6.

Uncivil Disobedience

WHATEVER SEXUAL ACTIVITY LAWRENCE AND GARNER might have been engaged in had stopped by the time that Quinn and Lilly’s fellow officers, Deputy Tipps and Deputy Landry, entered the bedroom to see what was happening. Neither of them claimed to have seen any sex. Tipps asked Quinn, “What we got?” “Hey, these two guys were in here having sex,” Quinn responded. Lilly was silent. Having expected to find a man with a gun, the deputies were surprised that they had walked in on what Quinn told them was live sex.1

By all accounts, Lawrence was angry and belligerent. “What the fuck are y’all doing?” he shouted at the deputies. Demanding to see a search warrant, he objected, “You don’t have any right to be here.”2 He warned that he would get them fired. He repeatedly demanded to call his lawyer (in fact, he had no attorney at the time).3 That’s the point at which, according to Garner, the police started “roughing up” Lawrence. “They didn’t really like him saying that,” Garner remembered.4

Quinn’s version was different. Quinn said he refused to let Lawrence call the attorney he claimed to have, instead ordering him to put his underwear on. But Lawrence continued to argue with Quinn. “Look, I’m not going to tell you again,” he warned Lawrence, using the sort of parental phrases that were reminiscent of those he had previously used on recalcitrant citizens. “Put some clothes on or I’m going to handcuff you and sit you out there naked.” With the assistance of the deputies, according to Lilly, Lawrence put on his underwear and was handcuffed.5 Lawrence said he was already wearing his underwear.6

The deputies looked around the bedroom and noticed what Quinn described as “two pencil sketchings of James Dean, naked, with an extremely oversized penis on him.” Lawrence said that the etchings had been given to him by a “Polynesian guy” he met at a gay bar in about 1990.7 The explicit renderings of Dean’s supposed anatomy “were hung up like regular pictures” in Lawrence’s bedroom facing the bed, recalled Quinn. “Like if you were laying [sic] in the bed you could see it,” Quinn explained, unwittingly envisioning himself in the position of an aroused homosexual. “It was like his fixture, his art manifesto up there on the wall.” There were also other posters with sexual content, Quinn said “but the main thing that stuck out was that big drawing of James Dean.” Quinn remembered that the deputies later laughed about the sketches. “Did you see that sketching in there?” asked Landry, according to Quinn. “Yeah, I saw it,” replied Quinn. They lingered over the image of Dean, appraising its likeness to the legendary actor. “Well it did look like James Dean,” Landry began to remark, then added, “well, facially it looked—it was a pretty good sketch of his facial.” Quinn noted that they remarked sarcastically, “This is the kind of thing I would have in my house!” As for the gay men he met that night, Quinn later concluded that “it’s obvious what their focal point was.”8

The mood in the apartment changed as the deputies’ anxiety about weapons quickly diminished. It soon became one of derision of the gay men who were now in their custody. Garner recalled the police using the words “queers,” “fags,” and “faggots” while in the apartment. When the police noticed Eubanks’s seizure medication, Garner said, they began looking for drugs by scraping the ashtrays, laughing and apparently joking about a big drug bust. “I felt violated,” Garner remembered, “and scared.”9

According to Lawrence, after the police made disparaging and homophobic remarks about his bedroom pictures of James Dean, they handcuffed him.10 Garner said that the police patted him down (since by his account he had his pants on when they arrived), looking for the gun Eubanks had reported.11 As the entourage entered the living room, Lawrence stumbled, according to the police, or was pushed, according to Lawrence, into the coffee table, breaking a ceramic bird his mother had given him.12

The deputies sat Lawrence, Garner, and Man #4 on the couch.13 By now, more deputies had begun to arrive, including a veteran of the force, Sergeant Kenneth O. Adams.14 The deputies questioned the men about the reported gun, but they said they knew nothing about it. Quinn told Tipps, “Go get our reportee and bring him up here.”

