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Manning v. Caldwell

United States Court of Appeals, Fourth Circuit

July 16, 2019

DONALD CALDWELL, Commonwealth's Attorney for the City of Roanoke; MICHAEL NEHEMIAH HERRING, Commonwealth's Attorney for the City of Richmond, Defendants - Appellees. NATIONAL LAW CENTER ON HOMELESSNESS & POVERTY, Amicus Supporting Appellant.

          Argued: January 30, 2019

          Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Glen E. Conrad, District Judge. (7:16-cv-00095-GEC).


          Jonathan Lee Marcus, SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP, Washington, D.C., for Appellants.

          Matthew Robert McGuire, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

         ON BRIEF:

          Mark D. Young, Maureen A. Donley, Donald P. Salzman, Theodore M. Kneller, Shekida A. Smith, Daniel B. O'Connell, SKADDEN, ARPS, SLATE, MEAGHER & FLOM, LLP, Washington, D.C.; Mary Frances Charlton, Angela Ciolfi, Elaine Poon, LEGAL AID JUSTICE CENTER, Charlottesville, Virginia, for Appellants.

          Mark R. Herring, Attorney General, Trevor S. Cox, Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees.

          Eric S. Tars, NATIONAL LAW CENTER ON HOMELESSNESS & POVERTY, Washington, D.C.; Richard P. Bress, Andrew D. Prins, George C. Chipev, Ryan C. Grover, LATHAM & WATKINS LLP, Washington, D.C.; Douglas N. Letter, Nicolas Y. Riley, Seth Wayne, Institute for Constitutional Advocacy and Protection, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Amicus Curiae.


          DIANA GRIBBON MOTZ and BARBARA MILANO KEENAN, Circuit Judges, with whom Chief Judge GREGORY, and Judges KING, WYNN, FLOYD, THACKER and HARRIS join.

         Homeless alcoholics brought this action challenging a Virginia statutory scheme that makes it a criminal offense for those whom the Commonwealth has labelled "habitual drunkards" to possess, consume, or purchase alcohol. The scheme authorizes Virginia to obtain, in absentia, a civil interdiction order against persons it deems "habitual drunkards," and then permits Virginia to rely on the interdiction order to criminally prosecute conduct permitted for all others of legal drinking age. Plaintiffs allege that this scheme, which has resulted in their repeated arrest and imprisonment, violates the Constitution. The district court dismissed their complaint, holding that they failed to state a claim upon which relief could be granted. After a panel of this Court affirmed, we agreed to rehear the case en banc. For the reasons that follow, we now reverse.


         Because the district court dismissed Plaintiffs' complaint under Federal Rule of Civil Procedure 12(b)(6), we accept as true the factual allegations set forth in the complaint and draw all reasonable inferences in their favor. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).


         The challenged policy rests on a series of interrelated statutes that operate as a single scheme. Virginia Code § 4.1-333(A) permits a Virginia circuit court to enter a civil interdiction order "prohibiting the sale of alcoholic beverages . . . until further ordered" to a person who "has been convicted of driving . . . while intoxicated or has shown himself to be an habitual drunkard." The Virginia statutory scheme does not include a definition of the term "habitual drunkard," nor does it set forth any elements or standards governing the determination whether a defendant qualifies as an "habitual drunkard." Va. Code § 4.1-333. Instead, it relegates those matters "to the satisfaction of the circuit court." Id. And although Virginia Code § 4.1-333 requires that any individual potentially subject to interdiction be permitted a "hearing upon due notice," the record shows that such hearings often are conducted without the defendant being present.

         Once declared an "habitual drunkard," an interdicted person is subject to incarceration for the mere possession of or attempt to possess alcohol, or for being drunk in public. Virginia Code § 4.1-322 establishes a Class 1 misdemeanor for an interdicted person to "possess any alcoholic beverages," or to be "drunk in public" in violation of Virginia Code § 18.2-388. Similarly, Virginia Code § 4.1-305 establishes a Class 1 misdemeanor prohibiting an interdicted person from "consum[ing], purchas[ing], or possess[ing], or attempt[ing] to consume, purchase or possess, any alcoholic beverage," except in certain statutorily exempt circumstances, such as the use of medicines containing alcohol.[1] The punishment for these crimes is "confinement in jail for not more than twelve months and a fine of not more than $2, 500, either or both." Va. Code § 18.2-11(a). Individuals who have not been interdicted are subject only to a "fine of not more than $250" for public intoxication. See Va. Code §§ 18.2-388, 18.2-11(d).


