The St. Patrick’s Day debauchery in Boston is legendary: Irish bars from Somerville to Southie open at 9 a.m.; the first blacked-out revelers are cut off before noon; and any bar that doesn’t typically have a door guy, definitely adds a door guy. In particular, said door guy has two very important jobs: 1) Don’t let anyone who is noticeably drunk in, and 2) don’t let anyone with a drink still in their hand out.
Because while there are no laws, anywhere in the U.S., against simply being drunk in public (it’s being drunk and disorderly that’ll get you in trouble), there are stringent laws in most states against drinking, however peaceably, in public.
But why? If the law doesn’t care about anyone being (reasonably) drunk in public, why does nearly every state seem to care so much about people getting drunk in public?
Some answers…
When the Ban on Public Drinking Started
Once upon a time, America did care very much about people being drunk in public. After the repeal of Prohibition, nearly every state had laws against being “a common drunkard” or “vagrant,” terms that, taken together, meant being visibly intoxicated (but doing no harm) on city sidewalks and in parks, etc. Basically, if you staggered a bit while walking or had trouble forming complete sentences, you could be arrested.
Open-container laws, however, were rare.
Chicago was the first city to explicitly outlaw “drinking in the public way” in 1953. It was part of an effort to clean up the more hazardous parts of Skid Row. Why wait to for them to get drunk to arrest them? the thinking went. Newport, Rhode Island, followed in 1960 after a mob of thousands, drunk on rage and from many hours of tailgating, stormed the gates of Newport Jazz Festival, angered that tickets were sold out. Florida vacation hotspots like Miami, Daytona Beach and Fort Myers passed similar laws for the same reason — large crowds of largely underage people were getting drunk outside of bars and causing a scene.
But again, for the most part, these were isolated statutes. They would’ve remained that way, too, if it weren’t for one major problem with the laws against public drunkenness: They were wildly unconstitutional.
How the Constitution Factors into All of This
It took the Civil Rights Movement (as well as the 1962 Supreme Court case Robinson v. California) to highlight that laws against vagrancy and public drunkenness were actually criminalizing being homeless and having a drug or alcohol problem. They also weren’t being enforced consistently. As such, African Americans and Latinos were exponentially more likely to be cited or arrested for these “status offenses.”
And so, in 1971, Congress passed the Uniform Alcoholism Treatment Act, which made it illegal to prosecute people for being simply drunk in public:
As the Crime Commissions pointed out, drunkenness by itself does not constitute disorderly conduct. The normal manifestations of intoxication — staggering, lying down, sleeping on a park bench, lying unconscious in the gutter, begging, singing, etc. — will therefore be handled under the civil provisions of this Act and not under the criminal law.
But as the legal requirements for arresting someone for public intoxication became more narrowly defined, most states decided to address the problem by outlawing drinking in public and introducing open-container laws. That’s essentially why, by 1995, nearly every city in the country had adopted laws against drinking out in the open.
The Exceptions to the Rule
New Orleans. You can drink in public anywhere in New Orleans (except a car) as long as you’re drinking out of a plastic container. You can even ask for your half-drunk drink in a bar to go, and your bartender or server will transfer your drink from a glass to plastic cup with a lid and straw and send you on your merry way.
It wasn’t always this way, though. New Orleans, too, banned drinking in public in 1971. But in 2001, the city commissioned a study to see who was being cited for drinking in public, and it turned out (unsurprisingly) that over 30 years, nearly 80 percent of the people charged with violating the open-container law were African American. The ban was repealed shortly thereafter.
Las Vegas. You can legally drink in public in Vegas anywhere but in a vehicle or within 1,000 feet of hospitals, schools, homeless shelters, bus stops, places of worship or addiction and/or withdrawal management facilities. (One thousand feet equals a little less than a quarter mile.) You also must be 1,000 feet from a liquor store before you crack open your beer, because liquor stores aren’t licensed to serve alcohol, only sell it. Like New Orleans, though, glass stemware is banned on city streets (that goes for non-alcoholic beverages, too). On a slight side note: You can also buy alcohol 24/7 everywhere in Nevada.
Hood River, Oregon. Hood River, a port city along the Columbia River, has no open-container laws, probably because, anecdotally at least, there’s not much there beyond strawberries and beer.
Butte, Montana. Until 2012, you could drink in public anywhere, at any time in Butte, a small mining town between the college towns of Boseman and Missoula. In 2012, however, due to local frustrations with noise and public urination, Butte outlawed public drinking between 2 a.m. and 8 a.m. Still, that’s plenty of time to get your drink on in the park.
Kinda, Sorta Exceptions to the Rule
To state the obvious, Middle and Small-Town America aren’t what they once were. In hopes of flipping that dynamic, many of the cities and towns therein have attempted to kick-start their tourism industries via redevelopment — and by allowing people to publicly drink in designated public areas.
A full accounting of the “entertainment districts” pouring their tourism hopes and dreams into an open container: the Power & Light District of Kansas City, Missouri; the Savannah Historic District in Savannah, Georgia; Beale Street in Memphis, Tennessee; the Main Street shopping district in Fredericksburg, Texas; the “designated outdoor refreshment areas” of Canton, Ohio; and Main Street Mobile (Alabama).
What About the Rest of Us?
Well, don’t brown bag it: According to Tim Dees, a retired Reno Police Department officer, who answered this very question on Quora, drinking booze out of a bottle covered by an opaque bag, like a brown paper lunch bag or a black plastic liquor store/sex shop bag, isn’t a way to skirt the cops:
“It’s not acceptable, but it arguably provides a defense to the charge if a cop stops the drinker and issues them a citation or makes an arrest. The drinker can say the cop could not have known the beverage was alcoholic, and therefore had no probable cause to take the enforcement action. The fallacy is that no one is going to drink a soft drink or apple juice out of a bottle wrapped in a bag, so doing so is all but advertising you’re drinking alcohol in public.”
And more than likely, that’s still a crime punishable by law wherever you happen to be at the time.
Haley Hamilton
Haley Hamilton is a Boston-based bartender. She writes The Shakes, MEL's weekly column dedicated to drinks, booze, bar culture and sometimes other vices. She enjoys cocktails, mezcal, yoga and fucking with the patriarchy.