They were soon joined by Eubanks, who confessed that he had invented the story about an armed black man in order to retaliate against Lawrence and Garner. According to the deputies, Eubanks volunteered that he was jealous because his lover, Garner, was cheating on him with Lawrence. Eubanks was “mouthing off” to the police throughout the interrogation.15

When Garner and Lawrence learned that it was Eubanks who called the police, the three men began arguing among themselves. At one point Eubanks became so agitated that he stood up, shouted at Garner, and had to be forced to sit back down.16 (Garner said that the deputies punched Eubanks to force him down.) Eubanks became especially upset when he learned that he was going to be charged for making a false report; he had apparently thought he would get Garner in trouble but never imagined that he might be on the hook himself.

While seated on the couch, Lawrence remained angry and, as Tipps described it, “kept running his mouth.” His furor was not only vented at Eubanks, who had precipitated the initial confrontation in the first place. He called the deputies “Gestapo,” “storm troopers,” and “jackbooted thugs.”17 He said the deputies were “harassing” the men simply because they were gay. Quinn remembered telling Lawrence, “I don’t know you. And I don’t know your sexual orientation. So how can I be harassing you because you’re homosexual—other than that I caught you in the act?”18

Lawrence justified his defiant words and actions by asserting that the deputies improperly intruded in his home and then, once there, mishandled him. “Would you be cooperative with the police when they had someone walk into your apartment and start dragging you around and throwing you around like you’re some kind of common criminal in your home?” he said.19

Garner was cooperative and quiet, letting Lawrence do all the talking. He complied with all instructions from the deputies. The deputies remembered Garner as slim, passive, and “extremely effeminate.” In his interview, Quinn derided Garner as a “naggy little bitch, kind of, you know, ‘nyah, nyah, nyah.’”20

While on the scene, the deputies conducted a search of the apartment for a gun, but never found one. There were also no illegal drugs in the house. They did, however, notice numerous pornographic gay magazines and videotapes inside the apartment. The magazines and videotape boxes exposed the deputies to very explicit images of men engaged in sexual acts with one another. “The apartment was loaded with pornography,” remembered Quinn. “Everywhere you looked there was some kind.” Lilly recalled a magazine rack full of gay pornography in the bedroom. The deputies perused the material, Lilly recalled, “to make sure there wasn’t no child porn, or anything of that nature.” They found none.21

Lilly remembered “a bad odor” permeating the apartment, like “people were having a lot of sex in it.” “That whole apartment smelled of gay,” he told one interviewer. “An anal odor. Very unpleasant.”22 Tipps, however, remembered no such odor.23

Now the deputies had to decide what to do with the men they had arrayed on the couch before them.

THERE WAS NO DOUBT Eubanks was going to be cited for making a false report and that Man #4 would go free, since he had neither participated in the false report nor engaged in illegal sexual conduct. But the decision about whether to charge Lawrence and Garner with a crime, and about whether to take them to jail, was more complex. One thing was clear: it was Quinn’s decision to make. Even beyond that standard protocol, the other deputies deferred to his judgment. “He knew the penal code and the law upside down, sideways, and backward,” Lilly explained. “It was his call,” Tipps agreed, since Quinn was the “priority unit” at the scene.24

The priority unit was initially uncertain whether he could cite the men for having anal sex. He was sure it must be illegal in Texas. But he was unsure whether people could be arrested for having sex in their own home. To get approval for a citation and possible arrest, he decided to call the assistant district attorney on duty—an attorney with the county prosecutor’s office who is available twenty-four hours a day to approve arrests and offer rudimentary legal advice to deputies in the field.25 The assistant D.A. on duty that night was Ira Jones, a thirty-year veteran of the prosecutor’s office.26 Although Jones could not remember the details of his conversation with Quinn, typically the assistant D.A. on intake duty listens to the officer’s account of events and makes a determination whether there is probable cause for an arrest. Sometimes the assistant D.A. will look up the text of a statute to determine whether the alleged facts fall within the letter of the law, but he or she does not conduct further legal research. The volume of calls is so heavy—every felony and misdemeanor arrest must be approved by the assistant D.A.—that there is little time available for each individual call. It is also not the assistant D.A.’s role to determine the credibility of the officer’s account. “In Texas,” declared Jones, “police officers are presumed to be credible.”27