         Each of the named Plaintiffs in this case, Bryan Manning, Ryan Williams, Richard Deckerhoff, and Richard Eugene Walls, alleges that he has been interdicted as an "habitual drunkard" pursuant to this statutory scheme. Each alleges that he suffers from alcohol use disorder, commonly called alcoholism, which causes him a "profound drive or craving to use alcohol" that is "compulsive or non-volitional." Each further alleges that he is homeless and that his homelessness exacerbates his addiction, "mak[ing] it nearly impossible . . . to cease or mitigate alcohol consumption." Notably, however, nothing in the complaint or elsewhere in the record indicates that any Plaintiff was convicted of any alcohol-related offenses before being interdicted.[2]

         Plaintiffs allege that, although by its terms the challenged scheme is not limited to the homeless, in practice it functions as a tool to rid the streets of particularly vulnerable, unwanted alcoholics like themselves. In support of this claim, they allege that although there were 4, 743 prosecutions for the crime of "possession or consumption of alcoholic beverages by interdicted persons" during the decade preceding 2015, only 1, 220 distinct individuals were interdicted between 2007 and 2015.

         Each of the named Plaintiffs asserts that he has been repeatedly criminally prosecuted after interdiction, often on dubious grounds. Some say they have been prosecuted as many as 25 to 30 times. In each instance, Plaintiffs faced (and allege they will again face) arrest, prosecution, and incarceration for up to a year in prison, all for conduct permitted for all others of legal drinking age. They allege that the "habitual drunkard" label also has adversely affected their ability to maintain employment and secure long-term housing, and has subjected them to continual harassment and embarrassment.[3]


         In March 2016, the named Plaintiffs filed this putative class action alleging that the Virginia scheme (1) constituted cruel and unusual punishment outlawed by the Eighth Amendment, (2) deprived them of due process of the law in violation of the Fourteenth Amendment, (3) denied them the equal protection guarantees of the Fourteenth Amendment, and (4) was unconstitutionally vague in violation of the Fourteenth Amendment. The district court considered and rejected all four claims and so dismissed the complaint.

         In rejecting Plaintiffs' vagueness and Eighth Amendment claims, the district court relied largely on a 1979 district court opinion, which this Court summarily affirmed. Fisher v. Coleman, 486 F.Supp. 311 (W.D. Va. 1979), aff'd, 639 F.2d 191 (4th Cir. 1981) (per curiam). After a panel of this Court affirmed the district court in this case, we voted to rehear the case en banc, and so vacated the panel opinion. See Manning v. Caldwell, 900 F.3d 139 (4th Cir.), reh'g en banc granted, 741 Fed.Appx. 937 (4th Cir. 2018).

         We now consider the case anew, reviewing de novo the district court's grant of a motion to dismiss for failure to state a claim. Stewart v. Iancu, 912 F.3d 693, 702 (4th Cir. 2019).[4] We hold that the challenged scheme is unconstitutionally vague, and that even if it could be narrowed to apply only to similarly situated alcoholics, Plaintiffs have stated a claim that it violates the Eighth Amendment as applied to them.[5]


         We first consider Plaintiffs' vagueness challenge.


         Before reaching the merits of that challenge, we must address the question whether this issue is properly before the en banc Court. Although the question of vagueness was fully litigated and decided in the district court, Plaintiffs expressly declined to "press this claim" before the original three-judge panel. Thus, the Commonwealth now contends that the issue has been waived before the en banc Court.[6]

         Mindful of our role as a neutral arbiter, this Court typically does not "ventur[e] beyond the confines of the case on appeal to address arguments the parties have deemed unworthy of orderly mention." United States v. Holness, 706 F.3d 579, 591-92 (4th Cir. 2013). Nonetheless, "[t]he matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases." Singleton v. Wulff, 428 U.S. 106, 121 (1976).

