Bar Fights and Public Policy

BrokenBottle

I was amazed at Burt’s post on bar fight litigation. I learned, I laughed, and I was humbled. But I found myself asking: what are the public policy implications? Here are a few we might want to think about.

First, we should consider that the laws encouraging bars to cut off visibly drunk patrons may have a serious downside. (Here’s a rundown of the case law.) If it’s really true that most bar fights begin when a bar ejects a patron, then these laws are probably not preventing violence. They’re probably instigating it.

This is not to say that the assignment of liability to a bar doesn’t have an upside. The upside is that it may prevent drunk driving, and for that it might actually work. I say “might” because I don’t know if bars’ liability is the relevant force here. Drunk driving fatalities are way down, so we’re clearly doing something right. But how often is it that someone who would otherwise have driven drunk 1) becomes visibly drunk in a bar, 2) gets ejected and 3) as a result fails to drive drunk?

My hunch is that ejection doesn’t matter all that much for drunk driving, certainly not enough to be the key factor in our declining overall rates of drunk driving. That’s because by the time you’re ejected from a bar 1) your decisions aren’t going to be all that great anyway and 2) if you drive, you certainly will be driving drunk. (The requirement to call a cab seems a more plausible candidate for achieving the harm reduction, and cab-calling is easily separated from ejection.)

Second, we should reconsider the effects of memory on our criminal justice system. There are a lot of other reasons to do this, of course, and not just for bar fights. But the unreliability of memory suggests that trials involving eyewitnesses should happen much, much closer to the time of the events in question, even if it means sacrificing some other values that we also want out of our justice system.

There are a variety of ways to accomplish this goal. Some are more obvious than others. I’ll leave it to commenters to hash out their favorites.

Third, we should reconsider the effects of unresolved disputes on the disputants. This is as old as Charles Dickens, if not older. But again, if delayed justice is predictably less accurate and more painful for all involved, perhaps some other considerations need to go by the wayside in favor of speedy trials.

It’s not simply that justice delayed is justice denied, although that may be the case. It also appears to be the case, at least anecdotally, that justice delayed is inflicting punishment on innocents, and this is a thing our justice system is purportedly designed to avoid, even if it means letting some guilty people go free.


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57 thoughts on “Bar Fights and Public Policy

  1. But how often is it that someone who would otherwise have driven drunk 1) becomes visibly drunk in a bar, 2) gets ejected and 3) as a result fails to drive drunk?

    Now there is a reasonable question.

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  2. Having spent way too much time watching people get drunk in bars while my sweetie played, I can say this: By the time someone is drunk enough to get cut off, they’re already too drunk to drive. By the time someone’s obnoxious enough to invoke bouncing, they’re way, way beyond too drunk to drive.

    My suspicion is that drunk driving is down because of designated drivers. I’ve repeatedly see a group out drinking with one person keeping the brakes on the intake due to the responsibility of driving home. I’ve seen this even among underage drinkers.

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    • Many years ago, my (former) brother-in-law had his bachelor’s party. We had a limo, and as I am not a big drinker, I was unofficially designated the ‘sober guy that keeps us from getting kicked out’ person.

      It was a difficult task, and involved mostly slowing them the heck down on booze.

      Because that was the only way to keep them manageable, because there’s a certain level of drunk that is loud, aggressive, VERY stupid, and still capable of directed movement that is quite dangerous. Before that, they’re aware they’re not sober and are willing to listen to things like “Eat something and take a break” or at least “Drink a beer, not more shots”. After that, they’re drunk but it’s the “help you to the car” or “Hmm, did he pass out?” stage.

      But right there in the middle, it seems all testosterone, no impulse control, and a staggering ability to get into trouble, and a total unwillingness to ignore whatever passing urge has lodged in their drunk skulls.

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  3. Given that memory (and some of the metacognitive aspects of recollection) are at least somewhat state-dependent, maybe for all bar fight cases, witnesses should be required to get drunk prior to testifying.