According to Quinn, he asked Jones whether it mattered, under Texas law, that the homosexual sex occurred in a home rather than in a public place. Jones looked up the text of the statute: “§ 21.06. HOMOSEXUAL CONDUCT. (a) A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex. . . .” State law defined “deviate sexual intercourse” as follows:

§ 21.01. DEFINITIONS. In this chapter: (1) “Deviate sexual intercourse” means: (A) any contact between any part of the genitals of one person and the mouth or anus of another person; or (B) the penetration of the genitals or the anus of another person with an object.

The statute said nothing about the location of the offense. Based on this language, Jones concluded that it did not matter where the offense occurred. It was illegal in public or in private. That was all Quinn needed to hear.

Quinn now had two important choices to make. First, he had the discretion to let the men go free, charging them with nothing, just as police officers sometimes issue warnings, rather than actual citations, for speeding. Second, if he did charge the men, he had to decide whether to arrest them. Homosexual conduct was punishable by fine but not prison, so Quinn could simply issue a citation without taking them to jail.

Quinn decided to charge them with violating the Homosexual Conduct law and to take them to jail for it. It was a pivotal moment in the case. If Quinn had decided not to cite Lawrence and Garner, they would have had no grounds to challenge the state sodomy law and there never would have been a Lawrence v. Texas. Even if Quinn had only issued a citation without taking the pair to jail, they probably would have simply paid their fines and let the matter go.28 Quinn explained his decision thus:

I think the totality of the circumstances, where I think there’s a guy with a gun and I almost have to shoot, that it warranted me giving them a citation. It was a lovers’ triangle that could have got somebody hurt. I could have killed these guys over having sex. They were stupid enough to let it go that far.29

This rationale may explain why Eubanks was cited and jailed—it was his telephone call to the sheriff’s department that created mortal danger for all involved—but Lawrence and Garner had not made the false report of a weapons disturbance. They were, however, mixed up in a “lovers’ triangle” with the man who had made the false report. And while there was no state law against jealousy or infidelity to a lover, the shocking nature (to Quinn) of the relationship among the defendants, and the circumstances in which he encountered them, undoubtedly influenced his decision. Quinn said that he was personally offended that Lawrence and Garner, lacking “self-dignity,” had not stopped having sex when the deputies entered the apartment and announced their presence. “Do you realize that not once but twice we called out?” Quinn remembered telling them. “You were close to being shot.”

Quinn considered their behavior “childish” and, in an interview, even suggested that they may have known Eubanks was calling the police yet were heedlessly determined to have sex anyway. “You know, this is a private matter,” he said of the sex he saw. “Keep it amongst yourselves and keep it out of where somebody else can see you.”30 Of course, if Lawrence and Garner were having sex in Lawrence’s bedroom, they were keeping it private. But, for Quinn, Eubanks’s histrionic telephone call spilled their private matter into the public domain.

Lawrence’s foul-mouthed disrespect of the deputies also played a role in getting the men arrested, according to all the deputies. “His whole attitude toward the police was very, very poor,” observed Tipps in an interview. “I’ll be honest with you, ninety percent of the time people talk themselves into jail, or a traffic ticket, just by running their mouth.”31

There is yet another important factor to explain why Quinn might have decided to cite and arrest Lawrence and Garner: the case involved male homosexuals. On patrol, the deputies had often encountered men and women having sex in parked cars. Under state criminal law, that would be an act of public lewdness punishable by fine and jail. However, unless one of the participants is a minor or there is evidence of rape, the deputies said they had never cited or taken people to jail in these circumstances.32

Tipps bluntly explained the difference in treatment. “It was a male and a male,” he said.33 Lilly speculated that “if this had been two women it probably wouldn’t have went anywhere” because lesbians were more accepted. Like Tipps, his reaction to two men having sex was one of visceral disgust. If it had been two women (or a man and a woman), Lilly thought he might not even have “lurched back” upon seeing them.34 On paper at least, the Texas sodomy law equally applied to lesbian and gay male sex, but, as enforced, it was aimed mainly at gay men.

