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Gordon Willis, the Man Who Plays Peekaboo
A man from Portland, Maine, has filed suit in federal court in Massachusetts, claiming a state law that allows police to take drunk people into protective custody is unconstitutional because it violates the right to get drunk in private. As a lawyer and civil libertarian, Bostonist's reaction to this lawsuit is, "Hmm. Very interesting." As a lush, our reaction is "Hell, yeah!"
The man bringing the case, Eric Laverriere, was in the familiar (to Bostonist) position of being at a party that gets broken up by the cops. But when police told people to disperse in what Laverriere though was too hostile a fashion, he did something guaranteed to make the situation worse: he started filming the scene. One way or another, everyone else ended up getting a cab or otherwise leaving the party without incident, but Laverriere spent a night in the Waltham pokey, the WPD having placed him in protective custody. Now he's suing, proclaiming a constitutional right to engage in an activity much cherished by the Founding Fathers: getting wasted on private property.
Photo courtesy of flickr.com / user: Stefano Mortellaro
Funny as it sounds, this is not a far-fetched claim. There is a long line of Supreme Court cases that treat the home as a special place into which government may not insert itself without some very compelling justification. Generally, the compelling justification has had something to do with protecting people from harm, which is what makes Laverriere's case interesting: It's easy to say that the government can't outlaw the use of contraception between consenting adults in a private residence (as the Court did in Griswold v. Connecticut), or consensual sodomy (as in Lawrence v. Texas), because there's no real risk of harm from those activities. Drunkenness, however, is a different matter (and if you don't believe us, we can tell you a story about trying to ride a tricycle over a curb when we were in college and show you a scar on our chin to prove it).
Courts generally shy away from declaring laws unconstitutional, and we suspect that's what will happen here. From what we read, it sounds like the real problem is that the Waltham police used the law as an excuse to detain someone who was irritating them. After all, the law only allows protective custody for people who are incapacitated or a risk to others. If Laverriere wasn't that plastered, the problem isn't with the law, it's with the cops - Massachusetts and federal courts have already decided on numerous occasions that police can't detain people under the law unless they have a reasonable belief that the person is dangerous. Still, with the July Fourth recent enough that we can recall our July Fifth hangover, Bostonist must applaud the sentiment of the lawsuit. We'll hope against hope that whichever wise judge on the Massachusetts District Court gets the case uses it as an opportunity to issue a ringing endorsement of the fundamental right to hit the sauce.
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It's not that there's a right to get drunk, per se, but rather a right to do anything at all (provided its doesn't harm anyone else) in the privacy of your own home. Regulating liquor sales doesn't implicate a person's home or privacy. Commerce is generally an area where government has broad regulatory leeway, while private action is not.
I realize that this doesn't make sense when you consider drug laws (since shooting heroine at home alone doesn't harm anyone else but is not constitutionally protected), but I would chalk that logical inconsistency up to our nation's weird legal neurosis about certain kinds of drugs.
let me be the first to say that i bet even consensual sodomy could cause harm if not done carefully. that could hurt worse than falling off a tricycle.
police can detain people for whatever reason they want. honestly, almost anything could be considered "dangerous" or "uncooperative." you can be arrested for refusing to show id. if it turns out that they didn't have reasonable suspicion, it's not like they're going to give you back that night you spent in jail. i doubt any decision the court makes will significantly change this.
Well, Ed, yes and no. It's true, the Supreme Court recently ruled that a Nevada law that required a person to show ID when asked by a cop was not unconstitutional (but there's no such law in Mass., so don't feel obliged, unless you're driving). But there have been many many cases where arrests were found to be unsupported by probable cause. While that won't get you your night in jail back, it will (in most cases) result in the suppression of the cocaine they found in your pocket when they did an inventory search of your belongings at the station. It will also keep prosecutors from using any confessions you foolishly make while in custody (although it's never wise to talk to police without a lawyer when you've been arrested). And when police know they won't be able to use evidence that they get by violating the Constitution (the theory goes), they're less likely to do so, which is good.
So don't suppose that your constitutional rights are just theoretical. They're real, they're helpful, and damn it, I think they're worth defending! [Cue patriotic music in background]
meh. i don't carry much cocaine or confess to doing a lot of things. i'm saying for the average drunk person who has not engaged in a lot of criminal behavior, no matter how much you may personally dislike cops, your rights are not going to save you from the night in jail if you give the cops a hard time. even if you have done nothing illegal. some people find this information surprising.
as far as search and seizure goes, i am totally into rights. rights rule. hell, i used to work for the aclu.