ACLU Says Secret Sting Operation Used to Arrest Senator Larry Craig Was Likely Unconstitutional

September 17, 2007

Tells Court to Allow Senator to Withdraw Plea

FOR IMMEDIATE RELEASE
CONTACT: media@aclu.org

> Amicus Brief: Craig v. State of Minnesota
> Video: ACLU Backs Sen. Larry Craig (Good Morning America, 9/17/2007)

NEW YORK – The American Civil Liberties Union today submitted a friend-of-the-court brief to a Minnesota District Court urging it to allow Senator Larry Craig to withdraw his guilty plea because the secret sting operation used to arrest him was likely unconstitutional. 

"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 Anthony Romero, Executive Director of the ACLU. "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."

In its brief, the ACLU argues that the government can arrest people for soliciting public sex only if it can show beyond doubt that the sex was to occur in public.  Solicitation for private sex, regardless if it occurs in a bar or a restroom, is protected speech under the First Amendment.  When free speech rights come into play, police enforcement actions must be "carefully crafted" so that they don’t unnecessarily ensnare people who are engaging in constitutionally protected speech. 

The secret sting operation used by the police to arrest Senator Craig was not "carefully crafted" to avoid ensnaring innocent speech, says the ACLU.  Alternatively, posting a sign that the restroom is being monitored is an effective means of deterring public sex without risking trampling on free speech rights and illegally trapping someone who might not intend to have sex in public in the first place.   In fact, many law enforcement agencies, including the Minneapolis Police Department and the U.S. Department of Justice, recommend signs rather than secret sting operations as enforcement mechanisms.
(See: www.cops.usdoj.gov/mime/open.pdf?Item=1460)

"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 Romero.  "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."

A copy of the ACLU’s brief is available at
www.aclu.org/freespeech/gen/31842lgl20070917.html

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