Larry Craig’s case has attorneys rethinking how police enforce lewd conduct laws

SEN. LARRY CRAIG: TRAPPED IN THE BATHROOM

Sweet as it may be to see Republican-family-values Senator Larry Craig of Idaho get caught with his hand in the nookie jar—reaching between the toilet stalls of a Minneapolis-St. Paul Airport restroom in search, allegedly, of man-on-man sex—local attorneys who defend cases involving similar lewd-conduct stings aren’t laughing too loud or too long.

And Bruce Nickerson, an attorney from Mountain View who frequently comes to Long Beach to advise colleagues on the nuances of lewd-conduct defenses, isn’t laughing at all—not even when he calls himself “the top toilet lawyer in California.” Nickerson says he’s angered that lewd-conduct stings present arrestees with such daunting stigmas and damaging consequences that they panic and choose to quietly plead guilty rather than publicly fight the charges.

“Senator Craig was a damn fool to plead guilty,” snaps Nickerson, whose entire practice is dedicated to the legal problems gays encounter because of their sexuality. “Based on the arrest report, the senator probably was not guilty of violating the law.

“All that said,” adds Nickerson, now in a lighter tone, “I did rather enjoy seeing Senator Craig squirm, after all his oppressive rhetoric and votes against gay rights.”

Stephanie Loftin, an attorney in Long Beach who has defended dozens of men accused of trolling for sexual partners in public restrooms—known as “tea rooms” in gay parlance—likewise feels a rather delicious conflict in Craig’s case.

“The hypocrisy of Senator Craig’s situation is kind of serendipitous,” chuckles Loftin. “Was Senator Craig looking for sex? Of course he was. But was he falsely arrested for lewd conduct? Would I defend him? Oh, yeah.”

Loftin and other attorneys contend that lewd-conduct laws—and particularly the undercover police operations often used to apply them—almost exclusively target male-on-male activity.

“Almost 100 percent of lewd-conduct arrests are of gay men,” Loftin points out. “Since gays and lesbians are supposedly only about 10 percent of the population, that indicates a violation of equal-protection laws. It suggests that lewd-conduct laws are being enforced selectively and unfairly. Beyond that, most of those arrested never actually do anything more than display suggestive signals.”

Long Beach Police Department Commander Rich Meyer, who just spent two-and-a-half years working the vice detail that is responsible for lewd-conduct arrests, says the LBPD makes about 20 arrests a year for illegal sexual behavior in public restrooms. He acknowledges that they are nearly all men, but he rejects Loftin’s suggestion of discrimination.

“I wouldn’t characterize these as homosexual arrests,” he says. “We are simply moving to contain offensive behavior. Having sexual conduct going on in public restrooms negatively affects the quality of life in the areas where it occurs.”

In California, lewd-conduct offenses are determined by state penal code sections 647(a) and 647(d). The first, 647(a), makes it a crime to solicit or engage in lewd conduct in a public place. The second, 647(d), outlaws loitering in or near a public restroom for the purpose of soliciting or engaging in any lewd or unlawful act. The offenses are misdemeanors, essentially boiling down to disorderly conduct. Punishment usually ends up as a guilty-plea-bargained package of about $1,300 in fines and court costs, three years of probation, maybe a little public service and an order to stay away from the place of arrest.

Because they are sex-related crimes, however, a 647 arrest often carry consequences that reverberate forever—sometimes including registering as a sex offender. 647 arrests can ruin a person’s reputation, relationships and employment opportunities. Just ask Senator Craig.

However, defense attorneys say the saddest aspect of 647(a) and 647(d) arrests is that most of them may be illegal, themselves. Over the years, court decisions have defined a violation of 647(a) as involving “the touching of the genitals, buttocks, or female breasts, for purposes of sexual arousal, gratification, annoyance or offense, by a person who knows or should know of the presence of persons who may be offended by the conduct.”

In other words, for a 647(a) crime to be committed, an offended party has to be present.

“That’s why an elaborate system of signals was created—to avoid approaching someone who may be offended,” says Anthony Cosio, another Long Beach attorney experienced in lewd-conduct cases. “The idea is that someone who knows the tell-tale signs isn’t as apt to be offended. Apparently, Senator Craig knows the codes.”

According to Craig’s well-publicized arrest report—filed by a police officer who had been sitting in a toilet stall for nearly a quarter hour, just waiting for somebody like Craig to come by—the Senator’s offenses included placing his suitcase against the stall door, tapping his foot and sliding his hand along the bottom of the partition.

There is no record of the undercover officer expressing offense to any of Craig’s silent overtures; in fact, the cop mentioned in his report that he responded by tapping his own foot.
“That’s not unusual,” says Cosio. “A lot of times police will do things like that—respond with a signal or just smile—to show they are not offended.”

“Obviously, it’s not illegal to tap your foot,” says Loftin, “or to make eye contact, or smile, or say hi. It doesn’t mean that the person is going to do what the cop says he is going to do. The cop is basically putting imagined words in the person’s mouth—words the cop wants to imagine, so he can make an arrest and get out of that bathroom.”

“I successfully argued a foot-tapping case in Orange County in 2000,” says Nickerson. “I got a Superior Court in conservative Orange County to reverse a jury conviction. And it was behavior that precisely describes the conduct attributed to Senator Craig. Another time I got a $5,000 judgment against the city of Long Beach. I got my client acquitted, and then I turned around and sued the city, and won.”

Nickerson hears what he is saying and scoffs in disgust.

“It’s an incredible waste of resources, here and across the country—the money and time spent on these stings and spent on defending people against them,” he says. “Typically, there are four officers involved in every sting—the decoy, the backup, the two waiting in the car. They all have to write reports. If it goes to trial, they all have to testify. It costs millions. And why?”

The attorneys emphasize that they are not condoning public sex nor in favor of turning restrooms into smelly singles bars. They recognize the need to protect people from predators. But few law-enforcement agencies use undercover officers to target lewd heterosexual conduct, such as deploying female vice officers who indicate they are available for free, consensual sex with straight men. Other typically heterosexual crimes like indecent exposure are also usually handled by uniformed officers.

“So why is this kind of police work done undercover when it comes to gay men?” asks Loftin. “If police are just trying to stop the behavior, wouldn’t a patrol by a uniformed officer be a better deterrent?”

Commander Meyer of the LBPD indicates that the use of undercover cops in public restrooms is diminishing as the problem diminishes. “It’s still an issue,” he says, “but not one I would characterize as huge.”

Nickerson says that the defense strategies he has helped improve during the past 25 years have led some areas of California to stop undercover stings.

“They have stopped it in the entire Bay Area, Fresno, Bakersfield, San Joaquin and Auburn,” he reports. “It’s still happening primarily in Orange County—in Anaheim and Fullerton—and in Long Beach . . . occasionally.”

Tags: bathroom sex, idaho, larry craig, lewd conduct