MEMORANDUM

TO:

Stacy Gahagan

FROM:

Larry Graham

DATE:

November 20, 2014

RE:

Graham Thomason File #02288

ISSUE
I.

Was Mr. Thomason in a public place when he was arrested for public drunkenness?

II.

Did Mr. Thomasons behavior manifest in a way consistent with Georgia case law to

support his arrest?

BRIEF ANSWER
I. Graham will probably be found to have been in a public place when the police officer
arrested him. Thomasons case meets all of the requirements for what Georgia courts have found
to be public places. Based on the evidence he was in fact in a place where he could have been
reasonably viewed by someone that was not in his home. Ridley v. State, 176 Ga. App. 669, 672
337 S.E.2d 382 (Ga. App. 1985). It does not matter that Graham was on his own property either.
Courts have held that if a person is within their own property, if the public can reasonably view
them, then they could still be arrested for public drunkenness. Id.
II. Mr. Thomasons middle finger to the police officer has only been mentioned in Georgia case
law but in general the court does seem to classify it as an obscene gesture. Dupree v. State, 267
Ga. App. 561, 563, 600 S.E.2d 654, 657. However the question is purely a factual one and it is
up to the jury to take into consideration other circumstances that might affect the final decision.
Hutcheson v. State, 24 Ga. App. 54, 55, 99 S.E. 715, 715.

FACTS

Graham Thomason was out getting drinks with a few friends to celebrate the end of the
first week of classes. After several hours of drinking, Thomason begins to walk the four blocks
back to his home. While on his way there he encountered his former girlfriend, Ms. Jacobs, and
talked with her for a moment. According to Ms. Jacobs, Thomasons friends were acting stupid
and immature but Thomason himself showed no such signs of being drunk or acting in a rude,
disrespectful manner. At about 2:40 a.m. when Thomason arrived at home, an officer responding
to a noise complaint from across the street spotted Thomason tripping over his sprinkler. When
asked if there was a problem, Thomason stood up without saying a word and gave the officer the
middle finger. At this moment, the officer arrested Thomason for public drunkenness.

RULE STATEMENT
A public place is defined by Georgia statute as any place where the conduct involved
may reasonably be expected to be viewed by people other than members of the actors family or
household. O.C.G.A 16-1-3. Georgia code states that a person manifests drunken behavior by
boisterousness, by indecent condition or act, or by vulgar, profane, loud or unbecoming
language. O.C.G.A 16-1-3.

ANALYSIS
I. Public Place
Based on the facts as theyre presented, Mr. Thomason was in a public place at the time
of his arrest even though he was on his own personal property. A public place is defined as any
place where the conduct involved may reasonably be expected to be viewed by people other than
members of the actors family or household. O.C.G.A 16-1-3. Furthermore, a person can still
be charged with public drunkenness even if theyre on their own property at the time. Ridley, 337
S.E.2d at 383. Based on the definition given, it is undeniable that Mr. Thomason was in a place

that one could reasonably expect the public to see. The officer that was responding to the noise
complaint was able to see Mr. Thomason easily from the car so it is reasonable to expect that any
other person would have been able to see him too. Like the defendant in Ridley, Mr. Thomason
was on his own property when the police arrived but because it was relatively simple for a
person walking by to see what was going on the court found him to be in a public place as
defined by the statute. Id. The arrest occurred late at night so one could argument that no one
could have been awake. However, regardless of the time that the arrest occurred, Mr. Thomason
was in an area that could be viewed by the public. Therefore, absent any other factors, Thomason
fulfills this criteria of the statute.
II. Manifested Behavior
As for Mr. Thomasons behavior, his actions did not manifest in such a way that is
consistent with Georgias public drunkenness statute. A person can manifest drunken behavior
through boisterousness, indecent condition or act, or by vulgar, profane, loud, or unbecoming
language. O.C.G.A 16-11-41. Georgia case law has specifically held that a persons
presence and intoxication level in a public place alone are not sufficient to constitute public
drunkenness. Peoples v. State, 134 Ga. App. 820, 216 S.E.2d 604, 605. In addition to this, just
staggering while walking is not enough to convict a person of public drunkenness. Finch v. State,
101 Ga. App. 73, 74, 112 S.E.2d 824, 825. Moreover, courts have also ruled that if a person does
not exhibit behavior that would justify an arrest for public drunkenness even though they may, in
fact, be intoxicated then a charge of public drunkenness cannot be given. Young v. State, 155 Ga.
App. 598, 600, 271 S.E.2d 731, 732 (1980).
Based on the statute, Thomasons actions did not manifest into boisterousness nor was he
using vulgar, loud, or profane language. Both the the defendant in Finch and Mr. Thomason

staggered as they were interacting with the police but like that case, Thomasons stagger was not
accompanied by the other factors that juries have used to justify other convictions for public
drunkenness. 112 S.E.2d at 825. Like the defendant in the Young case, who was not considered
boisterous under the statute because he did not say anything offensive to the police even though
he was drunk, our client was also silent in his interaction with the police officer. 271 S.E.2d at
732. His conduct did not manifest something that one would call boisterous or profane
because he, nor his actions, made any sound whatsoever.
Since Mr. Thomason was not boisterous or using bad language, he has to have manifested
his condition by either indecent condition or act in order to be considered by law to be publicly
intoxicated. Thomason was not in any indecent condition, but he did give an officer the middle
finger. Case law has only provided quotes from witnesses at court that have called the middle
finger an obscene gesture. Dupree, 600 S.E.2d at 657. There has not been a specific ruling on the
action and it has usually been up to the jury to look at other factors surrounding the case to come
up with a correct verdict. Hutcheson, 99 S.E. at 715. It is possible that Thomason believed it to
just be one of his friends who had been acting immature all night when he gave the officer the
middle finger. It can not be reasonably expected that Thomason meant the gesture for the police
officer specifically because before that moment he showed no signs of behaving in a rude or
disrespectful manner. None of his other actions suggest that Mr. Thomason was being loud,
vulgar, or using unbecoming language either . In fact, it can be easily argued based on witness
testimony from someone who was close to him that he was the least vulgar, and boisterous of the
group of gentlemen that he was with. If his friends were not considered to be publicly
intoxicated, then it is hard to see how Thomason could have possibly been deemed to be any
worse than they were.

CONCLUSION
Based on the facts, and the circumstances that surround them, the court will most likely
find that Mr. Thomason was inappropriately arrested for public drunkenness. It is clear that
Thomason was in a public place at the time of his arrest. He was in his a place that could
reasonably be seen by the public. The most important question here is if, given the
circumstances, the middle finger is enough to be considered an indecent act under Georgia Law.
Thomason did in reality give the officer the middle finger but since there isnt any previous case
law on the gesture other than a few quotes from witnesses, it will be for the jury to decide
whether or not the gesture would be considered inappropriate based on the all of the
circumstances.