People v. Kellogg

14 Cal. Rptr. 3d 507, 119 Cal. App. 4th 593, 2004 Cal. Daily Op. Serv. 5298, 2004 Daily Journal DAR 7267, 2004 Cal. App. LEXIS 923

• Court: California Court of Appeal
• Decided: June 17, 2004
• Docket: D042696
• Status: Published

Opinions

Opinion

HALLER, J.

Thomas Kellogg contends his public intoxication conviction constitutes constitutionally proscribed cruel and/or unusual punishment because his status as an involuntarily homeless, chronic alcoholic makes it impossible for him to avoid being intoxicated in public. We reject this contention. The public intoxication statute, Penal Code¹ section 647, subdivision (f), is carefully crafted to impose criminal culpability only if the publicly intoxicated person is unable to exercise care for his or her own safety or the safety of others, or is obstructing a public way. The statute does not punish the mere condition of being a homeless, chronic alcoholic but rather punishes conduct posing a public safety risk. Although criminal prosecution may not be the preferred way to address the daunting challenges faced by a person in Kellogg’s position, the Legislature’s policy choice to retain the misdemeanor offense of public intoxication to provide for the public welfare does not rise to the level of cruel and/or unusual punishment even as applied to a homeless, chronic alcoholic.

FACTUAL AND PROCEDURAL BACKGROUND

Arrest and Conviction

The facts of this case are essentially undisputed. On January 10, 2002, Officer Heidi Hawley, a member of the Homeless Outreach Team,² responded to a citizen’s complaint of homeless persons camping under bridges and along State Route 163. She found Kellogg sitting on the ground in some bushes on the embankment off the freeway. Kellogg appeared inebriated and was largely incoherent. He was rocking back and forth, talking to himself and gesturing. Officer Hawley arrested Kellogg for public intoxication. He had $445 in his pocket from disability income.³

In February 2001, Kellogg had accepted an offer from the Homeless Outreach Team to take him to Mercy Hospital. However, on three other occasions when Officer Hawley had offered Kellogg assistance from the Homeless Outreach Team, he had refused.

After his arrest on January 10, 2002, Kellogg posted $104 cash bail and was released. Because he was homeless, he was not notified of his court date and he did not appear for his January 31 arraignment. A warrant for his arrest was issued on February 11, 2002; he was arrested again for public intoxication on February 19 and 27 and subsequently charged with three violations of section 647, subdivision (f).

After a pretrial discussion in chambers about Kellogg’s physical and psychological problems, the trial court conditionally released Kellogg on his own recognizance and ordered that he be escorted to the Department of Veterans Affairs Hospital (VA) by Officer Hawley. He was not accepted for admission at the hospital and accordingly was returned to county jail.

Kellogg pleaded not guilty and filed a motion to dismiss the charges based on his constitutional right to be free of cruel and unusual punishment.

Evidence Presented at Motion to Dismiss Hearing

Psychologist Gregg Michel and Psychiatrist Terry Schwartz testified on behalf of Kellogg. These experts explained that Kellogg had a dual.diagnosis. In addition to his severe alcohol dependence, which causes him to suffer withdrawal symptoms if he stops drinking, he suffers from dementia, long-term cognitive impairment, schizoid personality disorder, and symptoms of posttraumatic stress disorder. He has a history of seizure disorder and a closed head injury, and reported anxiety, depressive symptoms and chronic pain. He is estranged from his family. Physically, he has peripheral edema, gastritis, acute liver damage, and ulcerative colitis requiring him to wear a colostomy bag. To treat his various conditions and symptoms he has been prescribed Klonopin and Vicodin and may suffer from addiction to medication.

Dr. Michel opined that Kellogg was gravely disabled and incapable of providing for his basic needs, and that his degree of dysfunction was life-threatening. His mental deficits impeded his executive functioning (planning, making judgments) and memory. Dr. Michel described Kellogg as having “good immediate reality contact,” struggling to express himself but lacking the ability to do so, and a “likeable person, who obviously was trying to cope with problems for which there weren’t really any . . . adequate solutions, because ... of [his] cognitive problems and emotional problems.”

