason to excuse property theft that doesn’t involve assault.


84 Responses to “Is This Entrapment? You Be the Judge (Updated)”

  1. That topless sunbathing deal sounds like entrapment to me. And I don’t say that lightly.

    Patterico (699c28)

  2. For #1 and #3, I’d say that there should be tons of layoffs at those police departments, because if they feel the need to do that, there’s obviously not much real crime going on. And if that’s not the case, then the people who came up with these stupid ideas should be fired, or busted to patrol cars.

    Is #1 entrapment? I’m not a lawyer, so I don’t know the legal answer, but I can tell you the human being non-lawyer answer isn’t even close. Of course it is. And as for #3, barring something like someone taking the money out and tossing the wallet away, that seems to me to be a pretty clear case of false arrest, at least if what the article says the law is, is correct.

    Skip (c69414)

  3. I have a question since you probably are aware of some of the logistics…When trying to bait johns, do the “prostitutes” come from the ranks of the female cops? What about a case like this topless woman…is she an uncovered undercover cop?

    Mike (8e0e3b)

  4. And the more I think about it the more #1 makes me angry. Let’s say that it wasn’t a sting, but something that really happened. Is there any question at all that both the man and the woman would have been arrested? If one is committing a lewd act, they both are. And not just because she’s topless. Being topless by itself? Fine. Being topless and asking to see it? Lewd act.

    Skip (c69414)

  5. That topless sunbathing deal sounds like entrapment to me. And I don’t say that lightly.

    Captain Ed and I discussed this. I’m not sure I agree with you.

    Topless sunbathing is legal there, so no entrapment as such. Isn’t the entrapment possibly the touching of the suspect, but, definitely when she point blank asks him to see his penis?

    I mean if the government asks people to join them in crimes, is this a valuable use of government resources and agents? I think not.

    Topless sunbathing? If she had been LEGALLY sunbathing and someone had committed a crime and exposed themselves to her, with no further requests on her part, then it would be a good arrest. Maybe a silly use of police resources. But a clean bust — no pun intended.

    Christoph (92b8f7)

  6. I’m not very sympathetic to claims of “entrapment” usually. There is the legal test and there is a practical test. The practical test for me is: Was there really any crime to prevent with this scenario?

    Clearly not. Entrapment.

    SPQR (26be8b)

  7. Topless sunbathing is legal there, so no entrapment as such. Isn’t the entrapment possibly the touching of the suspect, but, definitely when she point blank asks him to see his penis?

    Precisely. I didn’t mean that the topless sunbathing by itself was entrapment. I was just referring to the whole thing in shorthand to distinguish it from the Lucky Bag story, which is a stupid waste of resources and may be entrapment — but which isn’t as clear a case of entrapment (in my opinion) as the topless sunbathing deal.

    Patterico (699c28)

  8. It took me awhile to think through it, but here’s what I think about the topless case: I agree it doesn’t sound right, pass the smell test, or however you want to describe it. Neverthless, I think the reason it bothers me isn’t entrapment as much as the double standard that implicitly exists in this situation. Specifically, I think the fact that the woman can legally go topless creates a double standard that seems unfair.

    To illustrate why, consider whether it make any difference if we had the same facts except the woman was not topless. I think it would be more difficult (but admittedly not impossible) to see this fact pattern as entrapment. It might bother us that she touched him or that she asked him to expose himself, but most of us would expect him to refuse unless he was predisposed to participate.

    As Christoph pointed out, however, going topless is legal. To me, this creates a double standard where the woman can legally expose herself while the man can’t reciprocate without committing a crime. This isn’t a complicated legal analysis but it just doesn’t seem fair.

    DRJ (09f144)

  9. “To me, this creates a double standard where the woman can legally expose herself while the man can’t reciprocate without committing a crime.”

    DRJ, I’m going to have to contradict you there. Legally, both men and women can expose their breasts, but not their genital organs. While I have no problems personally with nudity per se, how does this create a “double standard”?

    Christoph (92b8f7)

  10. A male chest does not have the same sexual connotations.

    DRJ (09f144)

  11. The female of the species is the only one with a biological reason to ever be topless in day-to-day life — and a very important reason at that: Feeding our offspring for their health and survival.

    In any event, I don’t think a discussion about what body parts are sexiest is terribly helpful in this case. The fact is the law is applied equitably in this jurisdiction unlike many: both men and women can bare their chests; neither men nor women can bare their genitals.

    The fact some find a female chest sexy (I do) or a male chest sexy (you acknowledge such) doesn’t to my mind seem sufficient reason to criminalize the baring of either. Others disagree. As long as the law is equitable (as it is in Canada), I have no objections.

    As a legal analysis, your comment falls flat. There is no way you can argue a double standard when the exact same behavior is legal for both sexes and illegal for both sexes.

    Entrapment? Yes, per comment 7. Double standard? No.

    Well, I guess they could have topless male sunbathers asking females if they will show them their vulvas, but that would seem yet more tax dollars wasted! I’m thinking there’d be a lower hit rate too, and more because of the natural differences between the sexes than governmental discrimination.

    Christoph (92b8f7)

  12. I have problems with both the topless case and the lucky bag case.

    #1 in the situation as described, where she was the initiator of the physical contact and she asked “to see it” after a period of conversation, and no money changing hands, I would have to call this entrapment. This is a crime that she setup and instigated. If the police had not set the stage, literally, then the chances of this man pulling his toy out to play with in the park are probably very close to zero.

