[Hpn] SUIT CHALLENGES PROTECTIVE CUSTODY LOCKUP

William C. Tinker wtinker@metrocast.net
Sat, 9 Jul 2005 10:53:07 -0400


http://presshearld.mainetoday.com/news/local/050709lawsuit.shtml

Saturday, July 9, 2005

Suit challenges protective custody lockup

By From staff and news services,

A Portland man who was locked in protective custody by Massachusetts police
while he sobered up after a New Year's Eve party is suing authorities,
asserting his right to get drunk on private property.
Police in Waltham, Mass., took Eric Laverriere, 25, into protective custody
and locked him in a cell for nine hours until the effects of the alcohol
wore off. Laverriere claims in a lawsuit filed this week in U.S. District
Court in Boston that he has a constitutional right to get drunk on private
property as long as he doesn't cause a public disturbance.
"One thing people should be able to do is drink in their own house,"
Laverriere told The Boston Globe. "That's the beauty of the land of the
free." Legal experts said his lawsuit is the first to challenge a state law
allowing police to lock up drunk people against their will.
Laverriere may have fared better in Maine, which does not permit officers to
arrest people simply for being intoxicated. Maine statutes permit an officer
to take a person into protective custody if the officer has reason to
believe the person has mental illness and because of that poses a threat to
himself or others. In such cases, the person must be taken to a medical
facility.
Public drunkenness statutes have been repealed. For a person in Maine to be
arrested in such circumstances, there must be a public-order crime such as
obstructing a public way or disorderly conduct.
A person can be charged with disorderly conduct in Maine even in a private
home for provoking a confrontation with someone or for being loud enough to
disturb the public after being warned by an officer to stop.
Massachusetts' Protective Custody Law, enacted in 1971, replaced a
Colonial-era law that made public drunkenness a crime. It authorizes police
to hold people against their will for as long as 12 hours.
Under the law, people must be drunk and a danger to themselves or others to
be taken into custody. The law does not say explicitly whether it applies in
both public and private settings.
Laverriere argues that the Protective Custody Law was written to combat
public drunkenness and that the police had no right to use it to take him
from a private home.
Waltham Deputy Police Chief Paul Juliano declined to comment on the lawsuit,
on the advice of the city's legal department.
Several lawyers said they believe police have the authority to take
inebriated people into custody, but they said it is the first time the law
has been challenged on the grounds that one has a constitutional right to
get drunk on private property.
Leonard Kesten, a Boston lawyer who has defended police departments in
civil-rights cases, said that if officers are investigating a crime or
responding to an incident and discover that someone is drunk and posing a
danger, they are obligated to take that person into protective custody.
Police have been sued for failing to take into custody people who later died
from alcohol poisoning or killed others in drunken-driving accidents.
Laverriere said that he had drunk several beers but wasn't drunk when
officers arrived at his friend's duplex saying someone had thrown bottles at
a passing police cruiser.
When the party-goers denied throwing bottles, Laverriere said, the officers
became angry. That prompted him to pick up a friend's camera and start
videotaping. Laverriere told the Globe that Officer Jorge Orta ripped the
camera from his hands and threw him to the floor, injuring his shoulder.
Laverriere said he told police that he had been invited to spend the night
at the house but the officers insisted on taking him into protective
custody.
One police report says that Laverriere appeared intoxicated and expressed
"displeasure" at being told he had to leave the party because he lived in
Maine. He was then taken into custody. The report says he fell to the floor
while resisting Orta's efforts to handcuff him.
Public-order crimes can be problematic for police officers, said BethAnne
Poliquin, Portland's police attorney.
"They often deal with the more minor end of anti-social behavior. An officer
can resort to a public-order arrest in order to keep the peace even if there
is no civilian victim of the crime," she said.
"They can be difficult to prosecute after the fact because they're always
based on the subjective evaluation by a police officer . . . you don't have
any other victim besides the police officer and you get into this whole
thing about how much (confrontation) an officer is supposed to take," she
said.

- Staff Writer David Hench contributed to this report.

Copyright  2005, Blethen Maine Newspapers, Inc.