Texas firefighters balk at cell phone rules

AUSTIN, Texas — Austin firefighters are concerned their First-Amendment rights may be compromised by an Austin Fire Department code of conduct that limits the contents of any electronic communication between firefighters and anyone outside the department.

Firefighters will no longer be allowed to share information or send images from cell phones, Personal Digital Assistants or social networking sites under an amendment to the department's code of conduct.The code has been effective since Aug. 28, 2008, and it seeks to "define the platform of the acceptable set of behavior within the organization.

Its main objective is to further promote a higher standard of practice within the organization," according to the code.

The addendum, which refers to Twitter, Facebook and MySpace, states, "any written, auditory, and/or visual messages ... are the sole property of [the Austin Fire Department]."

The new clause is part of an older regulation that took effect roughly 30 years ago, said AFD Chief Rhoda Mae Kerr.

The new policy as a whole states that an AFD employee "shall not criticize or ridicule the department, its policies, its officers or other members by speech, writing, or other expression" when the criticism is slanderous and interferes with AFD discipline and damages the reputation or efficiency of another member.

The explanation was that the criticism rule has been there forever.

"That may be the case, but it still seems to be far-reaching and we think [it] may be crossing the line on First Amendment, and we think the language should be revised," said Stephen Truesdell, president of the Austin Firefighters Association, the firefighter's union.

Truesdell said the procedure is composed of rules so outdated that they are referred to as "muttonchops" and that the department has recently begun to consolidate old "largely ignored" rules, regulations and guidelines to publish them online.

"Now, you are resurrecting this old, archaic set of rules and [are putting] them in this modern format — what does this mean? Does this mean [AFD is] going to start enforcing these rules now that [they] modernized them?" he said.

Firefighters understand that disclosure of information regarding an ongoing investigation may endanger it, he said, and that criticism should be delivered through a union because of the hierarchical nature of AFD — which, if undermined, can lead to problems in emergency situations.

"I don't feel — as written — [the rule is] legal," said union lawyer Craig Deats. "It is overbroad because it can be interpreted to prohibit protective speech. I have been ensured that is not [AFD's] intent, and we have been exploring ways to try and make the language clearer."

He said that if firefighters feel the need to criticize the chief in matters of public interest that they should do so.

"That is a safety issue, and the public has a right to know," Deats said.

Deats said the firefighters' union believes the chief has the right to issue a code of conduct to regulate discipline.

They are seeking clarification from the chief that the speech rights are not being abridged.

"[The chief] is simply attempting to address the issue of people taking photographs of crime scenes [and sending] other personal private information," said Laurie Eiserloh, city of Austin assistant attorney.

"[She] is taking it under advisement and reviewing the policy right now, but I can tell you it was never her intention to infringe upon anybody's First Amendment rights."

Eiserloh said the goal is to make certain that the information that comes from AFD is accurate and that it doesn't infringe upon anybody's privacy rights or compromise a criminal investigation.

"I respect others to have different opinions — I don't always agree with them or understand them, but I accept them," Kerr said. "The policy had to be updated to reflect [cellphones, PDAs and social media]."

She said the upheaval of instantaneous communication had to be addressed and that the policy does not infringe upon the rights of employees to act as private citizens.

Kerr said there is a committee comprised of department members and legal representation whose goal is to review the policy.

AFD is willing to make changes to the policy in accordance with the association's requests, but there is no definitive timeline of when changes will be made. The review is ongoing, she said.

"There is a lot going on in the organization, and it's going to take us some time to catch up," Kerr said. "Our focus isn't always on the moment, but we are trying to look long range."


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Austin executive pleads guilty in gambling inquiry

Gordon Graves, the Austin millionaire who rolled the dice in 2005 when he founded a gambling enterprise of uncertain legality, agreed on Monday to plead guilty to a single felony charge of tampering with evidence as part of a sweeping deal to end three separate criminal prosecutions against his company, Aces Wired.