    #3 Depends on where and under what circumstances they arrest the guy. Did they arrest him when he got off of the train, left the subway station,or a block from the exit? If you find a bag of expensive electronic equipment in a typical New York subway, look around and ask “Does anyone know whose X-box this is?”, you will have 20 people claiming it is theirs. If the subway station was one of the unmanned stations, then there is no one in authority to turn it in to.

    I have, on several occasions, found property and turned it in to a police substation. I would be unlikely to just turn it over to someone who was showing no interest in the package until after I had determined that it was abandoned. If someone did show interest in the package, I would require them to demonstrate knowledge of the contents and possibly the origin of the contents if a receipt was in the bag. Otherwise I would turn it in to someone in authority who would sign a receipt for it. Because we all know that Transit cops, cops, and transit workers are all people too, who might find the temptation just as great as I would. A receipt would be to keep them honest as well.

    Jay Curtis (8f6541)

  13. Always get a receipt. Good call, Jay Curtis, and good reasoning.

    Also, in my jurisdiction anyway, if property isn’t claimed, you can post a notice in the newspaper and if it isn’t claimed after a set period of time, it becomes your property legally.

    Christoph (92b8f7)

  14. In #1: So this woman, who was apparently working with the police, ASKED him to see his Mr Winkey? And upon showing her, he is arrested for displaying said Mister Happy?

    Yeah, there is no way that is not entrapment. The crime for which he was arrested was specifically requested by an agent of the police (where she is a cop herself matters not).

    Scott Jacobs (a1de9d)

  15. A public park is not the place to pull out your wee wee even if someone else asks you to.

    Same would apply if it was a male cop going after gay cruisers.

    That said, I would be more sympathetic to the perp if he tried to do the right thing. For example, asking her to go somewhere private.

    If she offered to go somewhere for sex if he first showed her his penis then it’s entrapment – she is offering an inducement.

    Michael Friedman (263f0e)

  16. I’m but 54 yrs old, hunted ducks since the age of 12, I know what a duck looks like, swims like and even acts like. I can with almost the level of EXPERT call a duck a duck!

    What is the difference between tits, pussy and dicks? Despite the obvious physical differences, all three are considered some level of indecent exposure, probably in most places. Though I as well enjoy the breasticals and hey, if you have seen one naked woman, well ya sorta wanna see the rest of them naked as well! (stolen) Yeah even ugly, obese, old and those that happen to be weird.

    Oh but she was only HALF naked! Well fer sure some line was drawn there eh? So she only HALF instigated the “friendly” “welcomed”, NO REQUESTED contact by some guy fully dressed!

    Ya know I can be somewhat strong, but when a half naked women, hopefully attractive, and I are having a conservation, and such is probably somewhat close to one of intercourse, and she asks for a sampling? I’d probably comply. WHY? CUZ I’m a guy and probably desire to git laid!

    Face it tits are indeed an erotic display, we have been condition to think so, Hell women, and untold, men pay billions of dollars a year to enhance tits, the purpose of which is to attract male attention. Most in some way for personal gain, attract a better Alpha male into wedlock, increase your tips at the strip club. Some actually just to even out their physic and make the over all package more employable in the general work force. For sure increasing self-esteem. Such is not wrong. In fact none of those reasons are wrong. But fact is, make up does not make up and fake titties are nothing but make up. Well sorta hard to wash off for tomorrow.

    Nuttin all too public, though those peering through spotting scops might get a hard on over it, it’s not like I would have been prancing across the public space asking for invites to the latest party!

    I figure this is nothing short of a direct result of additional, unneeded funding, from Homeland security! I mean the Patriot act was of course intended to fuck over fuckers and fuckees as well right?

    Shouldn’t they concentrate their efforts on the internet protecting 15 yr olds that think it would be great to fuck a 20, 30, 40 something or even a 50 yr old? Or maybe, GASP, real terrorists, the intended purpose and sold to us by the MSM reasons for the need for such an act?

    If the “war on terrorism” progresses as fast as the “War on Drugs” has, I figure all citizens should grab their ankles right now and you may, no are required, and recommended, to supply your own lube, to drop’em and bend over!

    Civil disobedience is an obligation for citizens if they are ever to remain free! The problem is actually educating the civilian population of such. But then of course within the confines of ANY courtroom the attorneys that created the legal system seems to have an upper hand. Justice has no place in a legal system. Just the system.

    All for one and one for all, Judge we have a 8AM tee time on Wed right?

    As far as property seizure laws go? These need much more clarification. If a public entity sized private property, and particularly property that does not belong the the defendant/s. What has been accomplished for the public gain? Annual rent/err taxes stop! Any actual improvements to such do the same.

    you either own something or you actually don’t, and if you are paying a bank payments for such, then you do not own it! So reality, no matter what you may be doing with it the responsibility lies with the lender? Right?

    NO? Why not? Oh you say the lender can’t be held responsible for the criminal behavior of those making payments for a property that is actually owned/pledged by the lender? BS! How about the manufacture of a gun being held responsible for those who might happen upon such and use it to kill another?

    Finally in summary, or less. Our system is run amok of the inept and mostly of those that desire to make our prison system the largest of all time. Oh wait I think we are there already. Oh well, it only costs 75K a year to house each prisoner.

    I think it’s time, actually well past time, to put this oppression in it’s place.

    But such is just an opinion, like a tit or cock, or pussy, or belly button. We all have them. Well gender specific items that is! 🙂

    TC (1cf350)

  17. The first case is entrapment primarily because many men who would otherwise never consider exposing themselves would do so when asked by a woman, especially a topless one. This was “police activity that induces somebody to commit a crime that they otherwise wouldn’t do” because it is such an uncommon situation, and if men exposing themselves to topless sunbathers has proven to be a problem, it has been because the nonpolice sunbathers did not want or ask for the exposure.

