Amicus Curiae Brief — Virginia v. Hicks

V ON Fj LED No. 02-371 (a)

OCi 9 2002 In The

Supreme Court of the Gnited States

COMMONWEALTH OF VIRGINIA,

Petitioner,

v.

KEVIN LAMONT HICKS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF VIRGINIA

BRIEF OF AMICI CURIAE CITY OF RICHMOND AND

RICHMOND REDEVELOPMENT AND HOUSING

AUTHORITY IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

William G. Broaddus*

Jonathan T. Blank

John A. Rupp, City Attorney

Norman B. Sales, Senior

Assistant City Attorney William H. Baxter II

City Hall, Room 300 Godfrey T. Pinn, Jr.

900 East Broad Street McGuireWoods LLP

Richmond, VA 23219 One James Center

(804) 646-7940 901 E. Cary Street

Counsel for Amicus Curiae Richmond, VA 23219

City of Richmond, Virginia (804) 775-1000

Counsel for Amicus

Curiae Richmond

Redevelopment and

Housing Authority

* Counsel of Record for Amici

. \

LANTAGNE LEGAL PRINTING \’

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477 +i

MOTION FOR LEAVE TO FILE BRIEF AMICUS

CURIAE AND STATEMENT OF INTEREST

Pursuant to Rule 37(2)(b) of the Rules of this Court,

the City of Richmond and the Richmond Redevelopment and

Housing Authority (““RRHA”) respectfully move this Court

for leave to file the attached brief amicus curiae urging that

the Commonwealth of Virginia’s Petition for Writ of

Certiorari in this case be granted, and that the Supreme Court

of Virginia’s decision in Hicks v. Commonwealth, 563

S.E.2d 674 (Va. 2002), be reversed. The consent of counsel

for the petitioner has been obtained. The consent of counsel

for the respondent was sought, but withheld.

Richmond is the capital and fourth largest city in the

Commonwealth of Virginia. Through the ongoing efforts of

City Council and various departments and agencies, the City

of Richmond works to provide for, and improve, the security

and well-being of the almost 200,000 citizens living within

its boundaries. Pursuant to § 2.04 of its Charter, the City of

Richmond has the “power to adopt ordinances . . . for the

preservation of the safety, health, peace, good order . . . [and]

welfare of its inhabitants... .” Section 2.03(a) of this

Charter specifically authorizes it to close public streets, and

Va. Code Ann. § 15.2-2006 confers the additional ability for

the City to alter or vacate public rights-of-way either upon

the motion of City Council or the application of a person.

Richmond City Ordinance No. 97-181-197, which

closed and privatized certain interior streets in the Whitcomb

Court housing development so that the City’s right and title

in these streets could later be deeded over to RRHA, was

adopted by Richmond City Council under the authority duly

granted by City Charter §§ 2.03 and 2.04, and Va. Code

Ann. § 15.2-2006. This street privatization effort directly led

to the implementation of the RRHA trespass-barment policy

that was erroneously stricken below as being overbroad and

violative of the First Amendment of the Constitution of the

United States.

Created by Richmond City Council in 1940, RRHA

is the largest public housing authority in the Commonwealth

of Virginia. Its mission includes the provision of quality and

affordable housing to low- and moderate-income tenants, the

promotion of their self-sufficiency and economic betterment,

the revitalization and elimination of blighted areas within the

City, and the prudent oversight of growth and conservation

programs designed to improve the overall quality of life in

urban neighborhoods and environments.

Through an array of programs and in collaboration

with the City of Richmond, the Commonwealth of Virginia,

and other interested parties, RRHA actively seeks on a daily

basis to prevent violence and criminal activity in its various

communities, promote safe and secure dwellings and living

conditions, and provide opportunities in which law-abiding

tenants can empower themselves and realize their economic

and educational potentials, as well as their dreams of home

ownership.

In recent years, RRHA has won regional and national

awards for the innovative measures that it has undertaken to

advance these worthy objectives. Its diverse programs have

achieved public recognition and prominence. They serve as

models that public housing agencies across the country have

studied and implemented. The United States Department of

Housing and Urban Development has consistently labeled

RRHA a “recognized performer” based upon standards that

RRHA has set and surpassed both for itself and for others.

RRHA’s housing operations cover sixteen housing

developments for low-income families, nine developments

for low-income elderly and the disabled, and scattered-site

single-family homes and special housing units throughout

i ichmond. Through its ximately 350

oe donee RRHA manages ~y A public housing _

in the City and provides subsidized housing in over +" os

these units. In all, RRHA serves approximately l =

public housing residents, and its programs directly serve

benefit over 33,000 Richmonders.

RRHA, in conjunction with City officials, —

trespass-barment policy for its communities as part of an

ee front-line effort to rid public housing neighborhoods

of criminal activity (often violent and drug-related) that is all

too frequently committed by non-tenants and non-residents

with no lawful purpose for being present on RRHA property.