Drs. Michel and Schwartz opined that Kellogg’s homelessness was not a matter of choice but a result of his gravely disabled mental condition. His chronic alcoholism and cognitive impairment made it nearly impossible for him to obtain and maintain an apartment without significant help and support. Dr. Michel stated Kellogg would not be a suitable candidate for out-patient treatment but required long-term in-patient treatment at a locked facility. Because Kellogg needed a program geared towards a person with dual conditions of substance dependence and mental disorder, he was not an appropriate candidate for a typical in-patient substance abuse program. Dr. Michel thought Kellogg would be eligible for a conservatorship because of his gravely disabled condition. However, he did not think this was a feasible solution in Kellogg’s particular case as dual diagnosis magnified the complexity of a person’s problems, presented difficulties in terms of the degree of long-term care required, and multiplied the need for community resources.

Dr. Schwartz questioned whether a long-term, locked residential treatment setting was a viable option as density conditions (often four patients in a room) and group participation requirements were incompatible with Kellogg’s schizoid personality condition. Dr. Schwartz stated that Kellogg had been offered various forms of treatment and housing but had not made use of those resources; she posited that unless resources were offered in a different way, there would be no change in outcome. Dr. Schwartz explained that for a person with Kellogg’s conditions, crowded homeless shelters can be psychologically disturbing and trigger posttraumatic stress or anxiety symptoms, causing the person to prefer to hide in a bush where minimal interactions with people would occur. Additionally, a homeless person such as Kellogg, particularly when intoxicated, might refuse offers of assistance from authorities because he has difficulty trusting people and fears his situation, although bad at present, will worsen.

In Dr. Michel’s view, Kellogg’s incarceration provided some limited benefit in that he obtained medication for seizures, did not have access to alcohol, received some treatment, and. was more stable during incarceration than he was when homeless on the streets. However, such treatment was insufficient to be therapeutic, and medications prescribed for inmate management purposes can be highly addictive and might not be medically appropriate.

Dr. Schwartz opined that incarceration was not an effective form of treatment. Although incarceration provided a period of abstention from alcohol, it did not provide the necessary additional treatments, especially for individuals with mental disorders. Dr. Schwartz stated that being placed in certain structured environments could, be counter-therapeutic for a chronic alcoholic, but acknowledged that incarceration, which resulted in short-term alcohol abstention, potentially could be beneficial.

Testifying for the prosecution, Physician James Dunford stated that at the jail facility, medical staff assess the arrestee’s condition and provide treatment as needed, including vitamins for nutritional needs and medication to control alcohol withdrawal symptoms or other diseases such as hypertension, seizure disorders, and diabetes. Consistent with this protocol, on February 28, 2002, Kellogg was evaluated at intake by the jail nursing staff, who found him covered with feces and resisting efforts to assess his medical condition. On March 2, the jail medical staff delineated a treatment plan for Kellogg, which included assistance with his colostomy bag, ongoing treatment of his alcohol withdrawal, medication to address his reports of pain, evaluation of the existence of and appropriate medication for seizure disorder, and support to overcome the conditions that cause him to become disheveled and foul-smelling. On March 7 the medical staff assessed that Kellogg appeared well and in no distress and no longer had alcohol withdrawal as his primary complaint. His complaints referred to abdominal and muscular pain and needs related to his colostomy bag. Dr. Dunford opined that between March 2 and 7, Kellogg’s condition had improved because his seizure medicine was restarted, his alcohol withdrawal was treated, his vital signs were stable, his colostomy bag was clean and intact, his overall cleanliness was restored, and he was interacting with people in a normal way.

Trial Court’s Ruling and Subsequent Events

After the presentation of evidence, the trial court found that Kellogg suffers from both chronic alcohol dependence and a mental disorder and was homeless at the time of his arrests. Further, his alcohol dependence is both physical and psychological and causes him to be unable to stop drinking or to engage in rational choice-making. Finding that before his arrest Kellogg was offered assistance on at least three occasions and that his medical condition improved while in custody, the court denied the motion to dismiss the charges.

On April 2, 2002, the court found Kellogg guilty of one charge of violating section 647, subdivision (f) arising from his conduct on January 10, 2002. At sentencing on April 30, the probation officer requested that the hearing be continued for another month so Kellogg could be evaluated for a possible conservatorship.