    I think the notion of public indecency properly depends on the probability of being seen by people who may not want to see you — potential victims. If you go behind a tree to urinate, look around to confirm that no one can see you, and then “expose” yourself, you should not be seen as engaging in a crime, let alone a stigmatized sex crime. This does not change if you’re standing next to your buddy who is voluntarily there to do the same thing, or if someone is, unbeknownst to you, watching with a telescope or a hidden security cam.

    Like your fellow urinator, a woman, topless or not, who has asked to see it, shouldn’t count as a potential victim of your unclothedness.

    Now, urinating may also be banned for other reasons (it may kill plants or leave an offensive odor), but then is similar to a charge of littering, not indecency or another sex-related crime. And public sex may also be banned for a number of reasons, such as disease prevention where strangers are engaging in it, or because of an understanding that people engaged in sex acts are not generally continuously aware of their surroundings, and other people might stumble upon them. (Also that people, especially children, may be traumatized by witnessing sex acts, while merely amused or annoyed by urination or other brief nudity.)

    It is certainly possible that the man here was hoping to engage in such public sex, but it is also possible that he was hoping to take her somewhere more comfortable, and more private. Even if the police had waited until he had expressed a desire to do the former, I wouldn’t see the utility of arresting the man; the cop was equally guilty, and enticing.

    This is up there with having undercover police offer someone a toke of marijuana, and then arresting them for doing so, except that the impulse to have casual sex is a lot more common and normal (at least for young single men) than is the impulse to inhale intoxicating smoke.

    DWPittelli (2e1b8e)

  18. Everyone should be allowed to show their penis to nude sunbathers.

    Kevin (4890ef)

  19. I agree with Patterico. I’d only add that given the circumstances as described that off-duty fireman was an idiot.

    David Ehrenstein (4ce68d)

  20. I disagree with Patterico. For entrapment to be a defense it has to reach the point that the defendant’s act can no longer be said to have been voluntary. It is not enough that the police or their agents provided an opportunity for a crime or even solicited the crime. Cajoling, wheedling, begging, offering inducements are also not necessarily enough by themselves. The police conduct must be so insistent as to override the defendant’s will. Almost coercion or compulsion. Half the drug dealers in prison would not be there otherwise. Also, remember the case of DC Mayor Marion Barry? A practical way of looking at it would be to ask: “Well, what if it had not been the police?”

    And, for your viewing pleasure, here is a photo of a topless tourist getting directions from a hulking NYPD cop. NOT in a park. Might not be safe for work.

    nk (c87736)

  21. Because we all know that Transit cops, cops, and transit workers are all people too, who might find the temptation just as great as I would. A receipt would be to keep them honest as well.
    Comment by Jay Curtis — 12/29/2007 @ 12:34 am

    Very, very true, and I learned what Jay Curtis said the hard way.

    True story. A few years back was in a McDonald’s on a slow day; the only customer there. Was finishing my food when I noticed a small purse hanging off a chair nearby. Picked it up and looked inside for ID so I could call the owner and found (among other things) over $200 cash inside. Looked for a pay phone outside the door (none) so took it right to the counter (unmanned by the way; two workers were chatting behind at the grill so I COULD have, if I were a thief, walked out w/o being seen; more on this below) and asked to see the manaager.

    When she came out, I politely asked if I could use a phone to make a call since I’d found a purse and was hoping to call the owner.

    The manager responded by saying NO, I couldn’t use the phone, and also I’d better hand over the purse to her RIGHT NOW or she would call the police and have me charged as a thief. She YELLED this at me in front of two workers.

    I was flabbergasted (wasn’t it obvious to her I was already doing the right thing?) but shaken by her yelling so I meekly turned over the purse, but asked that the manager call the owner right away since there was over $200 in the purse (I said this loudly so the other employees would be sure to hear it; they were still back by the grill).

    She did call on her cell and I heard her asy to the owner the amount inside; so at least I knew this baffling woman wouldn’t be taking the money herself, something I suspected only after her immediate yelled demand for the purse.

    She took the purse in back with her, leaving me standing at the counter alone with my mouth open. I didn’t expect a thank you but it would have been nice not to be yelled and and accused of being a thief. I ended up yelling at the poor worker, who didn’t deserve it, who’d come up to see if I needed anything (I was just standing there like a fool), “She treated me like a CRIMINAL when I was being HONEST!” and stalked out.

    If I’d been smart like Jay, not to mention more assertive, I’d have either asked for a receipt for the $200 or stood there with the purse in my hand and said, “Yes, why don’t you call the police; I’ll hand over this purse with the cash in it to THEM–and they’ll decide if my actions show I’m a thief.”

    no one you know (1ebbb1)

  22. nk, the difference between that case and the drug dealers is really pretty simple. The drug dealer’s purpose is to sell drugs.

    Let’s look at a couple of different examples on that. Case #1. A known or suspected dealer exists. A sting is set up in which case someone goes in to buy drugs. Not a problem, and I wouldn’t have a big problem if the conversation was leading.

    Case #2. Attractive officer is undercover, at a club. Hits on guy at bar. Tells guy, essentially, “if you get me some you’ll get some”. He does, at which point he’s arrested. This is a big problem.

    Now legally, there may not be a difference between the two cases. But morally, ethically? There are tons of differences between the two. And regardless of whether or not there’s a legal difference, I don’t want anyone in law enforcement who can’t see the difference on the moral side.