The attached brief amicus curiae that RRHA and “x

City of Richmond seek to file explains the origin of RRH ’s

trespass-barment policy. It demonstrates that this policy, in

conjunction with other law enforcement programs, —

the incidence of violent and non-violent crime in —

Court without chilling free speech or impeding the _

of other First Amendment nights and freedoms. This po 2

as well as the City ordinance that preceded a

a vital element of collaborative crime prevention -

reduction efforts in Richmond on the local, state, and =

levels. These two directives must be viewed in this context.

a majority of the Supreme Court of

inte a that the trespass-barment policy =

»aconstitutionally overbroad, its final order ——

intermediate appellate court’s en banc discussion oo

whether the privatized streets of Whitcomb Court const!

a public forum. This Court has repeatedly con —

through its holdings that a public forum analysis ae oe

and mandatory to any finding of overbreadth. The re —

in such an analysis below not only conflicts wi po

well-settled decisions of this Court (and other ~_ =

federal courts across the United States), but also re ec

a departure from the accepted and usual course of judicial

proceedings that the exercise of this Court’s supervisory

power is required to resolve the conflict created on this

important issue of federal law.

The Commonwealth’s Petition for Writ of Certiorari

cogently discusses the need for clarifying the law of standing

for overbreadth challenges, as well as the equally compelling

need to resol: e already-existing split in federal and state

authority tha’ >.3 been perceptibly widened by the decision

below. The attached brief amicus curiae complements that

analysis by discussing additional relevant matter that will be

of help in this Court’s decision whether to grant a writ in this

case.

WHEREFORE the City of Richmond and the RRHA

respectfully request that this Court grant them leave to file

the attached brief amicus curiae in support of the Petition for

Writ of Certiorari.

John A. Rupp

City Attorney

Norman B. Sales

Senior Assistant City Attorney

City Hall, Room 300

900 East Broad Street

Richmond, Virginia 23219

(804) 646-7940

Counsel for Amicus Curiae City of Richmond, Virginia

William G. Broaddus*

(Counsel of Record)

Jonathan T. Blank

William H. Baxter II

Godfrey T. Pinn, Jr.

McGuireWoods LLP

One James Center

901 East Cary Street

Richmond, Virginia 23219-4030

(804) 775-1000

Counsel for Amicus Curiae Richmond Redevelopment and

Housing Authority

TABLE OF CONTENTS

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE AND STATEMENT

TABLE OF AUTHORITIES..............cccccccccssscceseees

INTRODUCTION AND STATEMENT OF

ADDITIONAL RELEVANT FACTS...................

