Generations after millions of people celebrated the end of Prohibition, America still has an uneasy relationship with alcohol. For all the wine tastings and beers served at baseball games, there is a patchwork of confusing, obscure, and controversial open container laws within all the counties, cities, and states in the United States.
The War on Public Drinking
Those laws exist because there is a “war on public drinking” in the country, according to the Huffington Post. The enduring presence of open container laws in the United States suggests that a “new” Prohibition, one that makes it illegal to consume alcoholic beverages in public, is in full effect. Every year, says the Post, millions of people are ticketed or even arrested for falling afoul of open container laws, which control (or outright prohibit) open containers of alcohol in public areas, and the consumption of the alcohol in those containers in those places. Legally speaking, “public areas” refers to explicitly public spaces like parks, sidewalks, beaches, and, controversially, private vehicles on the street. Open container laws do not extend to private property that is open to the public, like sports stadiums, concert arenas, bars, and restaurants.
The idea behind these laws is to cut down on public intoxication, specifically to dissuade people from getting behind the wheel of a car after they’ve been drinking. There is no federal open container law; they exist purely on the state and local levels, and thus, there is no standardization of such laws from one state or county to another. In New York City, for example, an open container violation is worth just a $25 fine that can be paid by mail. In Hawaii and New Mexico, on the other hand, a person charged with such a violation could receive a ticket of up to $1,000 or a jail sentence lasting as long as six months. In 2012, Santa Fe’s city council unanimously approved a measure to ban carrying an open container of alcohol in a public area that did not have a license to serve or sell alcohol, citing a rash of public intoxication and emergency calls for alcohol-related incidents.
On the other side of the spectrum, Mississippi allows for the driver of a vehicle to consume alcohol, but the driver cannot have a blood alcohol level of over 0.08 percent. In other words, drinking behind the wheel of a car in Mississippi is permissible; driving drunk, however, is not, and neither is consuming an alcoholic beverage in a public space.
How Did Open Container Laws Start?
The Huffington Post explains that the current series of open container laws came together over 40 years, quietly instituted to clean up public drunkenness and lower alcohol-related crime. But the actual enforcement of the laws is unequal and vague, argues the Post, and the people who suffer the most are those who have no way of defending themselves. Across the country, public drinking is often punishable by fines or jail time. In 2015, 17 states had complete bans, and as many as 89 of the 100 biggest cities in the country had laws rendering it illegal.
But in many places, like Butte, Montana; Savannah, Georgia; and well-known entertainment districts like New Orleans and Las Vegas, there have never been any laws on the books that banned the public consumption of alcohol, and residents and tourists are free to drink on the streets, parks, and beaches of those cities. There are about 6 million people who live in areas that allow public drinking, all of whom would be fined or jailed if they tried to do the same in another jurisdiction.
The Post points out that America regulating alcohol is nothing new. The Whiskey Rebellion of 1791 was a violent answer to the government’s attempt at a tax, barely a decade after the War of Independence came to an end. As recently as the middle of the 20th century, there were only two types of laws on alcohol in America: how much could be sold, and bans on being drunk in public. The idea of controlling drinking directly, to the point where a person cannot responsibly drink in public, dates back to a 1964 Supreme Court ruling, Robinson v. California, where the court struck down a California statute that considered drug addiction a criminal offense, but also stated that public drunkenness and homelessness – which were not clearly and legally defined at the time – were “status offenses” that were not backed by a Constitutional interpretation of the law, and could not be appropriately enforced. This led to arrests for public intoxication dropping by 50 percent across the country by the end of the 1970s, a cause for celebration for doctors and social justice advocates, who were relieved that the issues of homelessness and alcoholism were no longer law enforcement priorities.
Less happy were business owners and wealthy citizens, who despaired that so-called “vagrants” and “drunkards” were allowed to roam and sleep on park benches and bus stops. Since neither were criminal acts, the police could not respond to public pressure to do something about the complaints.
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Public Drinking vs. Public Drunkenness
The solution they came up was not to pursue a ban on public intoxication, but to outlaw drinking in public. The laws address two very different behaviors. A ban on public drunkenness is meant to punish the most visible results of problematic drinking, making it clear to the public that there will be consequences if behavior crosses the line between sober and inebriated. On the other side of the scale are public drinking laws, which specifically ban the consumption of an alcoholic beverage in a public area. With these laws, people are either drinking in public, or they are not drinking in public. While a public intoxication charge can be contested in court, a public drinking law has no ambiguity to it, and is easily used to arrest homeless people and alcoholics.
Between 1975 and 1990, says the Post, cities and states slowly started to impose different versions of open container laws as a response to the decriminalization of public drunkenness and homelessness. City authorities looked at this as an extension of the “broken windows” theory of law enforcement; cleaning up visible signs of disorder, explains NPR, would lead to a reduction in more serious crimes and a gradual revitalization of once-downtrodden neighborhoods. The idea started to form that public drinking was bad for communities, and all forms of open alcohol consumption should be subject to police intervention in the pursuit of nipping serious crimes in the bud.
