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Court reinstates challenge to ‘habitual drunkard’ law

July 16, 2019

RICHMOND, Va. (AP) — A lawsuit challenging an unusual Virginia law that allows police to arrest and jail people designated as “habitual drunkards” was reinstated Tuesday by a deeply divided federal appeals court.

The 4th U.S. Circuit Court of Appeals ruled that the challenge to Virginia’s so-called interdiction law can move forward.

The court voted 8-7 to allow the lawsuit to proceed, finding that Virginia’s law is unconstitutionally vague. The ruling from the full court reverses earlier rulings from a judge and a three-judge panel dismissing the lawsuit.

The Legal Aid Justice Center argues that the law targets homeless alcoholics and violates the 8th Amendment prohibition against cruel and unusual punishment.

The Virginia attorney general’s office, in defending the law, argues that the state has a legitimate interest in discouraging alcohol and drug abuse.

The law allows prosecutors to ask a civil judge to declare someone a “habitual drunkard.” Police can then arrest that person for being publicly intoxicated, possessing alcohol or even smelling of alcohol. Violators face up to a year in jail.

In its written opinion, the court found that the law does not give homeless people who struggle with alcohol fair notice under the law.

“While necessary changes in the law may not alter the choices that they make or enhance the quality of their life, at least the government will not be compounding their problems by subjecting them to incarceration based on the arbitrary enforcement of ambiguous laws or, at best, the targeted criminalization of their illnesses,” Judges Diana Gribbon Motz and Barbara Milano Keenan wrote for the majority.

During arguments before the 4th Circuit in January, an attorney representing people designated as “habitual drunkards” argued that the law criminalizes addiction by targeting people who are compelled to drink because they are alcoholics and are forced to drink in public because they are homeless.

People without the habitual-drunkard designation can also be arrested for public intoxication, but they don’t face any jail time.

In a strongly worded dissenting opinion, Judge J. Harvie Wilkinson III chastised the majority for asking the court to find “that addiction gives rise to an Eighth Amendment right to abuse dangerous substances without the imposition of any criminal sanctions.”

“As my colleagues apparently see it, consuming alcohol, even by those with a documented history of alcohol abuse, is just not the sort of conduct that warrants criminal sanctions. Given the comprehensive body of research pointing to the harms of alcohol abuse, I cannot agree,” Wilkinson wrote.

Michael Kelly, a spokesman for Virginia Attorney General Hark Herring, declined to comment on the ruling or whether the state will appeal.

“We’ll take the time needed to review the court’s decision before deciding how best to proceed,” Kelly wrote in an email.

Virginia and Utah are the only two states with interdiction laws that make it a crime for people designated as habitual drunkards to possess, consume or purchase alcohol, or even attempt to do so, according to a survey of state laws done by the legal aid center.

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