I. This Court should grant a writ to ensure that

only those whose rights to speech are possibly

silenced or chilled have standing to claim

Il. This Court should grant a writ because there

~ was no finding on the record below that any

alleged overbreadth was real or substantial in

III. This Court should grant a writ to decide

whether privatized sidewalks and streets owned

by a local housing authority constitute a

CE a cccvccccccccccscccccvccccccccssesccsscccsosesess

TABLE OF AUTHORITIES

FEDERAL CASES

295 F.3d 471 (Sth Cir. 2002)............... 15

833 F.2d 238

(10th Cir. 1987), cert. denied,

485 U.S. 1011 (1988)... 13

Broadrick v. Oklahoma, 413 US. 601 (1973)...........passim

y. Rucker, 122 S. Ct. 1230 (2002)............... 12, 14, 20

Board of County Supervisors, 32 F.3d

(10th Cir. 1994)... woul 15

of Probation, 632 F.2d 938 (2d Cir.),

cert. denied, 449 U.S. 1023 (1980)........................ 15

Haig v. Agee, 453 U.S. i dicdscccnsiediccnnieessen: 13

United States, 829 F.2d 91 (D.C. Cir. 1987),

cert. denied, 485 U.S. 1014 (1988)................... 15-16

ine, 272 F.3d 1318

PE MD cncencdetnchiddteiiinaieisaiideie 15

College District, 194 F. Supp. 2d 1011, 1026

(C.D. Cal. 2002)... ..cccceccseeseseeeeeeeoeseecccc 17

iii

of Chicago, 803 F. Supp. 135 (N.D. Ill. 1992)............ 17

New England / ies Trade / ae

Inc. v. City of Nashua, 679 F.2d 1 (ist Cir. 1982) ...... 15

New York v. Ferber, 458 U.S. 747 (1982) .............2..005 18

Otten v. Schicker, 655 F.2d 142 (8th Cir. 1981) ............. 15

Paulos v. Breier, 507 F.2d 1383 (7th Cir. 1974) ............. 15

oe , i Redevel 1 Housi

Authority, 751 F. Supp. 1204 (E.D. Va. 1990),

aff'd, 1991 U.S. App. LEXIS 27694

(4th Cir. Nov. 8, 1991) .....ccccccecccescessesseesseeseeneen 17

Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 1988) .......15

Roulette v, City of Seattle, 97 F.3d 300 (9th Cir. 1996) ....15

Staley v. Jones, 239 F.3d 769 (6th Cir. 2001) ..........000+6 15

iley, 846 F.2d 241 (4th Cir.),

cert. denied, 488 U.S. 984 (1988) .........cssseceseeeeen 15

United States v. Kokinda, 497 U.S. 720 (1990) ......... 11,19

ward Bite und Tract Society of

Ck] 12,20

STATE CASES

Aguilar v. People, 886 P.2d 725 (Colo. 1994) ........+.+0++. 16

iv

clei

High School, 546 N.E.2d 1308 (Ohio 1989) ............. 16

In re Banks, 244 S.E.2d 386 (N.C. 1978).............0....... 16

Caby v. State, 287 S.E.2d 200 (Ga. 1982) ................... 16

Commonwealth v. DeFrancesco, 393 A.2d 321

gg _ OEE ARIS i A 16

7

vy. Miele, 495 A.2d 233 (R.I. 1985) ....................... 16

\

390 A.2d 1065 (Me. 1978) 0.0.0.0... ee eccceecceeceeeee. 16

Galloway v. State, 781 A.2d 851 (Md. 2001),

cert. denied, 122 S. Ct. 1547 (2002) ...................... 16

Hicks v. Commonwealth, 535 S.E.2d 678

(Va. Ct. App. 2000), vacated, 548 S.E.2d 249

(Va. Ct. App. 2001) (en banc), aff'd,

563 S.E.2d 674 (Va. 2002) .......eceececccecceececeee. passim

Ino Ino, Inc. v. City of Bellevue, 937 P.2d 154

(Wash. 1997), cert. denied, 522 U.S. 1077 (1998)......16

Morris v. Municipal Court for the San Jose-Milpi

., | | . | Geiss 16

Morrisette v. Dilworth, 452 N.E.2d 1222 (N.Y. 1983)......16

People v. Holder, 451 N.E.2d 831 (Ill. 1983) ................ 16

eee Py CIEE SITE kcinicsinensdnhendecnvserisnsiciess 16

State ex rel. Gonzales v. Manzagol, 531 P.2d 1203

I: SID cai cirepssiiinnniinneintichmnenreniananmeenenwesenien 16

State v. Baysinger, 397 N.E.2d 580 (Ind. 1979),

appeal dismissed sub nom. Clark v. State,

GEG UG, FB1 CBSE oc ccccccccesccccsccccsscccccsvsccccccvces 16

State v. Brown, 648 So. 2d 872 (La. 1995) ................2+ 16

State v. Cotton, 769 So. 2d 345 (Fla. 2000) ...............+5 16

State v. Hookstra, 638 N.W.2d 829 (Neb. 2002) ............ 16

State v. Musser, 977 P.2d 131 (Ariz. 1999) ...........00e000s 16

State v. Nye, 943 P.2d 96 (Mont. 1997) ...........0eceeeee eee 16

State v. Thiel, 515 N.W.2d 847 (Wis.), cert. denied,

513 U.S. 878 (1994) .........ccceccecececereeceeeseececeseees 16

State v. Todd, 468 N.W.2d 462 (Iowa 1991) .............000 16

State v. Woodworth, 234 N.W.2d 243 (N.D. 1975) ......... 16

ith, 685 A.2d 380 (D.C. 1996),

cert. denied, 522 U.S. 856 (1997) .......:ceceeeeeereeeeees 16

Wells v. State, 351 N.E.2d 43 (Ind. Ct. App. 1976) ......... 13

Woll v. Kelley, 297 N.W.2d 578 (Mich. 1980) saiveiiehinitatslanth 16

STATE STATUTES

Va. Code Ann. § 18.2-119 .........-cceceeecereeeeeeeeeeeeneneees 4

INTRODUCTION AND STATEMENT OF

ADDITIONAL RELEVANT FACTS’

During the twelve-year period preceding the adoption

of City Ordinance No. 97-181-197, and the development of

RRHA’s trespass-barment policy, Richmond was notoriously

known as “the murder capital of Virginia” and “one of the

nation’s murder capitals.”

The reasons underlying the creation of this “national

Murder City image” are amply confirmed by crime statistics

published annually by the Federal Bureau of Investigation.

In 1985, Richmond was ranked third among American cities

for the number of homicides per 100,000 people.® The

following year, “crack cocaine came to town and homicides

increased sharply.” Between 1986 and 1997, Richmond’s

per capita homicide rate ranked perennially among the top

ten in the nation, fluctuating between seventh place (1986)’

and second place (1994 and 1997). ® Its rate was consistently

' In accordance with Supreme Court Rule 37.6, amici represent that no

counsel for a party authored this brief in whole or in part, and no person

or entity, other than amici, has made any monetary contribution to the

preparation or submission of this brief.

Gary Robertson, For the Media: ‘A Feeding Frenzy’; Reaction Soon

Pee bernie Richmond Times-Dispatch, June 21, 1998, at A-1.

* Carrie Johnson, Crime That’s Often Lost; No Easy Definitions or

Answers to Rape, Richmond Times-Dispatch, Aug. 24, 1998, at A-1.