As part of the agreement struck in a Nueces County courtroom, three other Aces executives pleaded guilty to misdemeanor charges of hindering apprehension. The company also agreed to forfeit a little less than $1 million in cash and more than 350 game machines seized in a massive statewide raid on Aces' operations coordinated by the Texas attorney general's office in May 2008.

None of the Aces executives will spend any time locked up. Graves, 72, agreed to pay a $10,000 fine and to accept two years of deferred adjudication, during which he promised to stay out of the 8-liner business — so-named because of the potential number of tic-tac-toe-shaped winning combinations available to players. If he follows the conditions of the agreement, the third-degree felony charge will be dropped in 2011.

Aces Wired President and CEO Ken Griffith, Executive Vice President Knowles Cornwell and Vice President Jeremy Tyra also will pay $4,000 fines. Three of Aces' corporate subsidiaries will hand over another $30,000 in fines as part of the deal.

The case against Aces involved more than a half-dozen state and local law enforcement agencies and brought prosecutions against the company in Nueces, Bexar and Tarrant counties, which made it "the largest coordinated gambling prosecution in Texas history," according to a written statement from the attorney general's office. The various agencies will split the money forfeited by Aces.

An inductee of the Lottery Industry Hall of Fame and former chief executive of Multimedia Games Inc., an Austin-based gambling products company, Graves began Aces Wired to exploit a gray area in state gambling laws. Instead of rewarding players of its slot-machinelike devices with cash, which is illegal, Aces used a debit-cardlike system called "amusement with prize," in which customers accumulated points they could later redeem for merchandise.

Aces said that because the prizes weren't actual money, the system was legal. But prosecutors contended the cards were the same as cash.

"The card has a monetary value, and you can't tell me otherwise," said Adriana Biggs, chief of the Bexar County district attorney's White Collar Crime Division.

Graves was not available for an interview, but in a written statement he said he agreed to the plea bargain to spare his company and employees further prosecution.

"We believed that the amusement with prize electronic system was designed to comply with the spirit and letter of Texas's gaming laws. The Attorney General and state prosecutors felt differently. Thus, just as the captain of a ship is responsible for the actions of its crew, I accept responsibility and want to protect employees who innocently conducted business on behalf of the company," the statement said.

Stephen Fenoglio, one of a half-dozen attorneys hired by Aces to fight the charges, said another reason for the settlement was that Aces was running out of money. "The company had spent over $2.6 million in legal fees," he said. "There was a concern they would run out of money before they finished the legal battles."

Many 8-liner parlors are opened — and closed by police — across the state every year. Most are small, shadowy, mobile operations that run under law enforcement's radar.

Aces, by comparison, operated aggressively in the open. Its stock was publicly traded. Its parlors were well-lit and clean. The company advertised on giant highway billboards; for a while, it was a sponsor of the San Antonio Spurs.

Graves, who has other business interests, also contributed hundreds of thousands of dollars to influential politicians, including Attorney General Greg Abbott, Lt. Gov. David Dewhurst and Gov. Rick Perry.

Aces Wired opened its first gambling center in El Paso in late 2005 and four more the next year in Fort Worth, Killeen, Corpus Christi and Copperas Cove. It later opened centers in San Antonio and Amarillo. In public filings, the company foresaw sprinkling Texas with more than 60,000 of its machines. Graves also contemplated buying a dog track to place some of the machines.

In March 2007, however, Abbott released an opinion that Aces's prize system constituted illegal gambling. "It was very painful," Graves said at the time. "Like a wrecking ball."

Attorney general's opinions are advisory, and the company continued operating, maintaining that its games met the letter of state law. However, Bexar, Nueces and Tarrant counties, along with the state attorney general's office and several other counties, launched a massive undercover investigation into the company's operations. Fourteen months later, law enforcement officers swept into the company's 8-liner parlors in Corpus Christi, Fort Worth and San Antonio and shut them down.