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  4. My experience with being drunk enough to be ejected or cut off , which involves seeing or knowing these people, is that it is rarely due to intoxication alone. Whenever I’ve seen it it’s due to behavior, like bothering other patrons or employees, being generally belligerent, not following instructions from staff or barely being able to stand. I have never seen it happen just for being visibly drunk. I believe that even without these laws, about 90% of these removals/cut-offs would still happen without the laws.

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    • This was my response, more or less. The only two times I’ve seen people kicked out of a bar and/or 86’ed it’s been because (a) they were already belligerent (so then it’s not a function of the law, or (b) they were having trouble staying upright (in which case they are probably not in a condition to cause damage in a fight.

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  5. Re: point #1. A well-trained bouncer or bartender will tell someone, upon cutting them off, that the bar will be happy to call a cab for them to take them home. The belligerent drunk who insists on fighting to stay in the bar will not take them up on it, but that person will also get a back-seat ride to a location away from the bar soon enough anyway. Cutting people off and keeping them away from the wheel of a car are not mutually inconsistent, although I concede that a bit of behavioral engineering may be necessary on the part of the bar’s staff to make both of these happen.

    Point #2: The good news is that audio-visual recording devices are becoming cheaper and more ubiquitous. The bad news is that audio-visual recording devices are becoming cheaper and more ubiquitous.

    Point #3: The trend is, sadly, in the opposite direction. Courts are getting fewer and fewer resources and delay is becoming easier to obtain. Defendants frequently waive their right to speedy trials, for a lot of reasons, but IMO frequently do not really understand what it means to waive that right or how it might impact resolution of their case. More importantly, for major crimes, the trend seems to be for law enforcement to delay the arrest of a suspect unless the suspect is a flight risk or otherwise will be difficult to apprehend. Once arrested, you have the right to a speedy trial. But you do not have a right to be arrested quickly after the crime of which you are accused is committed.

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  6. I am out and about today, but want to repond in detail here in the threads (maybe a short alcohol an risk management post?)

    But I will say this up front: that I think in some cases here Jason (most specifically removing people who have had one too many), you are confusing public policy with the practices of individual bars.

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    • I think this may be a function of state or even local regulation.

      Here, for instance, if you send someone home behind the wheel who’s over the legal limit, you may be held accountable, be you a barkeep, restaurant, or homeowner.

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      • Close, but not exactly.

        Bars are usually be held liable if they are seen as contributing to someone’s state of over-intoxication. For example, if you serve someone who is obviously already intoxicated, you can be held liable for a fatal auto accident that occurs when they leave. But you are not required to eject them.

        In fact, most states that have liquor license training — and insurance companies that have the same — tell you never to just kick someone out if you can avoid it for exactly this reason. Rather, you’re encouraged to serve them water and coffee (on the house) until they are a bit more sober, in which case you arrange transportation. (Usually this comes in the form of ensuring that a friend who is sober takes them home, but if one is not available you are supposed to call them a cab.)

        Normally, people are tossed when they become belligerent to the point that it either threatens staff or customers, or is driving away costumers. Even then you are supposed to make keep a record of why you through them out, just in case they go out and do something stupid.

        But I have never heard of a state requiring you to throw someone out of a bar, ever.

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      • This is congruent with my memory, with the proviso that telling the drunk that she’s been cut off is sometimes a trigger event for belligerence.

        I speculate that sometimes the drunks are told “I’m cutting you off” (meaning, “I’m not serving you any more booze until you sober up some,”) but what they hear is “I’m 86’ing you” (“You’re not welcome in this establishment any more.”). The second message is a lot more confrontational and dramatic than the first, so it gets interpreted as a challenge. But that’s pure speculation on my part.

        What is not speculation is the oft-repeated story, “I cut the dude off and then he gets all pissy, and then he storms off to the men’s room to take a leak and he throws a punch at this random guy waiting in line ahead of him,” or variations upon that theme.

