Full question:
A Bar is for members only. TABC employees come in to the bar. Sign the guest list as if they are guests of a member. They go to the bar and order a drink at the busiest time of the night. Then arrest the bartender for serving them as if it was an open bar. Is this entrapment?
- Category: Licenses
- Subcategory: Liquor
- Date:
- State: Texas
Answer:
Entrapment is a legal doctrine known as an affirmative defense. It must be proven by a preponderance of evidence and it generally is only available in criminal cases. Courts have held that the entrapment defense is available only to one who has been induced or lured by the law enforcement officer for the purpose of prosecution and into the commission of a crime which he otherwise had no intention of committing. Entrapment does not result merely because officers created a situation which made it possible for the defendant to commit the crime. In order to be found to be a victim of entrapment, the entrapped person must have been willing and willing to commit the crime prior to the alleged entrapment. The mere providing of an opportunity to commit a crime is not entrapment. In order to find entrapment, there must be persuasion or inducement to commit a crime by the entrapping party.
The defense known as “outrageous police conduct” is similar to the entrapment defense in that both are based on police misconduct and both will result in an acquittal if proven. Unlike entrapment, however, the “outrageous police conduct” defense is a very vague and broad defense with no strict requirements and no accepted definition.
For example, in Provigo Corp. v. Alcoholic Beverage Control Appeals Board (1994) 7 Cal. 4th 561 [28 Cal. Rptr. 2d 638], the defendants claimed that the use of minor decoys to purchase liquor constituted outrageous police conduct. The court responded, “[I]t is doubtful the Constitution may be construed as forbidding the use of minor decoys. Assuming such a violation occurred, it was at most a technical one that could not be deemed so ‘outrageous’ as to afford a defense to prosecution.”
The following is a TX statute:
§ 8.06. ENTRAPMENT.
(a) It is a defense to prosecution that the actor engaged in the conduct charged because he was induced to do so by a law enforcement agent using persuasion or other means likely to cause persons to commit the offense. Conduct merely affording a person an opportunity to commit an offense does not constitute entrapment.
(b) In this section "law enforcement agent" includes personnel of the state and local law enforcement agencies as well as of the United States and any person acting in accordance with instructions from such agents.
Please see the information at the following links:
http://definitions.uslegal.com/e/entrapment/
http://www.idvisor.com/products/Entrapment.htm
http://www.supremecourt.nm.org/opinions/VIEW/08ca-065.html
http://law.shu.edu/journals/lawreview/library/vol_33/33_2/roiphe.pdf
http://www.law.fsu.edu/journals/lawreview/frames/253/lordfram.html
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
