William C. Tinker wtinker@metrocast.net
Fri, 8 Jul 2005 07:25:07 -0400


Lawsuit asserts right to get drunk on private property

By Shelley Murphy, Globe Staff

July 8, 2005

Eric Laverriere was celebrating last New Year's Eve at a friend's house in
Waltham when police broke up the party. They took him into protective
custody and kept him locked in a cell for nine hours until the effects of a
night of beer drinking wore off.
This week, in what legal experts believe to be a first-of-its-kind legal
challenge, Laverriere filed suit against the Waltham Police Department in US
District Court in Boston, contending that he has a constitutional right to
get drunk on private property ''so long as he causes no public disturbance."
Laverriere, a 25-year-old computer systems specialist from Portland, Maine,
argues that the Massachusetts Protective Custody Law is intended to target
public drunkenness and that Waltham police overstepped their bounds when
they used it to seize him from a private residence.
''One thing people should be able to do is drink in their own house,"
Laverriere said in a phone interview yesterday. ''That's the beauty of the
land of the free."
The state's Protective Custody Law, enacted in 1971, replaced a law dating
back to Colonial times that made public drunkenness a crime, subject to
arrest, conviction, and a criminal record. The law, which does not
explicitly say whether it applies to those in public or in private,
authorizes police to take incapacitated people to their homes, a treatment
facility, or a police station, where they can be held against their will for
up to 12 hours.
Under the law, people have to be drunk and deemed to be a danger to
themselves or others. They are not charged with a crime.
Laverriere asserts in his lawsuit that he had ''a constitutional right to be
drunk in private, a privacy and liberty right founded in the Due Process
Clause of the Fourteenth Amendment to the US Constitution."
Waltham Deputy Police Chief Paul Juliano declined to comment on the suit on
the advice of the city's legal department.
Several lawyers who represent some of the biggest police departments in the
state said they believed the state's protective custody law clearly gives
police the authority to take inebriated people into custody. But they said
it was the first time they had seen someone challenge the law on the grounds
that one has a constitutional right to get drunk on private property.
Boston attorney Leonard Kesten, who has defended many police departments in
civil rights cases, said legal precedent has established that police cannot
just show up at someone's home without cause and take suspected drunks into
protective custody. But, he said, if officers are investigating a crime or
responding to an incident and discover that someone is drunk, they are
obligated by law to take that person into protective custody if he or she
could hurt themselves or others.
''You can drink all you want as long as you're not a danger to yourself or
others," he said, adding that police have been sued for failing to take
people into protective custody who later died from alcohol poisoning or
killed others in drunken-driving accidents.
Laverriere said that he drank several beers, but wasn't drunk, when officers
arrived at his friend's duplex on Lyman Street about 2:30 a.m. and said
someone had thrown bottles at a passing police cruiser. When everyone denied
throwing bottles, Laverriere said, officers began screaming and ''becoming
more threatening," prompting him to pick up a friend's digital camera and
start videotaping.
Officer Jorge Orta ''came running to me, ripped the camera out of my hand
and threw me down on the floor," Laverriere said in the interview, adding
that he injured his shoulder and is scheduled to have surgery next month.
Laverriere said that although he told police he had been invited to spend
the night at the house, the officers insisted on taking him into protective
custody. While police arranged for local partygoers to take taxis home,
other out-of-town guests were allowed to remain at the house, he said.
''Heaven forbid if we've reached the point where police can take you out of
your home because you're drunk and not hurting anybody," said Harvey
Schwartz, a Boston civil rights lawyer who filed the suit on behalf of
Laverriere and believes that the protective custody law implicitly applies
to public places.
One police report says that Laverriere appeared intoxicated and expressed
''displeasure" at being told he had to leave the party. Laverriere said he
could not leave because he lived in Maine, the report says, and was then
taken into custody. The report says he fell to the floor while resisting
Orta's efforts to handcuff him. Schwartz accused the police of retaliating
against Laverriere because he tried to videotape them, noting that other
partygoers who had been drinking were allowed to remain at the house.
According to police reports, after two champagne bottles and a beer bottle
were hurled at the cruiser, officers went into the home and found about 25
people inside, many of whom appeared intoxicated.
One Lyman Street neighbor, Joseph Saulnier, recalled the New Year's Eve
party as a rowdy affair. ''It was very loud. There were cars parked
everywhere on the street. People were everywhere," he said.
Laverriere contends that the party was winding down and he was sitting in a
recliner, watching television, and drinking water when police showed up at
the house.
''I can understand if you're abusive to a housemate or you do something that
is damaging or life-threatening they can come and remove you," he said.
''But if you're just sitting there having a good time with friends and don't
do anything wrong?"
Attorney Timothy Burke of Needham, who represents the Massachusetts State
Police and about 30 other police departments, said police had a right to
enter the home to investigate the bottle-tossing incident. In most cases,
Burke said, police take people into protective custody whom they could
arrest for disorderly conduct, trespassing, or some other charge.
''More often it's used to give a person a break and not arrest them," he
Globe correspondent Cristina Silva contributed to this report.

 Copyright 2005 Globe Newspaper Company.