Homewood High School
Cross Posted at Legal Schnauzer
Long before Mike McGarity moved next door and became a monumental headache for Mrs. Schnauzer and me, he was causing problems for other people. That's how my "Neighbor From Hell" came to be the proud owner of a substantial criminal record.
One of McGarity's more interesting arrests and convictions was for what the Birmingham City Code calls an "affray."
That's just a fancy term for fighting. How does an affray differ from an assault? An assault usually involves just two people, and it's clear that one person is the aggressor and the other is a victim. With an affray, two or more people are flailing away, and it's hard to tell who started it--and who did what to whom.
McGarity was convicted for an affray that took place on July 2, 1977. The event perhaps is most notable for its location--outside of a gay nightclub.
Before we go into details about the McGarity case, let's learn more about the law regarding an affray. Here is the pertinent information from the Birmingham City Code:
Affray, as defined by Birmingham City Code Sec. 11-6-9:
(a) It shall be unlawful for two (2) or more persons to engage in any fight or use any blows or violence toward each other in any public place to the disturbance of others
(b) On the trial of any person for engaging in an affray, he may give in evidence any opprobrious word or abusive language used by the other participant or participants in such affray at or near the time of the affray and that evidence shall be in extenuation or justification as the municipal judge may determine.
Since McGarity was convicted of affray in Birmingham Municipal Court on July 25, 1977, it appears he played some role in the use of abusive language that started the affray. That certainly comes as no surprise to Mrs. Schnauzer and me.
McGarity was arrested in the 100 block of 21st Street North (now Richard Arrington Jr. Boulevard). If you are familiar with downtown Birmingham, you know that area as the long-time home to John's Restaurant (now known as John's City Diner).
Here is the narrative on the McGarity arrest report: (You can read the arrest report at the end of this post.)
Officers observed def. and two other white males fighting in front of Focus Phase II.
If you are an expert on the history of Birmingham's social scene, you know that Focus Phase II was one of several names for a nightclub that was famed in the late '70s and early 80s for featuring female impersonators. It was more than just a gay bar; it might have been the city's first widely known gay nightclub.
The now-defunct Birmingham Post-Herald did a feature on the club on June 3, 1983. By then, it was known as After Dark. From the P-H story, by the late Kathy Kemp, who had a great knack for adroitly looking into the nooks and crannies of Alabama life:
Show time at the After Dark is many things to many people. To the entertainers, it's a chance to show off flashy clothes, fancy routines, shapely bodies and pretty, pretty faces. . . . To others, it's an opportunity to watch men do something most males would do only as a joke--or at gunpoint. It's a chance to see men perform onstage as women. They are "female impersonators. . . . "
The After Dark, 117 1/2 21st St. North, has featured female impersonators since it opened two years ago. Before then, the club was known as Focus Phase II; it, too, featured female impersonators.
How did Mike McGarity get involved in an affray at Focus Phase II? I can think of only three possible scenarios:
(1) He was at the club to enjoy the festivities, and someone said something that caused a fight to break out;
(2) He was at the club to harass somebody, and something was said that caused a fight to break out;
(3) He was walking down the street when a fight just happened to break out in front of Focus Phase II, having nothing to do with activities at the club.
Given what I know of McGarity's personality, item No. 2 would be my first choice. We know that William Cody McGarity, one of Mike's three older brothers, died of AIDS in 1996, which is an indicator that he was gay. Did something involving his brother draw Mike McGarity to Focus Phase II? We don't know.
I did, however, ask McGarity about this incident in a deposition after he filed a bogus lawsuit against me. As you can see from the exchange below, he was not anxious to "go there," and neither was his attorney, Bill Swatek:
Roger Shuler (RS): I can show a copy of this. I've got--it says "Arrest Report, officers observed Defendant and two other white males fighting in front of Focus Phase II." What's that?
Mike McGarity (MM): I have no idea.
RS: Is it a nightclub?
MM: I don't know.
RS: Is it a gay nightclub?
MM: I don't know.
RS: How did you get in a fight with somebody at a gay nightclub?
MM: It wasn't me.
RS: It wasn't you?
MM: Huh-uh (no).
RS: You weren't fighting?
MM: Not in front of a gay nightclub.
RS: Focus Phase II, I think, used to be a place on 20th Street across from John's, cross-dressers and so forth. I mean, were you picking on people there or what?
Bill Swatek (BS): You seem to know a lot about it. Were you there?
RS: Nope, didn't need to be there.
I can't help but chuckle at Swatek's comment. That's the kind of brilliant lawyering you get, I guess, if you pay this guy $300 an hour (or more?) to represent you. More importantly, we see that McGarity denies he was fighting in front of Focus Phase II, even though he had just been handed an arrest report that says it was him--and court records show he was convicted. Does the phrase "under oath" mean anything to this guy?
We addressed the Focus Phase II issue again, a little later in the deposition. Again, McGarity had the arrest report right in front of him:
RS: Well, as you can see, it shows you were observed fighting outside of Focus Phase II. I mean, what were you doing?
MM: I don't know. I used to work downtown. I could have just got off work. I don't know.
RS: How did you get in a fight, I mean, did somebody pick a fight with you?
MM: I don't know.
RS: It says there were two other people, who were the two other people?
MM: I don't know.
RS: Did somebody get hurt? Were you hurt?
MM: No, I wasn't hurt.
At this point in the deposition, it seems there was a fight in front of a gay nightclub, Mike McGarity was involved, but he wasn't hurt. His story keeps changing.
We do know that Mike McGarity is a very difficult guy to deal with--and he has the criminal record to prove it. We also know it's odd that a guy with such a record would wind up getting hired in the mid 1980s at Blue Cross and Blue Shield of Alabama, one of our state's most reputable employers and a company that (because it is a federal Medicare contractor) is known for conducting stringent background checks on prospective employees.
How did a guy like McGarity slip through the cracks at Blue Cross and Blue Shield of Alabama? Does the company make a habit of hiring people who have been convicted for getting into fights, soliciting prostitutes, and all the other colorful activities in McGarity's background?
Perhaps those are questions for Koko Mackin, the company's vice president for corporate communications and community relations.
Mike McGarity has a history of being involved in community disturbances. Makes you wonder what Blue Cross and Blue Shield saw in the guy.