Kellogg objected to further incarceration as violating the Eighth Amendment and opposed a conservatorship. Pointing to Dr. Michel’s assessment that Kellogg was not a suitable candidate for conservatorship, defense counsel argued that the conservatorship program did not have the resources to handle a person with the combination of Kellogg’s problems. Further, because of his medical complications, no recovery or board and care home felt comfortable accepting him. Kellogg requested probation to allow him to participate in the VA’s rehabilitative program. Noting that the “combination of ailments that [Kellogg] suffers from presents insurmountable problems” in finding appropriate placement, defense counsel stated that if necessary, she would arrange a hotel room and transportation to the VA for him. The prosecution agreed with the defense suggestion that a concerted effort be made to place Kellogg in the VA program.

After expressing the difficult “Hobson’s choice” whereby there were no clear prospects presented to effectively assist Kellogg, the court sentenced him to 180 days in jail, with execution of sentence suspended for three years on the condition that he complete an alcohol treatment program and return to court on June 4, 2002, for a progress review.

After his release from jail, defense counsel made extensive, but unsuccessful, efforts to place Kellogg in an appropriate program and to find a permanent residence for him. On May 25 and 28, 2002, he was again arrested for public intoxication. After he failed to appear at his June 4 review hearing, his probation was summarily revoked. Kellogg was rearrested on June 12. After a probation revocation hearing, Kellogg’s probation was formally revoked and he was ordered to serve the 180-day jail sentence. The court authorized that his sentence be served in a residential rehabilitation program. However, no such program was found. According to defense counsel, the VA concluded Kellogg could not benefit from its residential treatment program due to his cognitive defects. Further, his use of prescribed, addictive narcotics precluded placement in other residential treatment programs, and his iliostomy precluded placement in board and care facilities.

On July 11, 2003, the appellate division of the superior court affirmed the trial court’s denial of Kellogg’s motion to dismiss on Eighth Amendment grounds. We granted Kellogg’s request to have the matter transferred to this court for review.

DISCUSSION

Section 647, subdivision (f) (section 647(f)) defines the misdemeanor offense of disorderly conduct by public intoxication as occurring when a person “is found in any public place under the influence of intoxicating liquor ... in such a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor . . . interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.” Kellogg argues that this statute, as applied to him, constitutes cruel and/or unusual punishment prohibited by the Eighth Amendment to the federal Constitution and article 1, section 17 of the California Constitution.⁴ He asserts that his chronic alcoholism and mental condition have rendered him involuntarily homeless and that it is impossible for him to avoid being in public while intoxicated. He argues because his public intoxication is a result of his illness and beyond his control, it is inhumane for the state to respond to his condition by subjecting him to penal sanctions.

It is well settled that it is cruel and unusual punishment to impose criminal liability on a person merely for having the disease of addiction. (Robinson v. California (1962) 370 U.S. 660, 666-667 [8 L.Ed.2d 758, 82 S.Ct. 1417].) In Robinson, the United States Supreme Court invalidated a California statute which made it a misdemeanor to “ ‘be addicted to the use of narcotics.’ ” (Id. at p. 660.) The Robinson court recognized that a state’s broad power to provide for the public health and welfare made it constitutionally permissible for it to regulate the use and sale of narcotics, including, for example, such measures as penal sanctions for addicts who refuse to cooperate with compulsory treatment programs. (Id. at pp. 664-665.) But the court found the California penal statute unconstitutional because it did not require possession or use of narcotics, or disorderly behavior resulting from narcotics, but rather imposed criminal liability for the mere status of being addicted. (Id. at pp. 665-666.) Robinson concluded that just as it would be cruel and unusual punishment to make it a criminal offense to be mentally ill or a leper, it was likewise cruel and unusual to allow a criminal conviction for the disease of addiction without requiring proof of narcotics possession or use or antisocial behavior. (Id. at pp. 666-667.)

In Powell v. Texas (1968) 392 U.S. 514 [20 L.Ed.2d 1254, 88 S.Ct. 2145] (Powell), the United States Supreme Court, in a five-to-four decision, declined to extend Robinson’s holding to circumstances where a chronic alcoholic was convicted of public intoxication, reasoning that the defendant was not convicted merely for being a chronic alcoholic, but rather for being in public while drunk. (Id. at p. 532.) That is, the state was not punishing the defendant for his mere status, but rather was imposing “a criminal sanction for public behavior which may create substantial health and safety hazards, both for [the defendant] and for members of the general public . . . .” (Ibid.) In the plurality decision, four justices rejected the proposition set forth by four dissenting justices that it was unconstitutional to punish conduct that was “ ‘involuntary’ or ‘occasioned by a compulsion.’ ”⁵ (Id. at pp. 533-535, 540, 544-545.)