Lawyers for the company complained that police overreached on the raids, confiscating records and bank accounts that had little to do with Aces operations. Bexar County agreed to return more than $100,000 it had confiscated from a bank account controlled by a company officer's wife, who had her own business.


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APD's DWI initiative chalks up 27 arrests

The Austin Police Department arrested 27 individuals over Labor Day weekend under the department’s “No Refusal” initiative conducted Friday night and a new state Driving While Intoxicated law enacted Sept. 1.

APD Cpl. Scott Perry said the initiative was not conducted last Labor Day but attained more arrests than this year’s crackdown on the Fourth of July.

The initiative is an 8-hour program in which if an individual arrested for a DWI denies either a breathalyzer or blood test, an APD officers is able to take the subject to a temporary blood alcohol test “command center” and have a detective fill out a search warrant request.

That request is processed by a magistrate, available 365 days a year, 24 hours a day, that same night. Though the command center is used on a weekly basis, it does not normally contain the man power used during special events, such as Halloween night, the Fourth of July and Super Bowl Sunday.

The initiative lasted from 9 p.m. Friday to 5 a.m. Saturday and amassed 27 total arrests consisting of nine blood search warrants, five consented blood draws, 12 consented breath tests and one mandatory blood draw based on the new DWI felony law.

“It’s still DWI officers aggressively targeting intoxicated drivers and keeping them off the streets to keep the rest of us safe,” Perry said. “There is nothing unique about the fact that we can try to attain a search warrant from a judge. The thing is it is a time-consuming process — it isn’t something that happens in a matter of minutes. That is why it becomes a bigger event when we decide to do [this initiative].”

The Driving While Intoxicated law passed Sept. 1 states that warrants to draw blood are not needed when a person has died or is near death, has suffered bodily injury, or the driver has a passenger under 15 years of age.  Individuals with two previous DWI convictions or one previous DWI conviction where a child was present are also subject to the new law.

Senate Bill 328 enacted on Sept. 1 was authored by State Sen. John Carona to address boating while intoxicated but was amended several times and expanded to operating any vehicle while intoxicated. The bill granted magistrates the ability to issue a warrant for a blood draw of a DWI arrest, but before the legislative session ended, it was expanded by another bill, authored by State Sen. Bob Deuell and called the Nicole “Lilly” Lalime Act.

Though the second bill died in the Calender’s Committee, it was still used to amend Carona’s bill by waiving the requirement for a warrant under certain conditions.

Local DWI lawyer Jamie Spencer said since the legislation is new, there have not been any cases contesting its constitutionality, but he expects for defendants to appeal decisions convicting them based on the new law within a year’s time.

“I don’t think it’s just, but legal ‘just’ means whatever the appellate court says cops can do,” Spencer said.

APD’s “No Refusal” initiative was the sixth conducted since Halloween weekend. It set up a Blood Alcohol Test command center located at the corner of Barton Springs Road and South First Street, where subjects arrested for DWI had blood drawn.

The streets of Austin were patrolled by a DWI unit comprised of 14 officers, but any officer was allowed to bring subjects to the command center.

“We can do a search warrant on every single DWI arrest strictly for evidentiary nature — that is lawful and legal,” said APD Lt. David Mahoney. “Is it practical? Not necessarily, because it takes a lot of effort. You got to write it, you got to go see a judge, etcetera. That’s why we only do [the initiative] on this one day.”

Deuell explains the intent of his bill in a brief analysis.

“Frustration with the high breath test refusal rate in Texas has prompted jurisdictions across the state to employ ‘no refusal’ policies,” Deuell said in the analysis. “The Texas Court of Criminal Appeals has approved the use of the search warrant as a lawful method for obtaining blood samples. Evidence of intoxication is often crucial to the conviction of a DWI offender, for judges and juries prefer to be certain of the defendant’s guilt, especially in felony DWI cases.”

After Senate Bill 328 passed in the Senate, State Rep. Larry Phillips sponsored the bill in the House. He said the older act was amended onto the bill at the end of the session due to legislative calendars taking more time than originally allotted.

