RICHMOND—Federal appeals court judges on Wednesday sharply questioned lawyers on both sides of a challenge to the constitutionality of Virginia’s habitual drunkard law.

Virginia’s interdiction statute allows a circuit court to civilly find someone to be a “habitual drunkard” who thereafter can be prosecuted for possessing or consuming alcohol, or attempting to do so. A violation is punishable by 12 months or less in jail.

The Legal Aid Justice Center filed suit alleging that the Virginia law targets homeless alcoholics because of their status—they are homeless and suffering from a disease that compels them to possess alcohol—rather than a crime.



The Virginia Attorney General’s Office is defending the law, arguing that the state has a legitimate interest in curbing alcoholism and its associated conduct that jeopardizes the safety and welfare of alcoholics and those who come into contact with them.

A lower court and panel of the Richmond-based 4th U.S. Circuit Court of Appeals upheld the legality of the law, but the full court agreed to take up the matter, leading to Wednesday’s hearing and arguments.

Judge J. Harvie Wilkinson III said it appeared that while the law may have a disparate impact on the homeless, it did not target a “suspect class.” He said, “Every law has a disparate impact on some group.” But that does not necessarily make the law unconstitutional, he said.

“The only thing criminal targeted here are the acts,” said Wilkinson.

Jonathan L. Marcus, an attorney with a Washington law firm working with the justice center, disagreed. “The act is inseparable from the status,” he said. Matthew R. McGuire, assistant Virginia solicitor general, told the court that “it isn’t true Virginia is ... rounding up alcoholics.”

Judge Barbara Milano Keenan told McGuire that she had concerns that someone who had been interdicted and was then caught drunk in public could go to jail for a year while anyone else could be fined $250.

McGuire said that would only happen after a circuit court judge makes a civil determination someone should be interdicted based on their conduct.

The consequences, though, are criminal, Keenan said.

It is not known when the court will rule.

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