The fifth justice in the Powell plurality, Justice White, concurred in the result only, concluding that the issue of involuntary or compulsive behavior could be pivotal to the determination of cruel and unusual punishment, but the record did not show the defendant (who had a home) suffered from any inability to refrain from drinking in public. (Powell, supra, 392 U.S. at pp. 548, 553-554 (conc. opn. of White, J.).) Justice White opined that punishing a homeless alcoholic for public drunkenness could constitute unconstitutional punishment if it was impossible for the person to resist drunkenness in a public place. (Id. at p. 551.) Relying on Justice White’s concurring opinion, Kellogg argues Justice White, who was the deciding vote in Powell, would have sided with the dissenting justices had the circumstances of his case (i.e., an involuntarily homeless chronic alcoholic) been presented, thus resulting in a finding of cruel and unusual punishment by a plurality of the Supreme Court.

We are not persuaded. Although in Robinson the United States Supreme Court held it was constitutionally impermissible to punish for the mere condition of addiction, the court was careful to limit the scope of its decision by pointing out that a state may permissibly punish disorderly conduct resulting from the use of narcotics. This limitation was recognized and refined by the plurality opinion in Powell, where the court held it was permissible for a state to impose criminal punishment when the addict engages in conduct which spills into public areas. As stated in the Powell plurality opinion (Powell, supra, 392 U.S. at pp. 517, 532) and expressly reflected in the terms of section 647(f), public intoxication is a criminal offense because it can endanger the welfare of the intoxicated individual and the public. (See People v. Olson (1971) 18 Cal.App.3d 592, 597 [96 Cal.Rptr. 132].) Indeed, although Justice White’s concurring opinion queried whether conviction for public drunkenness might be a violation of the Eighth Amendment for a homeless alcoholic who had no place else to drink, he acknowledged that the dictates of the defendant’s and the public’s safety made it constitutional for “a police officer to arrest any seriously intoxicated person when he [or she] is encountered in a public place.” (Powell, supra, 392 U.S. at p. 554, fn. 5 (conc. opn. of White, J.).)

Here, the reason Kellogg was subjected to misdemeanor culpability for being intoxicated in public was not because of his condition of being a homeless alcoholic, but rather because of his conduct that posed a safety hazard. If Kellogg had merely been drunk in public in a manner that did not pose a safety hazard (i.e., if he was able to exercise care for his own and the public’s safety and was not blocking a public way), he could not have been adjudicated guilty under section 647(f). The state has a legitimate need to control public drunkenness when it creates a safety hazard. It would be neither safe nor humane to allow intoxicated persons to stumble into busy streets or to lie unchecked on sidewalks, driveways, parking lots, streets, and other such public areas where they could be trampled upon, tripped over, or run over by cars. The facts of Kellogg’s public intoxication in the instant case show a clear potential for such harm. He was found sitting in bushes on a freeway embankment in an inebriated state. It is not difficult to imagine the serious possibility of danger to himself or others had he wandered off the embankment onto the freeway.

Although the Powell decision rejecting an Eighth Amendment challenge to a public intoxication conviction did not involve a homeless alcoholic, the United States Supreme Court has recently made a clear proclamation that penal provisions designed to protect public safety are constitutionally permissible. (Ewing v. California (2003) 538 U.S. 11 [123 S.Ct. 1179, 1187-1190, 155 L.Ed.2d 108] [given state’s right to provide for public safety, recidivist defendant who received life sentence for grand theft was not subjected to disproportionate sentence constituting cruel and unusual punishment].) The California Supreme Court has likewise indicated that the scope of the California constitutional proscription against cruel or unusual punishment— i.e., punishment that shocks the conscience and offends fundamental notions of human dignity—is to a significant extent defined by whether the penal consequence reasonably advances the state’s need to protect its citizenry. (See People v. Dillon (1983) 34 Cal.3d 441, 478-479 [194 Cal.Rptr. 390, 668 P.2d 697].)