Lilly was also disturbed by the age and physical differences between the men. Garner was slender; Lawrence was much heavier. Garner was almost twenty-five years younger than Lawrence. “I can remember the old man,” Lilly remarked. “He was . . . and that part was kind of disgusting . . . This old guy, butt naked, and you know, flab hanging all off and then . . .” His voice trailed off into laughter at the memory.35

Whatever the reasons were for taking the men to jail, that is where they headed next. Garner and Lawrence were cited for homosexual conduct. Eubanks was charged with filing a false report, a Class B misdemeanor punishable by a short prison term. Only Man #4 was released.

As the deputies prepared to leave the scene, Quinn advised them to wash their hands. “You have to wonder,” said Quinn in an interview, “‘What have we touched? Have we come into contact with any fluids?’” In his patrol car, “I made sure I doused myself with sanitizer.”36

By now the large police presence on the scene had drawn several of Lawrence’s neighbors out of their homes, including Jeri Brock, the apartment manager. Brock, whose apartment was close to Lawrence’s, came outside in her robe. “There was a lot of commotion, people outside, a lot of cop cars. I really didn’t know a lot of what was going on at the time.” She added, “Some of the cops were being kind of loud.”37

According to the deputies, Lawrence defiantly refused to put on more than his underwear for his trip to jail, claiming that the deputies had no right to charge him for something he did in his own home. The deputies claimed that he refused to stand up and had to be physically lifted from the couch and carried to a patrol car by Tipps and Landry.38

Contradicting the officers’ claims, Lawrence and Garner said the deputies refused to allow Lawrence to get dressed and that he was thus forced out of his home in his underwear and T-shirt with no shoes, socks, money, or identification. Lawrence acknowledged that he refused to walk and was indeed dragged down the cement stairs.39

Whichever version is true, a gathering crowd watched the spectacle as Lawrence, clad only in his skivvies, was brought downstairs in handcuffs, his legs scraping the cement, causing minor wounds and bleeding. It was humiliating. “How the hell did you tolerate that?” one of his neighbors later asked him.40

Afterward, the deputies insisted that Lawrence had not been abused. In fact, Quinn said that Lawrence could have been cited for resisting transport while under arrest, but that he did not add this to the sodomy charge because Lawrence “was doing all this to entice me to do something that could show I hated homosexuals.”41

All in all, the police were in the apartment about forty minutes before they corralled the three defendants and placed them into the squad cars.42 Garner remembered that he and Lawrence were placed in one car and Eubanks in another. Lawrence thought they were all in one car, which seems less likely given the cramped space, the availability of several police cars on the scene, and the animosity that had developed among the three. Quinn believed they were each put in separate patrol cars, with Eubanks riding in his own. In any event, the ride was a short one: the Wallisville substation was just two miles away. Along the route of surface streets, they passed the convenience stores, apartment buildings, and ranch-style homes common to the terrain in east Harris County.

According to both Lawrence and Garner, they still had no idea why they were being arrested. Inside the patrol car, they heard the police talking on their radios to officials in the department. They kept hearing references to “21.06,” but were unsure what that meant.43 The police did not explain it.

At the station, the three men were handcuffed to a bench. Lawrence continued to be angry and uncooperative throughout the standard intake procedures in which defendants are asked routine questions about their background, employment, and residence. As he had been in the apartment, Garner was quiet and cooperative. After answering questions from the booking deputy, the men were placed in windowless, spartan cells at the station. The whole episode consumed about two hours.

