ACLU: Sex in stalls of public bathroom is constitutionally protected; Update: Brief added

posted at 10:06 am on January 16, 2008 by Allahpundit

Don’t shoot the messenger. They claim to have Minnesota Supreme Court precedent to back them up.

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.

“The government cannot prove beyond a reasonable doubt that Senator Craig was inviting the undercover officer to engage in anything other than sexual intimacy that would not have called attention to itself in a closed stall in the public restroom,” the ACLU wrote in its brief.

The precedent isn’t named but a little googling reveals that it’s probably State v. Bryant, 287 Minn. 205, 177 N.W.2d 800 (1970). I can’t find it online; anyone able to access a copy on Lexis or Westlaw? There’s a brief description of it in this case:

Relying on State v. Bryant, 287 Minn. 205, 177 N.W.2d 800 (1970), the state contends that a reasonable person using a public restroom can “expect that degree of privacy that the design [of the restroom] affords.” In Bryant, the Minnesota Supreme Court held that police surveillance of an enclosed toilet stall violated the user’s Fourth Amendment right to privacy. 287 Minn. at 209, 177 N.W.2d at 803. But the court also opined that had the door of the toilet enclosure been removed, “anyone using the facilities would have no expectation of privacy.” Id.at 211, 177 N.W.2d at 804.

There are two privacy rights at stake here potentially, the Fourth Amendment protection against unreasonable searches and the Fourteenth Amendment due process protection of certain forms of intimate conduct. The first is procedural while the second is “substantive,” i.e. the first asks whether the cops jumped through the appropriate procedural hoops (like getting a warrant or having probable cause) before arresting you whereas the second defines certain types of behavior that can’t be criminalized under any circumstances (like reproduction). It sounds from the excerpt like Bryant deals only with the procedural right; maybe the cops videotaped the stall without a warrant. If so, then the question for the court in Larry Craig’s case would be whether the toe-tapping etc. rises to the level of probable cause. If, on the other hand, the ACLU is also claiming a substantive due process right — and it sounds like they are based on the second half of the excerpt from the news story — then they’re also claiming that you have a constitutional right, at least in Minnesota, to shtup in the toilet so long as you’re not too noisy about it. Any reason to think the law might be on their side? Maybe. There’s a case from Idaho holding that even when the cops see you masturbating through a hole in the stall door, your expectation of privacy protects you from prosecution. Although that also sounds like more of a Fourth Amendment decision than a substantive due process one.

Oh, the name of the suspect in the Idaho case? Limberhand.

Craig’s problem here is that, if you believe the police, he solicited the officer in the stall next to him. That makes it harder to argue that he was isolated in his own little “private” enclave, attending to his business. The issue seems to come down to whether whatever’s going on in the stall is so noisy or conspicuous that it would give rise to probable cause while standing outside and not peeking in. If it doesn’t, then how do you get probable cause?

Update: A commenter wonders, doesn’t this mean the Mile-High Club is protected too? Fly the friendly skies, my friends.

Update: A reader sends along a copy of the Bryant case, which involves men having sex through a hole in the stalls of a department store restroom with the cops watching from above in a ventilation shaft. The decision’s couched in Fourth Amendment terms, although the court conspicuously doesn’t address what would constitute probable cause sufficient to overcome the expectation of the privacy. Here’s the key passage:

It is understandable that a large department store would desire to eliminate a use of restrooms that would be revolting to most people who wished to use the facilities properly. There were, however, ways of eliminating such use of the facilities other than surreptitious surveillance. The store had known about the hole in the partition for some time before defendant was apprehended, but had not closed it. The store could have removed the doors if it saw fit, so that anyone using the facilities would have no expectation of privacy; or it could have posted signs warning anyone using the facilities that they were apt to be under surveillance. But once facilities are provided wherein those using them properly are assured of privacy, the store has no right to destroy that privacy without the consent, actual or implied, of one to whom it has been assured. In the very nature of things, in the process of protecting the innocent all search and seizure prohibitions inevitably afford protection to some guilty persons; but the rights of the innocent may not be sacrificed to apprehend the guilty.

And here’s the dissent, noticing their silence:

Since it would never be possible to secure a search warrant in situations of this kind, I am of the opinion this surveillance for a limited time and purpose was reasonable and did not violate for Fourth Amendment. The alternative proposals suggested by the majority are not, in my opinion, realistic solutions.