Moreover, although the California Supreme Court has not expressly decided the issue of whether section 647(f) may be unconstitutional as applied to certain chronic alcoholics, it has rejected an attempt to civilly enjoin enforcement of the statute based on an argument that the statute resulted in cruel and/or unusual punishment as applied to chronic, homeless alcoholics. (Sundance v. Municipal Court (1986) 42 Cal.3d 1101, 1119-1121 [232 Cal.Rptr. 814, 729 P.2d 80] (Sundance).)6 The Sundance court acknowledged the trial court’s finding that “[m]any alcoholics . . . cannot refrain from appearing in public while intoxicated” because “they are indigent and homeless.” (Id. at p. 1114.) Nevertheless, after rejecting an argument that the sentences imposed on chronic alcoholics should be viewed in the aggregate, the court concluded that section 647(f) did not impose constitutionally excessive sentences based on the repeated convictions of chronic alcoholics for public intoxication. (Sundance, supra, at pp. 1118-1121.)⁷ The court noted the maximum sentence that could be imposed for a single violation of section 647(f) was six months. (Sundance, supra, at p. 1120.) While recognizing that civil detoxification facilities may be a wiser policy choice, the Sundance court also concluded it was not constitutionally mandated that chronic alcoholics be sent to such facilities in lieu of jail even though penal incarceration may be counterproductive. (Id. at pp. 1125-1127, 1131-1132, and fn. 13.)

Based on the guidance provided by Powell and Sundance, we conclude that the California Legislature’s decision to allow misdemeanor culpability for public intoxication, even as applied to a homeless chronic alcoholic such as Kellogg, is neither disproportionate to the offense nor inhumane. In deciding whether punishment is unconstitutionally excessive, we consider the degree of the individual’s personal culpability as compared to the amount of punishment imposed. (See People v. Dillon, supra, 34 Cal.3d at pp. 480-482, 486.) To the extent Kellogg has no choice but to be drunk in public given the nature of his impairments, his culpability is low; however, the penal sanctions imposed on him under section 647(f) are correspondingly low. (See Sundance, supra, 42 Cal.3d at p. 1120.) Given the state’s interest in providing for the safety of its citizens, including Kellogg, imposition of low-level criminal sanctions for Kellogg’s conduct does not tread on the federal or state constitutional proscriptions against cruel and/or unusual punishment.

The cases cited by Kellogg to support his unconstitutionality argument do not convince us that his position is correct. Two of the cases he cites, which held that criminal culpability for public intoxication imposed on a chronic alcoholic constitutes cruel and unusual punishment (Driver v. Hinnant (1966) 356 F.2d 761, 764-765; Easter v. District of Columbia (1966) 361 F.2d 50, 54—55), predate the Supreme Court’s decision in Powell rejecting this proposition. The Powell court was aware of both the Easter and Driver opinions and the rationales presented in these cases. (Powell, supra, 392 U.S. at pp. 529-530, fns. 23 and 24 (plur opn.).) In another case cited by Kellogg, the court interpreted a statute that prohibited voluntary intoxication (with no requirement of intoxication in a public place or disorderly conduct), and concluded the statute was inapplicable to chronic alcoholics. (State v. Fearon (1969) 283 Minn. 90 [166 N.W.2d 720, 721-724].) Finally, City of Dayton v. Sutherland (1974) 42 Ohio Misc. 35 [328 N.E.2d 416, 419], which held that it was cruel and unusual to jail a chronic alcoholic who appeared drunk in public, failed to mention or discuss Powell.⁸

In presenting his argument, Kellogg points to the various impediments to his ability to obtain shelter and effective treatment, apparently caused by a myriad of factors including the nature of his condition and governmental policies and resources, and asserts that these impediments do not justify criminally prosecuting him. He posits that the Eighth Amendment “mandates that society do more for [him] than prosecute him criminally and repeatedly incarcerate him for circumstances which are beyond his control.”

We are sympathetic to Kellogg’s plight; however, we are not in a position to serve as policy maker to evaluate societal deficiencies and amelioration strategies. It may be true that the safety concerns arising from public intoxication can be addressed by means of civil custody rather than penal sanctions. (See Sundance, supra, 42 Cal.3d at pp. 1115, 1131-1132; People v. Ambellas, supra, 85 Cal.App.3d at p. 39 [149 Cal.Rptr. 680].) Indeed, the Legislature has provided alternatives to penal sanctions against persons who are drunk in public, including civil protective custody (§ 647, subd. (g)) and release without criminal processing (§ 849, subd. (b)(2)). However, the Legislature has not seen fit to remove the option of criminal prosecution and conviction. Absent a constitutional violation, it is not our role to second-guess this policy determination. (See Sundance, supra, at p. 1139 [declining invitation to override legislative judgment by judicially decriminalizing public intoxication]; People v. Ambellas, supra, at pp. Supp. 39-40.)

