ACLU supports Sen. Craig

Coriolis · Post by **Coriolis** » 2007-09-18 01:09am

CNN wrote:Conservative Sen. Larry Craig got support from an unexpected source on Monday. The American Civil Liberties Union filed a brief in court saying the lawmaker's bathroom bust was likely unconstitutional.

The ACLU filed a brief in court saying Sen. Larry Craig's arrest was likely unconstitutional.

The ACLU urged a Minnesota District Court to let Craig withdraw his guilty plea.

"Sen. Craig has not always been a great friend of civil liberties, but you shouldn't have to endorse the civil liberties of others to keep your own," said ACLU Executive Director Anthony Romero, alluding to Craig's history of voting against gay rights.

Craig, R-Idaho, was arrested in June at Minneapolis-St. Paul International Airport in Minnesota after a police officer in a bathroom stall next to him alleged the senator attempted to solicit sex. Craig pleaded guilty August 8 to one charge of disorderly conduct. When the case came to light earlier this month, Craig announced his intention to resign September 30.

But days later, it was announced Craig would fight to overturn his conviction and may not resign. He filed papers September 10 to withdraw his guilty plea.

The ACLU friend-of-the-court brief was submitted to the Minnesota 4th District Court.

"The real motive behind secret sting operations like the one that resulted in Sen. Craig's arrest is not to stop people from inappropriate activity. It is to make as many arrests as possible -- arrests that sometimes unconstitutionally trap innocent people," Romero said in a written statement.

Police must be able to demonstrate beyond a doubt that the sex was going to happen in public, he said. Regardless of whether it occurs in a bathroom or a bar, solicitation for private sex is protected speech under the First Amendment, the ACLU argues.

If the police really wanted to stop people from having sex in public bathrooms, they "should put up a sign banning sex in the restroom and send in a uniformed officer to patrol periodically," Romero said.

Patrick Hogan of the Metropolitan Airports Commission said Monday that authorities are prepared to defend the way Craig's arrest was carried out, as well as at least 41 similar arrests made this year in the same public restroom.

"Engaging in public sex in a bathroom is a crime and most people understand that without putting up a sign," Hogan said. "We saw a lot of communication about this particular bathroom on Web sites, and if we make it known that we're aware of it we can't be expected to enforce the law as effectively."

Hogan added, "We believe the charges fit the crime and Sen. Craig agreed to the charges as part of plea negotiations."

Craig has strongly denied he is gay. In an audiotaped police interview between him and the arresting officer, he repeatedly proclaimed he did nothing wrong.

The officer said Craig tapped his right foot on the floor, which the officer said he recognized "as a signal used by persons wishing to engage in lewd conduct," according to a police report.

The report alleges Craig then touched the officer's foot with his foot and the senator "proceeded to swipe his hand under the stall divider several times."

At that point, the officer said, he put his police identification down by the floor so Craig could see it and informed the senator he was under arrest, before any sexual contact took place.

"Government should make public restrooms safe for all, but it should do so in a manner that is really designed to stop inappropriate behavior, rather than destroying the lives of people who might have no intention of doing anything illegal," Romero said.

Craig has supported a federal constitutional amendment banning same-sex marriage. In 1996, he voted in favor of the Defense of Marriage Act, which denies federal recognition to same-sex marriages and prevents states from being forced to recognize the marriages of gay and lesbian couples legally performed in other states. Craig has also opposed expanding the federal hate crimes law to cover offenses motivated by anti-gay bias.

So, comments? My legal knowledge isn't that great, so I can't make a unbiased statement on the constitutionality of the policeman involved.

Darth Yoshi · Post by **Darth Yoshi** » 2007-09-18 01:02pm

But of course, the ACLU is still the devil and must be destroyed for the glory of America. Just as soon as they win this case.

fgalkin2 · Post by **fgalkin2** » 2007-09-19 01:34pm

Darth Yoshi wrote:But of course, the ACLU is still the devil and must be destroyed for the glory of America. Just as soon as they win this case.

No, they are the devil because they defend eeevil homosexuals, both open and closeted ones. You see, Craig was never a "true" Christian, he was was part of the Grand Liberal HomoAtheistMohammedan Conspiracy, working from behind the scenes to bring about the New World Order while pretending to be a good American. He was probably working for the ACLU for the get-go, giving them cases to win, thus bringing about socialism and HomoRule. So, of course, they would defend him.

