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What if a person cannot find a restroom?

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Bill of Rights (From public domain.)

In court recently, I watched a public urination bench trial after my case finished. The county code carries up to six months imprisonment for such a violation.

The cop got straight to the point by testifying that he was patrolling a parking garage in one of the higher-end commercial districts in the county, and saw the defendant get out of his car, pull out his ______ (using a two-syllable word beginning with a "p" more commonly heard in a raucous bar), and urinate (but he used the three-letter word for it).

Does this cop have children? Has he thought of a milder word for this part of the male anatomy? I am all for free speech and have no interest in helping prosecutors present stronger trials for public urination charges through using words suggesting a broader and more effective vocabulary. However, were this my witness, I would have reviewed with the witness what words s/he planned to use for the obligatory testimony about the defendant’s anatomy.

The cop continued being graphic in a barhall way. On cross examination about what the cop really saw, the cop proclaimed something along the lines of: "I will be happy to demonstrate if the girls turn around." So much for political correctness, particularly with the use of "girls" as opposed to women, and the prosecutor is a woman. The judge nixed that idea, and the trial proceeded.

The defendant waived his right to remain silent, and gave a much different story from the cop’s, also humorous so long as he won. He testified that he drank substantial amounts of water at the health club, got caught in massive traffic to a restaurant business meeting, felt the call of nature on the way to the meeting and parking garage, and used a small empty soda bottle to answer the call as he was stuck on the street in traffic. He was very late on his arrival at the garage, left the filled urine bottle in his luxury car passenger floor, and went to his meeting, where he drank some beers and used the restroom twice. On his return, he decided to rid his car of the urine by going to the passenger’s side where the bottle rested, and emptying it to the ground, rather than searching for a garbage can, and even though he knew cops were nearby.

The judge acquitted after explaining that it was not an easy decision, with the cop’s unwavering testimony on the one hand, and the defendant’s detailed explanations of his efforts to keep urine off the interior of his BMW on the other hand. Had the standard of proof not been beyond a reasonable doubt, I think he would have convicted. Here, the judge reasoned that the cop might have mistakenly saw what he thought was the defendant exposed and urinating, based on the liquid hitting the ground as the defendant bent down (the defendant testified he bent down to minimize splashback). The judge said that the defendant had plenty of time to cook up his detailed testimony, but also that his testimony made enough sense about why he did what he did, including pouring out the urine right away on return to his car, seeing how much it disgusted him to have a bottle of urine in the car.

On a related note, a colleague with a separate upcoming public urination prosecution under the same Maryland county code is ready to argue that the state indecent exposure law precludes a prosecution under the county code for public urination. This is curious, in that for a defense against indecent exposure for public urination, I would argue that it is not indecent if the defendant merely was answering nature’s call when no realistic indoor locations existed to do the same. Moreover, to apply the indecent exposure laws in such a broad fashion, what is a hiker to do on a rustic trail without outhouses? 

In any event, with local and state governments strapped for cash, one would hope that public urination SWAT teams would become relics of the past. Jon Katz