More than 1,300 open container violations have been tossed from the Municipal Court system after Las Vegas city officials decided the citations didn’t contain enough information to support prosecution.
The decision to punt on open container cases came after officials discovered Las Vegas police were writing tickets based on an incomplete version of a related city ordinance.
A mistaken transcription in the Metropolitan Police Department Criminal Offense Handbook that officers use for guidance left off part of the ordinance, which states that in order to be in violation of restrictions on alcohol consumption in public the booze needs to be from “an original sealed or corked container.”
Without that language, officers are left with the mistaken impression that drinking any alcoholic beverage, even from a plastic cup, on a city sidewalk is illegal.
The misinterpretation came to light in August after city attorneys decided to scrutinize hundreds of citations issued along Fremont Street downtown as part of a police crackdown on unruly crowds that swelled into the thousands on the first Friday of each month, a popular party night in the area.
It was disclosed in an Aug. 5 email from Las Vegas police Lt. Dan Zehnder to Deputy City Attorney Ed Poleski.
“It appears there is a difference between the ordinance verbiage you sent us and what is listed in the LVMPD Criminal Offense Handbook that our officers use,” Zehnder wrote. “Our handbook does not contain the words … ‘which was purchased in an original sealed or corked container.’ ”
Zehnder went on to say the handbook version of the ordinance would justify officers “citing or arresting someone for walking down the street with any type of alcoholic beverage, be it in a plastic cup of beer or in a common brand container available at any casino.”
Dayvid Figler, an attorney who represented several people who had open container violations dismissed, said the mistake suggests that in a haste to preserve the perception of law and order in burgeoning bar and casino districts police overlooked a basic element of law enforcement.
“They were engaging in a strategy that was very shortsighted and may have accomplished an immediate goal but in the long term it blew up in their face,” Figler said.
He said it could undermine trust between citizens and police in the future if people suspect officers don’t have a firm grasp of the laws they’re supposed to enforce.
“How do you know the next law that doesn’t sound right is correct?” Figler said.
Confusion over the city’s alcohol ordinances has reigned supreme downtown in recent months.
According to municipal code, it is legal to drink alcohol on public sidewalks throughout the city.
For example, there is no ordinance to prohibit someone from walking out of a casino or bar with a tavern license with a cup, can or bottle of booze and to drink on the sidewalk.
The liberal policy is what makes it possible for tourists on Fremont Street to stroll between certain bars and casinos with beers or cocktails in hand. Under the Fremont Street Experience canopy some casinos even offer outdoor bars where customers on the pedestrian mall can walk up, buy beer and continue along. Bars with “tavern limited” licenses aren’t allowed to let patrons leave with their booze.
There are also restrictions on alcohol consumption if the booze is purchased at package liquor stores in “an original sealed or corked container.” Booze purchased from a package store, of which there are several on Fremont Street, isn’t supposed to be consumed within 1,000 feet of any liquor store.
That restriction means nearly every sidewalk between Main Street and the east end of the Fremont Street Entertainment District and beyond is off limits for drinking packaged liquor.
Historically the line between tavern booze and package liquor has been a distinction without a difference.
Rarely do police bother to monitor whether tourists coming out of liquor stores under the canopy are opening beers or spirits on the pedestrian mall. They’re allowed to blend into the tavern and casino crowds without any hassle.
In recent months, however, downtown business owners, city officials and police have second-guessed lax enforcement policies.
The issue came to the fore in July after crowd surges downtown made officials nervous about public safety. Opponents of more package liquor outlets lobbied the Planning Commission to deny several new licenses on Fremont Street, prompting a deadlock on the commission and persuading the City Council to postpone the issue while business owners and officials studied the potential ramifications.
During that same time frame, police began experimenting with tough crowd controls in the area, particularly in the Fremont East Entertainment District.
The crowd control efforts included horses, pedestrian barriers on the sidewalk, and hundreds of citations for open container violations.
Typically, open container citations go right into the Municipal Court system with little to no scrutiny from city attorneys. But because of the high-profile crackdown on Fremont crowds, the resulting citations got attention in City Hall.
And that’s when city officials noticed the information on the tickets wasn’t enough to prove the charges in court.
After reviewing about 250 of the more recent citations, city officials decided not only were they deficient to support charges, but city officials determined they should dismiss all such citations in the court system.
“Because most of them had deficient reports, we went ahead and told them to dismiss all of the pending ones prior to January,” Assistant City Attorney Ben Little said.
City Attorney Brad Jerbic said tickets that already have been processed and paid also could be subject to challenge if the recipients take the matter back to court, although there is no guarantee they would be successful.
“If they feel aggrieved, they can certainly ask the court to set aside their plea,” Jerbic said.
Capt. Shawn Andersen, the head of the downtown area command for Las Vegas police, said the officers’ handbook is being updated with the correct language of the ordinance.
“We continue to have a dialogue with the city attorney’s office and we have received from them some clarifying language, things they desire to have in these citations that makes it easier for them to prosecute them if they desire to do so,” Andersen said.
Contact Benjamin Spillman at firstname.lastname@example.org or 702-383-0264. Follow @BenSpillman702 on Twitter.