ACLU’s Craig filing contested

Prosecutors in Minnesota say the restroom sex solicitation sting that ensnared a U.S. senator from Idaho included plenty of other cases where suspects followed “the very same pattern of conduct,” then engaged in sex acts on the spot.

“These outcomes from the same conduct in which the defendant engaged are clear indication that the sexual exchanges that were to take place were to take place in the public bathroom, and often at floor level visible to others under the dividers,” Prosecutor Christopher P. Renz wrote in court documents filed Thursday.

Renz was asking the court to dismiss a “friend of the court” brief filed by the American Civil Liberties Union of Minnesota in support of Idaho Sen. Larry Craig, who is seeking to withdraw his guilty plea to disorderly conduct charges. Craig maintains an undercover officer misconstrued his foot movements and hand gestures under the restroom stall wall as a sexual solicitation, and that he did nothing wrong.

The ACLU’s brief argued, in part, that the sting was unconstitutional, because people have a constitutional right to solicit others for sex, though not to engage in sex acts in public. The Minnesota organization’s director, Chuck Samuelson, said earlier this week, “Our client is not Sen. Craig, but rather freedom of speech.”

But Renz argued Thursday that the case doesn’t involve an invitation for private sex. “The suggestion … that the defendant’s conduct was an invitation for private sex, which defendant denies, and therefore cannot be criminalized is not only legally flawed, but is at odds with the experience of the airport police officers in other cases involving similar conduct,” he wrote.

Craig was arrested June 11 in a men’s room at the Minneapolis-St. Paul Airport. About 40 other men were arrested as part of the same sting operation over a four-month period.

Craig has announced his intent to resign from the Senate on Sept. 30 unless he can clear his name by that date. He has a court hearing in Minneapolis next Wednesday on his bid to withdraw his guilty plea.

Craig maintains that he pleaded guilty out of “fear” and “panic” because of a Boise newspaper’s investigation into whether he had engaged in homosexual sex in the past. He denies being gay. He also cites the arresting officer’s suggestion that a guilty plea would keep the incident from becoming public and maintains he never consulted an attorney between the June 11 incident and his Aug. 1 signing of the guilty plea, which was recorded Aug. 8.

The longtime politician also argues that his actions, including foot and hand gestures, weren’t criminal in themselves, so they couldn’t support a guilty plea.

Judge Charles Porter already ruled to allow the ACLU’s arguments to be considered in Craig’s case, but the state said that ruling – which came just a day after the ACLU submitted its brief – came too quickly for prosecutors to object.

Renz called the ACLU’s constitutional arguments “irrelevant” to Craig’s case and said the organization was trying to “improperly inject” its agenda into the case.

Samuelson wasn’t immediately available for comment Thursday. Judy Smith, spokeswoman for Craig’s defense team, which earlier welcomed the ACLU’s arguments, said his attorneys hadn’t had a chance to review the new filing.

The judge has not yet ruled on the prosecutors’ motion.

The prosecutors, in seeking to rule out consideration of the ACLU’s arguments, noted that the ACLU brief argues that a restroom stall, in some circumstances, can be considered a private place, rather than a public place.

Those arguments, Renz wrote, assume either that Craig was soliciting the officer for private sex, which Craig denies; or that Craig was not soliciting sex, but “rather was just entering into the private vestige of the adjacent bathroom stall multiple times with different parts of his body.”

Doing that, Renz argues, would constitute disorderly conduct.

“The Metropolitan Airports Commission began its plain clothes detail of the men’s restroom at the airport on the heels of an incident in which a private citizen was seated in the stall, the individual next to him invaded the space of the adjacent stall and looked up under the stall divider,” Renz wrote. The victim then contacted the police.

“This kind of conduct, the kind … in which the defendant engaged, angers and alarms people,” Renz wrote.

After similar actions, he wrote, others observed by officers as part of the sting exposed themselves under the stall wall, looked under the wall, or engaged in masturbation.

Renz called the ACLU’s argument that such signals could be an invitation for a tryst elsewhere in a private place “simply absurd,” especially since the place involved is an international airport where “much of its population is transient.”