Down with the Nanny State: Why New Yorkers Should Be Allowed to Drink Booze in Public

There’s nothing quite as pleasurable as cracking open a bottle of bubbly to share with your friends in a public park while soaking in the hot summer rays. That was the scene last weekend as a group of cheerful, shirtless 30-something year old men lay basking in the sun at Hudson River Park surrounded by lavish cheese and fruit platters and a bottle of champagne.  Sadly, their fun was short-lived.

Within minutes of peacefully perching on the soft grass, four New York park rangers swooped in, confiscated their one measly bottle of booze and issued each of them a fine for committing the “atrocious crime” of drinking in public, reinforcing to all those who observed that enjoying a sunny picnic day in the park, bottle in hand, is merely a pipe dream.

That’s right - New York City, which boasts to be one of the most “liberated” and greatest metropolises in the world, does not allow its residents the right to choose to consume any beverage at will, thanks to the state’s open container laws.

Under the New York rules, no person shall consume an open container holding alcohol, or possess one with the intent to drink in any public place. It is an offence that can be charged as either a misdemeanor under the city park rules and regulations or as a violation under the Administrative Code. The laws vary depending on where and when you’re drinking and don’t make a lot of sense.  For example, you can’t drink alone in a public place like a park or sidewalk, but a “block party, feast or similar function for which a permit has been obtained” is fair game! In fact, even in prohibited drinking areas, authorities often just look the other way if you happen to be from the right demographic.

And yet, drinking alcohol in public remains the most frequently issued criminal court summons in New York City comprising the most citations over the past decade.  In 2012, officers issued close to 120,000 summonses for this offense, making it one of the 10 most frequent arraignment charges and the only non-criminal violation in the top 10, according to NYCLU.

Other reports show the enforcement system is marred with racial disparities and targets minorities.  In 2012, New York Judge Noarch Dear made headlines when he found, after analyzing citations of Brooklyn residents, that more than 85 percent of the open container summonses were given to Blacks and Latinos and only four percent were issued to white people, Gothamist reported.  In his judgment he wrote:

“Over the several years that I have been sitting in Brooklyn Criminal Court arraigning people for open container violations, every single defendant was either Black or Latino. As hard as I try, I cannot recall ever arraigning a White defendant for such a violation.”

Consequently, he held that before issuing a court summons, police need to be held to a higher standard of certainty that the drink’s alcohol content exceeds 0.5 percent, the threshold under the city’s open container laws; the previous “sniff test” would no longer be sufficient.  Noach also underscored that the practices and policies of the NYPD must be scrutinized and immediately stopped if found to be discriminatory, NY Times reported.

Yet, almost two years on from the decision, not a lot has changed.  Enforcement officers continue to selectively issue summons for public drinking increasing their opportunities for profiling and to check for warrants on unrelated issues. The flawed system has infuriated locals, the homeless and those residing in housing projects who say they are routinely harassed by police about the contents of their plastic containers.

On this point, Rennie Jones author of “Alcohol and Urbanism: Breaking New York’s City Open Container Laws” explains how the element of control plays a role in regulation and its effect on those less fortunate.

“Are we in control of the space as a populous or is the space controlled by an authority that is at odds with public opinion? … When we restrict social drinking to private spaces with defined edges like doors, walls, and gates, who is in and who is left out?"  she writes. "Often, the right to drink in public must be purchased. Only so many people can physically pack into a bar, never mind legally… What costs $1.50 when pulled from a bodega refrigerator costs $6.00 pulled from a tap and garnished with a slice of collective conversation. People who wish to consume alcohol in company but do not have access to housing or expendable income- the homeless and the poor- must do so in public. These people are therefore more likely to be discovered and branded as deviant, brown bag or not."

So why is it still illegal to drink in public in New York, while drinking in large groups surrounded by thousands of inebriated people at sports game and musical festivals is acceptable and not considered a threat to public safety?

Critics, such as journalist Stephen Robert Morse, say the open container laws are merely designed as a revenue raising exercise, which are selectively enforced. Morse, first handedly experienced the wrath of the draconian laws when he was fined at a park for being seated beside an empty beer can lying next to him that did not belong to him.  He subsequently appealed in court and had the case against him overturned in under a minute, he explained in Huff Post.

“It wasn't the money that was the problem, it was that I was erroneously issued a summons by one of ‘New York's Finest’ for a crime that never happened. That said, my summons was issued at the end of the month, and […] NYPD officers have quotas to fill, even though they usually deny this, and I was more than likely just a victim of the system.”

Of course, what exactly constitutes a “public place” has also been the subject of much debate. While the law defines a public place as one to which the public or a “substantial group of persons has access,” the definition has been held to extend to one’s home ‘stoop,’ despite the fact that statutorily it clearly doesn’t fit within that definition.

But that hasn’t stopped determined New Yorkers from successfully arguing against police issuing stoop-drinking citations, such as Kimber VanRy.  The Brooklyn resident was fined for drinking a beer on his porch and eventually had the charges dismissed, arguing that a “substantial group of persons,” as required by the definition, did not access his front steps.

Others weren’t so lucky. Patrick Lamson-Hall, an NYU student was cuffed and put behind bars for 27 hours after failing to timely respond to a summons and court date for drinking on a West Village stoop, reported NY Daily News

Still, the NYPD continues to publicly defend the actions of law enforcement, yet fails to respond to requests by AlterNet for comment. Likewise, defiant New Yorkers continue to challenge the laws and push legal limits drinking publicly while finding loopholes to get around the law, further undermining its effect and need.   For example, under the so-called “brand loophole,” a police officer has to write down the specific brand of alcohol one is drinking to prove it contains an illegal amount, so anyone drinking from a cup or paper bag has a greater chance of avoiding a ticket.

Then again, most of us have better things to do than take a day off work to fight a public drinking charge.

As for the City’s position, the then Public Advocate Bill de Blasio previously expressed his desire to limit the impact of petty fines in New York, answering “Yes” to the question of whether New Yorkers should be free to drink a beer on one’s own stoop, at a recorded Mayoral Debate.  But it is unclear where he presently stands on the issue of open container laws, and what action, if any, he plans on taking in modifying the system.  The mayor’s office failed to respond to requests by AlterNet to verify his position.

Still, in the interest of protecting public safety, there are obviously far more worthwhile pursuits the NYPD could be investing their time and resources into, like say, tracking down those who commit violent crimes against each other, particularly as there is no evidence that such laws curb social drinking or bad behavior anyhow.  In addition, there is an obvious need for greater transparency of the rules to ensure enforcement standards are uniform and that statistical data concerning the recipients of violations is in the public domain.  

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