The Minnesota Court of Appeals has denied Idaho Sen. Larry Craig’s appeal in a restroom sex-solicitation case, rejecting each and every one of the senator’s arguments for overturning his conviction on disorderly conduct charges, to which he earlier pleaded guilty. The senator, who was arrested in a men’s room at the Minneapolis-St. Paul International Airport in June of 2007, argued that his mailed-in guilty plea contained insufficient facts to prove the crime; that the Minnesota law required “others” to be offended by Craig’s actions and that only one undercover officer in the next stall was affected; that the undercover operation in the men’s room constituted entrapment in that the officer “invited” Craig’s conduct; and that the Minnesota disorderly conduct statute is unconstitutionally overbroad and infringes on 1st Amendment rights to free speech.
The court, in a unanimous opinion written by Edward Toussaint Jr., chief judge of the Minnesota Court of Appeals, wrote, “Appellant’s argument is unsupported by the record.” The plea was legal and adequate, the court ruled, and “others” being affected includes just one person being affected. The appeals court cited a Minnesota statute that states, “The singular includes the plural, the plural, the singular.”
They rejected any notion of entrapment, writing, “Here, the complaint clearly indicates that the criminal intent originated in the mind of appellant, not in the officer.” And they upheld the constitutionality of Minnesota’s disorderly conduct law. “Although Minn. Stat. § 609.72, subd. 1(3), is not directed particularly at public-restroom behavior, here it is the place in which the conduct occurred, as much as or more than the nature of the conduct, that determines its offensive nature. The conduct charged here occurred in a place in which the ordinary citizen might feel most eager to ‘avoid unwanted communication,’” the court wrote. The judges added, “Even if appellant’s foot-tapping and the movement of his foot towards the undercover officer’s stall are considered ‘speech,’ they would be intrusive speech directed at a captive audience, and the government may prohibit them.”
Craig pleaded guilty Aug. 8, 2007 to disorderly conduct, paying more than $500 in fines and receiving a year’s probation and a stayed 10-day jail term. An undercover officer, who was in the bathroom stall next to Craig, said the senator used a foot-tapping, hand-gesturing ritual to solicit sex. Craig was one of 40 men snared in the undercover investigation over several months, according to police reports, and most used near-identical signals. Some of the suspects admitted soliciting sex, while others denied it. The investigation was launched after complaints of lewd conduct in the busy airport restroom.
After news of his arrest and guilty plea became public, Craig strenuously denied being gay and began working to overturn his guilty plea. He initially said he’d resign from the Senate, but then changed his mind and is serving out his term, which ends this month. He didn’t seek re-election.