    When I was in high school, there was a small town nearby that had one unmarked police car, and it was fairly well known to those of us in the area that the officer would drive, tailgating people, literally just driving a few feet off of the rear bumper, and then as soon as someone sped up, the lights would come on and they’d be written a ticket. It was wrong for that to happen then, and this is a very similar thing.

    Skip (c69414)

  23. If the firefighter had kept it in his pants and been arrested for soliciting sex or some “crime” other than exposing his genitalia, it would have been more clearly entrapment. He didn’t have to have to show it in public; he could have suggested a non-public viewing (altho by that stage of the encounter, the need for a happy ending was no doubt more persuasive than the curb of common sense).

    The Lucky Bag story is more troubling to me — that should cost someone his job or election.

    capitano (03e5ec)

  24. In case #1, how far was the female prepared to go in order to get an arrest? She already is on record as fondling him with her foot and asking him to expose himself; had that failed, was she prepared to use even more blandishments? Allow him to touch her breasts, or kiss him, perhaps? What’s the legal line in a case like this? Very troubling, and in my (non-professional) opinion, entrapment.

    Robert (220f5c)

  25. Who’s idea was it to show “Mr Happy”?

    If he offered, he should of been arrested, and was an idiot.

    If she asked, it’s entrapment, and he’s still an idiot.

    The whole thing a pretty big waste of resources either way.

    Gerald A (fdec88)

  26. It’s been a crime to walk in California with a penis concealed or otherwise for years now. I’m shocked that you are shocked.

    /I was expelled from AOL for typing that exact comment. ha.

    //I told the East Indian AOL complaint lady that called to discuss it with me “fuck it I was thinking about a new provider anyhow” ha heh.

    papertiger (e9a2a0)

  27. Eventually, she asked to see Garrison’s penis; he unzipped his pants and complied.

    I suspect the allegation that she asked to see it is contested. I wish the story was better written. Also, I assume the woman is one of a number of female topless sunbathers in the park who have complained of guys flashing them. IOW, you don’t have the right to whip out your dick because you see female breasts. I might add that I am not in favor of topless/nude sunbathing in public parks/beaches. Who knew that the home of Larry Flynt would be so liberal? lol

    tired (e988a4)

  28. If she had offered him weed, would that change anyone’s mind? Is it the sex part? Is it that guys feel like they’e not in control of their dicks when they’re around a topless woman?

    stef (beffb0)

  29. stef – It’s because when chicks ask guys to show them their dicks, most guys are happy to oblige, especially if the chick is topless, and the guy thinks it might lead to a happy ending. It’s a guy thing.

    daleyrocks (906622)

  30. tired – Also, I assume the woman is one of a number of female topless sunbathers in the park who have complained of guys flashing them.

    Is there anything in the articles suggesting this? Could you provide a link?

    daleyrocks (906622)

  31. tired,

    I don’t think there was a dispute about what she said:

    “On the day Garrison was charged, he was off duty but in his Columbus Division of Fire uniform. The footage shows him sitting near the woman, under a tree, and the two talking for several minutes. At one point, the woman puts her foot on his shoulder. Though she was supposed to be sunbathing, she appears to be sitting in the shade. The tape does not include audio, so it’s unclear what was said, but during the exchange Garrison unzips his pants and exposes himself.

    [Defense counsel Sam] Shamansky said Garrison saw the woman for days as he drove past Berliner Park. “She asks to see his penis and, like a fool, he does it,” Shamansky said.

    Detective Dick Elias said vice officers had set up the video because they were targeting men who were having sex or masturbating in the park — not men who had come to see her. The woman had been sunbathing topless near the front of the park for days, he said, and “had become a spectacle” with men driving by to watch.

    It is legal for women to be topless in Columbus.

    So [Police Detective] Elias asked the woman to move to the rear of the park, which she did. But men still drove by to see her. Another man, whose name wasn’t mentioned, was charged the same afternoon as Garrison for exposing himself to the woman.”

    Here’s the link to the Columbus Dispatch article from which the above quote was taken and that has more detail than the article in the original post.

    After reading this, I don’t think the woman was a police officer or agent. It sounds like the police were generally monitoring activity in the park with video (not audio) surveillance. If that’s the case, it’s difficult to see this as entrapment and easy to see why he was convicted.

    DRJ (09f144)

  32. Topless sunbathing lady: Assuming (always a risk) that the story is accurate, I view this as entrapment. The guy didn’t whip it out until he was requested to by a friendly topless woman.

    Operation Lucky Bag: Not entrapment. Weak use of resources (I’m way more sympathetic to the cab stings Vegas uses with “dropped” property, because they have a target audience who ought to know better.)


    Dope stings: Drug dealers aren’t sitting there with all their meth thinking, “Whatever will I do with all this meth. Perhaps I will use the eleven ounces I have in my house today.” They’re going to sell. Having cops as available buyers isn’t close to entrapment.

    Prostitution stings: For both the prostitute and the john stings with undercover cops, they’re usually set up in areas where people are peddling their wares. Again, these people would be participating, if not for getting caught. Not normally close to entrapment. (Side note: Yes, they usually use officers for both sides. Not topless ones, though.)

    Bait car stings: Keys in the ignition, often enough, on these – but taking a car is a big deal, and generally the people who take cars are serial car thieves. (Car thievery is a tremendously recidivist crime.) Not entrapment, and a good use of resources. (This would also apply to other valuable pieces of property.)

    Pawn shop stings: “Hey, I need to move this jewelry for whatever you can give me right now, but you might not want to sell it right away.” Pawn shops have special obligations, and stinging them is a good use of resources to prevent their acting as fences. Not entrapment, and a good use of resources.

    The far end of entrapment claims I’ve seen are the “Not good use of resources,” type, and not actually entrapment. The sunbathing lady is different. That’s a bad use of resources and entrapment, in my view.