He said he was not against the initiative as long as it follows a person’s constitutional rights and that any evidence attained against a subject unfairly can always be suppressed in court.

“The Supreme Court has said clearly if there is probable cause, you can [get a blood search warrant],” Phillips said. “If the officers are doing that, I don’t have a problem with that, as long as they are following [the public’s] constitutional protections.”


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U.S. Sentencing Commission Urged to Give Judges More Flexibility

CHICAGO, Sept. 10 -- Advocates for added flexibility in criminal sentencing took their appeal to the U.S. Sentencing Commission, which heard testimony here Wednesday and Thursday as part of the agency's first nationwide series of public hearings since federal sentencing guidelines took effect 22 years ago.

Criminal justice reform proponents have long pushed the federal government to back alternatives to incarceration and more flexible sentencing for drug, child pornography and other convictions. While past critics of federal guidelines criticized them for removing judges' discretion, others in law enforcement and advocacy want to use the guidelines to promote alternative sentencing. They said they think the commission is increasingly receptive to that idea.

Kentucky Justice and Public Safety Cabinet Secretary J. Michael Brown, who called the commission "the NASA of sentencing stuff," lamented states passing strict laws targeting "the drug du jour" only to end up "with prison systems bursting at the seams with people who aren't the most dangerous to society."

David Kennedy, director of the Center for Crime Prevention and Control at John Jay College of Criminal Justice, urged the commission to promote new strategies for dealing with gangs, including an approach wherein judges and prosecutors are more lenient if gangs cease their activities, but "bank" charges for later punishment if crime continues. Kennedy sees his invitation to testify as part of a new direction for the commission.

"The Sentencing Commission appears to me to be thinking about its role more broadly and is interested in different points of view," he said.
Kennedy said judges are "enormously influenced" by the guidelines, even though they are not mandates.

Judges and lawyers testifying at the hearing bemoaned the fact that sentences often differ considerably from the federal guidelines. Judge Jeffrey S. Sutton of the U.S. Court of Appeals for the 6th Circuit said federal guidelines might recommend a 70-month prison sentence for child pornography, "but you get a one-day sentence. To me that's disrespecting the commission."

The guidelines have their origin in mandatory minimum prison terms that were meant to end sentencing disparities among districts. A 2005 Supreme Court decision relegated them to recommendations.

Now the commission, an independent, bipartisan agency, is holding seven hearings throughout the country to gauge the impact of the guidelines. Alternative sentencing, cocaine and child pornography policies, and the guidelines' relevance to human rights offenses such as torture and war crimes were among its priorities this year.

"This is a time to hear from individuals who don't contact us in Washington but who definitely have concerns -- law enforcement, victims rights groups, judges, professors, parole officers," said commission Chairman Ricardo H. Hinojosa, a federal court judge in Texas. He said the hearings aim to draw out regional differences in opinions or priorities. "By the border, there might be more immigration, drug and firearm cases. In other parts of the country, there might be more fraud or child pornography."

Since February, hearings have also been held in Atlanta, New York and Palo Alto, Calif., and they are scheduled for Denver, Austin and Phoenix through January 2010. In March the commission will hold public hearings in Washington on proposed amendments to the guidelines, as it does every year.

When the commission makes recommendations to change the guidelines, they become law within 180 days if Congress does not act on them. More than 700 amendments have passed this way; only one recommendation, a 1995 measure that would have equalized penalties for crack and powder cocaine, was rejected.

The federal sentencing guidelines are distinct from mandatory minimum sentencing laws, including the controversial law governing sentences for crack cocaine possession.

Patrick J. Fitzgerald, U.S. attorney for the Northern District of Illinois, said the Supreme Court decision making the guidelines advisory has greatly changed their impact. Prosecutors often decide to press charges that trigger mandatory minimum sentences because they fear judges will otherwise give lighter sentences than the guidelines indicate, he said. And defense attorneys are less inclined to work out agreements with prosecutors, preferring to appeal directly to judges for leniency, Fitzgerald said, adding that the Supreme Court decision has resulted in lighter punishments for white-collar criminals.