* Mark Holmberg, Richmond on Top of Crime: ‘It’s a Phenomenal

Tumaround,’ Renaissance Executive Director Says, Richmond Times-

Dispatch, Jan. 3, 2000, at B-1.

* Michael Martz, City Man’s Death Sets Homicide Record, Richmond

News Leader, Dec. 30, 1989, at 1.

© Mark Holmberg and Jim Mason, 10 Slayings in City in First 15 Days of

;27.a Bloody Beginning, Jan. 16, 1997, at B-1.

Martz, supra note 5.

* Gordon Hickey, FBI Nur n Trend: Richmon: in *9

Murder Rate, Richmond Times-Dispatch, May 2, 1995, t Al: cae

Hickey, Violent Crimes Drop in City; Clearance Rate Up; Police Work

Praised, Richmond Times-Dispatch, Apr. 28, 1998, at A-1.

the highest in the Commonwealth of Virginia over this same

period.”

Commentators and City residents have stated various

rationales for Richmond’s ranking, the inost common being

the increased prevalence and mix of drugs and guns on City

streets.'° One reporter observed that “locals tend to blame it

mostly on drug-related killings, especially in and around the

housing projects.”

Richmond’s alarmingly high homicide rates attracted

the attention of national public housing officials, prompting

former Secretary of Housing and Urban Development Henry

Cisneros to urge action so that “‘public housing [in

Richmond and elsewhere] is no longer a safe harbor for

criminals.””"

Federal agencies continued to assist Richmond with

’ their law enforcement efforts. For example, HUD named the

City in 1990 as one of twenty that would receive funds for a

program designed to “seize the public housing leases of

alleged drug dealers or people believed involved in the drug

trade.”’’ In 1994, HUD awarded RRHA a $1.i million grant

” See Gordon Hickey, Gunshot Treatment Costs High, Richmond Times-

Dispatch, Mar. 14, 1999, at A-6.

° Brian Kelley, City May Set Two Homicide Records, Richmond Times-

Dispatch, Oct. 22, 1990, at Al.

'' Ray McAllister, Using the Police Ball to Make a Statement, Richmond

Times-Dispatch, Oct. 8, 1993, at B1. Unfortunately, there is evidence to

support this perception. See, e.g., Gordon Hickey, Homicides Found to

Occur Mostly in Housing Projects, Richmond News Leader, Aug. 11,

1990, at 17 (“Although about 6 percent of Richmond’s population lives

in housing-project areas, about 41 percent of the city’s homicides during

the first half of 1990 were committed in them.”).

" neat Gilpin’s Heroes, Richmond Times-Dispatch, Feb. 18, 1994,

at '

8 Randolph Goode & Peter Hardin, Drug Eviction Notices Are Filed in

Richmond, Richmond News Leader, June 26, 1990, at 1.

for increased police presence in eight public housing projects

plagued by drug trafficking.'* And in 1995, Richmond was

given one of two federal grants awarded by the United States

Bureau of Justice Assistance “to develop and implement a

strategy to reduce homicides in the city and to increase the

number of cases solved . . . .”"°

Despite the increased resources that were deployed to

combat these evils, violent crime and drug-related activities

continued in RRHA-managed neighborhoods and other parts

of the City. Indeed, “[tJhe first six months of 1994 was the

deadliest half-year in Richmond’s history, as 78 people were

shot, stabbed, bludgeoned or scalded to death by killers as

young as 14 years old.”"® These killings were “fueled

largely by arguments, drugs, alcohol and greed.”"’ In fact,

the “carnage on some of Richmond’s streets” was so

appalling that the Chairman of the City School Board called

for the declaration of martial law, stating: “‘Bring in the

National Guard, federal troops, whatever we need to get our

community back . . . . Ladies and gentlemen, the house is on

fire.”

This tragic situation posed serious consequences for

the many law-abiding residents and tenants of public housing

developments. Recognizing their plight, RRHA and the City

decided that they would work together to convert Richmond

4 Area/State, Grant to Provide Officers, Richmond Times-Dispatch, Oct.

9, 1994, at B9.

'S Dorine Bethea, Ci

Homicides, Richmond Times-Dispatch, Dec. 13, 1995, at B-1.

'© Mark Holmberg, Fi . icide-

Richmond Times-Dispatch, July 5, 1994, at Al.

Id.

'§ Gordon Hickey, ‘Full Alert’ Sounded for Troubled Areas, Richmond

Times-Dispatch, Aug. 11, 1994, at Al.

from “one of the nation’s bloodiest cities into a model of

crime-fighting prowess.”'?

The Development of the Trespass-Barment Policy

| Understanding that the majority of crimes occurring

in public housing were committed by outsiders”° — especially

by persons who had no legitimate business or social purpose

for being in its developments — RRHA implemented a no-

trespassing policy in the Gilpin Court”! neighborhood in

1990. It was designed to promote the official enforcement of

existing state law, i.e., Va. Code Ann. § 18.2-119 (“Trespass

after having been forbidden to do so”’).

