7:12 pm
The All-Important Limberhand Precedent
Posted by Garance ()The one thing most people across the blogs seem to agree on is that if Sen. Larry Craig had engaged in lewd activity in the restroom stall, whether solo or in concert with another individual, he should certainly have been subject to arrest. That may well be the case — I’d love it if some lawyers could weigh in here — but there is one reasonably well-know ruling to the contrary, and it involves the state Craig represents (Idaho).
In 1990, the Idaho Court of Appeals, in State v. Limberhand, ruled that (solo) masturbation within an enclosed restroom stall was constitutionally protected behavior as the individual within the stall had a reasonable expectation of privacy within the stall. As summarized in another case:
In State v. Limberhand, 117 Idaho 456, 788 P.2d 857 (Ct. App. 1990), the defendant was arrested for obscene conduct after an officer observed him, through a four-inch hole in a stall partition, masturbating in a public restroom. This Court determined that Limberhand had a legitimate expectation of privacy in the restroom stall notwithstanding the existence of the hole.
Go figure.
(Note: This precedent would tend to lend a bit more credence to the interference with privacy charge against Craig the Minnesota court dismissed.)
August 28th, 2007 at 7:36 pm
I haven’t had time to read very much at all about the case, but do note that what is relevant here is going to be Minnesota law, not Idaho law. Just off the top of my head, I think that soliciting prostitution is illegal in Minnesota. But note that this isn’t what Craig is being charged with is privacy violation and disorderly conduct. My opinion is that a solicitation of prostitution charge would be very, very difficult to prove to begin with because Craig’s actions were ambiguous. However, the fact that Craig looked in the stall for what could be argued was way, way more than enough time to know that someone was using it is pretty damning on the privacy violation charge.
August 28th, 2007 at 8:10 pm
It had to be Limberhand…
… I don’t think I can visit a public restroom in SF ever again w/out thinking of men jerking off “solo or in concert with another individual”.
Thanks for nothing, GFR!
August 28th, 2007 at 9:25 pm
Wait, Garance, you have to clarify. Was the dude suing for the right to masturbate “solo or in concert with another individual” actually named Limberhand. If so, that’s nearly as good as Wordsworth or Chris Moneymaker (the professional poker player). With a name like Limberhand, you don’t really have a ton of options.
August 28th, 2007 at 9:35 pm
the defendant was arrested for obscene conduct after an officer observed him, through a four-inch hole in a stall partition
A four-inch hole???
August 28th, 2007 at 9:44 pm
[…] Posted by Matt Zeitlin on August 28th, 2007 Garance Franke Ruta has been investigating the legal background of Senator Craig’s lewd conduct/soliciting/cruising snafu, and found out that “in State v. Limberhand, [the Idaho Court of Appeals] ruled that (solo) masturbation within an enclosed restroom stall was constitutionally protected behavior as the individual within the stall had a reasonable expectation of privacy within the stall.” Yes, you read that right, the man who went to the Idaho Court of Appeals to protect his right to masturbate in a bathroom stall was named Limberhand. Just like Wordsworth was destined by his name to become a poet, or Chris Moneymaker was destined to become a poker player, so Limberhand was destined to….well, you can figure it out. […]
August 28th, 2007 at 9:47 pm
I’m not familiar with the local laws, but assuming that actually engaging in the act would have been a crime, then it’s not too hard to believe that an attempted act would itself be a crime.
As for the precedent you cite, you may have a point, but having read a fair amount of court decisions in cases like this, I’m pretty sure I can see the legal reasoning the state would use to argue that Limberhand does not apply — namely, that you have an expectation of privacy in a bathroom stall, even in a public bathroom, because when you go into that stall by yourself you’re using the stall for its intended purpose, and that reasonable people don’t believe there’s an expectation of privacy for two people sharing a stall for the purpose of sexual activity. I would imagine there are quite a few judges who would be swayed that way as well.
August 28th, 2007 at 11:41 pm
Anon,
Agreed. One person=expectation of privacy. Two people=suspicious.
August 29th, 2007 at 12:51 am
One person=expectation of privacy. Two people=suspicious
Three people=your average stall occupancy in the old Studio 54 restrooms!
What I find most fascinating is that, to my knowledge, the Senator has yet to say what he was actually doing, if not doing what is being argued he was doing. (oy, that sentence makes my brain ache)
C’mon Senator, give us a good story!!
August 29th, 2007 at 1:02 am
Guys, let’s not lose sight of what’s important here, the dude’s name was Limberhand!
Maybe it’s the 17 year old boy in me, but how can everyone not find this gust bustlingly hilarious?
August 29th, 2007 at 1:58 am
MZ in Oakland: Have you heard of Charol Shakeshaft? More gut-bustin’ hilarity at this yellow pages of aptronyms. Enjoy.
August 29th, 2007 at 2:43 am
When I saw the style of the case cited, I thought this post was going to be a parody. It took a LEXIS search to confirm that it is not.
Did Senator Craig actually say at his press conference that he regretted the innuendos surrounding this case?!
