Proof of Nothing

To hear Milan Luna tell the story, the night that she was arrested for public intoxication, Jan. 18, she was not drunk.

The 42-year-old musician had one drink at a club on West Sixth Street not long before she was handcuffed and taken to the Travis County Jail for an overnight stay. She insists she was not impaired – certainly not enough to meet the standard for a public intoxication arrest. According to the Texas Penal Code, a person commits PI "if the person appears in a public place while intoxicated to the degree that the person may endanger the person or another." A cop must have reason to believe that you might harm yourself or someone else before making an arrest. In Luna's case, she believes such evidence simply didn't exist. Instead, she says, her arrest would be better categorized by a title not in the Penal Code: Contempt of Cop.

Indeed, Luna – a bassist who has played with Austin's rocker-girl group the Platforms and with her own group, Moonticca & the Texas Clock – says she was arrested near the corner of Fourth and Red River precisely because she mouthed off to Austin Police Department officers when she didn't immediately comply with a request to exit a vehicle in which she was a passenger after it was pulled over for a traffic infraction. She says the officers making the stop overreacted to her reluctance to exit the vehicle, and when she did get out of the car, she was slammed into a parked semi and cuffed. When she complained about the treatment and asked why she was being restrained, she says, one of the officers broke her wrist by lifting her off the ground by the two middle fingers of her cuffed left hand. "I'm screaming: 'Please let go of my fingers, you're hurting me, and I play bass! I play bass! Please let go,'" she recalled.

Luna spent a night in jail for the alleged PI, a charge that two months later was dropped because of "insufficient evidence." She's still trying to recover from the injury she suffered, a broken scaphoid bone inside her wrist that still has not healed and has led to the (she hopes temporary) dissolution of her band; nerve damage from the break has made it difficult, at best, for her to play her bass.

The officers have a different version of events that night, as described in a police report, but their version nonetheless fails to confirm that there was ever enough evidence that Luna was intoxicated, let alone dangerous.

A PI charge – a class C misdemeanor, punishable only by a fine of up to $500, though most often including at least several hours in the Downtown lockup – is one of the state's most subjective criminal offenses. Unlike a drunken driving charge, for example, which requires proof that a driver has lost control of normal faculties or has a blood-alcohol content higher than the legal standard of 0.08, there is no objective standard for proving PI. As a consequence, many lawyers say, it is a discretionary charge ripe for abuse.

Not surprisingly, according to APD and Downtown Austin Community Court statistics, there are thousands of PI arrests in Austin every year, with the largest percentage in the Downtown Entertainment District. Police say that enforcing the PI statute is important to help keep Downtown revelers safe– from themselves and from others – and that officers on the beat take seriously their commitment to enforce the statute without prejudice. Still, in Austin as in jurisdictions across the country, PI arrests are often implicated in complaints about officer conduct. "We get a fair number of complaints where a person was saying, 'I wasn't really publicly intoxicated but did something to tick off the cop,'" says Margo Frasier, the former Travis County sheriff who now serves as Austin's police monitor. Nonetheless, there is no APD policy that standardizes protocol for PI arrests. That calls into question whether PI arrests are made for only the right reasons.

'Stop Resisting'

The night Luna was arrested, she and a friend had gone to see a show at the Belmont. They arrived, had a drink, and when they learned the show wouldn't begin until later, the pair decided to kill some time at Flamingo Cantina on East Sixth Street. It was a cold night, nearly freezing, but their pickup was parked in a safe location, and Luna didn't think it was worth it to move it for just a several-block walk. "I wanted to walk," she said, "and I didn't want to deal with parking; I hate parking down there." But because of the cold weather, her friend insisted that they drive, Luna said. The pair climbed into her friend's white GMC Sierra pickup and drove east.

They were circling the block in search of a parking spot when, at Fourth and Red River, a police car approached and stopped them; Luna's friend had forgotten to turn on the headlights. According to Luna, after her friend couldn't immediately find her license in her purse, Officer Richard Mitchell asked the friend to get out of the truck. He said nothing to Luna, she says, and left her sitting alone in the car. It wasn't until more than 30 minutes later that a second cop approached to ask her, through the passenger window, how much she'd had to drink. One beer, she told him. She said she told him it appeared clear that the police would arrest her friend and she asked if they might let her drive the car home. "We'll see," she recalls him saying. Officer Tracy Zimmerman then walked away to talk with another officer. Thinking he was done talking with her, Luna says, she rolled up the window because it was so cold outside; that apparently ticked off the cops, she says, because as she rolled it up, she heard a third officer say, "She's trying to ignore you!"

