Larry Craig to claim arrest was a violation of the Constitution

[walldude]

Thanks to C&L for the link. This is really hilarious, Craig's lawyers are going to claim that his first amendment right to free speech includes the hand and foot gestures he made in the airport bathroom. Where the hell are the "frivolous lawsuit" republicans on this one?

http://www.startribune.com/462/story/1510465.html

"Idaho Sen. Larry Craig will argue before an appeals court that Minnesota's disorderly conduct law is unconstitutional as it applies to his conviction in a bathroom sex sting, according to a new court filing.

This is the first time Craig's attorneys have raised that issue. However, an earlier friend-of-the-court filing by the American Civil Liberties Union argued that Craig's foot-tapping and hand gesture under a stall divider at the Minneapolis airport are protected by the First Amendment."

[stranger81]

1. interesting . . . . when did he start saying they were "gestures" and not

just a "wide stance"?

[Trekologer]

43. Does this mean...

If Craig is now claiming that his gestures were speech, does that imply that his gestures were solicitations for sex?

[Mnemosyne]

Bwhaaaaaaaaaaaaaaaaaaaaaaaaa!

:rofl:

asshole

[BayouBengal07]

2. What kind of precedent does that set?

Can internet child predators claim their online encounters with minors are protected by free speech?

[TalkingDog]

46. I think as long as they just "chat" without explicitly discussing sex, yes.

Of course, then the question becomes: Who can discuss sex with minors without being arrested? In what context and with what questions?

I am friend and mentor to a 16 year old. Among many, many other subjects, we have discussed her sex life, her use of birth control: kind and efficacy. Encounters with men over 18 and the legal ramifications. The boys she finds hot. The men I find hot.

In any other instance, all it would take is for a pervy control freak parent to find our discussions objectionable and I could be in trouble. It won't happen in this instance, because her parents know me and actually appreciate what I am doing. But trust me...it could go very wrong.

You get into the tricky area of thought crimes and intention when these subjects occur, not just with minors, but even with dickweed like Craig.

Gesturing: Free Speech
Wide Stance: Depends on context (as even Craig suggested)
Peeping: Not speech. It's not intended to communicate anything.
Asking for a sexual encounter: Free Speech.

And then there is intention to act. Even if he communicated willingness for sex, how do the authorities know he wasn't going to suggest a motel?

Public sex: Illegal. It should be. I don't need to see anybody of any gender doing that to any other person of any gender.


My Favorite Master Artist: Karen Parker GhostWoman Studios

[NMDemDist2]

3. I watch GayUSA every week and they agree. everybody cruises for

sexual partners, but heterosexuals can do it at work or in a bar, gay people often don't have that choice.

cruising for sex as long as it is adults shouldn't be illegal.

[walldude]

9. I don't disagree with that but how did Craig know it was an adult

in the stall next to him? Shoe size?

[NMDemDist2]

22. you forget the part where he peered through the crack in the door for

several minutes scoping out the cop prior to the 'footsies'

[pnwmom]

24. Maybe you forgot that the cop looks very young.

Through the small slit in the door, no one could guess his age. And plenty of 13 year olds have adult sized feet.

[NMDemDist2]

28. oh bullshit, this guy is young, but not "teen age" young

[pnwmom]

31. I see high school boys every day.

And he could be one of them, particularly since Craig couldn't get that good a look through a small slit.

[0007]

44. The cop could pass for sixteen years old IMHO.

[mondo joe]

42. And that is illegal. No one has the right to be a peping tom in the pursuit of sex.

[mondo joe]

41. That's bullshit. You can cruise for sex anywhere - but you can't peep into

private stalls. That's illegal.

[The_Casual_Observer]

4. He should have thought of all this BEFORE he plead guilty.

Larry has a screw loose.

[Richard Steele]

7. Exactly. This is all COMPLETELY MOOT. Larry is a hugh moran. nm

[OnyxCollie]

17. Didn't the police drop the voyeurism charge if Craig pled guilty to the (lesser) disorderly conduct?

He did spend two minutes looking through the crack in the door.

[pokerfan]

36. Since he's reneging on the plea agreement

I think that the authorities should reinstate the peeping charge. He can't claim a first amendment right to peep into toilet stalls.