Kellogg does not contend he was been arbitrarily deprived of alternatives to criminal prosecution in this case (see People v. Ambellas, supra, 85 Cal.App.3d at pp. Supp. 32-36); rather, he broadly challenges his misdemeanor conviction as, in and of itself, being cruel and unusual punishment.⁹ Thus, our sole task in this appeal is to determine whether Kellogg’s conviction constituted cruel and/or unusual punishment. As set forth above, we find no such constitutional infirmity.

DISPOSITION

The judgment is affirmed.

McConnell, P. J., concurred.

1 Subsequent statutory references are to the Penal Code.

2 The Homeless Outreach Team consists of police officers, social services technicians, and psychiatric technicians.

3 Although homeless, Kellogg had made arrangements to have his disability check sent to a certain address.

4 We requested supplemental briefing on the issue of “cruel or unusual” punishment under the California Constitution.

5 The lead opinion written by Justice Marshall and joined by one other justice noted that the record did not show the defendant suffered from an irresistible compulsion to drink and get drunk in public, and that in any event there was no constitutional mens rea requirement. (Powell, supra, 392 U.S. at p. 535.) A concurring opinion of two justices expressly rejected any suggestion that findings of voluntariness or compulsion were controlling on the issue of whether a person should be constitutionally immune from punishment. (Id. at pp. 540, 544-545.)

6 Sundance was a civil action seeking an order enjoining enforcement of section 645(f). (Sundance, supra, 42 Cal.3d at p. 1118, fn. 11.) The trial court denied the request for an injunction to prevent enforcement of the statute, but did issue an injunction requiring that various measures be taken to provide for due process and safety and health needs of intoxicated arrestees, including medical screenings and care for alcohol withdrawal. (Id. at pp. 1116-1117.)

In rendering its ruling, the trial court found that, although a chronic alcoholic could properly be arrested under section 647(f), he or she could present a constitutional defense based on proof of inability to refrain from being in public while intoxicated either because of disease or indigency. (Sundance, supra, 42 Cal.3d at pp. 1117-1118.) The Supreme Court declined to express any views regarding the trial court’s finding that section 647(f) was unconstitutional as applied to certain chronic alcoholics, because this portion of the trial court’s ruling was not challenged on appeal. (Sundance, supra, at p. 1118, fn. 11.)

7 In his supplemental briefing, Kellogg contends that his punishment shocks the conscience when it is viewed in terms of the aggregate amount of time he has spent in jail because of his repeated arrests and convictions for public intoxication. Following the California Supreme Court’s lead in Sundance, we reject this argument.

8 In addition to the statement in the Sundance decision in which the California Supreme Court declined to reach the issue, several other courts since Powell have recognized in dicta the possibility that compulsion or homelessness may constitute a defense for a chronic alcoholic charged with public intoxication. (Budd v. Madigan (9th Cir. 1969) 418 F.2d 1032, 1034 [noting possibility that compulsion to appear in public while drunk may create immunity from section 647(f) prosecution, but declining to reach issue on facts showing no compulsion]; People v. Ambellas (1978) 85 Cal.App.3d Supp. 24, 29-30 [149 Cal.Rptr. 680] [Eighth Amendment not violated by section 647(f) conviction of chronic alcoholic who was not homeless].) Additionally, at least one state court since Powell has concluded its state constitution bars criminally punishing chronic alcoholics for public intoxication. (State Ex Rel. Harper v. Zegeer (1982) 170 W.Va. 743 [296 S.E.2d 873, 875-876]). For the reasons we set forth above, we do not reach this conclusion.

9 In briefing on appeal, defense counsel states that in San Diego, the option of civil detoxification is often “bypassed in the cases of alcoholics deemed by the City to be ‘chronic’ or ‘serial inebriates.’ ” The defense does not directly challenge, or cite any evidence of, any such policy. We express no opinion on this matter.