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  7. If it’s really true that most bar fights begin when a bar ejects a patron, then these laws are probably not preventing violence.

    To conclude that, you’d need to know what percentage of patrons who are cut off start fights vs. what percentage are prevented from becoming fighting drunk.

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    • This seems really important. Suppose ten ejectees. One of them starts a fight with the bouncer. But had they all been allowed to stay, two of them start fights with other patrons. Ejection results in half as many fights. Plus the fights involve at least one sober party who has willingly taken a position in which he recognizes fights as part of the job.

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      • I worry about him. I don’t think the heavy drinking is just an act, from what I understand.

        I don’t know why comedians struggling with substance abuse seems even more tragic than musicians to me (I’m still kinda sad about Hedberg); either with musicians it’s just so commonly encountered as to seem somewhat expected or normal, or it just seems worse that someone who makes a living making people laugh can be struggling with so much pain themselves.

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      • And to go on a tangent, to what degree does consuming his art enable him and/or exploit his pain/problems.

        A music writer I really like, swore off a particular musician (whose music he’d loved mightily) because of the writer’s belief that buying said artist’s music, was indicating support and approval of a lifestyle that had wrecked the musician’s marriage and could eventually play a part in killing him.

        I’ve never boycotted an artist for substance abuse alone (and you could make an argument that buying their records, gets them the money they’ll need for their eventual rehab stay); but that idea does give me pause sometimes. I’d hate to think I gave someone just enough money to buy the dose that killed them.

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      • My understanding is that White mostly drinks during and after his shows, so the alcohol is actually part of the act. That might make the moral dilemma even more immediate, I think, though it seems not unlike the moral dilemma of watching football.

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      • I had never heard of Mitch Hedberg until you mentioned him. I shared some of his YouTubes with my kids, and we all agree that he was brilliant, original, and just plain hilarious, What a damned shame it is that he killed himself with that shit.

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  8. #1: I would say that better public transportation helps cut down on drunk driving but I’ve only lived in NYC and SF stateside. These are probably two cities where there is no excuse for drunk driving because of public transportation and/or city size. Most SFs seem to prefer drinking at neighborhood bars as well that are within walking distance of their apartment. I do have friends who knew they were too drunk to drive and went back for their cars the next day though. So maybe people are starting to understand no drunk driving because of educational policy and fear of the punishments for getting caught.

    #2: Concurred but Burt pointed out the contradiction. Memory is fallible but civil libertarians hate the idea of everything being recorded.

    #3: Burt also points out that courts are losing the ability to have speedy trials because of budget cut after budget cut. Some alternative dispute resolution might work for bar cases but there is no constitutional right to a speedy civil trial. Some trials and litigation also involve very complex matters. I am working on a case where the initial complaint was filed in 2008! Exxon Valdez spent 19 years going up and down the courts before the Supreme Court made the final decision on punitive damages. I think it will take a massive amount of political will to make the system better.

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    • I consider myself a civil libertarian, but I have little objection to recording in a public place, for exclusively “proof purposes”.

      http://www.youtube.com/watch?v=6249iHSJsKo
      I’m not sure if this is the old lady that leaves her video camera set up because she’s sick and tired of having to give testimony on car wrecks (now she just hands over a video tape).

      It’s not Jesus Camp (which is freaking creepy, man).

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  9. The laws to cut off visibly drunk people are stupid, for the reason Jason mentions, which is exacerbated by the fact that the person making the “visibly drunk” call is necessarily making a subjective assessment, and thus from the point of view of the person drinking, insulting them.

    If you’re going to require bars to cut people off, they should be cut off on the number of drinks, and that’s it. I can see a case that if you order drink #N you have to turn in your keys and leave a deposit for a cab, as a law rather than bar policy, because this makes it easier for the bar to deal with the patron, “Nope, sorry buddy, you can’t have a sixth beer without turning in your keys and giving me $20 for the cab ride, that’s the law”.

