Manning v. Caldwell for City of Roanoke

Decision Date16 July 2019
Docket NumberNo. 17-1320,17-1320
Citation930 F.3d 264
Parties Bryan MANNING ; Ryan Williams; Richard Deckerhoff; Richard Eugene Walls, Plaintiffs - Appellants, v. 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.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: 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.


Reversed and remanded by published opinion. Judges Motz and Keenan wrote the majority opinion, in which Chief Judge Gregory, and Judges King, Wynn, Floyd, Thacker, and Harris joined. Judge Keenan wrote a concurring opinion, in which Judges Motz and Thacker joined. Judge Wilkinson wrote a dissenting opinion, in which Judges Niemeyer, Agee, Richardson, Quattlebaum, and Senior Judge Duncan joined. Judge Wilkinson wrote a specially dissenting opinion. Judge Diaz wrote a dissenting opinion.

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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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 F. App'x 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, 96 S.Ct. 2868, 49 L.Ed.2d 826 (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...

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