. In November 1990, RRHA issued a letter to residents

advising them of this “No Trespassing” policy and inviting

public questions and comments. Shortly thereafter, workers

began to post 250 “No Trespassing” signs throughout Gilpin

Court,~ and RRHA released the following bulletin:

Trespassers Beware!!!

Beginning November 20, 1990, [RRHA], in

conjunction with the Richmond City Police,

” Carrie Johnson & Gordon Hickey,

Back f he Brink: Deaths Di

i Richmond Times-Dispatch, Oct. 11,

1999, at A-1. .

*° See Teresa Lemons,

Richmond News Leader, Nov. 9, 1990, at 17.

*' Gilpin Court is the City’s oldest public housing neighborhood, and is

also the largest such development on the East Coast between Baltimore

and Atlanta. Mark Holmberg, Seeing the Light; Inner City Glows in

Richmond Times-Dispatch, Dec. 20, 1998,

at B-1; Michael Paul Williams, in Directi .

- iled, Richmond Times-Di 7,

1996, at B-2. —

* Brian Kelley, Gilpin Court Trespassing Signs Go Up, Richmond

Times-Dispatch, Nov. 9, 1990, at B4.

{

will begin prosecuting all trespassers in the

Gilpin Court public housing community ... .

Once the new No Trespassing Policy is

implemented, all guests of RRHA’s Gilpin

residents must have a specific destination and

will not be allowed to loiter on RRHA

properties. Additionally, residents may be

asked to verify if an individual is in fact their

guest.

Our No Trespassing Policy was proposed by

the Gilpin Safe Neighborhood Program

Committee, which includes RRHA residents,

RRHA staff, community leaders, and the

Richmond City Police. We know that the

majority of criminal activity that occurs in

public housing is conducted by non-residents.

This policy, which is part of our continuing

effort to make our properties safe and crime-

free, will allow residents to control who visits

their community.

(emphasis in original) (internal quotation marks and citation

omitted). The “No Trespassing” policy continued throughout

the mid-1990s and was gradually extended into other RRHA

public housing developments.

Although this policy yielded commendable results,”’

it had only limited success because the sidewalks and streets

of RRHA housing projects remained public property. Thus,

if police officers saw unauthorized persons trespassing upon

® See Teresa Lemons, Public Housing Gentry’s Calling Now, Richmond

News Leader, Feb. 28, 1992, at 19 (discussing the Gilpin Court program

and observing that “(p}reliminary police statistics show violent crimes in

public housing decreased 5 percent from 1990 to 1991”).

RRHA-owned buildings and grounds, these intruders could

avoid arrest and prosecution by simply stepping onto an

adjacent street or sidewalk. More was needed in order for

RRHA to protect the health, safety, and welfare of its tenants.

In a memorandum dated December 16, 1996, Gloria

Rogers (Whitcomb Court housing manager) recommended a

solution to her superiors — that the streets within that project

be privatized. Street privatization promised to achieve the

following benefits:

e Eliminating the sale of drugs from streets

and sidewalks;

e¢ Holding criminals and those who aid them

accountable for unlawful acts;

e Cutting crime in public housing;

e Abolishing open air drug markets; and

e Reducing trash on streets and sidewalks.

Three days later, RRHA officials indicated City police and

civic leaders at a public safety meeting that RRHA gradually

wanted to “close all public right-of-ways to public use and

travel within all of their public housing communities.” A

formal request followed in February 1997.

The streets of Whitcomb Court were among those that

were selected first for privatization. This designation was not

accidental. Long known as “one of the city’s most violent

and troubled housing projects,”** Whitcomb Court had been a

** Mark Holmberg, Where the Past Blights the Present, Richmond Times-

Dispatch, Aug. 30, 1998, at B1.

popular venue for open air drug dealing.” One local reporter

observed in 1994 that Whitcomb Court was “a neighborhood

where crack addicts snap off car antennas to fashion

makeshift pipes, a wasteland of stark buildings, trash and

weed-and-dirt yards whose only fetching quality is the

sparkle of shattered glass under street lights.””°

In Whitcomb Court, the 2300 block of Bethel Street

was especially violent — a block where people were murdered

while children played nearby,” where major heroin and crack

cocaine suppliers set up their shops’ and dealt drugs within

1,000 feet of an elementary school,” where a teenager was

shot in the head while simply sitting in a car,” and where

police might find fifty people — several of them screaming —

surrounding a fatality, but no witnesses. >! Unsurprisingly,

the 2300 block of Bethel Street was selected for privatization.

Officials from RRHA and the City further discussed

privatization efforts in March 1997. RRHA indicated at that

time that City police had “expressed support” for its proposed

policy. It stated that “[t]he Police Department is expected to

be the primary enforcement unit that will issue summons

** Battino Batts Jr., Police Unit is Forcing the Issue: Strike Force Hits

Drugs. Ams, Richmond Times-Dispatch, May 2, 1993, at B1.

William Ruberry, Wrestling Richmond’s Bad Guys, Richmond Times-

Dispatch, May 2, 1994, at Al.