In his arrest report filed later that night, Quinn recounted the events:

Officers dispatched to 794 Normandy #833 reference to a weapons disturbance. The reportee advised dispatch a black male was going crazy in the apartment and he was armed with a gun.

Officers met the reportee who directed officers to the upstairs apartment. Upon entering the apartment and conducting a search for the armed suspect, officers observed the defendant engaged in deviate sexual conduct namely, anal sex, with another man.44

Quinn filed two identical affidavits, each concerning one sodomy defendant.45 Both documents listed Lilly, and only Lilly, as a witness to the crime. Both were notarized by Sergeant Adams. The formal complaint against the men, a pair of additional documents signed by Quinn and notarized the same night by Adams, indicated that Quinn “has reason to believe and does believe that” each man “engage[d] in deviate sexual intercourse, namely anal sex, with member of the same sex (man).”46 These are the only official sheriff’s department documents the courts—including the U.S. Supreme Court—ever saw as the case worked its way through the judicial system.

In addition to his affidavit and formal complaint, Quinn also wrote up an Offense Report, a more detailed narrative of the night’s events for internal department use only. It was filed at 3:22 a.m. on September 18, 1998, less than five hours after the arrests. Part of the multipage Offense Report simply listed the officers who were involved, the witnesses, and addresses for each person. Interestingly, the Offense Report listed Eubanks as living at Lawrence’s address, indicating that they may have been roommates at the time. However, this was an error.

An “Investigative Narrative” in the Offense Report described the events. It is quoted in full.

OFFICERS DISPATCHED TO 794 NORMANDY #833 REFERNCE [sic] TO A WEAPONS DISTURBANCE. UPON ARRIVAL OFFICERS WERE SUMMONED AND DIRECTED TO THE UPSTAIRS APARTMENT BY THE REPORTEE WHO WAS LATER IDENTIFIED AS ROBERT ROYCE EUBANKS W/M 7-22-58.

OFFICERS VERIFIED THE REPORT VERBALLY AND MR EUBANKS REPLIED, “YES HE IS IN THAT APARTMENT UP THERE AND HE HAS A GUN.”

OFFICERS KNOCKED ON THE DOOR AND ENTERED UPON FINDING IT UNLOCKED. OFFICERS BEGAN AN ARMED BUILDING SEARCH FOR THE SUSPECT WITH A WEAPON. OFFICERS FIRST OBSERVED A HISPANIC MALE LATER IDENTIFIED AS RAMON PELAYO-VELEZ 7-2-62 IN THE KITCHEN AREA TALKING ON THE TELEPHONE. OFFICERS SECURED THE FRONT BEDROOM AND PROCEEDED TO THE BACK BEDROOM OF THE FIVE ROOM APARTMENT.

OFFICERS UPON ENTERING THE BACK BEDROOM FOUND THE BLACK MALE AND A WHITE MALE ENGAGED IN DEVIATE SEXUAL INTERCOURSE NAMELY ANAL SEX. THE MALES WERE SEPARATED. THE BLACK MALE WAS IDENTIFIED BY TEXAS ID CARD [I.D. card number here] AS TYRON GARNER DOB 7-10-67. THE WHITE MALE WAS IDENTIFIED AS JOHN GEDDES LAWRENCE DOB 8-2-43. ALL PARTIES INVOLVED HAD BEEN DRINKING, AND WITH THE EXCEPTION OF MR. PELAYO-VELEZ, WERE EXTREMELY INTOXICATED.

OFFICER SEARCHED THE APARTMENT FOR THE ALLEGED GUN AND FOUND NO FIREARMS INSIDE. OFFICERS IN THE INVESTIGATION LEARNED THAT IT WAS AN APPARENT LOVE TRIANGLE AND MR EUBANKS CALLED BECAUSE HE WAS UPSET THAT MR GARNER AND MR LAWRENCE WERE HAVING SEX. MR EUBANKS IN HIS INTOXICATED STATE DENIED HAVING BEEN OUTSIDE THE APARTMENT AS OFFICERS ARRIVED.