    JRM (355c21)

  33. Oops! DRJ’s 31 came in while I was writing 32. If she’s not an agent of the state, it’s not entrapment. Cancel previous message.


    JRM (355c21)

  34. What exactly makes you an agent of the state? Being paid? Or is just being under the direction of a state actor sufficient?

    In any case, I think my statement from above stands. As soon as she does the sexually provocative acts described in the article, she should have been charged. And in fact, I’d have zero complaints here, if, in fact, she had been as well as him.

    Skip (c69414)

  35. From daleyrocks’ link (and thanks!):

    “10TV PHOTOGRAPHER: Sir, why would you do something like that in a public park?


    AN: Whatever it is, undercover vice officers are now taking these men to jail and impounding their cars.

    UNDERCOVER OFFICER: We’re locking up as many as possible. We’re trying to make a different statement now that it is a serious violation as opposed to just giving them a piece of paper and letting them walk away and come back to court at a later date.

    AN: We wanted to know why men like John Vetterhoeffer do what they do.

    VETTERHOEFFER: I’m being arrested. Public indecency, is that correct?


    VETTERHOEFFER: I was on my way up north to have lunch and I just stopped in and my luck turned bad that’s all.

    AN: Do you think it’s a public safety issue, though?

    VETTERHOEFFER: I have to say yes, I do.

    AN: So why do you do it?

    VETTERHOEFFER: I’m stupid. I mean, I have no other answer for it. I’m not that kind of person, I’m just, unfortunately, stupid.

    Is everyone in Columbus this honest? In a perverse way, it’s refreshing.

    DRJ (09f144)

  36. Another reason why juries are so important.

    Kevin Murphy (0b2493)

  37. More useful info from the Columbus Dispatch:

    Firefighter ordered to stay out of city park after indecency conviction
    Tuesday, November 13, 2007 8:42 PM

    A Columbus firefighter was ordered to stay out of Berliner Park after a jury convicted him today of exposing himself there.

    Judge Michael T. Brandt of Franklin County Municipal Court also ordered Robin Garrison to pay a $250 fine and placed him on one year’s probation. After a short trial, a jury found the firefighter guilty of public indecency, a fourth-degree misdemeanor.

    Whether Garrison, 42, can respond to emergencies at Berliner Park in his official capacity needs to be clarified, his attorney, Sam Shamansky, said tonight.

    Garrison, of Woodbridge Lane in Baltimore, was off-duty but wearing a T-shirt with a Columbus Fire logo when he was caught unzipping his pants and exposing himself to a topless woman in the park May 30.

    Shamansky, who argued that police had used the woman to trap Garrison, said that he plans to appeal on the grounds that Brandt didn’t instruct the jury on entrapment.

    “They clearly knew what she was doing and arrested people as part of her outrageous conduct,” Shamansky said of Columbus police.

    But Shamansky said the sentence was fair otherwise.

    “He didn’t punish Robin for going to trial,” he said.

    The topless woman wasn’t a police officer. Columbus allows topless women in public places.

    daleyrocks (906622)

  38. The Ohio Legislature also substantially modified and expanded its definition of public indecency during its 2005-2006 session:

    daleyrocks (906622)

  39. VETTERHOEFFER: “I’m stupid. I mean, I have no other answer for it. I’m not that kind of person, I’m just, unfortunately, stupid.“

    Is everyone in Columbus this honest? In a perverse way, it’s refreshing.

    Comment by DRJ — 12/29/2007 @ 9:29 am

    LOL–yeah it is refreshing. I feel kind of sorry for him even though it is his fault. BTW, all I can think of when he says “I’m not that kind of person” is the guy in Changing Lanes when he leaves the scene of an accident and does other selfish things, and keeps saying over and over through the movie “That’s not really me, to do that”–the point being of course that what you choose to do, even under stress, is of course exactly “who you are.”

    no one you know (1ebbb1)

  40. I have, on several occasions, found property and turned it in to a police substation.

    Comment by Jay Curtis — 12/29/2007 @ 12:34 am

    That was exactly my question about the Lucky Bag scenario. On at least two occasions I’ve found lost wallets, taken them home, and contacted the owners via their driver’s license info.

    I thought I was being a Good Samaritan. Are you telling me I could have been arrested?

    PB (df860b)

  41. Hmm, if she was not a police agent isn’t she just as guilty as his accomplice?

    nk (c87736)

  42. nk – I’m sure DRJ will keep us abreast of the situation.

    daleyrocks (906622)

  43. NK,

    Wasn’t he arrested for public indecency – exposing himself? Her exposure was topless, and legal.



    DRJ (09f144)

  44. But if she asked him to expose himself isn’t she at least guilty of solicitation or accessory before and during the fact?

    nk (c87736)

  45. Probably, but my guess is the police didn’t want to charge her because they didn’t want to use witness testimony and they didn’t have audio. However, I hope they used the threat of prosecution to strongly encourage her to stop this behavior.

    DRJ (09f144)

  46. I will say this, regarding the vice cops, this case should have been “station adjusted”.

    nk (c87736)

  47. I don’t know what “station adjusted” means, NK. Can you explain it?

    DRJ (09f144)

  48. No formal complaint filed. The police check out the suspect — if he’s in all other respects a solid citizen and no priors they let him go. He gets off with three or four hours in the holding pen, ink on his fingers and a $150.00 tow charge for his vehicle.