Tap Three Times:
http://www.youtube.com/watch?v=CvxHCeo-8EU

[IDemo]

5. The right to peep and bare arms?

[piesRsquare]

40. Now THERE'S a Duzy!

:rofl:

[rusty quoin]

6. I read this earlier and wondered if he had a chance of winning.

There is much to consider with toe-tapping and touching your foot to the person's foot in the next stall. If he pushes this, I don't know what the outcome would be.

[aquart]

13. Well, if he wins...

I sincerely hope that Greenwich Village (my town) throws a very large, very silly party. Other than that, I see Christian right heads exploding everywhere.

[gratuitous]

15. My analysis: very thin broth

While I'm not a lawyer, I would play one on TV if the money was right and didn't require full frontal (you're all welcome). But it doesn't appear that Craig brought this constitutional issue up at the hearing level (though the ACLU did), and as such, I don't think he can bring it up for the first time at the appellate level. There certainly are a lot of folks in jail right now who'd like to bring appeals on grounds not raised at the trial level; trying cases over and over again until you get a result you like, however, is not what our court system is designed for.

And if this report is accurate, Craig still doesn't appear to be addressing the only real issue the court can rule on: Whether or not he signed the paper acknowledging his guilt, if he understood its language, and if he voluntarily waived his right to consult with counsel. As far as I can tell, Craig signed the paper, he understood and understands what it said, and he signed it long after he had every opportunity to talk to a lawyer.

Look for the appellate opinion, if it goes anywhere beyond "Affirmed without opinion," to have a few snarky comments for the attorneys trying to get this to fly.

[aquart]

16. I love a snarky judge.

[JDPriestly]

30. Good points, but we shall see. Before Bush v. Gore, I did not

fully appreciate the degree to which courts can reach astounding conclusions. I was once involved in a case in which the appellate court set aside the lower court's decision on the facts to decide them in its own way. It was astounding but the state supreme court did not grant review so the appellate court's decision was final. So if the appellate court could decide to consider that legal argument.

[LearnedHand]

8. I agree with Senator Craig -- it WAS a violation of the Constitution

Now when's the SOB going to start demanding the exact same protection for OTHER gays?

[LadyAziz]

10. Never!

He is such a hypocrite.

[walldude]

12. Again, let me make the point that there was no way

Craig knew if it was a kid in the stall next to him or an adult. Cruise for sex all you want, as long as it's 2 consenting adults.

[aquart]

14. He kinda did. Because he was peeping first.

[walldude]

18. Hadn't heard that... Well that puts a bit of a spin on things

the dumb fuck shouldn't have pleaded guilty then, or not been peeping in the first place. He really does need to let this go, either way, he's not helping anyone. Least of all himself.

[Fovea]

11. foot-tapping and hand gesture are protected

As was my neighbor's right to ask the cop if he needed any weed...

I predict Larry's defense will be equally successful.

[Tandalayo_Scheisskopf]

20. I would have to agree.

This seems like a very thin defense. The prosecution could respond with the hoary "crying fire in a crowded theater" response they love so much: Yes, speech is protected, but when the speech or gestures are signals that are known to be used to facilitate sexual contact in a public facility, especially when that public facility is known as a place for such proscribed behavior, the state has an right and obligation to intervene through the law.

I would be extremely surprised if a judge would, in this present climate, even accept the argument in his or her court.

Now, don't get me wrong, I have had me some mighty good times being a nasty, naughty boy in public places. Part of that was the perception of "danger". That said, one of those places was never a restroom in a busy airport. Those were places I couldn't get out of too quickly. Planes to catch and all that. Plus that smell of the urinal cakes. Eww. Just doesn't do much for the "lead in pencil" quotient. I am more of a scented candle or incense kind of guy, I guess. Some potpourri, at the very least. But not a goddamn urinal cake.

[NastyRiffraff]

19. Doesn't matter if it was a kid or an adult in the stall...

I'm all for sexual rights for everyone, as long as it's between two consenting adults. Nobody...straight or gay...has the right to hit on a perfect stranger in a public restroom. Or any other place, for that matter. Of course, it's much worse if a kid is involved, but everyone has a right to expect to be left alone in a public restroom.