OFFICER CONTACTED THE DISTRICT ATTORNEYS [sic] OFFICE AND SPOKE TO ADA WILLIFORD. MS WILLIFORD WAS ADVISED OF THE CIRCUMSTANCES AND ACCEPTED A CHARGE OF FALSE REPORT TO A POLICE OFFICER ON MR EUBANKS. OFFICER CONFIRMED WITH MS WILLIFORD THAT ELEMENTS OF HOMOSEXUAL CONDUCT DID NOT REQUIRE THE ACT TO OCCUR IN A PUBLIC PLACE. MS WILLIFORD AGREED THE ELEMENTS OF THE OFFENSE WERE MET.

OFFICER FILED CLASS C CHARGE OF HOMOSEXUAL CONDUCT ON MR GARNER AND MR LAWRENCE IN JUSTICE OF THE PEACE PRECINCT THREE POSITION ONE JUDGE MIKE PARROTT’S OFFICE.

ALL SUSPECTS WERE TAKEN INTO CUSTODY AND TRANSPORTED TO THE WALLISVILLE ANNEX FOR FILING OF CHARGES. MR. LAWRENCE RESISTED BEING HANDCUFFED AND HAD TO BE FORCIBLY RESTRAINED. MR LAWRENCE REFUSED TO COOPERATE AND WALK UNDER HIS OWN POWER. MR LAWRENCE WAS CARRIED TO THE PATROL CAR. MR LAWRENCE DRAGGED HIS LEGS AND FEET AS OFFICERS CARRIED HIM DOWN THE STAIRS AND ALONG THE SIDEWALK.

MR EUBAMKS [sic] WAS EXTREMELY BELLIGERENT AND VERBALLY ABUSIVE. MR EUBANKS HAD TO BE FORCIBLY REMOVED FROM THE PATROL CAR AT THE STATION. MR EUBANKS FELL TO THE GROUND CLAIMING OFFICERS ASSAULTED HIM AND HAD TO BE PICKED UP AND CARRIED A PORTION OF THE WAY INTO THE STATION. HE THEN BEGAN WALKING UNDER HIS OWN POWER. MR EUBANKS CLAIMED TO HAVE HIV, HEART PROBLEMS, EPILEPSY, AND ASTHMA. DUE TO HIS COMPLAINTS AND MR LAWRENCE RECEIVING ABRASIONS TO HIS LEGS WHILE BEING CARRIED, OFFICER CALLED NORTH CHANNEL EMS. NORTH CHANNEL EMS ARRIVED AT THE STATION TO CHECK BOTH MR LAWRENCE AND MR EUBANKS. BOTH INDIVIDUALS REFUSED TREATMENT. ALL SUSPECTS WERE LATER TRANSPORTED TO IPC.

NO ADDITIONAL SUSPECT OR WITNESS INFORMATION AVAILABLE.47

Because there was never an actual trial in the case, neither the Texas courts nor the Supreme Court ever saw this report. It contains many more details about the circumstances surrounding the arrest than were contained in the arrest reports for Lawrence and Garner, which the courts did see. (It did not, however, contain the details Quinn would later recount in interviews about the alleged crime.) Because Lawrence and Garner ultimately did not contest Quinn’s claim that they were having anal sex, the bare-bones arrest report included all the information the courts needed to see as a matter of law.

Years after the sodomy arrests, the officers had no regrets about their actions. Quinn defended his decision to issue the citations to Lawrence and Garner and to take them to jail, stating, “When we review the entire record, the circumstances warranted what I did.” As for his place in history, Tipps observed, “I was hired to do a job and I’m going to do my job, regardless. I was either at the right place at the right time or at the wrong place at the wrong time.”48