It's Time to Ditch America’s Idiotic Open-Container Laws
On a Sunday afternoon in London, I sat myself down on one of the perfectly manicured lawns in Regent’s Park, opened a pack of McVitie’s biscuits, and—best of all—cracked open a can of Pimms and lemonade.
This idyllic scene could not have happened in my home of New York City, not because we lack the neatly-trimmed flower beds nor pre-mixed cocktails.
The real problem is that this tranquil scene of sunny day-drinking would be grounds for police to issue me a summons and even arrest me, if the cop so desired.
Every state but Mississippi has laws of some sort prohibiting the presence of open containers of alcohol in vehicles.
However, many states and specific districts take it a step further and make drinking in certain public grounds for police intervention, arrests, and fines.
Only 18 states in the U.S. currently permit public drinking.
However, within these states, it is usually restricted to specific cities—New Orleans in Louisiana, Las Vegas in Nevada, Sonoma in California—or even more narrowly, designated “entertainment districts,” like Beale Street in Memphis and the Power & Light District in Kansas City, Missouri.
Even with these exemptions from open-container laws, there are caveats, such as being a minimum distance from a house of worship or restricted to certain hours of the day.
Many of the prohibitions on public consumption can be traced to courts striking down public drunkenness laws in the 1960s.
Not only did the former laws criminalize alcohol addiction, but they were deemed “constitutionally unsound and, in the long run, unenforceable,” as Joe Satran wrote in the Huffington Post.
In response, states and municipalities began passing laws that would ban drinking in public altogether.
The same people who would be arrested and taken off the streets under “public drunkenness” laws could still be arrested, and it worked well with the “broken windows” theory that misdemeanors and petty violations, like public drinking, created unsafe, unlawful communities.
It’s not that Brits don’t have any open-container laws.
Local authorities “can put in bylaws to keep people from drinking in the streets,” said Emily Robinson, the deputy chief executive of Alcohol Concern, a UK alcohol safety group. She does note that it is certainly “less common than it is in the U.S.”
Robinson also pointed out that there is a greater need to drive in many parts of the U.S.
“My view is that Americans drink much less, and that seems to do with how much you drive to different places and how vigorously enforced drunk-driving laws are,” she said.
Mothers Against Drunk Driving (MADD), one of the leading anti-drunk-driving nonprofits in North America, does not actively support public consumption laws.
“We have no opinion on open-container laws in regards to drinking in parks, etc. MADD takes no position on that. We're concerned about [open-container laws] for vehicles,” Frank Harris, MADD’s director of state government affairs, told The Daily Beast.
“We have no problem with people 21 and over drinking alcohol. Just plan ahead, designate a sober driver. Just don’t drive drunk.”
MADD was actively involved in the 1998 passage of the Transportation Equity Act for the 21st Century.
The law effectively set the DUI Blood Alcohol Concentration (BAC) at .08, but Section 154 also included a provision that states would have federal funds transferred if they did not institute open-container laws.
However, those open-container law specifications were only in regards to vehicles.
Neither the federal government nor alcohol safety support groups seem to care all that much about drinking in parks, or on beaches and the like, when people are of age and not driving.
Yet people keep getting stopped for drinking in public, even when it’s not linked to rowdiness, indecency, or other debauchery that would cause safety concerns.
In many cases, people aren’t even aware that they are even doing something illegal.
Jon Velez-Jackson recalled how he was issued an open-container violation about a decade ago when he was on the boardwalk of Coney Island one sunny afternoon.
“Literally, you can buy beer on the boardwalk,” which Velez-Jackson and two friends did—and then drank the beer.
The cops who stopped them told the trio there were signs saying that drinking was prohibited on the boardwalk. “We found one on a random side of a restaurant,” Velez-Jackson (who is a former coworker of mine) told The Daily Beast.
“We were so bitter about the tickets that we were inspired to get blindingly drunk immediately afterward,” Velez-Jackson said.
While Americans are known for our kegger and red Solo cup days of college, we have a number of reservations about alcohol.
In fact, a 2014 Pew Research Study shows that 69 percent of Americans believe alcohol is more harmful to a person’s health than marijuana.
If marijuana became legal and as widespread as alcohol, 63 percent of Americans believe alcohol would still be more “harmful to society.”
These views may explain why there is still relatively little uproar over open-container laws which forbid drinking in public.
Another factor is that the fines are often relatively inexpensive in some areas. For example, in New York City, the going rate for a violation is $25, which barely covers the cost of two mixed drinks at a bar in Manhattan.
Yet, in some states the penalty can be as high as $1,000 or come with a jail sentence of up to six months -- as it is in New Mexico and Hawaii.
Stephanie Malaska recounted to The Daily Beast how cops swept over the Ellipse, part of the National Mall in Washington, D.C., this summer while she was playing softball.