27 Mark Holmberg,

Dispatch, Mar. 11, 1994, at Al.

8 Alan Cooper, Murder, Drug Dealing Draw 2 Life Terms, Richmond

Times-Dispatch, Apr. 25, 1996, at B3.

> Randolyh Goode, Six Indicted in Whitcomb Court Case Richmond

Times-Dispatch, June 24, 1995, at B1.

* Area/State, Two Hurt in Separate Shootings, Richmond Times-

Dispatch, Jan. 19, 1993, at B3.

*" Area/State,

Richmond Times-Dispatch, July 19, 1990, at BS.

[sic] and arrest persons for violating trespassing rules and

other infractions,” and that

[t]he primary focus in [law] enforcement will

be to deter street level drug dealing, hanging

out on street corners by non-residents and to

discourage non-residents from entering public

housing communities, except for legitimate

social or business reasons.

Later in March, the City’s Director of Public Works advised

City Council that street privatization should proceed.

In a letter dated April 11, 1997, RRHA’s Director of

Public Housing verified that if privatization were approved,

“RRHA’s only intent as owner of the streets, will be to help

control . . . traffic that frequents our neighborhoods for illegal

or other disruptive purposes.” Although residents and school

buses could “travel to and from Whitcomb Court as they do

now,” “the streets [and sidewalks] will clearly be marked as

RRH A-owned private property.”

The City Planning Commission unanimously voted to

recommend approval of the closing of public right-of-ways

in Whitcomb Court following a public hearing in May 1997.

On May 12, 1997, City Council adopted Ordinance No. 97-

143-124, which provided for the privatization of streets and

sidewalks in Whitcomb Court. This ordinance was amended

on June 23, 1997 by Ordinance No. 97-181-197, so that City

police could enforce traffic laws on the privatized streets.

The City renounced its legal interest in the streets and

sidewalks of Whitcomb Court by letter dated July 23, 1997.

Two days later, the City deeded these thoroughfares over to

RRHA, which subsequently authorized City police to

enforce state criminal trespass laws on all of its properties.

RRHA erected “No Trespassing” signs on the streets

and sidewalks of Whitcomb Court, so that people would

know that Whitcomb Court was private property, and that

their unauthorized presence there would subject them to

arrest.

The Success and Untimely Demise of

the Trespass-Barment Policy

Statistical evidence compiled by the Crime Analysis

Unit of the Richmond Police Department demonstrates that

overall monthly crime rates declined in Whitcomb Court

after the trespass-barment policy was implemented.”

01/01/96-07/31/97 | 08/01/97-12/31/98 | 01/01/99-06/05/02

(17 months before | (19 months after (last 42 months

policy effected) policy effected) policy in effect)

[No. per month] [No. per month] [No. per month]

Violent: 2.4 2.1 1.9

Property: 5.6 4.1 4.2

Total: 8.0 6.2 6.1

Under this policy, Kevin Lamont Hicks was arrested

twice in 1998 for trespassing in Whitcomb Court. Hicks was

barred from Whitcomb Court (and all other RRHA property)

in April 1998. He signed the written barment notice that was

served on him. That notice stated that if he trespassed on

RRHA property in the future, he would be subject to arrest.

In January 1999, Hicks was arrested for trespassing on the

sidewalk of the 2300 block of Bethel Street by a policeman

who knew about Hicks’ barment from Whitcomb Court.

Hicks was convicted. That conviction was overturned on

overbreadth grounds by a majority of the Supreme Court of

>2 Due to a systems error, violent crimes and property offenses occurring

on Deforrest Street during the period 01/01/00-06/05/02 are not included

in the third column.

10

Virginia, which affirmed a sharply-divided en banc decision

of the Court of Appeals of Virginia.

SUMMARY OF ARGUMENT

The overbreadth analysis conducted by a majority of

the Supreme Court of Virginia conflicts with the well-settled

jurisprudence of this Court in three principal areas in

addition to those set forth in the Petition for Appeal.

First, this Court has held that an individual lacks

standing to make an overbreadth challenge if his actions fall

within the core of the conduct being regulated. Here, RRHA

adopted a trespass-barment policy to reduce and eliminate

drug-related and other criminal activity in Richmond public

housing, and to prevent outsiders from unlawfully

trespassing on RRHA-owned private property after being

forbidden to do so. Hicks was twice arrested for trespassing

in Whitcomb Court, and a third time for causing property

damage in Whitcomb Court. On each occasion, he was

found guilty, but his sentence was suspended on the

condition that he keep the peace for three years. RRHA

officials served Hicks in April 1998 a written notice barring

him from entering onto any RRHA properties, including

Whitcomb Court. This notice informed Hicks that if he was

seen or caught on RRHA property in the future, he would be

subject to arrest. Hicks acknowledged his receipt of this

notice in writing before multiple witnesses. Because Hicks’

conduct falls squarely within that circumscribed by the

trespass-barment policy, he lacked standing to raise an

overbreadth argument, and the Supreme Court of Virginia

erred in striking down that policy solely on that basis.