Luna says one of the officers, Officer Justin Berry, hurried over to the pickup, forcibly opened the passenger-side door, and ordered her out of the truck; Luna says she told them that they were scaring her and asked that they "back up and give me some personal space." They backed off perhaps a half-step, she recalls, before yelling at her to exit the truck; the moment her feet were on the ground, she says, she was slammed into the side of a truck parked at the curb line. Startled, Luna says she tried to pull away, prompting two officers to pull her hands behind her, push her forward farther, and cuff her. When she complained about the treatment, she says, Berry lifted her up by her two fingers, a move that she would learn the next day had broken her wrist. (According to the police report, Luna stands 5 feet 3 inches tall and weighs 110 pounds.)

Berry repeatedly told her she was intoxicated, which she denied, and she says none of the officers would explain to her why she was being arrested – she didn't learn that until she was already at the jail. (Luna was also initially told she was being charged with possession of drug paraphernalia because a search of the car turned up a pipe and a small amount of marijuana. She was initially charged with marijuana possession as well – according to the police report, the officers collected roughly 0.1 ounces of pot, with an estimated value of $3. The charge was dismissed by a judge the next morning because of a lack of probable cause; narcotics officers reviewed the case and declined to refile. The paraphernalia charge was dismissed for lack of evidence.) Luna says that aside from asking her if she'd had anything at all to drink that night, the officers did nothing to determine if she was actually drunk. It was her attitude, Luna believes, that actually led to her arrest. Berry was "telling me I'm intoxicated. I said, 'I'm not intoxicated,'" she recently recalled. "I shouldn't be here; I shouldn't be arrested."

In the official police report, the story unfolds quite differently. The reason for the stop – failure to activate the truck's lights – is the same, as is the account of Luna's friend fumbling for her license. That, according to the report, in combination with a strong smell of "burnt marijuana" coming from the car, is what prompted the officers to ask the friend to exit the vehicle; ultimately, she was booked and charged with driving while intoxicated. Also in keeping with Luna's recollection, the police report relates that officers asked Luna to exit the vehicle but that she refused.

Strikingly different, however, is the account of what happened once Luna exited the vehicle. According to police, Luna was combative and threatening to the officers – one wrote that he thought she was trying to kick him in the shin; another said she made motions that led him to believe she was trying to punch one of them. According to Berry's version, Luna's menacing motions with her fist prompted him to twist her "right wrist at an angle" into a "wrist lock ... which prevented Milan from breaking my grasp and assaulting any of us." Luna denies the allegations. In fact, she says, she was confused by their abrupt use of force without giving any indication why they were arresting her. Indeed, according to Berry's report, all he told her when she got out of the car was "that she was under arrest and to stop resisting." It wasn't until after she was told she was being arrested that another officer found evidence of marijuana in the car. That means that according to the officers' own accounts, the arrest happened prior to there being any indication that Luna, as a passenger, had committed any offense – and those charges were ultimately dismissed.

Officers' Discretion

The scenario in Luna's case is not unique. Back in June 2009, another PI arrest made headlines when former Assistant District Attorney Mindy Montford (who ran for D.A. in 2008 and for district judge last year) was arrested for PI after a car she was riding in was pulled over near Sixth Street. Montford was arrested when she tried to offer legal advice to her friend, the driver: specifically, that he didn't have to complete any field sobriety tests. With­out even asking Montford if she had been drinking that night, Cpl. Darryl Fulbright decided Montford was drunk and needed to be arrested. What had she done to prove to the officer that she was a danger to herself? She'd decided to get into a car with a drunk driver, he opined.

To Montford, that was and remains a troubling logical leap. The driver had not yet been assessed for drunkenness, and moreover, even if he had, that was just a charge, not yet something that had been proven. In short, Montford told the Citizen Review Panel in November 2009, "When you ask a passenger to make a legal determination about whether a driver is legally intoxicated, you are asking a citizen – a layperson – to make a legal determination before a judge or jury has ever determined whether or not the driver is intoxicated. ... And that can affect anyone in this community, and we should all be scared that this same thing can happen to us, if that is the standard." Moreover, Montford told the panel, the DWI charge leveled against the driver of the car she was in was dismissed just hours later by a judge.

Fulbright did no investigation to determine whether Montford had even been drinking before he arrested her, she says, placing a premium on arrest instead of whether or not the occupants of the car could get home safely on their own. An "arrest should not be a knee-jerk reaction," she said. "Take action," she told the CRP, "and make recommendations [to APD] that officers are going to need more than just, 'You've questioned my authority, and I'm upset,'" before making an arrest.

