In a major twist, prostitution case against Robert Kraft may protect citizens from unchecked police surveillance

Charles Robinson

Robert Kraft’s winning streak against Florida prosecutors continues to roll on. And with it, his fight against prostitution charges appears to be unexpectedly strengthening the privacy of average citizens.

A Florida appeals court sided with Kraft on Wednesday, upholding a lower court’s decision to toss out video that prosecutors allege showed the New England Patriots owner soliciting prostitution during a visit to the Orchids of Asia Day Spa in 2019.

The decision is Kraft’s strongest court win yet, delivered by a panel of three judges who ruled that a lower court was correct in striking the surveillance video from a misdemeanor case brought against the NFL team owner. While another appeal is an option for federal prosecutors, having four judges rule in favor of Kraft on key surveillance evidence will likely render the case against him dead.

That’s going to complicate what the NFL can or can’t do — or frankly, should or shouldn’t do — to Kraft under the powers of the personal conduct policy. Particularly when it appears the Kraft ruling may not only have his misdemeanor prostitution charges wiped out entirely, but end up protecting average citizens from boundless police surveillance in the process.

New England Patriots owner Robert Kraft got his biggest legal win when a Florida appeals court upheld a lower court's decision to toss out key surveillance video evidence. (Maddie Meyer/Getty Images)

How Robert Kraft’s case strengthens citizens’ privacy

That’s the unintentional, but potentially significant, side effect of Kraft’s latest court win. It has, once again, backed up the constitutional rights of average citizens who were caught up in police surveillance — the same spa surveillance that four judges have now ruled to be a clear overreach by authorities. And the same surveillance that could end up resulting in Fourth Amendment lawsuits (protecting against unreasonable searches and seizures) brought against police or other agencies that had a role in taping customers who hadn’t committed a crime.

New York lawyer Joseph Tacopina, who said he represents at least 31 individuals who were taped despite receiving only legitimate massages at Orchids of Asia Day Spa, filed a class-action lawsuit in April 2019 and has been battering the surveillance actions of the authorities for more than a year. The Kraft victories have likely strengthened future class-action suits in the case, not to mention general precedent in similar cases.

“It’s a nightmare,” Tacopina told CNN last year. “It’s as if they put a camera in a bathroom and recorded people going to the bathroom. These people — ranging from 40-year-old males to 75-year-old females — [were] in a state of undress [and] getting massages. Nothing more. Legitimate massages, and wound up on a video tape that is perilously close to being put out into the public domain.”

One point that Tacopina has attacked is part of what ultimately ensnared Kraft in the case: The reality that authorities didn’t engage in “minimized” surveillance — which would have parsed out and taped only the individuals who were committing some type of crime.

“It’s a basic tenet of any surveillance,” Tacopina said. “Minimization is when the police have to watch the videos or listen to the recordings ... and make sure that criminality is occurring [by each individual being recorded]. If the criminality is not occurring, they must shut off the videotape. And that’s not what happened here. They let it rip, 24/7 for five days. I guess they went off and got lunch or something. But no one was monitoring it to the point where they were shutting off activities that were not illegal. They were recording innocent individuals in a state of undress. That’s why that tape was deemed illegal and suppressed.”

Can the NFL punish Kraft?

What this all means for the NFL is a complicated question — at least partially because Kraft previously issued a vague apology for “disappointing” people in the wake of the 2019 misdemeanor charges.

The reality is that Kraft has never made an outright admission of any guilt in this case, or in response to his charges. And now it appears that prosecutors are going to be stripped of any evidence beyond Kraft visiting the spa, and even that traffic stop has been disputed as being illegal in court.

In essence, if the NFL’s league office chooses to pursue the matter under the personal conduct policy, it might have to do so with no evidence whatsoever to hold Kraft accountable for anything. That is, unless NFL investigators were aggressive enough to secure a copy of the spa surveillance — which might not even be possible or legal, considering the court decisions that have been rendered.

The league could also press Kraft to sit for an interview on the matter, which also seems less likely if the legal case against him and all the evidence accompanying it evaporates in the coming months (which may very well happen).

Essentially, the NFL is on the path to having no evidence in hand, no legal case to reference and no statement of guilt from Kraft. And the authorities who provided the impetus for his charges may end up being sued for violating the constitutional rights of other spa patrons. Also notable is that the spa Kraft visited produced only simple prostitution charges and no ties to human trafficking.

All of this has taken what once looked like a serious legal case against an NFL team owner and turned it into a potentially catastrophic failure by prosecutors and authorities. What once looked like a surefire personal conduct issue for the league now looks like a misdemeanor prostitution incident that completely imploded under legal scrutiny.

Perhaps the only clear result is that Kraft is going to come out of all of this a big winner in the legal arena. His lawyers appear to have exposed troubling issues with police surveillance that could result in a lasting win for average citizens when it comes to Fourth Amendment protections.

MMW