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  10. What should also be noted is that the bar fights seem more likely to happen at certain kind of bars. This will probably mark me as snobby but Burt noted and described all the bars as “seedy”. He did not talk about any fights at the nice wine bar or interesting artisnal cocktail lounge, microbrew joint.

    Chris confirmed this. I was at a bar where a street fight spilled into the bar and then at a club where there was a double homicide. I tend to avoid bars that can be described as dives. In law school, the two most popular bars were divey (by San Francisco standards) and I disliked them greatly. They were too loud, too cramped, etc. I love bars but places where the music is kept at a decent volume, the drinking goes for quality over quantity, and they have decent but optional food.

    Perhaps changing the culture away from seedy bars can help and encouraging more European styled drinking culture that teaches moderation instead of binge drinking and getting wasted.

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    • Therefore, the proper liberal answer is that we regulate the bars where fights are likely to originate out of existence and make sure that all drinking establishments conform to aritsinal cocktail lounge, family friendly beer garden, or craft bar standards. No dive bars, no bar fights. ;).

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    • Every seedy bar started out as a “hip and trendy” bar.
      It’s a horrible marketplace, where folks only go to a place
      so long as it’s popular with the “right crowd”.
      When it becomes not so popular, the bar lowers rates,
      and becomes “seedy” (great word. now try being a little less PC).

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    • “encouraging more European styled drinking culture that teaches moderation instead of binge drinking and getting wasted.”

      Uh…dude, have you BEEN drinking in Europe? Let me assure you that, at minimum, the UK and Germany and Spain can more than hold their own (though not their liquor) when it comes to binge drinking and getting wasted.

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      • I was going to make an addendum that plenty of European countries do have problems with hard drinking and alcoholism. Yet I think the French and Italian method of getting their children used to drinking in moderation seems better than our “No alcohol until 21” approach.

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      • Fair enough, I’ve never been to Italy and only spent a couple days in France.

        But what I saw in the countries I named (and where I spent some time) rivaled and/or surpassed anything I’ve seen here.

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      • I don’t know the relative rates of drunk driving in the various countries, but I can say from living in Paris for a while that (1) Parisians drink way more (2) they have way less excuse to drive drunk, because the public transit is indeed excellent.

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      • – and I should clarify that the same was true in the countries I named (decent public transit minimizes drunk driving; plus in Germany I think their penalties for drunk driving may be even stiffer than here).

        I was responding more to this idea that there is some European culture of drinking more moderately, which I didn’t find to be true (and in fact I get the sense that anywhere that has good public transit, also drinks more, including NYC etc).

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      • I agree that the approach of normalizing alcohol earlier would help with a good chunk of alcohol-related problems – at minimum, there’s no reason to have our driving age lower than our drinking age, which is exactly the opposite of how things should be.

        But in terms of reducing bar fights, I’m not sure how much difference that sort of thing would make: bar fights in the UK are sufficiently common that they caused a redesign of the pint glass: http://www.independent.co.uk/life-style/health-and-families/health-news/british-pub-fights-get-safer-with-new-design-glasses-1893627.html

        I’ve always had the impression that in a good chunk of Northern Europe, bar fights are as common as in the US, though I can’t claim to have witnessed any in Europe (and only a handful of small skirmishes stateside). Just an impression, though – I may just be unfairly associating beer-based drinking cultures with bar fights.

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      • Not only are the penalties stiffer, but the limits are lower (like around 0.02 BAC). When I went out with colleagues in Ireland, those that were driving always had one, and only one, drink with dinner rather than risk a DUI.

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      • I am actually unsure if normalizing kids to alcohol would ameliorate a good chunk of our alcohol problems. While I agree that turning alcohol into a mysterious adult substance rather than ordinary drink tends to hurt it does have some good sides. It creates a very safe and manageable form of teenage rebellion if handled properly. From what I’ve read, Germany has a teen drinking problem despite the fact that Central European teens tend to get inducted into alcohol drinking as children.