         We regularly exercise our discretion to excuse a party's abandonment of an issue when the record provides an adequate basis to consider an alternative legal theory and when neither party is prejudiced by such consideration. See, e.g., Simms, 914 F.3d at 238; Holness, 706 F.3d at 592; United States v. Ramos-Cruz, 667 F.3d 487, 496 n.5 (4th Cir. 2012); Rice v. Rivera, 617 F.3d 802, 808 n.4 (4th Cir. 2010); A Helping Hand, LLC v. Baltimore County, 515 F.3d 356, 369 (4th Cir. 2008). Indeed, we have recognized that when "deemed necessary to reach the correct result" on matters of public importance, we may "sua sponte consider points not presented to the district court and not even raised on appeal by any party." Wash. Gas Light Co. v. Va. Elec. & Power Co., 438 F.2d 248, 251 (4th Cir. 1971) (second emphasis added); see also Hormel v. Helvering, 312 U.S. 552, 557 (1941) ("Rules of practice and procedure are devised to promote the ends of justice, not to defeat them."); Curry v. Beatrice Pocahontas Coal Co., 67 F.3d 517, 522 n.8 (4th Cir. 1995) ("The normal rule of course is that failure to raise an issue for review in the prescribed manner constitutes a waiver. But the rule is not an absolute one and review may proceed (even completely sua sponte) when the equities require." (internal citation omitted)).

         We considered an abandoned issue less than a year ago in United States v. Simms, 914 F.3d 229. In that case, the en banc Court addressed whether 18 U.S.C. § 924(c)(3)(B) was susceptible to a conduct-specific approach, notwithstanding that the government had expressly abandoned that argument before the original three-judge panel. See id. at 237-39.[7] Given the "exceptional importance" of the question presented, in Simms every member of the Court, the majority and the dissenters alike, unanimously agreed to consider the merits of the government's abandoned arguments. See id. at 239- 52; see also id. at 253-60 (Wynn, J., concurring); id. at 260-63 (Wilkinson, J., dissenting); id. at 264-72 (Niemeyer, J., dissenting); id. at 272-80 (Richardson, J., dissenting).

         The circumstances before us here merit a similar exercise of discretion. As noted above, the issue of vagueness was litigated fully and was decided in the district court. And the question of a statute's vagueness is a purely legal issue that does not require additional fact-finding. See United States v. Picardi, 739 F.3d 1118, 1126 (8th Cir. 2014); United States v. Paradies, 98 F.3d 1266, 1284 (11th Cir. 1996); United States v. Mallas, 762 F.2d 361, 364 n.4 (4th Cir. 1985). Thus, the present record "readily permit[s] evaluation" of Plaintiffs' vagueness theory. Holness, 706 F.3d at 592.

         Additionally, neither party will be prejudiced by consideration of the vagueness issue. Both parties were questioned about the vagueness of the statutory scheme during oral argument before the en banc Court, and both submitted supplemental briefs on the subject. Moreover, the crux of Plaintiffs' appeal concerns an issue of "exceptional importance" to the Commonwealth of Virginia, namely, whether a statutory scheme imposing criminal penalties on an untold number of chronically ill citizens is unconstitutionally vague. Accordingly, we are persuaded that there are compelling reasons in this case to justify excusing Plaintiffs' initial abandonment of their vagueness claim on appeal.



         The void for vagueness doctrine is rooted in the Due Process Clause of the Fifth and Fourteenth Amendments. See Doe v. Cooper, 842 F.3d 833, 842 (4th Cir. 2016). To survive a vagueness challenge, a statute must give a person of ordinary intelligence adequate notice of what conduct is prohibited and must include sufficient standards to prevent arbitrary and discriminatory enforcement. See Papachristou v. City of Jacksonville, 405 U.S. 156, 160 (1972); Martin v. Lloyd, 700 F.3d 132, 135 (4th Cir. 2012); see also Kolender v. Lawson, 461 U.S. 352, 358 (1983) (requiring that criminal statutes contain "minimal guidelines to govern law enforcement" (citation omitted)).