August 29th, 2007 at 8:09 am
Here is the relevant statute. In my humble opinion, I think he’s going to get off because it is very unclear what the intent was.
609.746 INTERFERENCE WITH PRIVACY.
Subdivision 1. Surreptitious intrusion; observation device. (a) A person is guilty of
a gross misdemeanor who:
(1) enters upon another’s property;
(2) surreptitiously gazes, stares, or peeps in the window or any other aperture of a house or
place of dwelling of another; and
(3) does so with intent to intrude upon or interfere with the privacy of a member of the
household.
(b) A person is guilty of a gross misdemeanor who:
(1) enters upon another’s property;
(2) surreptitiously installs or uses any device for observing, photographing, recording,
amplifying, or broadcasting sounds or events through the window or any other aperture of a house
or place of dwelling of another; and
(3) does so with intent to intrude upon or interfere with the privacy of a member of the
household.
(c) A person is guilty of a gross misdemeanor who:
(1) surreptitiously gazes, stares, or peeps in the window or other aperture of a sleeping
room in a hotel, as defined in section 327.70, subdivision 3, a tanning booth, or other place
where a reasonable person would have an expectation of privacy and has exposed or is likely to
expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering
the immediate area of the intimate parts; and
(2) does so with intent to intrude upon or interfere with the privacy of the occupant.
August 29th, 2007 at 8:12 am
GFR, you’ve seriously misunderstood the case.
The case did not say that masturbating in a bathroom stall is constitutionally protected behavior. What it said is that, because you have a reasonable expectation of privacy while you’re in the bathroom stall, you’re protected by the Fourth Amendment against unreasonable searches and seizures.
If the cop had good reason to believe a crime of lewd behavior was being committed - let’s say you were making noises commonly associated with masturbation, or let’s say you were to announce, “Hey, I’m secretly masturbating, here in my own private Idaho!” - then it would be reasonable for him to look through the hole to see if a criminal violation was taking place. In the Limberhand case, because the cop looked through the hole without any reason to believe the guy would be masturbating, it was a Fourth Amendment violation and the evidence was suppressed.
So yeah, if you do it in a discreet manner, it might be hard for the cops to catch you at it without violating your Fourth Amendment rights, but that’s a far cry from saying that it’s “constitutionally protected behavior.”
August 29th, 2007 at 8:16 am
This is interesting, but I think the real relevant question is: who is so desperate that they would be opening to doing Larry Craig (or being done by him) in the first place? I mean have you SEEN the guy?! He’s hideous. Bald, jowly, and with a paunch.
August 29th, 2007 at 9:11 am
One person=expectation of privacy. Two people=suspicious.
In the men’s restroom of Penn Station in Manhattan - surely, one of the most gut-wrenchingly grotesque locations on Earth - a sign explicitly prohibits stall occupany by more than one person, except when assisting a child or disabled person.
August 29th, 2007 at 11:32 am
[…] Until the sodomy laws were struck down by the Supreme Court, solicitation of sodomy was a crime in many of the states that had sodomy laws, and it was this “solicitation for sodomy” provision that allowed men who sought sex from other men to be targeted for arrest by police in, for example, public restrooms, under circumstances where there was no money or coercion involved. (More on which in a minute.) […]
August 29th, 2007 at 1:23 pm
I’m wondering if the four-inch hole in the public restroom had been used for more nefarious purposes in the past.
Limberhand is a pretty awesome name. It reminds me of the case where the Virginia ban on interracial marriage was overturned — Loving vs. Virginia.
August 29th, 2007 at 2:54 pm
Assuming Steve (comment 13) is correct as to the reasoning of the case (i.e., that evidence from the Limberhand search was suppressed on 4th Amendment grounds), this also suggests an answer to the 2 people in a stall scenario.
If an officer sees 4 legs under a stall, presumably the occupants would not have a reasonable expectation of privacy, and the officer would have probable cause to search (i.e., peek in to confirm whether any lewd behaviour was taking place).
August 30th, 2007 at 8:05 am
4″ hole in a stall partition is commonly known as a “glory hole.” Anyone j/o on the other side of a glory hole has expectations other than privacy. But then again, it’s a Idaho decision. Idn’t Craig from there?
August 30th, 2007 at 8:58 am
#12, The whole point was for him to get off (rimshot)
August 30th, 2007 at 11:05 am
Steve, you’ve seriously been overly pedantic. Garance’s wording is not incorrect. In the Limberhand (heh) case itself, the court uses similar language (quoting from Katz):
The case holds that the specific conduct of Limberhand was protected by the 4th Amendment, i.e., it is “Constitutionally protected behavior.” In your example, you’ve added new facts (e.g., making sounds consistent with masturbation) that render the behavior not Constitutionally protected. It’s not incorrect to say that masturbating in the stall of a public restroom while not making sounds is Constitutionally protected behavior.
October 30th, 2007 at 3:37 pm
I couldn’t understand some parts of this article The All-Important Limberhand Precedent, but I guess I just need to check some more resources regarding this, because it sounds interesting.
January 16th, 2008 at 10:06 am
[…] 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. […]