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  11. Cities have started looking at how much crime is caused by how many people, and they are finding that the bulk of crimes in an urban area (something like 70+% is caused/attributed to by a very small group of arrestees/convicted persons). An interesting similar study would be to look at two things with regard to drunk drivers:

    1) How many DUI arrests are for first time offenders who have no history of bad intoxicated behavior in public, and who subsequently avoid any future incidents of the same?

    2) How many DUI arrests are for repeat offenders of bad public intoxication?

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  12. Does the idea of “we can’t serve you any more alcohol, but we stock a variety of alcohol-free imitations” work? My experience with people drunk enough that the bartender is ready to cut them off suggests to me that they’re drunk enough there’s no way they’re going to tell the difference between real beer and a decent non- or very-low-alcohol beer, or a cocktail designed to taste the same as one with alcohol. I suppose building an imitation for straight cheap whiskey would be a bit of a challenge…

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    • My guess is that if the bar did not inform them of the switchover, that’d be fraud, and if the bar did inform them, they’d react as they do to a cutoff, since that’s what it is.

      That said, I know bartenders who’ve done this surreptitiously, though I doubt it’s official bar policy.

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      • And again with a clarification – it’s not that they’ve “replaced” the alcohol in a mixed drink with a substitute, it’s that they have drastically reduced to next-to-nothing the amount in there. So the drunk patron starts getting less and less Jack and more and more Coke.

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      • – IANAL, but while that might get them off the fraud hook, it could increase their legal liability if the person goes on to do something stupid – after all, the bar kept giving them more and more free drinks; and even if the bar could later prove those comped drinks were alcohol-free, there’s the placebo effect (people may act as drunk as they think they should be – IIRC this effect has been demonstrated experimentally with alcohol).

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    • When I was in college, we would pull this trick all the time for house parties. For example, order a screwdriver? You’re getting a glass of OJ and I will fool you by putting a bit of vodka on the tip of my finger and running along the rim of the glass so you taste it first. Of course, this was a college party, so fraud accusations weren’t a concern.

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      • We had some light-hearted debates about what the bar ought to do in such a situation. We feared that a juror might think that an intentionally light pour would in fact be cheating the customer. And a heavy pour invites overt drunkenness. So my colleagues and I settled on the best testimony being “we give a fair pour, every time.” Then we laughed about it, and went in search of a fair pour for ourselves across the street.

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  13. On public policy:

    I live in a resort town; most specifically, a ski town. Though my community is barely 2,500 souls, we’ve a bed/restaurant/bar base for a 20,000 souls or more; most of them from away and on vacation.

    There was such an issue with drunk driving; with business owners feeling like the cops were destroying business, that they took matters into their own hands. They run a free shuttle between the ski resort and the business district. It runs all day long, so is also useful in helping with congestion in the parking areas at the resort, but is mostly used at night, and the locals refer to the late runs as ‘the drunk bus.’ You can go to any and all of the bars, drink to your hearts content. You can even drive there. And if you can’t drive back, leave your car, and get it the next morning.

    This shuttle system has some public money as a seed to get it going, but is funded by the local businesses. The equipment is shared; in the winter, it’s used here. In the summer, it makes it’s way over to the other side of the state, and serves visitors to Bar Harbor, where the local businesses also fund it.

    But it doesn’t really do much in the way of providing transportation to the locals since it’s only available part of the year and it only goes the drag of commerce, not the far-flung rural places where the employee base actually resides.

    I proffer this because it’s an example of public policy set by working with private business.

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  14. Being pedantic…
    It’s not simply that justice delayed is justice denied

    The phrase is actually “justice too long delayed…”

    But I do think “too long” was implicit in Jason’s discussion.

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