Larry Craig Photo: WDCpix

U.S. Sen. Larry Craig (R-Idaho) cannot withdraw his guilty plea in the infamous 2007 Minneapolis-St. Paul airport bathroom sex case, the Minnesota Court of Appeals ruled today in an “unpublished” opinion. That means Craig is stuck with having copped in District Court to a misdemeanor charge of disorderly conduct for allegedly signaling an interest in engaging in sex via foot taps from one restroom stall to another in which an undercover police officer was staked out.

The decision’s “unpublished” status means the court doesn’t want its ruling used as precedent in future cases — interesting, in view of charges that Craig sought special treatment or was being singled out for preferential or especially harsh treatment because of his status as a U.S. senator. Craig issued this statement:

I am extremely disappointed by the action of the Minnesota Court of Appeals. I disagree with their conclusion and remain steadfast in my belief that nothing criminal or improper occurred at the Minneapolis airport. I maintain my innocence, and currently my attorneys and I are reviewing the decision and looking into the possibility of appealing. I would like to thank all of those who have continued to support me and my family throughout this difficult time.

Whether the 28-year Senate veteran who is retiring this year plans an appeal isn’t known; Craig’s office has not yet returned a phone call to the Minnesota Independent. One recorded message said the staff was busy boxing up his files.

The case hinged on Craig’s plea, as cited in today’s ruling:

I am pleading guilty to the charge of Disorderly Conduct as alleged because on June 11, 2007, within the property or jurisdiction of the Metropolitan Airports Commission, Hennepin County, specifically in the restroom of the North Star Crossing in the Lindbergh Terminal, I did the following: Engaged in conduct which I knew or should have known tended to arouse alarm or resentment or [sic] others, which conduct was physical (versus verbal) in nature.

And the offense that’s at the root of all this? As cited in today’s opinion:

The complaint stated that appellant “peered” into the restroom stall occupied by the officer for as long as two minutes and that the officer “observed the Defendant tap his foot several more times and move his foot closer to the stall occupied by [the officer.  The officer] moved his own foot up and down slowly.  [The officer] observed the Defendant move his right foot so that it touched [the officer‟s] left foot, at which point the Defendant‟s foot was within the stall area of the stall occupied by [the officer].”

Hudson, Toussaint and Kalitowski

A three-judge panel consisting of Judge Natalie E. Hudson, Chief Judge Edward Toussaint, Jr., and Judge Thomas J. Kalitowski issued the decision. The opinion has two parts. First, the panel denied Craig’s arguments that his plea wasn’t specific about what action he was pleading to, and that there wasn’t an adequate judicial record of the hearing where his written plea was entered. (There is a record, the judges said; Craig simply didn’t provide them with a transcript.) It was Craig’s fault, the judges wrote, that he didn’t ask for a second hearing to establish what had occurred at the first — but at the time, Craig was still hoping to keep the case hush-hush.

The court didn’t buy Craig’s insistence that no “others” were bothered by his conduct (besides the officer in the next stall) as the charge requires. The judges said they took “others” to mean people who were also in the restroom at the time, and anyway the presence of “others” beyond one other person can be theoretical.

Craig’s late-in-coming entrapment defense also didn’t move the judges, who found that, for one thing, the senator initiated the bathroom dialog, and for another, failing to assert entrapment isn’t grounds to take back a guilty plea.

In the second part of the opinion, the Court of Appeals panel found that the law under which Craig was charged does not inhibit free speech to an overly broad extent. The senator knew that his foot-tapping might “arouse ‘alarm, anger or resentment’” as required under the law, and also that it was an invasion of privacy.

The American Civil Liberties Union of Minnesota (ACLU-MN) filed an amicus brief in the appeal at the request of Craig’s attorneys, ACLU-MN Executive Director Chuck Samuelson told MnIndy in an interview today. Samuelson conceded that the Court of Appeals “didn’t like our arguments,” which focused on the free-speech aspects of the case. But he contends, “Their reasoning is wrong.”

They talked about the language ‘to arouse’ … that inciting language. They say [Craig] was doing it. But they ignored that the guy who started it [the airport police sergeant] was not Craig [the official charge quoted above notwithstanding].

Frankly the court is really conflicted on this one. My gut tells me they just wanted this case to go away. The ACLU’s position in these sorts of laws have been used against gay men for a long, long time. If the police were concerned about public sex in the bathroom, then they should have followed best practices of police departments — put a sign on door, send cops through … the activity will probably disappear from that restroom and move someplace else. …

This really is entrapment, in our opinion. There is a line there that we think this sergeant crossed. By [the court's] reasoning the police officer is more guilty than Craig.

This a classic first amendment case of government suppression of unpopular speech. If this is inappropriate, what’s the status in heterosexual pickup bars? They [Craig and the officer] weren’t engaging in or planning on having sex in the bathroom. They were planning it [for somewhere else].

There is a double standard. Speech is speech. This never got more than speech. You can’t regulate this speech and then not regulate the speech of heterosexual people. … We don’t have police officers posing as [sexually available] women or whatever. …  The antidote to bad speech is more speech — the sign on the door [prohibiting bathroom sex].

With this ruling, Craig regains his rightful place as Minnesota’s most prominent issue of public-sex-in-a-bathroom-stall — eclipsing the more recent occurrence at the Metrodome during a University of Minnesota football game, where a sex act actually took place in a bathroom stall.

“The conduct at the football game,” Samuelson says, “now that was conduct.”