Luna's arrest was, it seems, made in a similar fashion – only one of the officers even reported a reason for her PI arrest. Zimmerman wrote that he smelled alcohol on Luna and that she had bloodshot eyes. "At this time, Luna was under arrest for public intoxication and for being intoxicated in a public place and the danger that she presented to herself by choosing to ride with an intoxicated driver and attempting to cause a disturbance with uniformed police officers," he wrote. "I believe that if Luna was not taken into custody, she would [continue] to attempt [to] instigate an altercation with another citizen and walked the streets creating the potential to be struck by a passing vehicle in her impaired state." (Luna charges that the cops instigated a confrontation and then used it to justify her arrest.) Yet merely being intoxicated in public is not enough to justify an arrest, something that Montford noted when addressing the CRP in 2009. "When you hear it in the media, you would think that if you're in public and had anything to drink, that's against the law," she said. The standard is actually higher. Still, in a PI arrest situation, a person is not entitled to a Breathalyzer, for example, or a so-called "standard field sobriety test" that might help suggest a true level of intoxication; determining PI is solely at the officers' discretion.

"Every other [offense] in the Penal Code requires proof of something," says Jeff Black­burn, an Amarillo attorney who heads the state bar's committee on indigent defense and is founder and chief counsel of the Innocence Project of Texas in Lubbock, where, as in Austin, he says the college scene helps to fuel the PI arrest business. "This offense requires proof of nothing," he says.

No Standards, No Policy

That's one of the issues that impressed the Citizen Review Panel in the wake of the Montford case. In a memo to APD Chief Art Acevedo on Dec. 1, 2009, the panel wrote that it was "distressed ... because we have seen numerous ... situations where PI appears to be used indiscriminately and inappropriately by APD officers" (according to a copy of the memo redacted by the city to comply with civil service laws). "We believe that there must be standards for arresting someone for an offense that has minimal or no standards of criminality," the panel continued. "We recommend that in light of state law that is currently in place, APD adopt a standard ([standard operating procedure] or policy) to be employed when arresting an individual for [PI]. We suggest the commonly employed field tests for intoxication and a requirement that the arresting officer document specific facts to support the conclusion that the person is a danger to himself or others." The panel also recommended that the department research the standards that departments in other cities use for determining PI, "especially those with entertainment districts." (Luna says she asked for a sobriety test but was ignored.)

In his Dec. 29, 2009, response to the CRP, Acevedo wrote not much about their policy concerns (at least not according to a heavily redacted copy provided to the Chronicle). He wrote that in a civil law context, passengers have a duty to "exercise reasonable care" about whom they choose to ride with, and that there was "no current policy or standard procedure in place for arresting persons or passengers in vehicles for [PI]," but that he would have staff research how arrests are handled in other cities.

The CRP was not impressed. "The panel unanimously agreed that your response to these concerns left us less than satisfied," they responded on Jan. 22, 2010. "In cases that have come before us, arrests for PI is a recurrent theme leading to citizen complaints. APD should develop objective guidelines for PI that would prevent police actions that needlessly cost money and time to citizens. The smell of alcohol on a person's breath, as was used in the Montford incident, is inadequate as a criterion for arrest."

To date, the APD has not adopted specific policies or procedures to standardize PI arrests.

Show Us the Money

Police Monitor Frasier, who was hired on well after the CRP recommendations in the Montford case, says that PI arrests are tricky. On the one hand, individuals complain that they're not drunk and that the police are merely getting them out of the way – a "cuff 'em and stuff 'em" approach to dealing with Downtown revelers. The flip side, of course, is what happens if police do turn a blind eye to a passing drunk and that person ends up starting a major fight or wanders into a road and gets hit by a car? Would someone complain that the cop failed in his duty to protect a person who was a drunken danger?

That said, Frasier notes that in the data she's reviewed since taking office late last year, PI arrests (as the CRP attested in the Montford case) do form the basis for a good number of complaints to her office. She said she can't yet quantify that number precisely – the office is behind in its data crunching (in the month before she took over, she said, the office had just posted data for 2007 and 2008) – but believes they are indeed an issue. "One of my real goals is to look at things like that," she said. It may be that the folks complaining are "all wrong" and that they were, indeed, drunken and dangerous, "or maybe we need to realize that giving officers a tool to lock someone up for [angering a cop] is not a good idea."

Complaints about arrests for PI and other discretionary crimes aren't confined to Austin. In a 2010 issue paper for the American Con­sti­tution Society, Christy Lopez, a civil rights attorney and former court-appointed monitor of California's Oakland Police Department, writes that an investigation in San Jose, Calif., revealed that in half of all PI arrests, police reports did not contain sufficient probable cause for an arrest. Similar issues have been raised with PI and other subjective-standard crimes such as loitering, obstructing a police officer, or resisting arrest in Washington, D.C.; Baltimore; and Seattle. "Inappropriate contempt of cop and cover arrests, and the too-often unnecessary uses of force that accompany these arrests, are a widespread problem," Lopez writes in conclusion. "These abusive arrests cause direct harm to those arrested, violate the constitutional rights at the core of our democracy, alienate large segments of our people, and make policing less effective." Indeed, some former and current APD officers say that they too believe that a number of PI arrests, particularly those made Downtown, are questionable. "A lot of times it is done as a preemptive measure," says one, who notes that cops sometimes see these arrests as a way to avoid future troubles, as with Sixth Street brawls. "About 25 percent are probably attitude arrests."