         This test is not applied mechanically. The degree of vagueness tolerated in a law depends in part on the type of statute. Less clarity is required in purely civil statutes because the "consequences of imprecision are qualitatively less severe." Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). But see Sessions v. Dimaya, 138 S.Ct. 1204, 1225-31 (2018) (Gorsuch, J., concurring in part and concurring in the judgment) (noting that "today's civil laws regularly impose penalties far more severe than those found in many criminal statutes"). However, if criminal penalties may be imposed for violations of a law, a stricter standard is applied in reviewing the statute for vagueness. Hoffman, 455 U.S. at 498-99. Similarly, the void-for-vagueness doctrine applies to "laws that fix the permissible sentences for criminal offenses." Beckles v. United States, 137 S.Ct. 886, 892 (2017); accord Cross v. United States, 892 F.3d 288, 304-06 (7th Cir. 2018). And even laws that nominally impose only civil consequences warrant a "relatively strict test" for vagueness if the law is "quasi-criminal" and has a stigmatizing effect. Hoffman, 455 U.S. at 498-500; see also Dimaya, 138 S.Ct. at 1212- 13 (applying the most exacting vagueness standard to a civil statute authorizing a respondent's removal from the United States).

         In this case, the challenged Virginia scheme plainly has criminal consequences. An individual adjudicated to be an "habitual drunkard" faces an enhanced penalty for public intoxication. Compare Va. Code § 4.1-322, with id. § 18.2-388. And, unlike all others of legal drinking age, interdicted persons commit a crime punishable by up to twelve months' incarceration merely for possessing alcohol. See id. §§ 4.1-305; -322. Because the interrelated provisions operate together to "fix the permissible sentences" for those labelled "habitual drunkards," the statutes, at a minimum, are quasi-criminal in nature. Beckles, 137 S.Ct. at 892; Hoffman, 455 U.S. at 498-500.

         The integrated structure of the challenged scheme reinforces this conclusion. "[W]ords of a statute must be read in their context and with a view to their place in the overall statutory scheme." Davis v. Mich. Dep't of Treasury, 489 U.S. 803, 809 (1989); In re Consol. Freightways Corp. of Del., 564 F.3d 1161, 1165 (9th Cir. 2009) (recognizing that courts must "construe th[e] provision [at issue] with the statutory scheme in which it is embedded"). A civil interdiction order issued under Virginia Code § 4.1-333 is a necessary predicate for imposing the increased criminal penalties set forth in the other statutes addressing interdiction. Indeed, such an interdiction order would be meaningless without the conditions and criminal consequences that follow from a violation of that order. And although the portions of the scheme that impose those conditions and consequences do not use the term "habitual drunkard," that term is incorporated by reference. See, e.g., Va. Code §§ 4.1-304 (prohibiting the sale of alcoholic beverages to "interdicted person"), 4.1-322 (prohibiting "person[s] who [have] been interdicted pursuant to § 4.1-333" from possessing alcoholic beverages), 4.1-100 (defining "interdicted person" to mean "a person to whom the sale of alcoholic beverages is prohibited by order pursuant to this title"). Thus, these interrelated statutes must be construed together to give effect to their various provisions and, because they are quasi-criminal in nature, a "relatively strict" test for vagueness applies here. Hoffman, 455 U.S. at 498-99.


         Plaintiffs contend that the term "habitual drunkard" did not provide fair notice to them about what conduct is targeted by Virginia's statutory interdiction scheme. The Commonwealth, however, responds that the term "habitual drunkard" has a readily ascertainable meaning. It argues that a person of ordinary intelligence can understand what is meant by the term "habitual drunkard," because Virginia Code § 4.1-333 requires that a person has "shown himself" to be an "habitual drunkard." Va. Code § 4.1-333. In the Commonwealth's view, Plaintiffs' allegations that they often had difficulty maintaining sobriety in public places due to their alcoholism demonstrate that their conduct falls within any definition of "habitual drunkard," and, thus, that the statute is not impermissibly vague as applied to them.

         The purpose of the fair notice requirement is to enable citizens to conform their conduct to the proscriptions of the law. See City of Chicago v. Morales, 527 U.S. 41, 58 (1999) ("No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes." (quoting Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939))); Kolender, 461 U.S. at 357. If a statute fails to provide any standard of conduct by which persons can determine whether they are violating the statute or does not provide "minimal guidelines to govern law enforcement," the statute is unconstitutionally vague. See Kolender, 461 U.S. at 358; Cooper, 842 F.3d at 842.

