July 09, 2005

A right to be drunk on private property?

by Guest Contributor

[Jed Sorokin-Altmann] Not to add another post too quickly, but this article from yesterday's Boston Globe was quite interesting: "Man sues for right to be drunk on private property." Apparently, Massachusetts has a law called the Protective Custody Law, that was enacted in 1971. This law gives police the authority to lock up intoxicated individuals for up to twelve hours if they appear to pose a threat to the safety of themselves or others. The law does not specify whether or not it is limited to public property, on the other hand, it makes no mention of private property and it replaced a public intoxication law from Colonial times.

One can argue either way on textual interpretations of the statute itself, bur the added wrinkle is that Eric Laverriere, a 25-year-old who was taken into protective custody from a party in a private home, is claiming that the statute violates his constitutional rights. Laverriere argues, "One thing people should be able to do is drink in their own house...That's the beauty of the land of the free."

On the other hand, Boston attorney Leonard Kestan argues that if police, in the course of their normal duties, discover an intoxicated person who is a danger to themselves or others, police are obligated to take them into custody. Further, if police don't take the intoxicated individual into custody and the person gets a DUI-related accident, dies of alcohol poisoning, or something else along those lines occurs, the police may be found liable.

Any thoughts on what approach should be taken?

July 9, 2005 09:27 PM | TrackBack

Should Lawrence or Raich apply? Do supporters of federalism or libertarianism drink or only smoke pot? With getting drunk, it would seem that booze, while lawful, is closer to Raich regarding interstate commerce impacts and effects. How might the Dormant Commerce Clause apply, if at all? Would a similar act of Congress be constitutional? What is the originalism view of booze?

Were the police that arrested the defendant properly on the premises with respect to the defendant's presence? What if there was a lot of party noise that attracted the police but the defendant was in an upstairs bedroom sleeping off a humongous drunk or quietly engaged in drunken same sex sex?

Posted by: Shag from Brookline at July 10, 2005 01:30 PM

I disagree that it's an either/or for Lawrence and Raich... I will say, though, that protections of privacy trumps the Commerce Clause, IMHO.

Drinking alcohol IS a constitutional right--prohibition required a constitutional amendment, and repealing it required a constitutional amendment. The Commerce Clause alone wasn't enough.

Posted by: Jed Sorokin-Altmann at July 11, 2005 04:55 PM

I think the reference to the Prohibition Amendment is not really on point. That amendment was deemed necessary not because alcohol consumption was considered a constitutional right, but because the regulation of alcohol purchasing and sales was considered to be outside Congress' then-limited regulatory powers. I don't think there's ever been serious disagreement that the regulation of alcohol manufacture, purchase, and sales is legitimately within the powers of the states, either before, during, or after Prohibition. Also, neither the 18th Amendment nor the Volstead Act explicitly prohibited intoxication as such.

Whatever the merits of a constitutional right to be intoxicated on private property, I suspect that the Mass. statute is probably safe from a facial challenge by the inclusion of the "threat to the safety of themselves or others" requirement. Thus, the offense is not exactly "being drunk" but rather "being drunk and disorderly".

Posted by: Tom T. at July 11, 2005 09:28 PM
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