If that estimate is accurate, then more than 600 of the 2,639 PI arrests made Downtown since Jan. 1, 2010, would be questionable. The statistics on the disposition of PI cases provided by the Downtown Austin Community Court (which handles all so-called "quality of life" crimes, including PI, that happen in the Downtown area) do not readily reflect that percentage. For the same time period, only 25 of the 3,394 cases filed were dismissed for insufficient evidence, eight were dismissed because a police officer failed to appear in court, and six were dismissed because of mental health issues. (The number of cases handled by police and the number handled by the court aren't equal because of the time lag in processing.) A large number of cases, 839, were dismissed after successful completion of a deferred prosecution – which generally involves a set amount of community service – and just two were found "not guilty."

Those numbers don't necessarily provide the full picture, argues attorney Blackburn. Even though PI is not a per se jailable offense, to fight the charge a defendant typically needs to hire a lawyer and spend the time and money required to have a court fully review the charge. And most people, he says, simply can't afford to do that and will pay a fine to conclude the matter. As a result, he says, PI and similar crimes can be a serious cash cow for municipalities. PI arrests "please the cops on the street, because they get rid of a problem," he says, "and it pleases the city because of the revenue." Since January 2010, the city has received roughly $140,000 from fines paid by defendants arrested for PI Downtown and processed through community court, where the "guideline" fine set by the judge for every PI case is $375 (in certain cases a fine can be raised or lowered depending on unique factors, or in certain circumstances the fine may be worked off with community service at a rate of $12.50/hour). An additional 4,734 PI cases were handled by the municipal court (which handles cases from the rest of the city) during the same time period, for which the city took in somewhere around $1 million. (The city's standard "early" fine is $242, the "standard" fine is $329, and the law allows for a fine up to $500.) In sum, says Blackburn, PIs are "revenue generators."

Eye of the Beholder

APD Cmdr. Chris McIlvain, one of two commanders in charge of the Entertain­ment District, says he wouldn't consider public intoxication "a problem" Downtown. "I'm not sure 'problem' is the right word," he says. He will say "in all honesty" that the two "primary instances of violation of the law" in the area are PI and disorderly conduct – that is, fighting. "Introduce alcohol in large amounts with a large number of people, and those two generally go hand in hand. Those are always going to be top of the list; it goes with the territory." That said, he believes that the cops working Downtown use good judgment in deciding when to arrest someone for PI. "It really does fall to the officers," he says, and "we have to trust officer judgment." He says the law doesn't provide for any "stipulation" as with DWI, because different people may handle their booze differently – one may have a single drink and be falling down, and another may be sauced and handling himself just fine. That's why leaving open the interpretation of when a person is a danger to himself or others is so important. And officers certainly don't overuse the statute, he insists – if a person can be entrusted to friends or can be put in a cab, officers will do that, he says, instead of making an arrest.

"If officers arrested every individual they find for PI," there wouldn't be any cops left on the beat because they'd all be at Central Booking, he says. "I'm not being facetious; it's just the truth." And if officers used a PI arrest as an attitude-adjustment technique, he says, the result would be the same: "If we arrested everyone who talked to us [crossly], it would be a very busy night." And McIlvain, who used to work the Downtown beat back in the Nineties (when the territory seemed much smaller, he said – hell, the walking beat was confined to a literal walk up and down Sixth Street), says that since February 2011, when he was assigned to this post, he hasn't seen a complaint about a PI arrest. "I've never had a complaint like that," he says. "I can see where there is the potential" for abuse, and "I can't sit here and tell you it's never happened." Still, he suggests that perhaps the problem in some cases is alcohol-induced. You're "dealing with someone who may not have all their faculties and may subjectively rationalize their behavior because they're impaired," he suggests. "Subjectivity goes both ways."

In the end, Milan Luna, who recently filed an official complaint regarding her arrest with the Police Monitor's Office, wants her wrist to heal; she wants to be able to play her bass again. Beyond that, she wants APD to create some objective standard by which PI cases will be assessed – before any arrest is made. "That's the thing, it's not just for me that I'm pursuing this," she says. "It's just straight wrong, and for people who say there's nothing you can do, so just stay low and don't say anything – that's why they keep doing it."