Profiling in Open Container Enforcement?

Earlier this month, Brooklyn Law School  alumni and Kings County Supreme Court Acting Justice Noach Dear ruled in People v. Figueroa, 2012 NY Slip Op 22161 that police can no longer rely on their training and experience in determining when someone is drinking alcohol in public. Prosecutors charged Figueroa with violating New York City’s Open Container Law (New York City Administrative Code § 10-125[b]) after an officer saw him with a cup and identified the liquid as beer. At the defendant’s arraignment, Judge Dear dismissed the information for facial insufficiency, noting that the charge that the liquid was beer or contained more than one half of 1 percent of alcohol was not supported by non-hearsay allegations such as a certified laboratory test. Also, the information failed to state that the drinking did not occur at a block party, feast or other function for which a permit was obtained, an exception set forth in NYC’s Open Container Law.

Judges rarely issue written decisions in such minor cases but Judge Dear examined the racial application of the law in forming his decision finding that blacks and Latinos “are being disproportionately cited” for violations of the Open Container Law. The court noted that after research it found that in April 2012 more than 85% of the open container summonses were issued to blacks and Latinos, and only 4% were issued to whites. The judge opined that blacks and Latinos in Brooklyn were being disproportionately cited, recommending that the police practice regarding enforcement of the Open Container Law be scrutinized and “immediately stopped” if it was found to be discriminatory. In his written opinion, Judge Dear said that a laboratory test would be required in order to determine that a beverage contained more than 0.5% of alcohol per volume as the law requires. Given the cost of a laboratory test, the $25 fine usually assessed makes enforcement of the law less likely.  A NY Times article, Sniff Test Does Not Prove Public Drinking, a Judge Rules, reported that “police in New York City wrote 124,498 summonses last year for drinking in public — far more than for any other violation.”