BRYAN MANNING; RYAN WILLIAMS; RICHARD DECKERHOFF; RICHARD EUGENE WALLS, Plaintiffs - Appellants,
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
from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District
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.
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.
R. Herring, Attorney General, Trevor S. Cox, Deputy Solicitor
General, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia,
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
GREGORY, Chief Judge, and WILKINSON, NIEMEYER, MOTZ, KING,
AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, HARRIS, RICHARDSON,
and QUATTLEBAUM, Circuit Judges, and DUNCAN, Senior Circuit
GRIBBON MOTZ and BARBARA MILANO KEENAN, Circuit Judges, with
whom Chief Judge GREGORY, and Judges KING, WYNN, FLOYD,
THACKER and HARRIS join.
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.
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).
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.
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. 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).
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.
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.
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.
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.
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).
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). 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.
first consider Plaintiffs' vagueness challenge.
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
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).
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)).
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. 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.,
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.
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.
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)).
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).
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.
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.
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.
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.
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
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
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)).
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
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).
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
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
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. 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)).
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.
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).
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.
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
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.
the term "habitual drunkard" specifies no
standard of conduct. It is thus unconstitutionally vague,
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
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.
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.
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.
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.
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
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.
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."
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.
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). 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 ...