         In the present case, the lack of any guidelines or standards regarding who qualifies as an "habitual drunkard" compels the conclusion that use of the term in the challenged scheme is unconstitutionally vague. Virginia's Alcoholic Beverage Control Act, of which this scheme is a part, does not define the term "habitual drunkard." See Va. Code § 4.1-100. And the few Virginia cases applying the challenged scheme have not provided a limiting construction of the phrase to satisfy the fair notice requirement. See Hoffman, 455 U.S. at 494 n.5 (explaining that when considering a void-for-vagueness challenge, a federal court must "consider any limiting construction that a state court or enforcement agency has proffered" (citation omitted)). Thus, the statutes and case law fail to provide any standards of what is meant by the term "habitual drunkard." Cf. Capital Assoc. Indus., Inc. v. Stein, 922 F.3d 198, 210-11 (4th Cir. 2019) (concluding that the statute prohibiting unauthorized practice of law was not impermissibly vague because "[t]he statutes and state case law collectively provide an extensive definition of what it means to practice law").

         Our principal dissenting colleague maintains that the "sole purpose" of interdiction proceedings under Virginia Code § 4.1-333 is "to provide notice" to high-risk persons about the type of conduct Virginia prohibits. Dissent at 70 (Wilkinson, J.). In doing so, however, he inverts Virginia's statutory scheme. Once labelled an "habitual drunkard," a person may be on notice about the conduct prohibited, but it does not follow that the person was also on notice that he or she could be interdicted. Stated differently, persons informed that they can no longer possess alcohol because they are an "habitual drunkard" are not thereby put on notice about what conduct led to that adjudication in the first place.

         And, plainly, the term "habitual drunkard" itself does not "assist in clearly articulating the proscriptions of the ordinance." Morales, 527 U.S. at 51. To begin, the word "habitual" is itself susceptible to numerous interpretations. "Habitual" means "of the nature of a habit . . . customarily doing a certain thing." Habitual, Webster's International Dictionary (3d ed. 2002). But a habit can also be a "custom," a "nearly involuntary" practice, a "normal manner of procedure," or something done with "frequent repetition." Id. Thus, on its own, the word "habitual" does not provide any principles or standards for determining how often or regularly an act must be performed to constitute "habitual" behavior. See Cooper, 842 F.3d at 843 (concluding that the term "regularly scheduled" was unconstitutionally vague because the statute at issue did not explain what "regular" meant in context); Lytle v. Doyle, 326 F.3d 463, 469 (4th Cir. 2003) ("[T]he vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of [the term at issue], but rather about what specific conduct is covered by the statute and what is not." (internal quotation marks and citation omitted)).

         In the context of the present case, therefore, several questions immediately arise concerning who may be adjudicated an "habitual" drunkard. For example, must a person engage in a pattern of drinking over time that establishes a "normal manner of procedure," or is it enough that the person drinks many alcoholic beverages over an extended period? Or is a "habit" established if the person drinks numerous alcoholic beverages only every Friday and Saturday night? The language of the challenged scheme does not provide any guidance to answer these or a myriad of other questions.

         Likewise, the term "drunkard" does not provide any meaningful guidance regarding proscribed conduct. In Hancock v. Cox, the Supreme Court of Virginia held that a civil statute providing for the commitment of "alcoholics" was unconstitutionally vague, because the statute lacked any definition to determine "when a person is an alcoholic." 183 S.E.2d 149, 151-52 (Va. 1971). Similarly, in Booth v. Commonwealth, the court held an earlier version of this scheme, which provided for the interdiction of any person who has "shown himself to be an improper person to be allowed to purchase alcoholic beverages," to be impermissibly vague, because the term "improper person" allowed "arbitrary interpretation" and enforcement. 88 S.E.2d 916, 917-18 (Va. 1955) (emphasis added).