Second, this Court has repeatedly held that whenever

a policy restricts conduct, not speech, that policy may not be

stricken as overbroad and violative of the First Amendment

unless the overbreadth is both “real” and “substantial as well,

11

judged in relation to the [policy’s) plainly legitimate sweep.”

Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). Gloria

Rogers testified that the trespass-barment policy was adopted

to address tenant concerns about criminal acts committed by

outsiders in public housing. The policy was not directed at

limiting First Amendment activities, and there was no

evidence that it had diminished or even chilled protected

speech or conduct. When Hicks was arrested for trespassing

in Whitcomb Court after RRHA had validly barred him from

coming into that community, he stated that he was delivering

diapers to one of his children. This conduct was not entitled

to any First Amendment protection as the dissent rightly

discerned, citing controlling authority by this Court. Hicks,

563 S.E.2d at 683-85 (Kinser and Lemons, JJ., dissenting)

(citing inter alia Broadrick, 413 U.S. at 615).

Finally, assuming arguendo that the trespass-barment

policy encroached upon protected speech, this Court has held

in United States v. Kokinda, 497 U.S. 720 (1990), and other

courts have agreed, that the government can adopt content-

neutral restrictions on speech in a non-public forum so long

as those limitations are reasonable. Under these cases, it was

incumbent upon the majority below to determine whether the

now-privatized streets and sidewalks of Whitcomb Court are

public or non-public fora.*’ Absent this analysis, its finding

of overbreadth is doctrinally unsound and, more importantly,

squarely in conflict with relevant decisions by this Court and

by other state and federal appellate courts.

The constitutional issues framed by the Petition and

this brief amicus curiae have routinely attracted this Court’s

attention and compelled it to exercise jurisdiction to resolve

3 Because Hicks was “not engaged in [any First Amendment] speech or

expressive association” at the time of his post-barment arrest, the dissent

deemed it unnecessary to engage in a traditional forum analysis. Hicks,

563 S.E.2d at 684 (Kinser and Lemons, JJ., dissenting).

12

their inherent complexities. See, e.g., Watchtower Bible and

Tract Soc’y of N.Y., Inc. v. Village of Stratton, 122 S. Ct.

2080 (2002) (striking down local ordinance prohibiting door-

to-door canvassing on First Amendment’ grounds);

Department of Housing and Urban Dev. v. Rucker, 122 S.

Ct. 1230 (2002) (concluding that a public housing authority

could hold tenants strictly liable for the drug-related criminal

acts of their guests and seek an eviction on that basis to

protect other residents). This case reflects the conflict

between Rucker and Watchtower, where a _ housing

authority’s and City’s law enforcement interests collide (in

the view of a majority of the Supreme Court of Virginia)

with the First Amendment rights to petition and freedom of

speech. This Court should grant a writ to decide the clash

between these weighty and important constitutional issues.

ARGUMENT

I. This Court should grant a writ to ensure that only

those whose rights to speech are possibly silenced

or chilled have standing to claim overbreadth.

The majority below ruled that Hicks “was entitled to

challenge the validity of his conviction on the basis that the

Housing Authority’s practices and procedures contravened

his constitutional rights.” Hicks, 563 S.E.2d at 677. Rather

than analyze the nature or quality of his conduct at the time

of his arrest, it merely observed that decisions from both this

Court and it have “permitted criminal defendants to assert

constitutional challenges to various ordinances in criminal

prosecutions.” /d. (citing inter alia Lovell v. City of Griffin,

303 U.S. 444 (1938). This stripped-down view of standing is

incorrect, setting a conflicting precedent on an important

issue of federal law that should not be allowed to stand.

This Court has held that whenever a defendant’s

conduct “falls within the core of the regulation” at issue, he

13

“lacks standing to contend that the regulation is vague and

overbroad.” Haig v. Agee, 453 U.S. 280, 309 n.61 (1981)

(citing Parker v. Levy, 417 U.S. 733, 755-56 (1974)). Lower

federal courts, and state appellate courts, have followed this

controlling principle, as they must. See, e.g., Brecheisen v.

Mondragon, 833 F.2d 238, 243 (10th Cir. 1987), cert.

denied, 485 U.S. 1011 (1988) (concluding that “‘a person to

whom a statute may constitutionally be applied will not be

heard to challenge that statute on the ground that it may

conceivably be applied unconstitutionally to others, in other

situations not before the Court’”) (quoting Broadrick, 413

U.S. at 610); Wells v. State, 351 N.E.2d 43, 47 (Ind. Ct.

App. 1976) (“[WJhere conduct rather than speech is involved

and the appellant stands at the hard core of permissible

regulation, his standing to assert facial overbreadth will not

be recognized.”) (citing Broadrick).

