Like Baking a Cake

The Hispanic couple were justifiably nervous when they first sat down in my office. They had never received a parking ticket before, let alone been arrested.

Public intoxication was their listed offense, but their real crime was being at the wrong place at the wrong time. They had made the egregious decision to be in downtown Fort Worth after midnight.

Mrs. Garcia (not her real name) had been invited to a bachelorette party by a life-long friend. She had consumed two margaritas and was walking around the downtown area with the other invitees. Mrs. Garcia had pre-arranged for Mr. Garcia to pick her up, as a safety measure, she didn’t like driving late at night.

One of the women in the group noticed a disturbance of some type by the entrance to 8.0, a downtown restaurant. The group of ten middle-aged women walked across the street, closer to the fracas. The Fort Worth Police arrived on scene to arrest the two participants in the drunken fist to cuff, rightfully so, for disorderly conduct.

These women were guilty of being what cops call “rubberneckers,” i.e. nosey people who slow down when driving past auto-accidents or those that walk towards a disturbance, and not away. Last time I looked though, rubbernecking was not listed in the Texas Penal Code as a crime. One of the officers simply looked in the direction of the women… walked over and indiscriminately pointed at Mrs. Garcia and two others.

Mrs. Garcia was singled out and arrested for public intoxication. No sobriety test is required under the law, but would it hurt? How about asking her a few questions, smelling her breath, or looking into her eyes to test sobriety? Mr. Garcia came walking up about the time the cuffs were slammed on his wife of thirty years. He approached the arresting officer, incredulous about what was happening. Mr. Garcia’s crime was asking the officer why his wife was under arrest? He too was arrested for public intoxication and hauled to jail. Mr. Garcia has not consumed an alcoholic beverage in 10 years.

The Garcias’ are but two of a host of other clients I presently have with one common denominator. They have been arrested as a result of shoddy and lazy law enforcement. It seems it is too much to talk to the person, conduct a sobriety test, and/or see if they have a sober escort.

Now before you think I am speaking out of turn, or perhaps just being a good defense attorney arguing my case…remember I am an ex-cop.
One aspect of my job has always been the same, no matter what hat I am wearing. Protecting the rights of people and guaranteeing due process was at the forefront of my mind as a cop and that duty remains today.

The Texas Penal Code defines PUBLIC INTOXICATION as follows:
A person commits an offense if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another.

The elements of the offense have to each be proven BEYOND A REASONABLE DOUBT in a court of law. Not in a public place? Not a good arrest. Not intoxicated? Not a good arrest. Not a danger to himself or others? Not a good arrest.

It is like baking a cake, the elements are the ingredients. If you leave one out, you got one bad taste in your mouth!

My plain English example is: You can be shit-faced and publically intoxicated, but if a good sober friend is standing next to you and will make sure that you don’t endanger yourself or others…then you are not violating the law in Texas.

Mrs. Garcia was not intoxicated on two margaritas and even if she were, there were other members of her party abstaining that night..and a pre-planned sober spouse as a ride home.

Had the Fort Worth Police cared enough about my client’s rights and perhaps studied the statute, they would have merely waived the group of nosey women on their merry way. Instead they made four unlawful arrests, with missing elements. This cake, my friends, is rotten!!

All this brings me to June 28, 2009 and the Rainbow Lounge in Fort Worth. We all know what happened there was an injustice. I put the word out that I would represent Rainbow Lounge arrestees free. I signed to represent two of the people charged with public intoxication. I have already secured one dismissal and am presently working on the second client’s case.

I look at the Rainbow Lounge raid from a unique perspective. I do not think the Fort Worth Police Department knew it was the anniversary of Stonewall that night. I don’t think what happened was the result of anyone pin-pointing the gay community in my hometown. I do think that what happened on that Sunday night at the Rainbow was most fortuitous for many people, including my other clients. The aftermath has brought much media attention to what I believe is a systemic problem….not police homophobia.

Yes, you heard me right. This queer attorney doesn’t think anything that happened at the Rainbow Lounge had anything to do with the police discriminating against gay people. Well, the crotch grabbing accusation might be the “small” exception….no slight to the officer intended!

You can bet the police department that herded up people and made arrests, without probable cause, at the Rainbow had done the very same thing at a Latino bar hours before and at a redneck bar on the North-side the previous night.

As an ex-cop I am pro-police, don’t get me wrong here. I demanded adherence to the law on my shift when I was a patrol sergeant and I want the same thing from my brothers in Cowtown.

It would make my job a lot more challenging…and quite frankly, that is a cake that I would like baked.