ACLU Comes to the Aid of Sen. Craig

The ACLU has filed a friend-of-the-court brief in support of Sen. Larry Craig's move to have his guilty plea to disorderly conduct withdrawn. Craig pleaded guilty after being arrested in a restroom at the Minneapolis-St. Paul International Airport in June.

The brief argues that both the law Craig was accused of violating and the sting operation by police that nabbed him crossed a constitutional line. The ACLU says that sting operations of the nature conducted in the airport in June must be "carefully crafted" to ensure that people engaging in constitutionally protected speech do not become ensnared.

"The record shows there is a very significant possibility this defendant pled guilty on the basis of conduct that could not constitutionally have been the basis for a conviction," the brief said. "Given that very real possibility, the interests of justice would best be served by allowing him to withdraw his plea so that the Court can determine if a constitutional prosecution was possible at all here, and if so, whether the defendant could constitutionally be convicted."

"Senator Craig has not always been a great friend of civil liberties, but you shouldn't have to endorse the civil liberties of others to keep your own," said ACLU Executive Director Anthony Romero in a press release today.  "Government should make public restrooms safe for all, but it should do so in a manner that is really designed to stop inappropriate behavior, rather than destroying the lives of people who might have no intention of doing anything illegal."

The ACLU of Minnesota filed the brief along with the national organization. Charles Samuelson of ACLU-MN says that if the plea is overturned, and the case goes to trial, the state will have to prove that Craig violated the law. "They had no case" when Craig was arrested for the reasons the ACLU outlines in the brief.

And a trial case could change the way Minnesota law enforcement polices disorderly conduct enforcement. "It will have an impact on the implementation of those laws," said Samuelson. Samuelson said that this case has shed light on an area of law enforcement that often remained hidden. People arrested for charges similar to Craig's almost never question the legality of the charges or the sting operations. Samuelson said ACLU-MN has had three or four cases in the last few years that, if they had gone to trial, the defendants would likely have won.

Even the actions of Craig's arresting officer and prosecutor are cause for some concern, he said. "The actions described have been criticized not just by the Minnesota ACLU but also the majority of criminal defense attorneys in the state," said Samuelson.

A larger issue in this case is that has given the general public insight into the process. "Most people don't have any contact with police other than traffic tickets. A lot of people were appalled by the behavior of the police and prosecutor. Under pressure, Craig was manipulated, and treated rudely. This is standard operating procedure," said Samuelson. "And if people don't like it, they need to voice their opinion about it."

Samuelson said that if a three-term U.S. senator can bend under pressure and plead guilty to a crime that may not be a crime, imagine how individuals marginalized communities that don't know the law would react to that type of confrontation.

The ACLU brief includes some tips for law enforcement to deal with lewd conduct, tips that the Department of Justice have recommended for years. "The real motive behind secret sting operations like the one that resulted in Senator Craig's arrest is not to stop people from inappropriate activity. It is to make as many arrests as possible -- arrests that sometimes unconstitutionally trap innocent people," said Romero. "If the police really want to stop people from having sex in public bathrooms, they should put up a sign banning sex in the restroom and send in a uniformed officer to patrol periodically. That works."