         The same is true here. Black's Law Dictionary defines "drunkard" as "[s]omeone who habitually consumes intoxicating substances excessively" or "[an] alcoholic." Drunkard, Black's Law Dictionary (10th ed. 2014). To our dissenting colleagues, this type of general definition is the end of the matter. Dissent at 72 (Wilkinson, J.); Dissent at 82 (Diaz, J.). But such a conclusion relies entirely on a tautology: a person who drinks alcoholic beverages excessively is a drunkard and, therefore, a person would easily understand that a person is an "habitual drunkard" if they regularly drink alcohol to excess. This definition entirely fails to answer the question of what the Virginia's interdiction scheme meant by "drunkard." General definitions of the term "drunkard" do not identify how much alcohol a person must consume before such consumption is considered "excessive" or, as noted above, what frequency of behavior constitutes a "habit." Thus, such definitions fail to impart any standards for determining whether a given individual is a "drunkard."[8]

         This absence of meaningful guidance is further illustrated when the term "habitual drunkard" is compared with the word "intoxicated" as used in Virginia's public intoxication statute. A conviction for public intoxication requires proof that a person is "intoxicated." See Va. Code § 18.2-388. "Intoxication" in turn is expressly defined as "a condition in which a person has drunk enough alcoholic beverages to observably affect his manner, disposition, speech, muscular movement, general appearance or behavior." Id. § 4.1-100. Thus, a person in a public place who has consumed enough alcohol to impair his physical movement or speech is notified by the language and definitions in Virginia Code § 18.2-388 of the conditions under which he may be charged with public intoxication. See United States v. Brown, 401 F.3d 588, 597 (4th Cir. 2005). In contrast, this scheme lacks any substantive guidance regarding what is required to establish that a person is an "habitual drunkard." Indeed, the fact that Virginia's Alcoholic Beverage Control Act specified what behavior constitutes being "intoxicated" with respect to the state's public intoxication offense, Va. Code § 4.1-100, but left undefined the term "habitual drunkard" in its interdiction scheme, id. § 4-1.333, demonstrates that the legislature intended each term to target different behavior, Forst v. Rockingham Poultry Marketing Coop., Inc., 279 S.E.2d 400, 404 (Va. 1981) ("When the General Assembly uses . . . different terms in the same act, it is presumed to mean . . . different things.").

         Counsel for the Commonwealth stated at oral argument that an "habitual drunkard" is someone who "causes harm to other persons or their community" as a result of his or her repeated drunkenness. But this "harm" requirement is not found in the challenged scheme, nor does the concept appear in any Virginia or federal case interpreting it.[9] Thus, the determination whether a certain person qualifies as an "habitual drunkard" is left to the subjective view of judges and law enforcement officials. See Kolender, 461 U.S. at 358 ("[W]here the legislature fails to provide . . . minimal guidelines, a criminal statute may permit a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections."); Papachristou, 405 U.S. at 170 ("Where, as here, there are no standards governing the exercise of the discretion granted by the ordinance, the scheme permits and encourages an arbitrary and discriminatory enforcement of the law."); see also Booth, 88 S.E.2d at 918 ("On the basis of such a portmanteau word . . . the judiciary has no standards with which to judge the validity of . . . action which necessarily involves, at least in large measure, subjective determination." (citation omitted)).

         Determinations of this nature invite arbitrary enforcement. Police officers, prosecutors, and even state circuit court judges likely will have differing perceptions regarding what frequency of drunkenness exceeds the necessary threshold for a person to be considered an "habitual drunkard." The interpretation of the phrase therefore leaves open the widest conceivable inquiry about a person's behavior and depends "entirely upon the prohibition philosophy of the particular" individual enforcing the scheme at that moment. Booth, 88 S.E.2d at 917. Indeed, the absence of any standards or limiting language to assist in the interpretation of the term "habitual drunkard" supports Plaintiffs' assertion that the law was designed to target persons, including the homeless, that state officials deem undesirable. See Papachristou, 405 U.S. at 166 (observing that "[d]efiniteness is designedly avoided [in vagrancy laws] so as to allow the net to be cast at large, to enable men to be caught who are vaguely undesirable in the eyes of police and prosecution, although not chargeable with any particular offense"). The imposition of significant criminal penalties cannot rest on the use of such subjective standards, nor may a statute consign a person to the risk of significant penal consequences without first providing sufficiently definite notice of prohibited activities. See Tanner v. City of Virginia Beach, 674 S.E.2d 848, 853 (Va. 2009). Because the determinations required by the Virginia scheme are not meaningfully constrained by the text of the statutes, those statutes plainly fail to give fair notice of the conduct to be avoided. See Papachristou, 405 U.S. at 166.[10]

