Who Will Save Us?

When the  Indiana Supreme Court decided that Brenda Moore had indeed committed the crime of being drunk in public by riding shotgun in a car driven by her sober friend, a thousand public service announcements about designated drivers turned sour.  Orin Kerr succinctly explained the deal:

A drunken passenger in a car that is pulled over for a traffic violation is guilty of public intoxication, on the ground that “established precedent has long recognized that a person in a vehicle stopped along a highway is in a public place for purposes of the public intoxication statute. ”


Under the principle of the venerable case of Martin v. State, 31 Ala. App. 334, 12 So.2d 427 (1944) — taught in nearly every 1L criminal law course — I would think this makes a critical difference: An officer can’t force a drunken person to be in “public” and then arrest the person for being drunk in public. As the Martin court put it:



[A] voluntary appearance is presupposed [by the statute]. The rule has been declared, and we think it sound, that an accusation of drunkenness in a designated public place cannot be established by proof that the accused, while in an intoxicated condition, was involuntarily and forcibly carried to that place by the arresting officer.


I would think the same principle applies when the defendant was forcibly stopped along the highway.


Moore was a passenger in a car driven by her brother’s friend, stopped for having its license plate light out. The driver, it turned out, didn’t have a valid drivers license, and the passenger, Moore, was in no shape to take the wheel.  As the police did the car stop routine, they noticed:


that the defendant had red, glassy, bloodshot eyes and slurred speech; she needed to lean against the car for balance; and she admitted that she had been drinking that night. She admitted, “I couldn’t walk. So I couldn’t have driven.”

It happens, on occasion, that a person will be drunk in a place other than their home. And this, according to the Indiana Supremes, constitutes a crime, even if only a B misdemeanor.  As crazy as this decision seems, certain commenters to Orin’s post noted that this is something of a time honored tradition in Indiana (and perhaps elsewhere).  In one comment, “Kilroy” wrote:



As a former deputy prosecutor in Indiana, I saw many arrests for PI for passengers in cars. These were usually the result of people either being rude and belligerent or just a lack of other options since officer had a drunk driver to arrest and couldn’t find a ride home for the drunk passenger. I never had a problem with the arrest and felt that charges fit; however, I never entered a single conviction for a drunk passenger. Something called prosecutorial discretion was always used. 


Shortly after, another commenter, “Smooth, Like a Rhapsody,” agreed:



I am, like Kilroy, a former DPA in Indiana. I don’t see the problem with the arrest or the theory behind the arrest. I was not aware of that this defendant had been victorious with our Court of Appeals.


“Public” means “public”. The car, or bus, or horse that is transporting the defendant is doing so in “public”. Yes, that means that everyone who is drunk in a bar is technically breaking the law. And, yes, even a drunk person who calls a cab could, theoretically, be arrested for P.I. And, yes, some cops are even underhanded enough to try to lure householders out of their homes during an incident so that the P.I. statute attaches.


But like Kilroy says, there is cop discretion and prosecutor discretion. I do not see the net benefit to a more narrowly drawn statute.


If you want to drink in public—that’s fine; if you want to get drunk, stay home.


These comments demonstrate the mindset of our guardians.  Apart from the silliness of the law, that a person in a car is in public, or that a person who has engaged in no conduct beyond sitting in a seat in a drunken condition, are engage in a crime, there is a far more nefarious solution to the use of bad law:  


Trust the guardians to exercise their discretion.


That the court held Moore’s conduct to constitute a crime is one issue, an issue that flies in the face of many basic precepts, ranging from Orin’s voluntariness argument to the criminalization of a condition without conduct, to the basic question of why drunkenness without harm should be anybody’s business at all.  The former prosecutors see no issues at all.  The law is what it is, and it’s good.  As Rhapsody says, if you want to get drunk, stay home, a simple, black and white vision of life.

But Kilroy’s reaction, that while it is a crime in itself to sit in a state of drunkenness, it’s really an excuse for a cop to pay back a person for being “rude or belligerent.” There’s no regret or excuse; this is how agents of the government should use a law to summarily punish someone for behaving disrespectfully.  This is the “official explanation” for the cop smacking the drunk for not being sufficiently compliant.  And this is fine with these former prosecutors.

What comes through loudly and clearly is that the law, that thing we spend so much time discussing and arguing about, that thing for which courts exists and upon which robed people are supposed to deliberate, has an underbelly of sufficient vagueness to use as a weapon by those in authority to smack down those who annoy them.  But it’s not viewed by those who are given the power and discretion to “do justice” as a problem:


I never had a problem with the arrest and felt that charges fit; however, I never entered a single conviction for a drunk passenger. Something called prosecutorial discretion was always used. 

