The Richmond-based 4th U.S. Circuit Court of Appeals on Wednesday will hear a challenge to Virginia's habitual drunkard law brought by four homeless alcoholics from Richmond and Roanoke.

A lower court judge and a three-judge panel of the appeals court upheld Virginia's interdiction statute, which allows a circuit court to civilly find someone to be a "habitual drunkard" and thereafter be prosecuted for possessing or consuming alcohol, or attempting to do so.

The full court will have an unusual "en banc" hearing on the case starting at 9 a.m. A bill that would repeal the law is pending in the Virginia General Assembly. Similar legislation died in the House last year.

The Legal Aid Justice Center and a pro bono Washington law firm brought the class action suit arguing that the Virginia law targets homeless alcoholics because of their status — they are homeless and suffering from a chronic disease — rather than a crime.

The U.S. Supreme Court bars states from criminalizing a person's status. "Yet Virginia continues to incarcerate Plaintiffs under the Interdiction Statute because they are homeless alcoholics," argue the lawyers for the men in a 54-page brief to the appeals court.

"Virginia has effectively outlawed the combination of homelessness and alcoholism," they wrote, adding that the law violates constitutional rights against cruel and unusual punishment, equal protection under the law and due process, they argue.

Michael N. Herring, Richmond's commonwealth's attorney and one of the two named defendants, said Tuesday that, "We use it very infrequently, with a twofold goal of saving the person from an unmanageable, potentially fatal illness and sparing the community from a very problematic nuisance."

Colette McEachin, a deputy commonwealth's attorney in Richmond, estimates the law is used no more than four times a year in the city and then only against persons who present serious problems.

They represent a public safety issue, she said. "But they are actually more dangerous to themselves because they pass out on the street, or they are so drunk that they cause a ruckus on somebody's property. As we know, you pick the wrong ruckus on the wrong person's property and they come out with a gun and shoot you," she said.

The law imposes the same restrictions on interdicted persons as are imposed on persons under the age of 21. Violation of the law is a misdemeanor punishable by 12 months or less in jail and a fine of not more than $2,500 or both.

The Virginia attorney general's office is defending the law.

"Alcoholism is a serious condition that afflicts many Virginians, including the homeless in our society. Alcoholism and its associated conduct jeopardize the safety and welfare not just of those who consume alcohol to the point of intoxication, but also those who come into contact with them," wrote Trevor S. Cox, deputy solicitor general for Virginia in the state's brief to the appeals court.

He added, "That alcoholism is a significant safety and public health issue is not in dispute in this appeal."

What is in dispute, said the state, is the constitutionality of the law and the lower court correctly dismissed the suit.

The plaintiffs may characterize jailing persons who habitually break Virginia's alcohol laws as "an irrational and anachronistic approach" for dealing with problems generated by alcohol, wrote the state. And they may have different policy prescriptions or preferences — such as treatment — for handling the problem.

"But it is plainly legitimate for a State to include imprisonment among the 'variety of options as its disposal' for curbing substance abuse," argues the attorney general.

The plaintiffs complain, however, that for all intents and purposes, the law is aimed only at homeless alcoholics. If the law was truly aimed at curbing alcohol abuse, the state would be interdicting residents at a far higher rate.

The suit is not challenging the law as it applies to interdicted persons who are drunk in public or prohibiting someone from selling alcohol to an interdicted person.

The Legal Aid Justice Center said state records show that as of Oct. 1, 2015, only 1,220 persons had been interdicted since 2007, a small percentage of the roughly 500,000 alcoholics in the state.

Over the same period Virginia recorded 4,743 convictions of interdicted persons suggesting the same people are repeatedly prosecuted. The four named plaintiffs have been arrested and prosecuted between 11 and more than 30 times, said the center.

One was arrested for smelling like alcohol and for being in a store where alcohol was sold; another for sleeping in a park bathroom where a beer can was found in the trash.

By design, the interdiction law targets homeless alcoholics because it is feasibly enforced only against them. It is possible that non-homeless alcoholics could be habitual drunkards, but they can avoid being targeted by drinking at home, argue the plaintiffs.

The plaintiffs' lawyers argue that the data and the experiences of the plaintiffs suggest the state is using the interdiction law as a modern day vagrancy law, "a tool to 'sweep the streets' of undesirable homeless individuals for acts that do not pose any threat to the public."

After losing in lower federal court, they appealed to a three-judge panel of the 4th Circuit. However, the panel ruled against them last August, finding that the law was constitutional because it criminalizes acts, not status.

However, one of the three judges agreed only because the court's rules prevented the panel from overturning a prior ruling of the court, which the judge believed did not properly apply supreme court precedent.

The full court agreed to take the matter up leading to Wednesday's arguments. Elaine Poon, managing attorney for the Legal Aid Justice Center, said Tuesday that the full court can reconsider the earlier decision cited by the three-judge panel.

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