Is Open Container Law a Symbol of Buffalo’s Racist Past or Racist Present? Only the Common Council Can Decide

 by Aidan M. Ryan

People who’ve lived in Buffalo spend a lot of time thinking about the mistakes of the past. The evidence is all around us. There’s the convention center that landed like an alien spaceship downtown, destroying a beautiful, walkable street grid. There’s the Scajaquada Expressway that replaced an Olmstead Parkway and ripped a park and a multiple neighborhoods in half.

There are the hundreds of historic buildings we’ve torn down and the cheap and uninspired new developments we’ve raised in their places. We can’t fix mistakes like these. But other mistakes still fall within our power to undo.

One of these mistakes is Chapter 69 of the City Code, a law that makes it illegal to drink alcohol in public. Obviously, Buffalo police are selective in enforcing this law. Putting a bottle in a brown paper bag is sufficient to make cops look the other way—and few if any arrests happen on St. Patrick’s Day or Dyngus Day, when public drinking is widespread and celebrated. It may be less obvious, but pay close attention and you’ll see public consumption happening all the time, particularly in Delaware Park, Parkside, Allentown, and the Elmwood Village.

But arrest records reveal that Buffalo Police do detain and ticket some people for “open container” violations each year. Unsurprisingly, almost all of the people stopped are Black. We need to get honest with ourselves and with each other: If a selectively enforced law impacts one group of people more than others, it’s working as intended.

All that we need to correct this injustice is a Buffalo Common Council representative to draft and submit repeal legislation.

But to date, no champion of repeal has stepped forward from the Council ranks.  Buffalonians must demand better from our councilmembers. Buffalonians must demand a champion of repeal.

-“Broken Windows” and Broken Theories- In New York City, which passed an open container law shortly after Buffalo, a councilmember actually admitted that the law was discriminatory by design.  “We do not recklessly expect the police to give a summons to a Con Ed worker having a beer with his lunch,” he told the New York Times. “This is for those young hoodlums with wine bottles who harass our women and intimidate our senior citizens.” We know today what the councilmember meant by “young hoodlums.” Clearly lawmakers intended from the beginning for police to enforce open container statutes selectively—and from the beginning this selective enforcement has been blatantly racialized.

Criminalizing Open Containers- Redundant in Theory, Racist in Practice- There are behaviors associated with open containers that residents and business owners lament: violence, vandalism, verbal harassment, and impaired driving, for example. But there are already laws addressing these behaviors.  Far from targeting genuinely criminal behavior, the law creates a presumption of guilt by the mere display of an open container, allowing police to question and ultimately arrest individuals.  As we reconsider the role of law enforcement and its relationship with communities in our city, we should be looking for opportunities to reduce needless adversarial interactions between residents and police. Removing the “presumption of guilt” that this law creates would, the data suggest, lower the number of adversarial interactions between police and residents who are predominantly Black and people of color. It would also remove the impetus for police to intervene in situations better suited to mental health professionals, as we are at last coming to understand. Finally, removing the blatant inequality created by selective enforcement of this law will be necessary for establishing trust between law enforcement and all of the diverse communities that constitute our city.

-Time For Repeal Is Now- Since I first submitted an open letter to the council in March 2020, good government groups, social justice groups, and business groups have taken up and echoed the call for repeal including the Partnership for the Public Good and Legal Aid Buffalo, the local public defender’s bureau, joined the effort. In December 2020, Buffalo News columnist Rod Watson picked up the call for repeal, arguing it should be “an open and shut case.”

Since then, representatives of Free The People Coalition, Showing Up for Racial Justice (SURJ) Buffalo, the Elmwood Village Association, and the Hertel Business Association have signaled support for repeal. 

Notably—if unsurprisingly—no opponents of repeal have raised their voices. I pointed this out when I last spoke to the council Legislation Committee on December 29.

Now, the repeal effort lies in the hands of the Common Council of the City of Buffalo.  The Buffalo Common Council has the power to get rid of this law and make it once again legal to drink alcohol in public—for all people. If they act, the open container law will become a relic of Buffalo’s racist past. If they fail to act, their silence will be a resounding testament to Buffalo’s racist present.