The saving grace of this underbelly of the accepted and acceptable practice of police using the law to teach people to be sufficiently obsequious: prosecutorial discretion.  They, in their personal vision of mercy, will deem the “lesson” sufficient that once the noncompliant drunk has spent the night in the tank, they will dismiss the charge.  The prosecutor has decided that the punishment is sufficient.

For those of us who sit on the opposite side of the courtroom, who wonder with such frequency how cops and prosecutors rationalize their use of the law to teach us their personal lesson on how we are to behave in their majestic presence, about how we must comply with their commands or pay the price, these comments provide enormous insight. 

Unfiltered, they express the belief that cops and prosecutors are entitled to manipulate the law to control us, that we deserve whatever they give us.  And that it’s all good because some self-righteous, punk kid prosecutor has deigned himself the purveyor of mercy once we’ve been sufficiently beaten down to appreciate that we must obey them or suffer.

When punk prosecutors switch sides, the usually come to realize how misguided their belief is, that their personal vision of obedience is not entitled to the force of law, and that there is no excuse, no rationale, that allows them to use the law to vindicate their smug sense of propriety.  Some of these prosecutors don’t switch sides, however, but go into some other niche of the law and carry their ideas with them forever.

And then there are the prosecutors who hold these views who go on to wear the robes.  It’s not that they don’t realize that there is an underbelly to the law where it is abused to control those people who don’t accept their duty to obey authority.  It’s that they, like these commenters, don’t believe it to be a problem.  After all, when we’ve learned our lesson, they, in their vast mercy, will decide we’ve suffered enough. 


 

13 thoughts on “Who Will Save Us?

  1. ExPat ExLawyer

    This is one out-there state supreme court. This would be the same court that ruled recently individuals have no right to resist an unlawful police entry into their homes. Right before that, they ruled that police have the discretion to turn a garden variety search warrant into a no-knock warrant on their own – no judicial approval required. Now this ludicrous decision.

    You capture the essence of the mentality on prosecutorial and cop discretion perfectly. They really believe that’s its “all good” to use discretion to punish people for legal conduct they don’t like. They need to show who’s boss, and “ride” punishments are perfectly ok.

    Ironically, though. The prosecutor here is actually pursuing legislation to change the drunk in public law in Indiana. Why he didn’t use his discretion here to no-file is not revealed in the brief Indiana news reports I just read.

    And in the nationally-reviled no right to resist case, where the court could have ruled much more narrowly instead of going out of its way for a broad holding, the AG is trying to get the ruling narrowed.

    I’m surprised the case didn’t get more attention in the national MSM when it first came down on July 1, given as you noted everybody thinks having a designated driver is what they’re supposed to do. Oh, and what do they do with the drunk passenger? Drive her home like they did in the olden days.

  2. Bad Lawyer

    It’s coincidental, but sometime over the weekend I had the stray thought: whatever happened to the ideal of “protect and serve.” I realize that this sounds trite, but when I was growing up in the 50s-60s there was a deliberate effort at least in some segment of government and law enforcement to adopt a “service” paradigm which sometimes was translated into the community policing model. You know cops who pro actively served the public: Sheriff Andy, in the popular imagination. Frankly, any residual respect that I have for the police relate to the several officers that I met over the years who approximated public service versus aggressive hostility. And I hasten to add, in my 3-decade law career I represented hundreds of cops and law enforcement in workers’ compensation and injury claims. For the most part, I didn’t find these individuals particularly skilled at well…anything including telling the truth, interacting well with me or the system, or general intelligence. In fact I met cops who were insane, patently racist, and stupid. Rarely, I dealt with men and women in law enforcement who were genuine decent folks.

    This Indiana account and ExPatExLawyer comment reminds me of this yearning that I felt over the weekend for at least some sort of striving for this ideal or value to return to policing. The war with us, the people–must come to an end. All the stories of cops and TASERS, brutality, us versus them, and we have become desensitized to the fact that the cops are carrying on a war on us. The Indiana Supreme Court in decisions like this sanction this approach to law enforcement.
    BL

  3. Andrew

    Constitution of the State of Indiana, Article 1, Section 19: “In all criminal cases whatever, the jury shall have the right to determine the law and the facts.” Sadly, any juror knowing of this right likely would not get through voir dire. So much for prosecutorial discretion, since we can’t count on that. How about jury discretion? Maybe that’s just a relic.

  4. Don Cordell

    This is not a recent happening, this has been going on with our cops since at least 1850. Any power is too much power, and the cops love the power. That is one thing that I will stop when I become your president in 2012. We must restore our Bill of Rights, as has now been dumped in the trash. WE are told, our RIGHTS have limits, yet the Bill of Rights made it plan, that these were our God given RIGHTS, not “given” by the new government, to be limited. Yet every day in our courts, the court demands you answer questions, no 5th, or you are in Contempt of Court until you surrender your 5th Amendment. We must stand up and Restore not Change America. It’s time for another Revolution, so ReVote.