Open Container Laws by State
Since open container laws are not enforced federally, there are actually 11 states where open container laws don’t apply:
- West Virginia
In Mississippi it is technically legal to drink an alcoholic beverage while driving, as long as you are under the legal limit, and in the remaining 10 states it is legal to have an open alcoholic beverage as long as you are not drinking it. Even these laws vary from town to town, however.
Open Container Laws and Discrimination
In the words of NPR, it went “terribly wrong.” Police began to stringently enforce laws on public drinking, but the targets were almost exclusively minorities and low-income people. Research on police action against open drinking suggests that “poor, black people are arrested at rates many times higher than affluent white people.” In 2012, a Brooklyn judge instructed his staff to investigate tickets for open container summonses and found that over 85 percent of such tickets were given to black and Latino residents; only 4 percent were given to white residents even though white Americans make up 40 percent of the Brooklyn borough. In laying out “How America’s Open Container Laws Discriminate,” ATTN quotes a Salon report that showed 12 of the 15 New York City precincts that issued the most summonses for open container violations per capita were “predominantly black and Latino.” It’s not so much about race, says Salon, but more a heavy-handed desire to establish control.
The advocacy director of the New York Civil Liberties Union told The Daily Beast that people of color tend to get cited for open container violations more often than white Americans. For certain people, such a ticket is not an annoyance that can be easily paid off and then laughed at; officers are authorized to make an arrest at their own discretion, which tends to happen a lot in communities that are primarily low-income or populated by people of color.
‘Idiotic’ Open Container Laws
This, concludes the Beast, is a sign that America has a mess of “idiotic open container laws” that are leading some to wonder if they are worth the gains. ATTN grants that when it comes to open containers of alcohol in vehicles, bans help to cut down on drunk driving and hit-and-run vehicle collisions. But even groups like Mothers Against Drunk Driving, the leading anti-drunk driving nonprofit in North America, has declined to lend its weight to broader open container laws. The group’s director of state government affairs told The Daily Beast that while his organization is concerned with the presence of open containers of alcohol in cars, “we have no opinion on open container laws in regards to drinking in parks.”
The Beast suggests that the federal government has a similar apathy toward public drinking and intoxication, which is why there is no national law on the subject. Even alcohol safety support groups are tepid about people drinking in parks or beaches, as long as the people doing the drinking are doing so responsibly.
Nonetheless, police still keep making arrests and handing out tickets for public drinking, even when there is no behavior that would threaten public safety. But notwithstanding criticism from media outlets, there seems to be little public appetite for actually doing something about open container laws. A 2014 Pew Research Study found that almost 70 percent of Americans felt that alcohol is more dangerous than marijuana, which offers one reason as to why there is not a mass call for open container and public drinking laws to be struck from the book. For example, a poll conducted by the Huffington Post and YouGov in 2013 found that 81 percent of Americans believe that drinking on the stoop of one’s own house should be legal; however, only 38 percent felt that drinking in parks should be allowed, and less than half of respondents believed that drinking on beaches should be legalized. Forty-six percent of the people surveyed said that drinking on city sidewalks should be a civil offense, and 14 percent said that the act was worthy of criminal charges.
Are Open Container Laws Changing?
Additionally, The Daily Beast suggested that in places where the fines for having an open container of alcohol are relatively inexpensive (New York City’s $25 penalty is barely the cost of two mixed drinks), it is not much of a concern. For others, it is a different story; an NYC resident who was issued a summons for having a beer on the steps of his house told The Daily Beast that open container laws have outlived their usefulness. While they were useful in getting a threat to public safety off the streets, the way the police enforce the law now (“ignoring a key part of the ordinance”) nullifies the point of the statute.
Change may be on the horizon. In August 2016, Manhattan rolled back the scope of its local open container laws, allowing people to drink alcohol from open containers in public areas without fear of arrest, although police still have the authority to issue fines for the practice. Real Change, which advocates for low-income and homeless people, said that Manhattan’s politicians “have made a step in the right direction” for ending the practice of making criminals out of people who drink in public, especially the homeless who have traditionally been the victims of public drinking laws.
Manhattan becoming smart about its open container laws is a victory for civil liberties, says Real Change, in the face that “there lacks hard evidence to correlate public drinking and violent crime.” In the case of minority and poor communities, which much research has found tend to be targeted by police more, ending the unjust and discriminatory policy prevents biased elements within law enforcement from exercising arbitrary discretion when enforcing a very nebulous law. Open container laws are the epitome of statutes that exist in opposition to the will of the people, concludes Real Change, and Manhattan scaling back its laws is a good start.