Minnesota Appeals Court Rejects Larry Craig's Appeal of Disorderly Conduct Plea

The Minnesota Court of Appeals has rejected an attempt by Senator Larry Craig (R-Idaho) to withdraw his guilty plea to a disorderly conduct charge arising from his arrest on June 11, 2007, at the Minneapolis-St. Paul International Airport. An undercover police officer claimed that Craig solicited him for sexual activity in an airport restroom, by signaling to him from an adjacent hall, and had invaded his privacy by staring at him through the crack along a stall door.  Craig v. State, 2008 Westlaw 5136170 (Minn.Ct.App., Dec. 9, 2008) (not officially published).

Upon his arrest, Craig identified himself to Sergeant David Karsnia, the undercover officer, as a United States Senator, and later pled guilty to a disorderly conduct charge through the mail rather than appear personally at a hearing. Craig hoped the matter would not become public, but word got to the press and the situation blew up in his face. At first he announced he would resign his Senate seat, then decided to serve out the remainder of his term but not stand for re-election.

Craig also initiated a proceeding to withdraw his guilty plea, arguing that the conduct in which he engaged was inoffensive and, possibly, constitutionally protected as freedom of speech. The ACLU of Minnesota filed an amicus brief, supporting Craig’s constitutional claim by arguing that the statute is facially overbroad. The trial court rejected both arguments, refusing to allow Craig to withdraw his guilty plea.

Writing for the Court of Appeals, Chief Judge Edward Toussaint, Jr., rejected Craig’s argument that his guilty plea should be considered invalid because the trial court did not have a detailed picture of the facts on the basis of his written guilty plea when the judge accepted the guilty plea. In that written plea, Craig had stated: "I did the following: Engaged in conduct which I knew or should have known tended to arouse alarm or resentment or others, which conduct was physical (versus verbal) in nature." In effect, Craig had merely paraphrased the disorderly conduct statute without detailing his own conduct.

The court rejected his argument, pointing out that the trial judge also had the complaint and the arresting officer’s statement, which went into explicit detail about Craig’s conduct. Further rejecting Craig’s argument that there was no evidence that the trial judge had actually consulted the complaint and the officer’s statement, the court pointed out that a written transcript is made of all court proceedings, and Craig could have ordered a transcript to support his argument about what the trial judge did or did not consider, but had failed to do so. The court found no abuse of discretion by the trial judge in refusing to allow Craig to withdraw his guilty plea.

Furthermore, and devastating to Craig’s cause, Judge Toussaint rejected the claim that the factual basis for his guilty plea was inadequate because there was no acknowledgment that Sgt. Karsnia "had at least partially invited appellant’s conduct by means of his own conduct." Toussaint rejected the implication that Craig was entrapped on this occasion. "Entrapment exists only where the criminal intent originates in the enforcement officials of the government rather than in the mind of the accused," he wrote, quoting a prior Minnesota Supreme Court case. "Here, the complaint clearly indicates that the criminal intent originated in the mind of appellant, not in the officer."

On the more important issue of the constitutionality of police using disorderly conduct statutes to arrest gay men engaged in restroom cruising activity, Craig and the ACLU were pursuing different courses. Craig, a politically conservative married man who claims he is not gay or bisexual despite the publication of interviews with men who claim to have had restroom sexual encounters with him in the past, argued that the application of the statute to his particular conduct violates First Amendment free speech rights, but he was not attacking the constitutionality of the statute as such. The ACLU, concerned primarily with safeguarding First Amendment rights, attacked the statute directly, claiming that its language is overbroad by sweeping in significant amounts of protected speech.

The court did not agree with either argument. The ACLU’s overbreadth argument suggested that expressive conduct should be treated the same as speech, but the court pointed out that the Supreme Court has recognized more leeway for the government to deal with potentially disruptive conduct than with speech. Furthermore, the court found, as a practical matter, that the statute had sufficient clarity to avoid the ACLU’s argument that it was too vague to meet the constitutional requirement of informing the public what conduct was prohibited.

As to Craig’s attack on the application of the statute to him, the court found that the state has a legitimate interest in protecting user of public restrooms from unwanted invasions of their own privacy. "The conduct charged here occurred in a place in which the ordinary citizen might feel most eager to ‘avoid unwanted communication,’" wrote Toussaint. "Thus, there is a strong governmental interest in proscribing this type of unsolicited, communicative conduct. Moreover, in general the ‘state may regulate conduct that is invasive of the privacy of another.’ We believe that appellant’s conduct was invasive of the privacy of another and may properly be prohibited as disorderly conduct."

Craig had argued that the First Amendment protects any expressive conduct that falls short of "fighting words," a term used by the courts to describe speech that is likely to provoke a violent response. Disagreeing, the court said that the government also had a legitimate interest in protecting the privacy of others, especially those who might be considered a "captive audience" of the speaker’s message. "A person using a restroom stall is such a ‘captive’ audience with substantial privacy interests that would be intolerably invaded even by communcations less potentially offensive than sexual solicitations," wrote Toussaint. "Thus, even if appellant’s foot-tapping and the movement of his foot towards the undercover officer’s stall are considered ‘speech,’ they would be intrusive speech directed at a captive audience, and the government may prohibit them."

Craig released a statement to the press announcing that he still maintains his innocence and is looking into the possibility of appealing this ruling to the Minnesota Supreme Court. He still insists that "nothing criminal or improper occurred at the Minneapolis airport," according to a December 10 report in the Idaho Statesman.