         The decisions of courts in other jurisdictions likewise fail to provide any aid in resolving this definitional quandary. There are almost as many definitions for terms such as "common drunk" or "habitual drunkard" as there are courts that have attempted to formulate them. See, e.g., Ledezma-Cosino v. Sessions, 857 F.3d 1042, 1046 (9th Cir. 2017) (en banc) ("The ordinary meaning of 'habitual drunkard' is a person who regularly drinks alcoholic beverages to excess."); Tatum v. State, 22 So.2d 350, 351 (Ala. Ct. App. 1945) ("A common drunkard is a person whose general rule of life is that of drunkenness . . . sobriety being the exception."); Sowder v. Commonwealth, 88 S.W.2d 274, 275 (Ky. 1935) (approving a jury instruction that defined "habitual drunkard" as a person who "has a fixed habit of frequently getting drunk, though not oftener drunk than sober, and though sober for weeks at a time"); Commonwealth v. Whitney, 71 Mass. 85, 87-88 (1855) (defining "common drunk" as a person who is "an habitual drunkard [and] is so to the disturbance of the public peace and good order"). Moreover, several courts have concluded that such terms simply are not amenable to any meaningful definition, given the variety of differing definitions assigned to common terms of this nature. See, e.g., State v. Pugh, 369 So.2d 1308, 1309-10 (La. 1979); Ex Parte Newbern, 350 P.2d 116, 123 (Cal. 1960) (en banc).

         We do not require statutes to be models of "perfect clarity." Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989). But even acceptably imprecise language must specify some standard of conduct both to guide the actions of individuals and to govern law enforcement. See Cooper, 842 F.3d at 842; Lytle, 326 F.3d at 469. Without the addition of some defining standards, members of both groups are left without any understanding of how the scheme should be applied.

         The Commonwealth nevertheless contends that Plaintiffs' admitted difficulty in maintaining sobriety proves that, whatever the definition of "habitual drunkard," the term was meant to prohibit Plaintiffs' conduct. The first problem with this argument is that the record lacks any indication of the conduct that led to Plaintiffs' interdictions. Each of the named Plaintiffs were interdicted in absentia, and so have no knowledge of the evidence that was relied upon by the court in determining that they are "habitual drunkards." Although the interdiction orders for Manning and Williams state that the court considered "abstract[s] of conviction" as part of the evidence submitted in those plaintiffs' respective hearings, the interdiction orders consist entirely of boilerplate language that does not identify any offense on which those convictions were based, or the number of such convictions. And, as counsel for the Commonwealth admitted during oral argument, there is no requirement that a person be convicted of any offense to be interdicted as an "habitual drunkard." Thus, the interdiction orders, without more, do not establish that Plaintiffs' conduct clearly was encompassed by Virginia's scheme.[11]

         Moreover, Plaintiffs' acknowledgement that they have difficulty maintaining sobriety due to alcoholism does not establish that they are "habitual drunkards." Plaintiffs are not charged with the responsibility of defining statutory terms, and their acknowledgement of illness says nothing about the sweep of the statutory scheme. Supreme Court precedent requires that statutes be based on objectively discernable standards. See, e.g., Johnson v. United States, 135 S.Ct. 2251, 2558 (2015); Kolender, 461 U.S. at 357; Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). And here, there is no basis on which to conclude that Plaintiffs' conduct was clearly prohibited by the challenged scheme.

         In sum, the term "habitual drunkard" specifies no standard of conduct. It is thus unconstitutionally vague, [12] because the term invites the very type of arbitrary enforcement that the Constitution's prohibition against vague statutes is designed to prevent. See Cooper, 842 F.3d at 842-43. Accordingly, the challenged scheme's current use of the term "habitual drunkard" is unconstitutionally vague even as applied to these Plaintiffs, and we conclude that the district court thus erred in dismissing Plaintiffs' vagueness challenge under Rule 12(b)(6).


         As we have explained, the term "habitual drunkard" as used in Virginia law is so vague as to offer no meaningful standard of conduct. But even if this term could be narrowed to apply only to those individuals who, like Plaintiffs, suffer from alcoholism, such a construction would raise independent Eighth Amendment concerns. See Appellees' Supp. Br. at 7 ("Whatever construction is given to the phrase . . . it surely applies to individuals who . . . 'pathologically pursue alcohol use' because they 'have a profound drive or craving to use alcohol' that 'is largely uncontrollable and inevitable . . . .'" (quoting Plaintiffs' complaint)). We now turn to those concerns.