    (I have a hilarious story involving such a station adjustment but I don’t know how many Chicago vice cops read this blog and if I told it they’d immediately identify my client.)

    nk (c87736)

  49. P.S. In Illinois, all misdemeanor charges are at the discretion of the police. Only felonies need the prosecutor to make the decision whether to charge.

    nk (c87736)

  50. I’m surprised they didn’t do that anyway since he worked for the Fire Department.

    DRJ (09f144)

  51. I don’t think there was a dispute about what she said . . .

    Where does it say she testified under oath or a third party heard her say that she asked him to expose himself? All you are reporting is the defense atty’s version. But as someone already pointed out, she did not work for the police, there was no state action, and therefore no entrapment.

    These people arguing that it is entrapment reminds me of the guys who get up in court after popped for solicitation and claimed they were entrapped because the cop was so beautiful.

    As to her behavior, who cares? Even if she was a prostitute and solicited him, that doesn’t give him the right to whip it our right there and then. It’s gotten to the point people can go to parks because of all the perverts. Enough already.

    tired (e988a4)

  52. Make that can’t go to the parks.

    tired (e988a4)

  53. tired,

    You may be right that she didn’t say anything provocative but one of the linked articles mentioned there were actually 2 men arrested that day for exposing themselves with this woman. My guess is she used the same behavior both times, but I admit that’s only my guess.

    In addition, it didn’t help the defense’s legal case to claim she said those words if she wasn’t an agent of the police. I assume the defense was appealing to the jury’s sympathy, basically with a “The Devil made me do it” defense.

    DRJ (09f144)

  54. As to her behavior, who cares? Even if she was a prostitute and solicited him, that doesn’t give him the right to whip it our right there and then. It’s gotten to the point people can go to parks because of all the perverts. Enough already.

    All right, so let me get this straight:

    A woman sunbathing with her breasts exposed is just fine.

    A man who exposes himself after being solicited by a flirtatious woman to do so…is a pervert who needs to face The Law.

    I mean, who did he flash? The woman asked him to. Would a reasonable person expect that a woman who asks to see your penis doesn’t want to see your penis?

    CliveStaples (73307b)

  55. Even if she were a police agent, entrapment in a completed crime is one heck of a hard sell. It’s so easy for the prosecution to rebut by showing how willingly, and even cheerfully, the defendant went along. In inchoate crimes, such as solicitation and conspiracy, it’s almost as hard (see the case of Matt Hale who was convicted for the solicitation of the murder of a federal judge by a wired criminal FBI informant), but you have some chance to prove “yeah, the police made me think about it but I didn’t do it and that goes to show that I would not have even thought about it if they hadn’t put the thought in my head”.

    nk (c87736)

  56. These are quality of life issues, Clive. I live across the street from a park where I take my five-year old daughter when the weather is good. We try hard not to teach her a nudity neurosis but what both of them did is a little too much. Get a room, sir and madam.

    nk (c87736)

  57. A woman sunbathing with her breasts exposed is just fine.

    Under the applicable municipal code it is legal. As I already noted, I don’t agree with the statute.

    Would a reasonable person expect that a woman who asks to see your penis doesn’t want to see your penis?

    Who cares what she wants? The complainant is the City of Columbus. They don’t want to see the guy’s penis. Portions of most urban parks can’t be used because of public lewd conduct. Even firemen need to exercise self control.

    tired (e988a4)

  58. My opinion that this was entrapment was based on the way I originally understood the story: that the sunbather was a cop and asked to see the guy’s privates. If not, it’s a different situation.

    Patterico (9d71c0)

  59. Come on, Pat! How many female cops do you know who would strip to the waist and act as a decoy? 🙂

    tired (e988a4)

  60. This is a good example of a cognitive disconnect.

    Some people have a hard time accepting that topless sunbathing in an ordinary public park is not only legal, but morally and socially acceptable. If so, it’s very hard for such people to support and endorse the notion that a law enforcement officer might be permitted to engage in that conduct for purposes of trying to attract would-be criminals.

    The irony — perhaps the double-cognitive disconnect — is that those same people logically ought to be the same folks who would most enthusiastically support prosecutions for indecent exposure.

    The explanation of the disconnect, though, comes from the fact that those folks basically believe that there’s an insufficient distinction between female breasts and male genitals for purposes of legal line-drawing. And that belief actually finds support in other laws: For example, in Houston, our oft-challenged (and so far colossally ineffective) city ordinance restricting “sexually oriented businesses” (including strip clubs) criminalize the display of naked female breasts, but not male ones, along with genitalia of both sexes.

    If this story causes you problems (especially as originally presented, with it being an undercover (hah!) police officer exposing her breasts), then ask yourself this: Do you also condemn, as entrapment or improper on some other policy grounds, sting operations in which female law enforcement officers pretend to be prostitutes? Does it make a difference in your analysis whether the officer is posing as a common streetwalker working a public intersection or an exclusive appointment-only callgirl?

    (FWIW, were I czar of such policy decisions, I’d make it illegal to expose female breasts and genitalia in public places like parks, yet decriminalize private, consensual, adult but commercial activities including strip clubs and prostitution.)

    Beldar (cfc87d)

  61. I don’t know whether this is typical of other jurisdictions or not, but Texas has codified the entrapment defense in Texas Penal Code § 8.06:

    (a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.

    (b) In this section “law enforcement agent” includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.

    As a practical matter in the real world, not many defendants end up winning with entrapment defenses. Under state criminal procedural law in Texas, for example, you pretty much have to abandon all of your other possible defenses and put the defendant on the stand to testify as to his state of mind, during which testimony he/she isn’t permitted to contest having actually committed the criminal act:

    To establish an entrapment defense, an accused must produce evidence that: (1) the conduct of the law enforcement agent, as viewed from the subjective standpoint of the defendant, induced the defendant to commit the crime; and (2) the inducement was such that it caused an ordinarily law-abiding citizen of average resistance to nevertheless commit the offense.