"I venture to say that [the decision] has reintroduced into federal sentencing both substantial district-to-district variations and substantial judge-to-judge variations," he said.


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Road leads attorney back to Austin

Business savvy Paul Egtvedt has worked with some of Minnesota's top attorneys from Fortune 500 companies and has his own office in the IDS Tower in Minneapolis, but when his entrepreneurial spirit and heart called him back to his hometown, he listened.
Born and raised in Austin, Egtvedt worked for various large law firms in Minneapolis before opening his own law firm there in 2003. He recently decided to leave the big city behind and return to his original home to open a firm on Main Street.
His office, on the top floor of the 111 building, is distinctively Egtvedt-sharp and professional, yet unpretentious.
The graduate of Cornell University said he chose to return to Austin so he could be closer to his family and to marry and settle down with his fiancee, Heather Wittstruck, who teaches at Southgate Elementary School. He also believes his experience working on complex issues for large businesses will be beneficial in a smaller community like Austin.
"There's just a level of familiarity and comfort in dealing with a community this size," said Egtvedt. "I like that you have an identity here. I like that there is a very active and vibrant business community here. You get to feel more like a part of (the clients') families. I'm very excited to be back."
Egtvedt practices in several areas of law, including employment, labor law, business and corporate law, personal injury, criminal defense and land use. He said he most enjoys working on employment issues because he's intrigued by human behavior.
"It's the least technical but the most complicated area because you are dealing so much with people," he said. "You're dealing with their moods, their state of mind and how people view the world and interact. It's just fascinating."
Egtvedt said his work is driven by people's emotions.
"I want to feel it, that they are angry or hurt of defensive or defenseless, and then aside from that, communicate back to them, 'Here is what the law can do for you,'" said Egvedt.
Egvedt said he enjoys being his own boss and called it a "happy happenstance" that his road led back to Austin.
"This is just something I've always wanted to do," said Egtvedt.
Being his own boss also benefits clients, said Egtvedt.
"They know exactly who's doing the work and making the decisions," he said. "They are getting the level of work and treatment they deserve."
Egtvedt recently became a member the Austin Area Chamber of Commerce and said he plans to eventually close his Minneapolis office to focus exclusively on his Austin clients.

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Prosecutors’ warn against changes to prison, criminal policy

The California District Attorneys Association and CDAA incoming President Gary Lieberstein of Napa County are urging Gov. Arnold Schwarzenegger to abandon the proposal to commute the sentences of criminal aliens in state prisons in order to refer them to Immigration and Customs Enforcement for deportation.

Such a policy is not only dangerous to public safety, but would “confer on criminal aliens benefits that are not available to inmates who are citizens of the United States,” according to the CDAA.

In a letter delivered Monday to the governor and lawmakers, CDAA cautioned against the deportation plan. “We believe that all inmates, regardless of their immigration status, should be held to the same level of accountability for their conduct,” stated the letter. “If you were to exercise your constitutional power to commute the sentences of any portion of the inmate population, we urge you to do so only after there has been an assessment of the risk of each individual for re-offending.”

CDAA also took issue with the administration’s proposal to reduce so-called “wobbler” offenses, i.e., crimes that can be charged as either felonies or misdemeanors, to straight misdemeanors, citing a host of unintended consequences that would “subvert prosecutorial efforts in numerous ways.”

The letter noted that crimes such as grand theft, vehicle theft, identity theft and other fraud offenses rob Californians of millions of dollars each year. Eliminating the ability of prosecutors to charge such “wobbler” offenses as felonies would jeopardize public safety by “blurring the lines between degrees of criminality such that participants in complicated, high-dollar theft rings would be subject to the same punishment as petty thieves.”