Update: Here’s the ACLU’s very brief brief.


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The ACLU’s stall tactics revealed!

Shy Guy on January 16, 2008 at 10:10 AM

All
Can
Love
Unhindered

Tennman on January 16, 2008 at 10:14 AM

This covers bathrooms on airliners right? I’ll bet it covers fitting rooms in department stores, too. Oh, how about confessionals in churches? And the best one… Voting Booths!

trubble on January 16, 2008 at 10:14 AM

Reason has a top story up on Paul and the newsletters:

http://reason.com/news/show/124426.html

jp on January 16, 2008 at 10:15 AM

Oh, the name of the suspect in the Idaho case? Limberhand.

Too funny!

Luckedout on January 16, 2008 at 10:16 AM

Will someone please ask Romney, Clinton, and Obama what, if elected President, will they do to protect our constitutional right to have sex in public restrooms?

I think that is a good question for the next debate.

nailinmyeye on January 16, 2008 at 10:17 AM

I need to check but isn’t executing treasonous wretches okee dokee too?

bbz123 on January 16, 2008 at 10:17 AM

You gotta be kidding. Nobody’s expectation of privacy goes that far in a public bathroom. Just because someone cannot control their sexual urges does not mean it’s right.

boomer on January 16, 2008 at 10:19 AM

Will someone please ask Romney, Clinton, and Obama what, if elected President, will they do to protect our constitutional right to have sex in public restrooms?

I think that is a good question for the next debate.

nailinmyeye on January 16, 2008 at 10:17 AM

Asked and answered.

:)

Shy Guy on January 16, 2008 at 10:27 AM

This confirms that the senate does nothing but STALLS around.
Man, I crack me up…

right2bright on January 16, 2008 at 10:27 AM

Hey! Another Constitutional Right the Framers clearly must have wanted us to have but were too busy to put it in that silly document.

CABE on January 16, 2008 at 10:28 AM

This needs to go back up to SCOTUS. We have a different court now. The 1990 Limberhand case was one where a man was pleasuring himself in a bathroom stall and a police officer observed his behavior through a hole in the wall. It is funny that it is the Limberhand case…

JustTruth101 on January 16, 2008 at 10:29 AM

Reason has a top story up on Paul and the newsletters:

http://reason.com/news/show/124426.html

jp on January 16, 2008 at 10:15 AM

Yep, sent that story in to tips@hotair.com a little while ago too. It wouldnt suprise me if rockwell was the author, I could understand why Paul didnt want to out him if it was

offroadaz on January 16, 2008 at 10:29 AM

Would this be a “flushing bride”?

right2bright on January 16, 2008 at 10:29 AM

S’cuse me, but gay seks is not reproduction. I get your overarching point, AP; I’m just sayin’.

common sensineer on January 16, 2008 at 10:30 AM

A
Craig
Like
Urinal

captivated_dem on January 16, 2008 at 10:32 AM

Lies, damned lies, and Lysol.

profitsbeard on January 16, 2008 at 10:33 AM

My take on this is that the ACLU wants to uphold the right of senators and congressmen to rape the American public at will, i. e., to uphold the status quo.

snaggletoothie on January 16, 2008 at 10:34 AM

protection against unreasonable searches

Now it is becoming “protection for unreasonable searches”.

right2bright on January 16, 2008 at 10:34 AM

Interesting story… I’ll be right back… time for a potty break.

D2Boston on January 16, 2008 at 10:35 AM

I can think of a case where there was a right to privacy in the Oval Office.

Also, does this mean that Sen. Craig is admitting that he needed privacy to engage in a little gay sideshow?

faraway on January 16, 2008 at 10:37 AM

cops see you masturbating through a hole in the stall door

Peeking through a stall door should be illegal. Cops or no.

ronsfi on January 16, 2008 at 10:40 AM

Damn, these people are a danger to this country.

thekingtut on January 16, 2008 at 10:41 AM

Let’s just protect people’s right to have sex on their front lawns. After all, nobody is forced to look at your yard, so if they do look and see the act, it’s THEIR problem for looking.

I think the ACLU would agree with me.