  5. Max Kennerly

    A week ago up here in Philly a 14-year-old went joyriding in his mother’s minivan, speeding at night without his lights on. He crashed into another vehicle, killing an occupant.

    Several crimes were obviously committed here. Manslaughter. Reckless endangerment. Driving without a license. Etc.

    The DA charged him with murder and assault with a deadly weapon. The minivan was a “weapon,” you see.

    And now we’re going to go through a farce murder and assault prosecution over an obviously criminal situation that was not actually murder or assault.

  6. SHG

    Normally, a comment like this would end up in the spam folder, simplistic, meaningless and silly, the sort of self-serving dumbass nonsense that comes from the tin foil hat crowd.  But it gave me a laugh and I see no reason why others shouldn’t enjoy a laugh as well.

  7. SHG

    As with DWI deaths prosecuted as murders, prosecutorial discretion is a two-way street.  But hey, if there’s a dead body, there has to be a murder, right?

  8. Marc Randazza

    Prosecutorial hubris at work. This kid will walk, despite there being reason for him to be punished, because the prosecutor decided to go for the gusto instead of going for the right crime.

    And yet the unwashed masses still blame the jury for Casey Anthony getting off.

  9. Kitty Antonik Wakfer

    “[M]indset of our guardians” and *rulers* is clear with this idea of “prosecutorial discretion” since the vast majority of laws are incomplete and/or contradictory – US Constitution included, although Don Cordell (above comment) does not realize this. Keep the populace off guard and constantly (and even lately increasingly) in fear. “[P]olice using the law to teach people to be sufficiently obsequious” and, as you end your entry: “[P]rosecutors who hold these views who go on to wear the robes…After all, when we’ve learned our lesson, they, in their vast mercy, will decide we’ve suffered enough.”

    However, it is the enforcers – the policing agents – who are key to all these regulations/laws/rules/edicts/mandates/rulings/etc and without these individuals who are willing to initiate physical force, all would be simply words, spoken or written by the legislators, executives, judges and bureaucrats.

    Know any enforcement agents? If they are not persuaded by reasoned logic to get a truly productive job, then withdraw all voluntary association – no sales, service, camaraderie, no anything! – by those who find their “work” abhorrent or simply long range counterproductive to a voluntary society. Shunning with a long history of use as a method of social persuasion has not been given its due in mainstream media. However Gene Sharp includes it in his 198 Methods of NonViolent Action – part of Ostracism of Persons under THE METHODS OF SOCIAL NONCOOPERATION – search online. Also: “Tax/Regulation Protests are Not Enough: Relationship of Self-Responsibility and Social Order”.

    As the numbers of government enforcers takes a noticeable decline (likely publication via non-MSM), it will become more clear that individuals acting in their own long range, widely viewed self-interest for the purpose of maximizing their individual lifetime happiness *can* effect social change. It is not necessary or even desirable that violent rebellion take place since such death and destruction would definitely not promote this purpose, which is the goal of each individual, whether or not s/he recognizes it.

  10. JC

    What really bugs me about this case is that in the precedent it’s based on, Miles v. State, 216 N.E. 847(Ind. 1966), it seems like the PI charge was the only charge they could get the defendant on and the court was reluctant to let him go completely unpunished.

    From the facts of Miles, a semi driver was found slumped over the wheel of his rig, drunk, with the cab open and engine running while pulled over on the side of the road.

    Today, that’s an easy OWI charge against the driver, but my guess is that the OWI statute either didn’t exist or didn’t apply. Therefore, they used the PI charge as a last resort, to at least get the guy on something.

    Fast forward a few years, and a defendant doing the responsible thing, the complete opposite of the rig driver in Miles, is convicted based on that case.

  11. DensityDuck

    “we know ya dunnit” charges have been a time-honored tradition of law enforcement, going back to Al Capone being prosecuted for tax evasion (and, really, back to the beginning of law enforcement as a concept.)

    I actually could see how this might logically unfold without malice, though. Like the guy said, there were no legal drivers on the scene–the license holder was drunk, and the sober person had no license. You can’t just use your police car as a taxi to shuttle drunks around, though. The situation was a square peg, and the only holes the officer had available were round; by arresting the passenger, the officer whittled his square peg round enough that it could fit into the pre-sized hole.

  12. Omit Omittsen

    At first, I thought it was satire, and fairly hilarious. If it wasn’t… well, it’s still hilarious!

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