“Felony crimes carry longer statutes of limitations than misdemeanors. This means that prosecutions of major fraud cases, for example, which are often document driven and take months, if not years, to come together, could be lost,” the letter stated. “Under existing law, search warrants generally can only be issued in cases involving felonies. This proposal would effectively abolish the use of this vital law enforcement tool.”

While the letter from the prosecutors’ association acknowledges the historic magnitude of California’s economic crisis, it expressed concern that the justice system could be “irrevocably harmed” by some of the proposed cuts in criminal justice.

In a prepared statement, Lieberstein said, “We cannot allow public safety to be compromised by rushing to put a price tag on justice in order to cut state costs. There are alternatives available to the governor and legislative leaders that do not sacrifice our obligation to protect the safety of all Californians including the citizens of our county.”


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UT LB Kindle suffers concussion when his car crashes into Austin apartment

Texas linebacker Sergio Kindle suffered a concussion when his car veered off the road and crashed into an Austin apartment complex around 2 a.m. Wednesday.
No charges have been filed by Austin Police. Kindle, who had a passenger in his car, was the only one injured in the incident. Kindle, a former Woodrow Wilson standout, was texting when his car hit a curb, causing him to lose control of it, said Brian Roark, Kindle's attorney. The car crashed into an apartment in the Jefferson West complex on Rio Grande Street.
Kindle and others who had been following in the car behind him pushed Kindle's car out of the wall and left it on the street. Kindle went home and was treated for the concussion later Wednesday.
Roark said a representative for Kindle contacted the apartment's management company by 10:30 a.m. and that Kindle would cover the damages. Reports estimated the cost at more than $8,000.
Kindle, who had 10 sacks in 2008, was suspended for the first three games of the 2007 season after he was arrested for driving while intoxicated the previous July. Roark said Kindle does worry about the impression last week's accident could create.
"He did everything you could hope someone would do in that situation," Roark said. "I don't think he violated any criminal laws."
Cpl. Scott Perry said Monday the APD is investigating filing a charge of leaving the scene of an accident, a Class B misdemeanor, but said charges may not be filed. A note would have relieved Kindle of any wrongdoing, Perry said.
Roark said Kindle is only required to file a report with the Texas Department of Transportation because Kindle hit a stationary object and did not injure anyone else. Kindle planned to file the report as early as Monday, Roark said.
Perry said the APD had not spoken to Kindle.
One of the two tenants of the apartment told the Austin American-Statesman part of Kindle's car crashed into her bedroom, destroying several of her belongings and furniture. Neither tenant was at home at the time.
"She would have been dead if she had been sitting at her desk," Emily Dole, the roommate of the tenant whose bedroom wall was hit, told the Austin paper.
Roark said Monday he had been told the tenant had obtained a plaintiff lawyer, which he said "immediately raised red flags," since only property damage occurred. Roark said pictures of the accident showed the bulk of the damage was limited to the exterior of the building.
The tenant could not be reached for comment Monday.
"He was in an accident, and he's taken responsibility," said John Bianco, a UT athletic spokesman. "We're happy no one was seriously hurt."

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El Paso City debates gay rights: One of 'Chico Taco's five' files complaint with police

