RICHMOND, Va. (CN) – A group of homeless Virginians went before the en banc Fourth Circuit on Wednesday hoping to overturn a state law that targets public alcohol consumption by “habitual drunkards.”
“The law clearly demonstrates it is targeting [the plaintiffs] because of their homeless status,” said Jonathan L. Marcus, a lawyer with New York-based Skadden Arps who argued on behalf of the group before the Richmond, Virginia-based federal appeals court.
He said the law results in violations of several constitutional rights. But that approach had not persuaded a federal judge who dismissed the case in February 2017.
The law dates back to the 1930s and creates a system for someone to be brought before a judge and classified a “habitual drunkard” after it is proven they cannot safely consume alcohol and are hurting themselves or the community.
Earning this status makes it against the law to possess or drink alcohol in public. Marcus argued the law could possibly impact those who have homes but has been more often used to “sweep up homeless people from parks.”
“All Virginians can drink alcohol except homeless people who have been convicted under this crime,” the attorney said Wednesday morning, stressing the disparaging treatment his clients allegedly faced.
But members of the 15-judge Fourth Circuit panel were quick to pepper Marcus with questions, most often pointing to the ability of the law to impact more than just homeless people.
“People with homes can still be charged,” said U.S. Circuit Judge G. Steven Agee, a George W. Bush appointee. “You could have 10 homes and still be charged.”
But Marcus fired back and said homeowners have the choice to drink in private.
U.S. Circuit Judge Harvie Wilkinson, a Ronald Reagan appointee, noted another hole in the homeless peoples’ argument – those subject to disparate impact claims must be a member of a protected class and being homeless is not a protected class.
“Every law has a disparate impact on someone,” he said, noting if the court considered the impact of every law in that light it could lead to a “wide-open” interpretation.
But the judges were just as hard on Virginia.
When Assistant Solicitor General Matthew McGuire discussed the state’s power to regulate “dangerous drugs,” Chief U.S. Circuit Roger Gregory, a George W. Bush appointee, questioned such a description being used on a legal and “socially acceptable” substance.
U.S. Circuit Judge Barbara Milano Keenan, a Barack Obama appointee, said the language of the law, such as how you determine when someone is a habitual drunkard, lends itself to a vagueness problem.
When Marcus alluded to the statute possibly being a little bit vague, she quipped, “That’s like being a little bit pregnant.”
But Keenan took more issue with the sentencing enhancement attached to the law. She said someone without the habitual drunkard status would only face a $250 fine for being drunk in public, but someone with this status faces up to a year in jail.
Despite the barrage of questions, McGuire stressed the law was constitutional because it still required an act to be convicted: drinking in public and the person “showing himself” to be unable to safely consume alcohol. The habitual drunkard status, he said, is given after judicial review of the case.
Judge Wilkinson also seemed hesitant to rule in a way that would either impact alcohol laws or supersede legislative authority. McGuire cited recent legislative attempts to overturn the law, which further fueled the judge’s concerns.
As the case had been dismissed in the district court, Wilkinson expressed concerns that remanding the case for discovery could lead to more detailed studies to measure the impact of the law – something usually reserved for lawmakers.
The judges did not indicate when they might rule on the matter.