To the People

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or TO THE PEOPLE.

Wednesday, January 16, 2008

ACLU Gets It Right... But Could Say It Better

My knowledge of law and legal precedent is slim, but this rationale from the ACLU in support of Larry Craig (which is allegedly based on Supreme Court precedent) sounds fishy:
The ACLU filed a brief Tuesday supporting Craig. It cited a Minnesota Supreme Court ruling 38 years ago that found that people who have sex in closed stalls in public restrooms "have a reasonable expectation of privacy."

That means the state cannot prove Craig was inviting the undercover officer to have sex in public, the ACLU wrote.

Even if Craig was inviting the officer to have sex, the ACLU argued, his actions would not be illegal.

I know a little more about sex than law, although not much more, unless the single-participant type counts. Practically, however, I find it hard to fathom that it's possible to expect privacy when having sex in a public bathroom. I guess it's possible in some cases, but considering the two or more sets of feet beneath the divider and the potential for noises not related to relieving oneself, I find it hard to believe that such sex would go unnoticed.

That said, I agree with the last sentence of the above quote, although I suspect it's for a different reason. I view it as entrapment that a police officer is allowed to cocktease in a public restroom with the intent of making an arrest, much like I view officers dressing as prostitutes and hitting the streets as entrapment. What gives the police the authority to set up such a sting for voluntary behavior?

Even if we assume that sex in a public restroom should be a criminal offense (which I do not necessarily believe), how could the police prove that the signals indicate an intent to have sex in that restroom? How can they prove that the foot tapper doesn't instead intend to exchange phone numbers and meet up for sex in private?

It's possible there could be some grounds for civil action between two non-police parties, but that sounds like something more complex than I'm capable or willing to address.

If anyone can provide more details about the Supreme Court precedent in the comments, I'd appreciate it. I did some quick Google and ACLU.org searches but came up empty handed.

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