[Guaranteed]

33. Good post. nt

[hedgehog]

21. Is there a law somewhere that states that members of Congress

can't be detained or arrested when on the way to or from Congress?

[durrrty libby]

23. A repuke believing in the constitution ...wow

[Quixote1818]

25. I actually agree with Craig on this one n/t

[0007]

45. ......and your reason is?

On the audio tape Craig claimed the cop solicited him.
Who was baiting whom?

[Wapsie B]

26. Constitution? We have a Constitution in this country?

Who knew? :shrug:

[Ino]

27. So now that he's claiming 1st Amendment protection...

I guess he's admitting that he was indeed trying to COMMUNICATE something with those gestures, that they weren't just random movements, or picking up TP stuck to his foot, or taking a wide stance so his pants didn't fall down.

[JDPriestly]

29. Personally, I think that Crag's lawyers and the ACLU have a strong argument.

I want to see how the government argues in response.

[orleans]

34. yeah, but craig's freedom of speech does not include him encroaching

on my personal space or him hitting on me

[JDPriestly]

47. Craig concedes that he glanced (the officer says he stared or peered) into the booth,

put his suitcase in front of the door of his stall and tapped his foot or feet. So far, nothing he did encroached on the officer's space, although peering in might have, depending on how long he peered in. It would be hard to prove that any of these acts encroached on anyone's space or constituted solicitation in violation of law. The officer and Craig disagree whether Craig next either put his hand under the partition between the stalls or lifted up a piece of toilet paper on the floor so the prosecutor would have to prove that Craig encroached on the officer's space with his next act beyond a reasonable doubt. So it would come down to the credibility of Craig versus the officer. So, depending on who won on that, Craig's arrest might have violated his right to free expression.

[orleans]

48. weirdest party i ever went to was a fundraiser for a local cop to hire a lawyer

for something

one of the cops made a beer run to a local store (out of uniform) where my cousin met him, flirted and was invited to this "party." she wouldn't go without me. that's how i ended up there.

all male cops and the girls who worked dispatch in the police station.

i was talking to a cop in the kitchen and he was telling me about ways they would set up gay men in the forest preserves. the undercover would engage a man (who was thought to be cruising) in conversation. if it took the gay man too long to make a move the undercover would say some shit like: "do you like my belt?" if the guy said yes the cop would say "i'll let you touch it" or "do you want to touch it?"

as soon as the guy touched the undercover's belt he was busted.

it sounded like entrapment to me.

the cop i was talking to was also bragging about how sometimes they would drag the guy to the bathroom and shut the door on him and listen as a police dog attacked the guy.

i had my suspicions, but i came away from that "party" more convinced that cops are psychos.

this craig story has reminded me of that night in my youth. by comparison i'd hardly say there was entrapment in craig's case. (not that you're saying that either--i'm just remarking)

[Beerboy]

32. Typical.

[CyberPieHole]

35. Everyone has a civil right to pinch a loaf in private.

I don't want anyone "peeking" into my stall. "Touching" my shoes. "Gesturing" beneath the partitions. I've been around enough years to know that if someone does that, their "business" is not the same as mine.

It boggles the mind to think that Larry Craig is claiming he has a civil right to touch men and to signal them while they are in the bathroom stall. I wonder how his fellow repugs feel towards him now?

[MichaelHarris]

37. so if he argues

it was free speech won't he then be admitting to speech? What I mean to say if he's "speaking" with his hands under the stall then he's wanting to communicate something to the person in the other stall. As prosecutor my first question is, "Well Wide Stance, just what were you trying to say with your hands under the stall?"

You keep trying Happy Feet, we're behind you 100 percent.

[bridgit]

38. pft, what a JACK...ASS, part & parcel to having dismantled the constitution...

He now wants it back!!! *that's* just too precious :rofl:

[Vinca]

39. All Craig had to do to convince the world of his innocence was to ask

the cop on the tape why it was a big deal he was tap dancing in the stall and waving his hands? If I was in a bathroom and someone started to do that I wouldn't have a clue it meant anything other than the person was nuts. Larry Craig obviously knew it meant "ready for sex."