“A police cruiser pulled up onto the grass and asked another team to open their cooler. They complied, revealing several bottles of beer (appeared unopened). He then opened our cooler while we were playing, and did so without asking anyone,” the law student said in an email exchange.
“When one member of our team tried to grab a soda out of our cooler, the cop told him to back off or he would be arrested.”
Malaska said she and her team members were ultimately not given a summons or any formal reprimand. However, she noticed a more aggressive open-container crackdown that same night on the field.
“Four men on the team that had just started warming up for the next game were detained—I believe because the cops spotted them drinking out of bottles (they hadn't put their beer in Solo cups or anything else). The officers took the cooler and beers as evidence, then proceeded to cuff the four men and put them in separate squad cars.”
The U.S. Park Police did not respond to Daily Beast requests by the time of publication.
Malaska was surprised by the police activity. “This comes out of nowhere for all of those who thought there was a tacit understanding between recreational softball enthusiasts and the mall police,” she said.
Emily Epstein White was just as taken aback in 2011 when police swarmed a small group of her and her girlfriends in Brooklyn’s genteel Prospect Park.
“We weren't necessarily hiding it, but we weren’t tapping a keg. It was champagne with fruit in the cups,” Epstein White, a 36-year-old stand-up comedienne, told The Daily Beast.
“Police came out of nowhere. They called for backup. Some came on a golf cart. It hadn’t even occurred to me it was problematic what I was doing,” says Epstein White.
Like many, Epstein White wondered what the merit was in police targeting four legal-aged women sharing a bottle of champagne.
She wonders if they were being made an easy example of.
“We were a bunch of white women. They’re probably not intimidated by us. Maybe it was a way of making it easier,” she says. “That doesn’t make us the Mother Theresas of drinking in the park. But if we're the ones they target and leave everyone else alone, it’s kind of a good thing.”
Her husband, who is black, actually found the whole incident somewhat amusing.
“I was upset, and I called him. He listened to me for a few minutes then screamed, ‘Justice!’ and hung up.”
There’s data to indicate that in New York City, people of color are disproportionately stopped for public consumption of alcohol and other minor violations.
The New York Civil Liberties Union (NYCLU) tracked summons and violations for petty infractions, like public consumption of alcohol, biking on sidewalks, and public urination, from 2001 to 2013.
Data on race was available for only about 30 percent of all the tickets. However, within that collection, 80 percent of them went to people of color.
Violations for consumption of alcohol on streets were issued the most frequently by far.
More than 1.5 million summons were issued between 2001 and 2013. The next closest was disorderly conduct, for which just over 1 million summonses were issued during that time.
“We believe people of color are more likely to get a violation for open containers,” Johanna Miller, the organization’s advocacy director, told The Daily Beast.
While for many people the summons is an annoyance and a good cocktail story, they may initiate a cycle of arrests, especially among the very poor.
“The officer can either arrest you and take you into a precinct or they can just give you a ticket in the street. It’s up to their discretion,” explained Miller. “That in itself is an incredibly disruptive experience. We don't think people should be taken in and put in physical custody for a non-criminal situation.”
Things can get worse from there.
“People get tripped up if they don’t realize you need to show up or they can't because you have work,” she explains. “Now, there’s a warrant for your arrest. If they [the cops] find you, it will probably mean a night in jail.”
The NYPD did not respond to requests for comments from The Daily Beast by the time this went to press.
Joseph Thomas and his friend were completely dumbfounded when they were issued summonses for having a beer on the front stoop of Thomas’s apartment in Queens, New York.
“I asked [the cop] what the ticket was for. He said open-container violations. I told him it was private property. He got kind of embarrassed and said, ‘If you want to contend it, you can go to court,’” the 24-year-old journalist told The Daily Beast.
Thomas is taking up the challenge, even though it means taking time off work to fight it.
“They [the cops] know it’s $25, and it’s more convenient and cheaper to just pay it, but I’m going on principle,” he said. “If every single person doesn’t fight it, they [the cops] will keep doing it.”
Thomas is hardly the first New Yorker in recent years to claim cops wrongly issued a summons for drinking on his own property.
Despite the fact that in 2013 nearly every Democratic candidate for mayor of New York—including the wiiner, Bill DeBlasio—said people should be able to drink on their stoops, people keep getting slapped with these summons.
However, there isn’t mass outrage at what seems like a legal absurdity.
A Huffington Post/YouGov poll from December 2013 found that while 81 percent of U.S. adults believe it should be legal to drink on one’s own stoop, only 38 percent believed drinking in parks should be legal and 48 percent backed legalizing drinking on beaches.
A scant 26 percent backed drinking on city sidewalks, while 46 percent felt doing it should be considered a civil offense and 14 percent felt it should be considered a criminal act.
“At some point they existed to serve a purpose, to get someone causing a disturbance off the street,” Thomas said of the open-container laws. “If they [the authorities] are using the law incorrectly, ignoring a key part of the ordinance, then it’s really not a valuable law.”
Here, here. I’ll drink to that.