‘Habitual Drunkard’ Law Nixed for Vagueness by 4th Circuit

RICHMOND, Va. (CN) – Siding with four homeless men whom Virginia has repeatedly jailed for alcohol consumption, the en banc Fourth Circuit struck down Virginia’s “habitual drunkard” law Tuesday as unconstitutional. 

The U.S. Court of Appeals for the Fourth Circuit in Richmond, Virginia. (Photo via Wikimedia)

The law dates back to the 1930s and creates a system for the state to haul people before a judge and establish that their inability to safely consume alcohol is hurting themselves or the community.

At oral arguments before 15 judges of the full appeals court in January, attorneys for Bryan Manning and his co-plaintiffs argued that the law is often used to “sweep up homeless people from parks.” 

The Fourth Circuit agreed to hear the case en banc after a three-judge panel affirmed dismissal of the suit. On Tuesday, they reversed 8-7.

“Without question, the many homeless citizens of Virginia who struggle with the effects of alcohol on their mental and physical health are entitled to guidance and fair notice under the law,” the 37-page lead opinion states.

Penned for the majority by U.S. Circuit Judges Diana Gribbon Motz and Barbara Milano Keenan, the ruling criticizes Virginia for criminalizing mental or physical illness rather than creating a pathway to aid some of the state’s most needy.  

“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,” they wrote.  

U.S. Circuit Judge J. Harvie Wilkinson — who wrote the now-vacated ruling last year for three-person panel — wrote two of three dissents to Tuesday’s holding.

“As long as the state’s proscriptions give sufficient notice of what acts are culpable, the vagueness doctrine does not stand in the way,” wrote Wilkinson, who was appointed to the bench by President Ronald Reagan. “The Virginia statutes at issue here prohibit specific acts regarding alcohol and do so for a variety of legitimate reasons. That should be all that is required.”

Wilkinson called the ruling an “assault upon the constitutional, democratic, and common law foundations of American civil and criminal law, and most importantly, to the judge’s place within it,” and said he hoped, one day, that “the last dolorous rays of sun will set upon the majority’s approach.”

“Such a malleable constitution; such adjudicative power: Caesar Augustus would be envious,” the judge wrote. 

Keenan, in a separate concurring opinion, responded specifically to the “the alarmist tone” in Wilkinson’s dissent.    

“Our court has a cherished tradition of civility,” she wrote. “In that spirit, I express hope that we will turn away from the use of inflammatory language, which diminishes the value of our work.” 

Judge Albert Diaz, an Obama appointee, struck a less-aggressive balance in a separate dissent. Invoking still enforced laws about “moral turpitude” or “reasonable doubt,” Diaz agreed with Wilkinson that it is unfair to single out the habitual-drunkard law for vagueness.

“These terms generally don’t present constitutional vagueness issues, except where they invite arbitrary or discriminatory enforcement or fail to fairly notify those who are subject to a law of what conduct will constitute a violation,” Diaz wrote. 

Elaine Poon with the Legal Aid Justice Center applauded Tuesday’s outcome. 

“It is clear that the court understood the heart of the issues — that the Constitution cannot allow for the criminalization of illness and homelessness,” Poon said in a statement. “We look forward to telling our clients about this victory, so that they can pursue their lives without the constant fear of arrest and prosecution.”

The Virginia Attorney General’s Office declined to comment. 

Chief Judge Roger Gregory joined the majority ruling, as did Judges Robert King, James Wynn, Henry Franklin Floyd, Stephanie Thacker, and Pamela Harris.

U.S. Circuit Judges Paul Niemeyer, Steven Agee, Julius Richardson, Marvin Quattlebaum and Allyson Duncan joined the Wilkinson dissent.

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