Craig appeal fought in court

MINNEAPOLIS – Idaho Sen. Larry Craig’s conviction in an airport bathroom sex sting should stand, prosecutors told the Minnesota Court of Appeals in a filing Friday.

Craig has asked the Appeals Court to let him withdraw his guilty plea, claiming the state’s disorderly conduct law is flawed.

Prosecutors argued that a district court judge did not abuse his discretion when he refused to let the Idaho Republican change his guilty plea after he had entered it and paid his fine. And they disputed claims made by Craig’s attorneys in their appeal brief last month that other witnesses besides the police officer who arrested Craig would have had to be present for the disorderly conduct law to apply.

That’s a misinterpretation of the statute, the prosecution’s response brief said.

Craig was arrested June 11 at Minneapolis-St. Paul International Airport by an undercover officer who said Craig tapped his feet and swiped his hand under a stall divider in a way that signaled he wanted sex. The senator was arrested in a broader sweep targeting men soliciting sex in the airport’s bathrooms.

After news of his arrest became public in August, Craig denied the allegations, insisting his actions were misconstrued and that he’s not gay. He said he had pleaded guilty to disorderly conduct in hopes of resolving the matter quietly.

The state’s disorderly conduct statute refers to conduct that a person knows or reasonably should know “Will, or will tend to, alarm, anger or disturb others” or “who engages in offensive, obscene, abusive, boisterous or noisy conduct … tending reasonably to arouse alarm, anger or resentment in others.”

The prosecution brief said the law explicitly does not require that the prohibited conduct arouse “alarm, anger or resentment,” just that it’s the sort of conduct that would tend to do so.

As they’ve argued before, prosecutors said in their brief that Craig entered the plea voluntarily as part of a deal in which a more serious charge of interference with privacy was dropped and that he should be bound by that agreement.

They also rejected claims by Craig’s attorneys that even if he had used hand signals to communicate a desire for sex, such actions would be constitutionally protected free speech.

And the prosecutors disputed claims made in a friend-of-the-court brief filed by the American Civil Liberties Union, which said that even if Craig did seek to have sex in the bathroom, he had a legal expectation of privacy. The ACLU said his alleged actions weren’t illegal. The prosecutors countered that Craig’s alleged actions all took place in a public place.

Judy Smith, a spokeswoman for Craig’s attorneys, said the lawyers were “reviewing the brief and will file a response with the court.”