Denver Airport– The Indecent Exposure that Wasn’t

A 2018 Colorado incident in which a United Airlines pilot was charged with indecent exposure at Denver International Airport, only to have the charges against him dismissed six months later, illustrates some of the deep flaws in the criminal legal system.  It also illustrates what does, and does not, constitute indecent exposure in Colorado.  An indecent exposure lawyer fights that distinction aggressively, as the consequences of an indecent exposure conviction are so serious, whether you are charged in Denver, Boulder, Broomfield, or anywhere else along the front range.

Indecent exposure in Colorado is a class 1 misdemeanor punishable by up to 18 months in jail.  Even more seriously, however, it is a sex crime which triggers sex offender registration as well as incredibly onerous lifestyle restrictions if the person is put on probation.   Indecent exposure is committed when a person, with the intent to arouse or satisfy the sexual desire of any person, exposes their genitals to the view of any other person, under circumstances in which such conduct is likely to cause affront or alarm to the other person.  See Colorado Revised Statutes section 18-7-302, for the exact law.  Alternatively, it is also indecent exposure if a person knowingly commits an act of masturbation in view of another person when such act is likely to cause affront or alarm to the other person.    The conduct underlying righteous prosecutions of indecent exposure can indeed be disturbing and traumatizing.  The cases I’ve had as a lawyer, involving clients who were guilty of indecent exposure, almost always involved mental health issues that deserved some empathy to balance against the community’s revulsion.  But there are also cases that involve elements of malice or sexual predation, and so it is easy to appreciate the stigma and outrage that follow charges of indecent exposure.  It is that stigma, outrage, and revulsion, though, that make it an extraordinary mistake for indecent exposure to be charged too lightly, as the Denver Police did last year in one notorious case.

In September, 2018, a United Airlines pilot was arrested in his hotel room at the Westin hotel at the Denver International Airport, after some travelers in the plaza below the hotel said that he appeared to be naked, maybe touching himself or moving about ostentatiously, maybe waving down to travelers, while lingering close to the floor to ceiling windows that look down onto the plaza.   Sounds ominous, doesn’t it?  But could it be the actions of an innocent person, perceived through the filter of the suspicious minds of a few travelers or airport employees who mistook what they saw?

Briefly, a disclaimer—I have not reviewed the evidence of the case or the court filings, and was not involved in the case as a lawyer.  My information comes from media reports, which are inevitably incomplete.  

So what was it?  Well, to convict a person of indecent exposure, a jury would have to be convinced “beyond a reasonable doubt” that the person was guilty.  But a police officer only needs probable cause to justify a warrantless arrest on suspicion of indecent exposure.  Probable cause is an incredibly low standard.  It is better policy to have more confidence in an arrest than mere probable cause, because a case that can’t get to proof “beyond a reasonable doubt” will eventually be dismissed or lost at trial.  But police officers don’t always think that far down the road, and even if they do they are human—they make mistakes, rush to judgment, and can be overconfident, just like the witnesses whose information they depend on.  And at Denver International Airport, the quality of the policework may be lower than average. Getting assigned there is not a high-action post for the newly promoted, best of the best. Rumor has it that’s where underperforming officers get “parked.” At the very least, it is not a place where an officer is regularly asked to investigate sex offenses.  If nothing else, an airport post is likely boring.

So when an airport police officer hears that a man is standing naked in front of a big hotel window looking down at travelers and deliberately, lewdly, exposing himself towards them, it is easy to understand how he may rush to judgment and action—maybe it’s his first “big case” in weeks.   Indeed the officers jumped headlong into the arrest, with none of the prudence you’d want officers to have if they were investigating you or someone you cared about.   For starters, they announced themselves at the pilot’s hotel room door and stated that they would gain access with or without his consent, so he might as well open the door.   Whether or not they could legally do that is unclear without knowing more facts, but it at least is a little heavy-handed, and shows either their zeal or inexperience, or both.  Again, they think they have got a big case.  When the man opens the door, they immediately place cuffs on him and arrest him, before even the slightest investigation.   The officer then lies (or is at least recklessly ignorant of his mistaken belief) and says they have pictures of him nude at the window.  The same officer then repeats a likely honest, but completely mistake belief, that somebody had claimed he was masturbating or touching himself.  That detail was a figment of somebody’s imagination at some point, filling in a gap in a game of telephone between witnesses and officers.  But after a few minutes that mistake is corrected, yet the officers’ arrest and zealous approach to the case is unchanged!    Without masturbation or a clear sexual intent to the nudity, the top charge the pilot could be guilty of would be public indecency, rather than indecent exposure.   Public indecency is a much less serious offense, and it is hard to justify arresting someone for public indecency in Colorado, as opposed to simply issuing him a summons.