    However, if the defendant denies that she committed the offense, she will not be entitled to an entrapment instruction. This rule was developed because entrapment assumes the offense was committed, so denial of that offense would be inconsistent with that defense. The defendant is not required to plead guilty, but she cannot introduce positive evidence that she did not commit the act.

    Torres v. State, 2002 WL 370014 (Tex. App. — Houston [14th Dist.] 2002, no pet’n) (unpublished nonprecedential decision, based on appellate court’s determination that this is all well-settled law). It’s very common for judges to refuse to give an entrapment instruction, or permit the defense lawyer to argue entrapment in closing argument, when his client has quibbled on the stand about whether he committed any of the requisite acts with the requisite intent.

    Beldar (cfc87d)

  62. “stef – It’s because when chicks ask guys to show them their dicks, most guys are happy to oblige, especially if the chick is topless, and the guy thinks it might lead to a happy ending. It’s a guy thing.”

    Of course. Thats why the guys are so concerned with making sure that this is entrapment. To preserve their safety when this fantasy occurs.

    But doesn’t your ‘guy thing’ explanation mean that all guys have a predisposition to whipping it out when asked to? Thats what makes it not entrapment. no?

    stef (2b5cca)

  63. Beldar #61,

    Are you sure you aren’t a mind-reader? Because that’s exactly how I feel about this and, if I could, that’s the way I’d write the law.

    DRJ (09f144)

  64. Beldar, first of all, I first read the posting as indicating that the woman was a police officer. I find a distinction between the prostitution sting and what I interpreted as a police woman sunning herself topless in a park, and then inviting the exposure. In the first, such stings occur in locations where it is usually a commonly accepted location to find and solicit prostitutes. The decoy does a service not merely in arresting “johns” but also in discouraging people from being there in the first place because of the risk of being decoyed.

    I did not see those benefits in the park case, but if I misinterpreted the events, my opinion is likely to change.

    SPQR (26be8b)

  65. Again, most urban parks are off limits due to public lewd behavior. Last summer, my gf and I planned to go on an early evening hike. When we got there, there had to be well over 50 young men hanging out near the foot of the trail. A patrol car drove pass, and they all disappeared like magic. I would hate to imagine how many more guys were already in the bushes. This type of illegal behavior is a big problem. And no, it doesn’t matter if it is 2 guys going at it or a guy and a woman. I don’t want to see it.

    tired (e988a4)

  66. Interesting that JRM and I both agreed that the sunbathing lady case was entrapment — when we thought the sunbathing lady was a cop.

    Patterico (699c28)

  67. Wow, it looks like patterico and Balko agree that the sunbather stunt was a bad idea.

    joe (c0e4f8)

  68. Entrapment. At the point where she asks him to show his dick, he is enticed to commit a crime he would not otherwise commit. Argue whatever you want from any other perspective, but from a legal perspective it IS entrapment, and that’s all that matters. As a law student, I can tell you that the jury made the wrong decision.

    nate (d86f64)

  69. joe, nate, and others who still think this was entrapment: Did you miss comments #31 and #67 ?

    Hint-cum-giveaway — apparently, she was neither a cop nor an agent of the government. So, if a random citizen asks you to commit a crime, and you do so, no entrapment. Capisce?

    Christoph (92b8f7)

  70. Oh — afterthought. If the police, responding to public complaints of men having sex and masturbating in a park, didn’t arrest a man who took out his penis, that would be pretty negligent on their part, wouldn’t it?

    Christoph (92b8f7)

  71. Chris, I agree with you. If the police didn’t put a topless woman in the part who asked him to show her his dick I don’t think it was entrapment.

    I did miss those comments btw. I was just shocked that pat and the agitator seemed to agree.

    joe (c0e4f8)

  72. lol w. Joe — me too.

    Christoph (92b8f7)

  73. Look at the ABC news article- originally titled “Topless woman lured perverts for police.” At the point where police are using her as if one of their own to set up a sting operation, she becomes a de facto agent of the state whether she is a cop or not.

    In the end, it depends on the facts of the case, which the media, to the best of their efforts, hasn’t determined adequately. my gut instinct here is that the police have this planned out a little bit too well for it to be a clean arrest>

    nate (d86f64)

  74. Well, nate, one thing I’ll say: According to DRJ’s comment #31:

    “So [Police Detective] Elias asked the woman to move to the rear of the park, which she did. But men still drove by to see her.”

    If this woman wasn’t an agent of the state and she knew police were working in the park and she still asked the man to pull out his johnson, then she is the the world’s ultimate bitch.

    Anyone disagree?

    Christoph (92b8f7)

  75. Prostitution stings: For both the prostitute and the john stings with undercover cops, they’re usually set up in areas where people are peddling their wares. Again, these people would be participating, if not for getting caught. Not normally close to entrapment. (Side note: Yes, they usually use officers for both sides. Not topless ones, though.)

    Interesting side note here. I am a computer consultant for a number of local restaurants. One of the stores is on El Cajon Blvd. in the Hillcrest area of San Diego, an area commonly know for prostitution. Late in the afternoon a few weeks ago, as I was exiting this restaurant, a VERY attractive, young, scantily clad woman approached me as I was getting ready to get in my car. She looked distraught and was severely under dressed for the weather. I asked her if she was okay. She then suggested that she was available and wanted to know if she could go with me.

