VA: Federal Court Strikes Down Virginia’s “Habitual Drunkard” Law That Criminalized Owning Alcohol (excerpt)
By Nick Sibilla , Senior Contributor, Policy
August 2, 2019
UPDATE: Virginia announced on Friday afternoon that it will not appeal the decision. The article has been updated to include new quotes from the Attorney General and the Legal Aid Justice Center.
Prohibition may have ended back in 1933, but that hasn’t stopped police in Virginia from arresting hundreds of adults for possessing alcohol. Under a bafflingly archaic law, courts have “interdicted,” or designated, Virginians as “habitual drunkards,” who can then be arrested and charged for possessing or attempting to possess alcohol. If convicted, they can then be thrown in jail for up to a year and face fines as high as $2,500.
Between 2007 and 2015, Virginia interdicted 1,220 different people, who were convicted on more than 4,700 drinking or alcohol-possession charges, according to the Legal Aid Justice Center, which challenged the law on behalf of homeless men living in Richmond and Roanoke. One of their plaintiffs, Bryan Manning, has been arrested over thirty times after he was declared a habitual drunkard in 2010. Manning was once arrested because he was standing in the beer aisle of a Walmart (he was sober and didn’t even have any alcohol on his person). Another plaintiff, Richard Deckerhoff, has been arrested because he was near a beer can lying on the ground; police claimed the can was in his “constructive possession.” Neither man was in court the day of their interdiction hearings, nor did they have an attorney present.
But last month, in a hotly contested 8-7 decision, the Fourth Circuit U.S. Court of Appeals struck down Virginia’s habitual-drunkard law as “unconstitutionally vague” and for inviting “arbitrary enforcement,” particularly against homeless people. “It does not follow that mere possession of alcohol will inevitably lead to ‘habitual drunkenness,’” Judges Diana Gribbon Motz and Barbara Milano Keenan wrote for the majority in Manning v. Caldwell. “Otherwise, an overwhelming number of adults in the Commonwealth of Virginia likely would be considered ‘habitual drunkards.’”
On Friday, Virginia Attorney General Mark Herring announced that he will not be appealing the decision, meaning victory is final for the plaintiffs. “The General Assembly should have taken this strange and regressive law off the books a long time ago, but now that the court has done it for us I don’t see any need to continue this fight,” Herring tweeted. “Virginia can find better ways to address alcohol use disorders.”
In Virginia, interdiction followed a two-step process. First, a local circuit court holds a civil interdiction hearing. But defendants had no right to an attorney in these proceedings and don’t even have to be in court to be interdicted. In fact, as Motz and Keenan noted, “there is no requirement that a person be convicted of any offense to be interdicted as an ‘habitual drunkard.’”
Habitual drunkards then faced Class 1 misdemeanors for owning alcohol or drinking in public. Of course, adults 21 and older who aren’t interdicted can possess alcohol without facing any criminal charges. And public intoxication for those Virginians is punishable by a fine of no more than $250, a far less severe penalty.
At oral argument, the Commonwealth defended the law and claimed that a habitual drunkard is someone whose drunkenness “causes harm to other persons or their community.” But according to Motz and Keenan, “this ‘harm’ requirement is not found in the challenged scheme, nor does the concept appear in any Virginia or federal case interpreting it.”
In fact, after combing over both the statutes and case law, the court concluded Virginia lacked “any guidelines or standards regarding who qualifies as an ‘habitual drunkard:’”
“For example, must a person engage in a pattern of drinking over time that establishes a ‘normal manner of procedure,’ or is it enough that the person drinks many alcoholic beverages over an extended period? Or is a ‘habit’ established if the person drinks numerous alcoholic beverages only every Friday and Saturday night?”