I don’t have any inside information on the TABC Rainbow club raid. I did notice that the TABC was checking for public intoxication when they swarmed the gay bar in Fort Worth.
I’ve received a decent number of inquiries from PI defendants who claim to have been abused or unlawfully arrested by law enforcement.
I’ve had enough experience with criminal law to know that not every tale of police misconduct is accurate. I’ve also had enough experience with law enforcement to know that PI can be a great cover for malfeasance.
What makes PI so ripe for abuse?
First, it provides a built in defense for the cops- “This guy was drunk”. It goes straight to the credibility of the defendant/victim. No one likes drunks, so the police can slander you just by arresting you.
Second, our appellate courts have expanded the definition of what a PI is to cover nearly any situation in which a person is in public and has been drinking. Having no standard allows the police to arrest whoever pisses them off and call it PI.
Third, PI cases rarely have video evidence. Usually the only witnesses are cops, the defendant, and maybe the defendant’s friends.
I had a PI case in Fort Worth dismissed recently. A quick thinking friend of the defendant filmed the arrest on his phone. Guess what? No one was intoxicated. The defendant wasn’t guilty of PI, but POP. He pissed off the police by refusing to talk with them and was arrested for PI.
What’s the law on public intoxication?
From 49.02 Texas Penal Code-
(a) 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.
That seems like a fairly high bright line standard that requires a showing of danger to someone. Fortunately for police our pro conviction appellate courts have expanded this law to the point of absurdity.
Here are two cases that highlight the transformation of PI in Texas.
Where defendant was walking down the middle of the street in the middle of night, appeared glassy-eyed and unsteady on his feet, arrest for public intoxication in violation of Tex. Penal Code Ann. § 49.02(a) was proper. Williams v. State, 1997 Tex. App. LEXIS 3314 (Tex. App. Houston 14th Dist. June 26 1997).
This is a standard prosecutors cite often, that if you stumble while walking you are PI. This one decision created a new crime in Texas, stumbling after drinking in public.
It gets even worse…
A person commits the offense of public intoxication if that person appears in a public place while intoxicated to the degree that he may endanger himself or another; the danger need not be immediate, it is sufficient if the accused renders himself or others subject to potential danger. Null v. State, 1997 Tex. App. LEXIS 2646 (Tex. App. Houston 14th Dist. May 15 1997).
Remember, it’s not legislating from the bench when you expand the scope of a criminal law beyond recognition, that’s strict constructionism. The statute doesn’t mention “potential danger”, but pro conviction judges took out the magic appellate marker and added it.
Overbroad laws invite abuse and subject the public to arbitrary harassment. If you have a violent, homophobic, or just an asshole of a cop and you give him the arbitrary power to arrest anyone for PI you can expect violent, homophobic and assholic behavior.
The problem is amplified when you add the mutaween zeal of TABC officers. I’ve never seen grown men so exited to raid teenage keg parties or arrest bartenders. Really, no one cares guys. It’s bad enough we subsidize TABC strip club “undercover” operations. TABC’s new policy of raiding bars for PI enforcement has disaster written all over it.
Texans need the “old” PI law back, and protection from the moral busybodies at TABC.