         The Eighth Amendment's Cruel and Unusual Punishments Clause "circumscribes the criminal process in three ways." Ingraham v. Wright, 430 U.S. 651, 667 (1977). The Clause operates to (1) "limit[] the kinds of punishment that can be imposed on those convicted of crimes," (2) "proscribe[] punishment grossly disproportionate to the severity of the crime," and (3) "impose[] substantive limits on what can be made criminal and punished as such." Id.

         Plaintiffs' Eighth Amendment challenge rests on the third limitation. This restriction is "one to be applied sparingly," id., for a state of course has broad authority to define and prosecute criminal offenses. But a state's power to punish is not boundless, as the Supreme Court made clear more than fifty years ago.

         The Court then held that a California statute that criminalized addiction "to the use of narcotics" violated the third limitation. See Robinson v. California, 370 U.S. 660, 660, 667 (1962); see also Ingraham, 430 U.S. at 667. Rejecting the state's contention that this prohibition constituted a valid exercise of its police power, the Court reasoned that a narcotics addiction was an illness, and "a state law which imprison[ed] a person thus afflicted as a criminal" constituted cruel and unusual punishment. Robinson, 370 U.S. at 666-67.


         In Robinson, the Supreme Court held that a state may not, consistent with the Eighth Amendment, punish an individual for being addicted to narcotics. Speaking for the Court, Justice Stewart explained that "at th[at] moment in history" no state would "attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease." Id. at 666. Rather, "a law which [would make] a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments." Id. This was so, the Court held, because a state could not, consistent with the Constitution, punish a person for an illness. See id. at 667. In so holding, the Robinson Court expressly noted, as the state there recognized, that just as a "narcotic addict" is "in a state of mental and physical illness[, ] [s]o is an alcoholic." See id. at 667 n.8.

         Six years after the Supreme Court decided Robinson, the Court considered a challenge to a Texas statute that criminalized public intoxication. Powell v. Texas, 392 U.S. 514 (1968). The defendant, an alcoholic individual who was not homeless, argued that the Texas statute, like the statute in Robinson, punished an illness over which he had no control and so violated the Eighth Amendment. In a fractured decision (4-1-4), the Supreme Court affirmed Powell's conviction.

         Four Justices in Powell interpreted Robinson to prohibit only the criminalization of "mere status." Id. at 532 (Marshall, J.) (plurality opinion). In their view, the Texas statute withstood constitutional challenge because it criminalized the act of being intoxicated in public rather than the status of alcohol addiction. These Justices did not suggest that alcoholism was not an illness. Nor did they contend that the Eighth Amendment allowed a state to prosecute an individual merely for being an alcoholic. Rather, they concluded that the Texas statute, unlike the law at issue in Robinson, did not criminalize "being an addict" or "being a chronic alcoholic." Id.

         Four Justices voted to reverse Powell's conviction. Writing for the dissent, Justice Fortas explained that Robinson compelled this result because it stood for a principle at "the foundation of individual liberty and the cornerstone of the relations between a civilized state and its citizens": the principle that "[c]riminal penalties may not be inflicted upon a person for being in a condition he is powerless to change." Id. at 567 (Fortas, J., dissenting, joined by Douglas, Brennan, & Stewart, JJ.). Because Powell - an alcoholic - "was powerless to avoid drinking" and "once intoxicated, he could not prevent himself from appearing in public places," these Justices would have found Powell's conviction violated the Eighth Amendment. Id. at 568-70. The dissenters believed that "the essential constitutional defect . . . [was] the same as in Robinson, for in both cases the particular defendant was accused of being in a condition which he had no capacity to change or avoid." Id. at 567-68.

         Justice White provided the decisive fifth vote to uphold Powell's conviction. In doing so, however, Justice White expressly rejected the act-status rationale adopted by the plurality and advocated by our dissenting colleagues. See id. at 548-49 (White, J., concurring in the result).[13] As Justice White explained:

Unless Robinson is to be abandoned, the use of narcotics by an addict must be beyond the reach of the criminal law. Similarly, the chronic alcoholic with an irresistible urge to consume alcohol should not ...

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