Have a very nice day.
-fgalkin

Darth Holbytlan · Post by **Darth Holbytlan** » 2007-09-20 12:14am

Interesting. I assume that the ACLU wouldn't get involved unless they saw some chance of success, but my layman opinion is still that it's a long shot. I guess we'll see.

Without the guilty plea, I can see a few different approaches to try to get it thrown out. That the signals were not clearly solicitations (Craig is already arguing this), that the lewd behavior hadn't happened (the law criminalizes the act, not the attempt, by my cursory reading), that the sex being solicited wasn't necessarily going to happen in the bathroom (it might be somewhere "private"), and that sex in a stall isn't public (in the same way that defecating in a stall isn't public defecation). The quotes in the article suggest to me the first and/or third approach.

Flagg · Post by **Flagg** » 2007-09-20 12:18am

Darth Holbytlan wrote:Interesting. I assume that the ACLU wouldn't get involved unless they saw some chance of success, but my layman opinion is still that it's a long shot. I guess we'll see.

Without the guilty plea, I can see a few different approaches to try to get it thrown out. That the signals were not clearly solicitations (Craig is already arguing this), that the lewd behavior hadn't happened (the law criminalizes the act, not the attempt, by my cursory reading), that the sex being solicited wasn't necessarily going to happen in the bathroom (it might be somewhere "private"), and that sex in a stall isn't public (in the same way that defecating in a stall isn't public defecation). The quotes in the article suggest to me the first and/or third approach.

I don't believe there was a "lewd behavior" charge. There was a charge of "violation of privacy" along with the disorderly conduct or something along those lines for him staring in at the officer through the opening between the stall door and the stall itself.

Darth Holbytlan · Post by **Darth Holbytlan** » 2007-09-20 01:11am

One of his two charges amounted to "lewd behavior" although it isn't technically called that. I just didn't want to spend time digging up the exact name.

Durandal · Post by **Durandal** » 2007-09-20 01:49am

Senator Craig is an asshole and a hypocrite, and I relished in him being exposed as both. But one thing he isn't is a criminal. I have no idea why soliciting a gay man for sex in a bathroom is a crime.

Mr. T · Post by **Mr. T** » 2007-09-20 04:02pm

Durandal wrote:Senator Craig is an asshole and a hypocrite, and I relished in him being exposed as both. But one thing he isn't is a criminal. I have no idea why soliciting a gay man for sex in a bathroom is a crime.

I'm not so sure he's a criminal either but one thing that stuck out for me above anything else in the beginning days is the description of how he brushed his foot against either the foot or the leg of the cop beside him. Now I have no idea how "sexually suggestive" this foot brushing was but it's fairly easy to tell an accident from intentional and if I was in the stall and someone brushed their foot against me, particularely if it was in a suggestive manner, I'd at the very least feel extremely uncomfortable and want to get the hell out of their. However it's quite likely I'd report it to authorities and expect some sort of action to be taken.

Darth Holbytlan · Post by **Darth Holbytlan** » 2007-09-21 07:53pm

Durandal wrote:Senator Craig is an asshole and a hypocrite, and I relished in him being exposed as both. But one thing he isn't is a criminal. I have no idea why soliciting a gay man for sex in a bathroom is a crime.

I think the idea is that the sex in the stall being solicited was disorderly conduct (so much for not digging that up). The relevant statute reads:

Minnesota statute §609.72 wrote:Engages in offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others.

Presumably, the state position is that sex in a stall will disturb others in the bathroom.

Looking at the petition (PDF) again, I see that his lawyers did argue that the actual solicitation doesn't constitute disorderly conduct, so they are effectively arguing that the law doesn't criminalize the solicitation since the actual conduct didn't happen.

I also need to correct the last two defenses I suggested. The issue isn't whether the sexual activity is public or private, but whether it would be obvious enough to be publicly distressing. In option 3, it happens where no one will encounter it; in option 4, it's done quietly. (Craig: "I'm not gay, but if I were, I would be discreet when engaging in bathroom sex." Not surprised these aren't mentioned in his petition.)

It looks like the ACLU is specifically attacking with options 2 and 4 in their brief (PDF; 91KB) with constitutional and case law arguments to back it up. They specifically mention that the law has already been narrowed to only cover activity that would cause an immediate breach of the peace, and found a case where a Minnesota court ruled that gay sex in a public restroom stall had an expectation of privacy. Ignoring the whole "already plead guilty" issue, it sounds like a pretty solid argument to me.