Before San Antonio City Council issued a vote of no confidence for Councilman Clayton Perry (D10) this week, Councilman Jalen McKee-Rodriguez (D2) relayed his and his constituents’ concerns that Perry received preferential treatment by the criminal justice system after his arrest for what appeared to be a drunken hit-and-run.

“There are lingering questions my constituents have: had it been them, would they be met with the grace that’s been shown?” McKee-Rodriguez said. “Do Councilman Perry’s political values or how effective he’s been for his constituents give him a pass for the pain he’s caused someone?”

James Hamilton, a Black resident who spoke before the Monday vote, addressed the issue more directly.

“[Perry is] not asking for these people to have compassion on him. What he’s asking for is white privilege,” Hamilton said. “If I drive out of here today, drunk, and the police pulled me over, they’re going to take me in jail and keep me in there with a high bond. Probably something I couldn’t afford.”

But San Antonio Police Department Chief William McManus rejected the notion that Perry was treated differently from any other suspect and commended the officer who handled the incident.

“The officer did a good job,” McManus said.

On Sunday, Nov. 6, officer Patrick Des Rosiers responded to a hit-and-run call on the city’s North Side just after 9 p.m. After speaking to witnesses, he drove to Perry’s house where he saw the Jeep — matching the description of the vehicle that fled the accident — still running in the driveway. He heard moaning coming from the backyard, where he found Perry on the ground, bleeding from a cut on his head, according to the arrest affidavit.

It is not clear from the body-worn camera footage if Des Rosiers knew that Perry was an elected official. At one point he asked Perry to spell his last name.

The councilman slurred his speech, gave the officer brief and often evasive answers to his questions and appeared to have urinated in his shorts.

Based on the questions Des Rosiers asked Perry and his tone of voice, it’s clear the officer assumed Perry was driving while intoxicated. At the end of the video, the officer told Perry, “Do not drive anymore tonight.”

Perry repeatedly denied that he was driving and refused to say if he was drinking that night, McManus said.

“At the time [the officer] was speaking with Perry … he could not put him behind the wheel,” McManus said. “As logical as it may have seemed to assume that he was behind the wheel, you need more than that to actually make the case. … What [the officer] had that evening did not amount to probable cause.

“Everyone who looks at this a couple of days later has more information than the officer knew at the time.”

The case was assigned to SAPD traffic investigator Robert Valenzuela, who collected more evidence, including that Perry was behaving drunkenly and caused a disturbance at a nearby Bill Miller’s restaurant just minutes before the hit-and-run. Witnesses and surveillance video from that location confirmed that Perry was alone and driving the Jeep, according to the affidavit.

Once the investigator had enough information, McManus said, an arrest warrant for failure to stop and give information, a class B misdemeanor, was issued on Thursday, Nov. 10, four days after the incident.

Police believed they had enough probable cause to file the warrant for the failure to stop charge, but stopped short of charging him with a DWI, instead referring a possible DWI charge to the District Attorney’s Office, McManus said.

SAPD recommends a DWI charge, but the District Attorney “will make the determination,” he said.

A ‘close call’

Gerald Reamey, a professor at St. Mary’s University School of Law, said it’s a “close call,” but the officer could have made a legal arrest that night.

“I have certainly seen cases with less evidence where courts decided there was probable cause for a warrantless arrest,” but each case is unique, he emphasized.

The officer found somebody intoxicated in their own yard and likely determined that he didn’t pose a threat to himself or others, Reamey said. Under such circumstances, there’s “certainly nothing wrong, legally,” with an officer deciding to avoid a warrantless arrest in favor of collecting more evidence and serving an arrest warrant later.

Officer Des Rosiers did not perform a breathalyzer test — which would have been voluntary — and a warrant for a blood sample was not sought.

State law does not require a breathalyzer or a blood test in order to determine intoxication, Reamey said. “Intoxication simply means that the person, through ingestion of some intoxicant … has impaired faculties.”

But just because probable cause exists, that doesn’t mean officers should automatically arrest, he said. “I think ultimately, I would leave that decision to the discretion of the officer.”

Officer discretion, however, is where bias — implicit or explicit — can come into play.

“We know that discretion can be exercised for both good purposes and bad purposes,” Reamey said. “We need to give the police some leeway. There needs to be some opportunity to exercise compassion and judgment within the system.”

But Reamey said there needs to be discussion about when exercising discretion is appropriate — certainly not to benefit or harm certain people based on who they are, what neighborhood they live in or the color of their skin.

“We have a multi-tier system that disadvantages the poor and disadvantages racial minorities,” Reamey said. “So it’s no big surprise, I guess, that that same system can sometimes advantage people who have some status in the community.”

Perry turns himself in, seeks undefined time to ‘heal’

Because Perry’s arrest warrant was filed at large, meaning he was not in police custody when it was issued, he was able to turn himself in at a satellite booking center at the Bexar County Courthouse.

This is not an uncommon practice, Reamey said.

Locally, it’s called an “administrative booking” and it’s an agreement between a defendant or their attorney and the Bexar County Magistrate Division.

“If an attorney calls and says: look, I’ve made arrangements with the county to do an administrative booking, we typically will take their word for it,” said Capt. Jesse Salame. “The only time we wouldn’t do that is if we thought that the attorney was not being honest with us, if we thought [the defendant] was a flight risk, or we thought [the defendant] was a further danger to the public — then we would go out and try to pick them up.”

SAPD was preparing to go arrest Perry until his attorney called and told police that he would be turning himself in, McManus said.

“That was not special treatment for Councilmember Perry,” he said.

Perry turned himself in and posted $1,000 bond without spending any time in jail.

His first public statement after the accident said he was “very sorry for the hassle this is causing everyone and I’m fully cooperating with everyone to resolve it properly.”

Councilman Clayton Perry (D10) prepares to give a statement to the media on Monday.
Councilman Clayton Perry (D10) prepares to give a statement to the media on Monday. Credit: Scott Ball / San Antonio Report

This led City Council to craft a resolution asking him to resign his seat on Monday, citing Perry’s “limited remorse or accountability for his actions.”

About an hour before the council meeting, Perry read a prepared statement before reporters, saying he was taking “full responsibility and wholly acknowledge[d]” that his actions “caused the accident.” He asked colleagues for a sabbatical from his City Council duties for “time for me to heal.”

He did not specify whether that involved treatment for alcohol or drug abuse. When asked by reporters, he again refused to answer if had been drinking that night.

Perry read the statement again before Council, which voted to remove the language regarding “limited remorse and accountability” as well as the request for him to resign before then voting affirmatively on the no confidence resolution.

Council also approved his request for a temporary leave from his seat. The city has initiated an application process to find a temporary replacement to represent District 10.

While on leave, Perry plans to decline payments from the city towards his $45,722 salary, a district representative told KSAT.

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Iris Dimmick

Senior Reporter Iris Dimmick covers public policy pertaining to social issues, ranging from affordable housing and economic disparity to policing reform and workforce development. Contact her at iris@sareport.org