EL PASO -- A kiss between two men that got them and three friends thrown out of a Chico's Tacos restaurant has become the backdrop of a citywide debate on gay rights.
National news outlets, civil-rights lawyers from El Paso to Austin, El Paso Police Chief Greg Allen and City Council representatives all chimed in on the Chico's five.
The men, all gay, were at the Chico's Tacos on Montwood on June 29 when a contracted security guard saw two of them kiss, then used a pejorative before forcing them to leave, said Carlos Diaz de Leon, one of the five.
Diaz de Leon said police exacerbated the conflict when they arrived and threatened to charge the men with a state statute prohibiting homosexual conduct, even though the law was declared unconstitutional years ago.
Making matters worse, an El Paso police spokesman later said the restaurant can refuse service to anyone and the men could have been charged with criminal trespass.
After prompting from his lawyer and former Police Chief Richard Wiles, Diaz de Leon on Thursday submitted a complaint to the El Paso Police Department's Internal Affairs Division. Police, meanwhile, have admitted handling the situation poorly. The restaurant owners and security company, All American International Security, have remained silent.Diaz de Leon continues to contend that he and his friends did nothing wrong and were the victims of discrimination. Diaz de Leon, 31, said the men were not drinking to excess, were not behaving badly and were quiet and mild-mannered while they were at the restaurant.
"I was ordering at the cashier and I turned back to see if the other guys wanted to get something for themselves when I noticed two guys give each other a kiss on the lips, kind of like when you kiss someone on the cheek," Diaz de Leon said.
By the time the men sat down and began eating, they were approached by the guard, who said, "Si seguian con sus payasadas, los vamos a sacar de aqui, no permitimos que anden haciendo cosas aqui de jotos. (If you keep clowning around, we are going to get you out of here. We don't permit doing gay things here)," according to the complaint.
The men were told to leave by restaurant security guards as several people, including one of the guards, called police. An officer arrived about an hour later and told the men it was illegal for them to kiss in public, citing the Texas law on homosexual conduct the U.S. Supreme Court ruled unconstitutional in 2003.
Diaz de Leon's four companions, including the two men who kissed, have yet to come forward with their own accounts. Diaz de Leon said the four other men, all professionals, feared making a public issue of the situation because it could be damaging to their careers.
"They have jobs and work," he said. "They don't want to get harassed."
Word of the altercation between the gay men and the security guard spread quickly through El Paso. A text-message and e-mail campaign on Thursday urged people in the gay community and others to participate in a peaceful protest at 5 p.m. today in front of the Chico's on Montwood. Thursday night, about 35 people protested outside the Chico's Tacos. Several held signs that read, "Equal rights," and "I want to kiss in public" and "It was only a kiss."
At City Hall, a budget hearing for the Police Department veered off topic when City Council representatives made pointed queries to Chief Allen. City representatives said they were unhappy with the department's handling of the situation.
Allen responded that one of the two officers sent to the restaurant was not very experienced, but he promised to look into better police training. Allen also released a statement late Thursday that said police officials made incorrect statements about the law and that local government has a responsibility to ensure that people are served without fear of discrimination.
"We will be looking at (diversity issues) in roll-call training," Allen said at City Hall. "... The department will not tolerate any discrimination based on sexual orientation, race or anything else."
West-Central city Rep. Susie Byrd and Eastridge/Mid-Valley city Rep. Steve Ortega said they were troubled not only by the incident itself but also the response by the police spokesman that the restaurant had a right to refuse service to anyone.
"That's highly incorrect," Ortega said.
Lisa Graybill, legal director of the ACLU of Texas, said a 2001 U.S. Supreme Court case determined that places of public accommodation cannot refuse to serve someone based purely on discrimination and must establish a reasonable basis for turning someone away.
Gay men and women have an additional protection in El Paso, where in 2003 the City Council adopted an ordinance that prohibits restaurants and other businesses from discriminating based on sexual orientation, she said.
Diaz de Leon has been working with lawyer Bill Ellis, a gay-rights advocate and civil-rights lawyer who at times has represented police unions in El Paso. Lawyers with the ACLU in El Paso and Austin on Thursday began legal research and expressed an interest in speaking with the five men to determine whether the police or employees at Chico's Tacos or the security firm violated anyone's rights.
"We're extremely concerned that the actions of the restaurant employees, and the El Paso police may have violated the law," said Graybill. "The city of El Paso prohibits restaurants from refusing service to anyone based on their sexual orientation, and the police should have enforced that ordinance just as they would if the restaurant ejected two African-Americans simply because of their race, or two Catholics because of their religion."
Federal public accommodation laws which prohibit discrimination, and their local counterparts that extend rights to groups beyond race, religion and nationality, came at a time when signs that said "No Mexicans, no dogs" were common in restaurants and other public establishments in West Texas, Graybill said.

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