In Broadrick, three public servants challenged as

vague and overbroad the portion of a state act that prohibited

governmental employees from inter alia soliciting political

contributions, running for paid public office, and engaging in

other partisan activity. 413 U.S. at 602-06. Both arguments

failed. First, this Court deemed the vagueness claim “all but

frivolous” because the state statute was written “‘in terms

that the ordinary person exercising ordinary common sense

can sufficiently understand and comply with... .’” Jd. at

607-08 (citation omitted). Second, the act was not overbroad

because it regulated “political activity in an even-handed and

neutral manner.” /d. at 616. This Court stated that judicial

concern over an allegedly overbroad standard “attenuates as

the . . . behavior . . . moves from ‘pure speech’ toward

conduct ... that . . . — even if expressive — falls within the

scope of otherwise valid criminal laws... .” /d. at 615.

Notably, this Court further explained that although laws

if too broadly worded, may deter protected

speech to some unknown extent, there

14

comes a point where that effect — at best a

prediction — cannot, with confidence, justify

invalidating a statute on its face and so

prohibiting a State from enforcing the statute

against conduct that is admittedly within its

power to proscribe.

Id. (citation omitted).

Here, that “point” was reached and clearly exceeded.

As noted supra, Hicks had been convicted on multiple

occasions for trespassing in Whitcomb Court. He was

ultimately barred from that community, and every other

RRHA neighborhood. Moreover, the general district court

judge who had first tried Hicks had ordered Hicks in open

court not to return to RRHA property. Rather than heed

these directives, Hicks proceeded to trespass again in

Whitcomb Court. When he was stopped and questioned by a

policeman who knew about Hicks’ barment, he stated that he

was delivering diapers, not engaging in speech.

Hick’s conduct is clearly not subject to any First

Amendment protection. RRHA’s trespass-barment policy

was designed to help eliminate crime and drug-related

activity in public housing — an interest that motivated this

Court last term in Rucker to hold that a public housing

authority has “the discretion to terminate the lease of a tenant

when a member of the household or a guest engages in drug-

related activity, regardless of whether the tenant knew, or

should have known of [such] activity.” 122 S. Ct. at 1236.

Because the trespass-barment policy at issue was also

intended to prevent outsiders like Hicks from trespassing in

RRHA neighborhoods, which constitute private property, his

conduct unequivocally fell within its scope of regulation, and

his overbreadth challenge should have been disallowed ab

initio for lack of standing.

15

Il. This Court should grant a writ because there was

no finding on the record below that any alleged

overbreadth was real or substantial in light of the

trespass-barment policy’s legitimate sweep.

The majority below limited its review to the “narrow

issue” of whether “a redevelopment and housing authority’s

trespass policy is overly broad . ” Hicks, 563 S.E.2d at

675. Although it acknowledged the disection from Broadnick

that “the overbreadth doctrine is ‘strong medicine,” and that

it “should be employed ‘sparingly and only as a last resort,’”

the majority bypassed Broadrick on its principally applicable

point through its refusal to accept that the trespass-barment

policy targets conduct, not speech. /d. at 678.

In Broadrick, this Court established the standard that

“where conduct and not merely speech is involved . . . the

overbreadth of a statute must not only be real, but substantial

as well, judged in relation to the statute’s plainly legitimate

sweep.” Broadrick, 413 U.S. at 615. This standard has been

cited as bedrock law by every federal circuit court of

appeals. New England Accessories Trade Ass’n, Inc. v. City

of Nashua, 679 F.2d 1, 5 (ist Cir. 1982); Gormley v.

Director, Conn. State Dep’t of Probation, 632 F.2d 938, 942

(2d Cir.), cert. denied, 449 U.S. 1023 (1980); Rode v.

Dellarciprete, 845 F.2d 1195, 1200 (3d Cir. 1988); Thorne v.

Bailey, 846 F.2d 241, 244 (4th Cir.), cert. denied, 488 U.S.

984 (1988); Baby Dolls Topless Saloons, Inc. v. City of

Dallas, 295 F.3d 471, 482 (Sth Cir. 2002); Staley v. Jones,

239 F.3d 769, 785 (6th Cir. 2001); Paulos v. Breier, 507 F.2d

1383, 1386 n.6 (7th Cir. 1974); Otten v. Schicker, 655 F.2d

142, 145 (8th Cir. 1981); Roulette v. City of Seattle, 97 F.3d

300, 305 (9th Cir. 1996); Dodger’s Bar & Grill, Inc. v.

Johnson County Bd. of County Supervisors, 32 F.3d 1436,

1442 (10th Cir. 1994); Horton v. City of St. Augustine, 272

F.3d 1318, 1332 (11th Cir. 2001); Hastings v. Judicial

16

Conference of the United States, 829 F.2d 91, 106 (D.C. Cir.

1987), cert. denied, 485 U.S. 1014 (1988).

This principle has similarly and routinely been cited

by at least twenty-five state courts of last resort. See, e.g.,

State_v. Hookstra, 638 N.W.2d 829, 838 (Neb. 2002);

Galloway v. State, 781 A.2d 851, 875 (Md. 2001), cert.

denied, 122 S. Ct. 1547 (2002); State v. