I woke up this morning and my heart sank. I read on Twitter that TCU’s quarterback and Heisman trophy contender Trevone Boykin was arrested last night for a felony assault on a public servant, resisting arrest, and public intoxication. Tomorrow he was to play in the Alamo Bowl against Oregon in San Antonio. As a criminal defense lawyer the thoughts that immediately come to mind are: he would have to possess intent to strike the officer or it be knowing (report stating it is unknown who he intended to strike) or it be reckless (bar fight scenario not quite adding up to careless behavior intended to put the unintended in harm's way), intoxication is a defense to the felony assault if he was so inebriated he did not have the requisite mental state to form intent, and mostly- how it fits into the typical scenario of cops choosing to score an arrest versus looking at the bigger picture. What is that overall big picture ? Well, for starters Boykin did not start the fight, he merely responded to unwelcome and unseemly heckling. When two people agree to fight it is legally called the defense of mutual combat. Much like yelling "fire" in a crowded movie theater, words do create actions. It is preposterous to think that the hecklers were throwing jabs as a friendly gesture. The reports have yet to reveal the “fighting words” that brought forth Boykin’s reaction. Sure, when cooler and sober heads prevail, in hindsight it is always crystal clear that the best thing to do is walk away; however, consider for a moment what would happen if a heckler called a man’s wife or daughter the ultimate explitive as they walked by in a continued taunting fashion ? Consider if the heckler were to do such while walking towards the man/wife or daughter scenario. With or without alcohol, in the Lone Star State it would not be surprising to see the heckler met with a physical response to his invitation. Trevone Boykin is a young, testosterone filled 22 year old. His frontal lobe for executive decision making capacity won’t fully develop for another three years. The fact is he responded. Would everyone ? No. Would most ? That is a hard question not knowing the exact words and physical behavior of the taunters. From a moral perspective, did the hecklers receive unjust action ? No, they knowingly asked for a fight . Is this something in the grand scheme of things the police considered ? No, I am not aware of any citations to any of the unruly bullies who started it all. So, here comes the police and one of them gets punched in the face by Boykin. Bad, of course. The real question is – did Boykin knowingly and intentionally punch the police officer. Nope. When a police report (which rarely includes exculpatory evidence) cites 'it is unknown' if Boykin knew who he was striking at this is a problem. This is clear cut evidence of a melee gone wild with multiple actors. You don’t arrest someone when it is unknown. Legally, you are required to have probable cause. So, one might ask did the police do this because of Boykin’s notoriety ? I assert no, but I am sure it did not hurt. Many rookie cops come at these situations from the angle that their summoned presence means someone must “pay” for the fight by getting arrested. Not that I advocate assault in any way, no one does, but too many times in my career I have represented the wronged party merely because the instigator lost the fight and was more convincing in their pleas to the police. I currently represent a tiny girl whom the police arrested because she and her boyfriend (who tried to stop a fight their cousin got into) were the only ones left for the bouncer to point to by the time the police arrived. Justice ? No. A good day’s work for the cops called out, yes- in their mind.
As for the resisting arrest and public intoxication, those are misdemeanor matters to be investigated and thoroughly vented before appropriate legal action is to be taken by Boykin, but actions that won’t ruin his life. Gone are the days in which a cop breaks up a fight and sends the real life lesson by scaring the instigators with a stern warning or appropriate citation. My heart goes out for Trevone. Sure, he should have remained in bed at midnight per team rules. Sure, I’m sure no TCU fan wanted him out drinking to the wee hours of the morning days before a Bowl game. But let’s put it in perspective, he is a hard working kid, like many who made some bad choices. Should his actions amount to a felony arrest and possible crushing of his life dreams ? No. TCU Coach Gary Patterson apologized to the city of San Antonio. If the hecklers were from San Antonio, I say the apology is unwarranted. I'm sure the rest of the city would agree. Not exactly a welcoming environment to a football team whose fans are bringing a lot of money to their city. Of course an apology to the injured officer performing his duties and who happened to receive the brunt of an uncalled for drunken melee is quite in order. Let’s hope that lady justice takes off her blindfold and sees this for what it is. Oh, and yes all this from a die hard Baylor Bear alum.