Metro on January 16, 2008 at 10:46 AM

Just because someone cannot control their sexual urges does not mean it’s right.
boomer on January 16, 2008 at 10:19 AM

Cheating on your wife, lying to your friends and getting drunk in your home every night are not right either. That doesn’t mean it’s any of the government business.

factoid on January 16, 2008 at 10:53 AM

Pardon me for being an idiot or something, but didn’t he confess his guilt? Why can he take back his plea? Even if cleared, he will be stained for life, (pardon the pun). Does he think poeple will forget?
Oy…

redshirt on January 16, 2008 at 10:56 AM

Time to stock up on Depends so as to never have to use a public restroom again.

Brat on January 16, 2008 at 10:57 AM

Wow. Just, WOW.

This shows the corruption inherent in the legal profession. One must continuously push the envelope on law in order to gain recognition, praise, and reward. It is the judge who grants some new “right” who gets the press and a place in history. Not the one who dismisses thousands of frivolous lawsuits. When circumlocutions flourish and verbiage ceases to have meaning we wind up with foeces like this and a defense based on the meaning of the word “is.”

Viscount_Bolingbroke on January 16, 2008 at 10:58 AM

And they also say Illegal Aliens have a right to stay here in America…..Geez

DfDeportation on January 16, 2008 at 11:02 AM

Shy Guy on January 16, 2008 at 10:27 AM

Nice.

nailinmyeye on January 16, 2008 at 11:04 AM

For some reason, I just don’t think I want to touch a brief when the subject is sex in a bathroom stall. Call me crazy….

Torch on January 16, 2008 at 11:08 AM

S’cuse me, but gay seks is not reproduction.

common sensineer on January 16, 2008 at 10:30 AM

I don’t think much sex at all is reproductive anymore. Sad.

Connie on January 16, 2008 at 11:08 AM

I’m under the impression that there is good news in the sex
in bathrooms front. Because of greater social acceptance of gays and because of the opportunities provided by the internet, the sexually libertine part of the gays right movement is much less invested in defending bathroom sex. On a rational planet, the ACLU would get around to the view that bathroom is so unfashionable that they will have more important things to do than defend it, but of course we don’t live on a rational planet.

I don’t know about the law, but my feeling is that we should be able to prohibit two person in bathrooms, but the quiet bathroom masturbater should not be bothered. Two person sex implies a social interchange which makes the bathroom into public space–which can appropriately lead to discomfort from people who expect a bathroom to be a private space. It must be weird as a judge to attempt to interpret laws about these intimate matters.

thuja on January 16, 2008 at 11:09 AM

Could this be the ACLU’s long-overdue “have you no sense of decency, sir, at long last…” (McCarthy) moment?

Beagle on January 16, 2008 at 11:11 AM

Guys, guys, come on! He just wanted the Sports page.

fourstringfuror on January 16, 2008 at 11:18 AM

This covers bathrooms on airliners right? I’ll bet it covers fitting rooms in department stores, too. Oh, how about confessionals in churches? And the best one… Voting Booths!

trubble on January 16, 2008 at 10:14 AM

Since this is a Minnesota Supreme Court ruling being used, you would be limited to bathrooms on airliners while they are over Minnesota airspace. Fitting rooms probably would be covered. Confessionals only if you were having sex with the priest, since you couldn’t reasonably expect the priest to not know what was going on. Voting booths would depend on the type. With the new electronic systems they just hide what you are entering on the screen, but there is no privacy.

Why I took the time to analyze this I don’t know.

Buford on January 16, 2008 at 11:21 AM

Makes since… cleaning up a toilet seat is so much easier than having to wash the sheets every other day… Jeez, come on guys, get with the program!

Gartrip on January 16, 2008 at 11:29 AM

Cheating on your wife, lying to your friends and getting drunk in your home every night are not right either. That doesn’t mean it’s any of the government business.

factoid on January 16, 2008 at 10:53 AM

Ya and in your home is what makes all the difference. We are talking about public restrooms, not private homes. People take their children in there to use those facilities and they DO NOT need to be subjected to that type of behavior.

boomer on January 16, 2008 at 11:36 AM

I get the impression that if they had been running around the landscape of someplace like Williamsburg on or about 1780, the ACLU would have defended the right to any couple wishing to engage in a “Colonial Quickie” in the middle of the street.

pilamaye on January 16, 2008 at 11:48 AM

S’cuse me, but gay seks is not reproduction.

Neither is abortion, but that doesn’t seem to bother justices on the SCOTUS much, now does it?

Gerard on January 16, 2008 at 12:11 PM

What about the public’s right to use the bathroom stalls for their intended purpose? If two people are using a stall for something else, then they’re preventing its use by someone who may actually really, REALLY need to use it. (This would particularly be the case for airplane lavatories, in which there may be one lavatory for each 100 passengers.)

aunursa on January 16, 2008 at 12:20 PM

Really…who in their right mind thinks this is appropriate?

tlynch001 on January 16, 2008 at 12:23 PM

I’m struggling with the notion of privacy in a “public” restroom. The stalls aren’t exactly sound-proof…

…A fact that I wish cellphone users would remember.

Dave Shay on January 16, 2008 at 12:30 PM

Every time the guy in the stall next to me starts chatting away on his cellphone, I feel tempted to reproduce the “baked beans scene” from Blazing Saddles.

But getting back to the issue at hand, I wonder: was there a Muslim footbath present in the bathroom in question? (It was an airport restroom, right?) I’d love to see CAIR sue the ACLU over that. I have to admit I’d have a real struggle deciding who to root for.

Dave Shay on January 16, 2008 at 12:38 PM

Did we really HAVETA have that particular caption photo on the front page? *raises eyebrow*

Anyway, agree w/ those who say preventing stalls from intended use should be a strong argument in this case.

Not to mention that there is no denying that no matter how much one doesn’t want to be a voyeur, averting one’s eyes doesn’t help when panting and groaning and all manner of knocking up against stalls is going on in the next stall.
It’s public indecency, whether or not the stall is there. Public place.

And, just cause it’s true: ACLU is a scumbag organization (no puns allowed).

inviolet on January 16, 2008 at 1:20 PM

Thanks for adding the briefs. Boxers would’ve been OK too.

km on January 16, 2008 at 1:58 PM

First of all, the right to privacy in a public restroom, you might note from the wording already, is not legally sensible. People who use public restrooms – but not as sleazy free hotel rooms – have rights too.

Beagle on January 16, 2008 at 2:07 PM

It is understandable that a large department store would desire to eliminate a use of restrooms that would be revolting to most people who wished to use the facilities properly.

The above quote came from Bryant, supra. The America of today is only “revolted” by capitalism, the individual and the right to bear arms.

The acts of homosexuals are no longer “revolting” to Americans. To be “revolted” by same would connote some form of morality. The collapse of America continues.

OhEssYouCowboys on January 16, 2008 at 2:10 PM

This is all too complicated. If you want to have sex in a public place, sneak into ‘Redacted’ or ‘Stop-Loss’, somewhere you can be pretty sure you, and preferably a partner, can be alone.

Canadian Infidel on January 16, 2008 at 2:53 PM

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.

Drunk Report on January 16, 2008 at 2:57 PM

Dave Shay,

I’m struggling with the notion of privacy in a “public” restroom. The stalls aren’t exactly sound-proof…

Indeed. Stall walls most likely wouldn’t totally obscure the individuals engaging in sexual activity from view.

So you could possibly see these individuals and hear them without making much of an effort. Yet they should have the “expectation” of privacy?

I’m no Perry Mason, but that’s a pretty weak argument.

Mike Honcho on January 16, 2008 at 3:18 PM

In a public bathroom, I expect privacy too. And freedom from people tapping my foot from the next stall.

Tzetzes on January 16, 2008 at 5:38 PM

ACLU filed briefs?

Seems tome that somebody needs to keep his briefs on.

davidk on January 16, 2008 at 5:45 PM

When Bob Dole was running for president, some Coed asked him if he wore boxers or briefs. He replied, “Depends.”

davidk on January 16, 2008 at 5:48 PM

When Bob Dole was running for president, some Coed asked him if he wore boxers or briefs. He replied, “Depends Neither, I am a swinger.”

davidk on January 16, 2008 at 5:48 PM

Wade on January 16, 2008 at 6:14 PM

Minnesota better watch out if the aclu is successful nambla will start to flock there. Geesh I just threw up thinking that.

limowilliam on January 16, 2008 at 7:57 PM

The ACLU also thinks it is free speech to write graffiti on the stall walls.

Therefore, it is time to out the ACLU. Find the telephone number of the nearest ACLU offices and the next time you are spending ‘private’ time in one of those protected environs, write the following:

FOR A GREAT TIME CALL xxx-xxxx, ALL COMMERS WELCOME.

MSGTAS on January 17, 2008 at 8:53 AM