    Now, I am not stupid, I have watched television, I have read reports about prostitution stings, and I have NEVER seen a pretty prostitute. So I added 1 + 1 and decided to have some fun. (Did I mention that she was beautiful, early 20’s, and very under dressed?) So I again asked here what was wrong and if she needed help. This started a sob story with many various problems and issues. After she told me her boyfriend was abusing here, I suggested that I call her a cab to take her to a local womens shelter. She wasn’t interested so she told me another story which had involved a pimp and how she just wanted to get away and would do anything. So, I suggested that I call the cops to come help her. Next was another story about needing to get to LA and just needing a ride as far as I was willing to go. Wink, Wink. So I offered to buy her a bus ticket. There were several much more explicit offers mixed in.

    After about 20 minutes, she threw up her hands and walked away muttering under her breath. Had she really been in trouble, I had offered her assistance in getting the help she needed for that scenario. I had offered her assistance with transportation, access to a phone to call anyone she needed to call, assistance with contacting various shelters, legal resources, etc. What I did not do was offer her anything that would compromise me. I am fairly sure she was SDPD, but I couldn’t prove it. I wish I’d had the time to sit around and watch to see what happened later. I would have liked to confirmed that she was police and not just someones daughter making a very bad choice.

    Jay Curtis (8f6541)

  76. Jay Curtis, you handled that well. I have seen pretty prostitutes, by the way, so she could have been one. But the fact she turned down a bus ticket is suspicious, if only because it could be sold back to the bus company for cash.

    Christoph (92b8f7)

  77. Actually, sad story on the subject of pretty prostitutes.

    Back when I used to smoke, I was taking a ferry from Vancouver Island to North Vancouver and met a beautiful and well-dressed 18-year old girl reading a large and fairly serious novel. I asked her if I could buy a smoke off her and she just gave me a couple and we talked. She was very intelligent. We shared poetry we had each written and she told me about wanting to go back to school and how she had gotten off drugs recently. She didn’t look the type at all. We exchanged phone numbers and email addresses.

    The next day I had business around Vancouver’s awful and infamous Main and Hastings intersection. There she was (exactly at the location of this photo). She was obviously high and out of it. I said something to her, but she looked embarrassed to see me. In any case, she was under the control of a large shirtless violent-looking pimp.

    That’s the end of the story.

    Christoph (92b8f7)

  78. NK, I’m not sure where you get your definition of entrapment. What I recall is more like the definition Beldar provided. “Induce” does not mean “force,” only that the criminal disposition originated with the police rather than a weak but generally law-abiding defendant. If the sunbather was working with the cops, it’s entrapment. If she wasn’t, it wasn’t – but in that case, query why she wasn’t charged as well.

    Xrlq (18ec2f)

  79. I may have too timid an approach to the defense of entrapment but the case Beldar cites in comment #62 is spot on. The second prong, the inducement was such that it caused an ordinarily law-abiding citizen of average resistance to nevertheless commit the offense, is a killer. On one case, I had the judge bemoan the fact that my client was an idiot who just “went along” and was now facing a mandatory minimum sentence but he nonetheless found him guilty. On another, even though my client initiated the fraudulent scheme, I was succesful in persuading the court that the crime would not have been completed without the actions of the police and I was able to reduce the conviction to attempt. In my “station adjusted” case that I mentioned earlier, the decoy’s conduct was so unprofessional that the detectives who were doing the paperwork started laughing. It’s a grasping at straws defense coupled with the pitfall of essentially accusing the police of misconduct.

    nk (c87736)

  80. A few years ago, I was sitting at my computer, minding my own business, when an AOL IM popped up. CuteYoungThing14 wanted to chat.

    I accepted, assuming that my older daughter — that age at that time — had picked an extremely inappropriate screen name, and intending to have a few choice and not necessarily gentle words with her about that. (I also considered the possibility that it was a friend who is a daughter of a friend of mine; in my social circle, friendships between folks of different generations are common; all of Steve Brust’s kids are, to one extent or another, friends of mine — as was his Mom, of whom I was ordinately and very fond — and I think every one of his kids, at one point or another, babysat mine, and I’m expecting that my kids will be babysitting his kids’ kids at some point.)

    But no. CuteYoungThing14 explained that she had met me in a chat room the night before (seemed fairly unlikely, since I don’t do chat rooms), and wanted to continue the conversation.

    I explained the above; that didn’t seem to faze her. She asked me how old I was — “Utterly ancient,” I said — and what I was wearing. To which I responded as follows:

    There’s two possibilities:

    1. Young lady, you really should have a chat with your folks about chatting with strangers on the Internet. Bad things can happen, although they won’t, this time, or

    2. No, Officer, I’m not interested in becoming the new blonde on the cell block.

    CuteYoungThing14 immediately signed off.

    Joel Rosenberg (677e59)

  81. Why didn’t the police charge her? Because the only source I can find that she induced him to expose himself is from the defense attorney.

    tired (e988a4)

  82. The police didn’t charge her with complicity because they wanted her to continue to entice men, rather than being in court. Hence, entrapment. As is the stupid NYPD bag thing.

    Those of you who’ve avoided entanglement with the officers and agents, be glad that you were not charged with interfering with the officer’s attempt to arrest you!

    htom (412a17)

  83. I emailed Jodi Andes, the Columbus Dispatch reporter, and she confirms that the police said in court that the topless woman was neither an undercover cop nor unofficially working for the police.

    It appears that the police were using the topless sunbather as an, err, attractive nuisance. The whole operation may or may not have been a waste of police resources (I’d argue that it wasn’t, given what we know), but unless the cops were lying in court, it isn’t what most folks would think of as “entrapment.”

    Joel Rosenberg (677e59)

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