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Legal Doesn’t Always Mean Fair


usa_texasMike Barefield – Portsmouth, Virginia – Contributor

Most of our readers interested in GLBT news and who have access to the blogosphere will have read by now about the raid of the Rainbow Lounge by the Fort Worth, Texas police and Texas ABC agents on the 40th anniversary of the Stonewall demonstrations. Bloggers are reporting (and I have seen little in the mainstream press yet) that the Fort Worth Police Department, shortly after midnight (purportedly to ensure that it coincided with the Stonewall anniversary) launched a raid on the Rainbow Lounge, a gay bar in Fort Worth, which reportedly had been open only two weeks. According to several eyewitness accounts, one of which I read in a Facebook Group that was launched to discuss the issue, made it clear that the officers used excessive force to arrest several patrons for public intoxication. This eyewitness claimed that one patron was drinking water.

There are a number of questions surrounding this raid and the Fort Worth GLBT community and its friends are on top of getting to the bottom of them. The police, of course, claim no wrong doing in a statement released June 28. Bloggers and persons commenting on blogs in response to the police statement say that the police who claim that patrons made sexually explicit gestures towards them are not being truthful.

Even if this raid were part of the normal course of events for a Saturday night in Fort Worth, choosing that date to conduct this “inspection” of the Rainbow Lounge can only be characterized as appalling. Surely in a city the size of Forth Worth, the police and/or ABC agents were well aware of the significance of the date to the GLBT community.

Among my friends, the big question seems to be, “Can you arrest someone for public intoxication in a bar?” “Isn’t that what you go to a bar for?” The answer is that in Texas, you can!

From the Texas Penal Code:

Sec. 49.02. PUBLIC INTOXICATION. (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.

(a-1) For the purposes of this section, a premises licensed or permitted under the Alcoholic Beverage Code is a public place.

Having worked in law and law enforcement for a number of years (including in 1981 and 1982 in Texas), I can speak with a tad more knowledge than your average bear regarding interpreting criminal statutes and the arrest process. Sec. 49.02 (a-1) makes it abundantly clear that it is perfectly lawful to arrest someone for public intoxication in a bar in Texas. To make an arrest for a criminal violation, an officer is required to have “probable cause,” which is far less than proof. The Supreme Court of the United States (SCOTUS) had repeatedly held:

“Probable cause exists where “the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the [*176] belief that” an offense has been or is being committed.”” Bringar v. United States, 338 U.S. 160 (1949), at 175-176, citing Carroll v. United States, 267 U.S. 132 (1925), at 162.


“The process does not deal with hard certainties, but with probabilities. Long before the law of probabilities was articulated as such, practical people formulated certain common-sense conclusions about human behavior; jurors as factfinders are permitted to do the same — and [*232] so are law enforcement officers. Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.” Illinois v. Gates, 462 U.S. 213 (1983), at 231-232, citing United States v. Cortez, 449 U.S. 411 (1981), at 418.

Texas law is crystal clear on what constitutes probable cause for public intoxication:

“A person commits the offense of public intoxication if the person appears in a public place while intoxicated to the degree that person may endanger himself or herself or another. The danger need not be immediate; potential danger to oneself or others suffices to show endangerment. Under Texas law, any area to which the public, or a substantial group of the public, has access, is a public place. When reviewing an arrest for public intoxication, an appellate court must decide whether the arresting officer had probable cause to arrest; we must determine “whether the officer’s knowledge at the time and under the circumstances would warrant a prudent person’s belief that appellant had committed or was committing the offense.”” Escamilla v. State, 2006 Tex. App. LEXIS 2815 (Tex. App. Texarkana, 2006, pet ref’d)

The above notwithstanding, police officers are always required to use the minimum force necessary to effect an arrest. From a political perspective and a perspective of common decency, the Fort Worth Police Department and Texas ABC’s choosing to make this raid on the 40th Anniversary of Stonewall is reprehensible. They have some serious explaining to do.

3 Comments leave one →
  1. Erynn permalink
    06/30/2009 8:14 am

    Sometimes I think Texas should just chop itself off from the rest of this country. Then they can just be Texas… I can see their motto now: “Texas, where your rights mean nothing to us (and you better be white, straight and christian or we’ll see to it that you’re GONE)!” Arresting someone in a bar for public intoxication seems almost like entrapment to me. You go there in a social setting and order alcohol to be consumed… There is the cop, waiting in the shadows to bust you for probable cause since he saw you drink that shot down and it wasn’t the first one, and that’s it, you’re a gonner… My head isn’t wrapping around this at all. And I didn’t realize it was shortly after midnight. Boy oh boy, they sure do have tact. It’s 2009, we have the first african american president, and somehow, we’re still in the dark ages. 😦 And it doesn’t surprise me that there is no coverage of this in the mainstream media… It makes me ill, but doesn’t surprise me…

  2. mbarefield permalink
    06/30/2009 10:33 am

    Hey Erynn, thanks for the response. Unfortunately, this sort of targeting isn’t limited to Texas. The reason that I chose to blog about this incident is to make as many people as possible aware (and I wish I had been more clear about my rationale for writing in the entry) that this sort of thing happens across the country. It isn’t always so flagrant. For example, I’m acquainted with a gay couple here in Tidewater Virginia who opened a very elegant gay bar. It was truly upscale with a grand piano, a massive stage, professional lighting, the sort of place that the gay community longs for but seldom gets. The city government had it in for these guys from day one. Everyone from the building inspector to the fire department targeted them with numerous (and very insignificant) violations citations, making it impossible for them to stay in business. We need federal legislation to prevent this sort of selective enforcement now. I encourage everyone to write their federal representatives in both houses of Congress demanding equality for all American citizens. We need to repeal the Defense of Marriage Act (DOMA), do away with the hideous Don’t Ask Don’t Tell Policy (DADT) currently governing our military and pass hate crime legislation that affords protection to the GLBT community. Fair-minded heterosexual individuals who are outraged by the actions of local government need to stand up on behalf of their gay brothers and sisters by letting local government leaders know in no uncertain terms that they administer the laws and ordinances fairly and equally or they will elect leaders who will. I sat by quietly for years, ruled by fear. Fear of being rejected, fear that my business would fail if anyone were to know my true feelings and fear of just about everything. It’s time we all put our fears behind us and let our voices be heard.

  3. 06/30/2009 4:08 pm

    Nice post. That was very informative!! I hadn’t heard all of that before, so I don’t really know what to say lol. Anyway, I like your site a lot. I’ve been skimming around, and I like what I see. Nice layout too. 😉

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