The mistakes of the officer show how haphazard and shoddy police work can be, though to be fair it’s how we all are in our lives.  Once we have a hunch, we filter information through our mind in a way designed (unconsciously) to confirm our hunches.    We do this in our private lives on myriad topics, and witnesses and police officers do the same thing with things they think are crimes.   Once a witness sees a nude man through a window, everything that person does is going to look suspicious.  Gazing down at the travelers looks, to a suspicious mind, like the pilot is looking for an audience.  But as anyone who has been through that plaza knows, it’s a striking piece of architecture and public space. A hotel guest is going to want to look out the window, and travelers in the plaza below are going to look up at the hotel. There’s nothing wrong with that in itself.  Further, a hand gesture while speaking on the phone looks, to a suspicious mind, like a wave directed at the shocked person below.   Restless swaying while talking on the phone, or cracking a back or stretching in the morning, looks like “gyrating” to that same witness.   But what if the fundamental issue is misunderstood, the issue of whether the pilot even knew he could be seen?   Many hotel windows, like the greenish-tinted windows of this hotel, are partly or fully opaque from the outside.    And it is not disputed that this pilot was on the phone during the alleged incident with a work colleague, talking about work matters.  The pilot said he was about to get in the shower when he got caught up in a call, and paced back and forth, not realizing he was in full view of the travelers in the plaza below. 

Is that indecent exposure?  If what the pilot says is true, it is absolutely not indecent exposure, nor public indecency.    Is it possible that he actually knew he was visible?  Sure, anything’s possible, and it’s human nature to wonder that.  But it’s unfair to him, and to anyone who has ever looked guilty despite being innocent, to indulge in that suspicion.  The fact is, that suspicion never would have arisen were it not for a hasty investigation built on mistakes.  The bottom line is, there’s no clear evidence to suggest that the pilot knew he was visible, and so the only reasonable and legal thing to do is to dismiss the case, which the Denver District Attorney’s Office belatedly did in March of 2019.  Kudos to his criminal defense lawyer, Craig Silverman, for fighting to make the right thing happen.

Unfortunately, though, even a dismissal and sealed record can not undo the harm that a wrongful arrest brings, and this pilot is suing the city of Denver.  The news was quickly out and public, and he can not force news sources to delete references to the case that are available online. It is human nature for people, with partial facts and a morbid curiosity in salacious behavior like indecent exposure, to continue suspecting him out of proportion to the strength of evidence in the case.  More tangibly perhaps, the pilot was suspended for a whopping 6 months by United Airlines, and reinstated after the case was dismissed.   Not just the loss of income, but the loss of prestige and reputation in a workplace, are massive in this case.  Nevermind the nights he spent in jail upon arrest.  At the time of this arrest, the pilot had a spotless criminal history, 22 years as a pilot with United, and was in the conversation to possibly head the pilots union.   Whether he can ever regain that status, now that the dust has settled in his favor, is unclear, but hard to imagine, given what we know about the stigma of charges like this.   Especially in high profile cases like this, with media attention, some people will forever wonder about this pilot, and that’s a shame.   

All of these devastating consequences, simply from being charged too lightly, as a result of a hasty and incomplete investigation.  Perhaps a settlement with the city of Denver will offset some of these harms, but that’s a battle unto itself, and it’s hard to imagine that any realistic amount of money would be worth all the personal and professional suffering this pilot went through.  

Again, if it were you or someone you loved being investigated, wouldn’t you want the police to go slowly, speak more carefully with witnesses, and only bring charges if they reasonably believed they had proof beyond a reasonable doubt?  Unfortunately, it often just does not work like that.  If you or someone you love is charged with indecent exposure, make sure you reach out to an experienced criminal defense lawyer to get help.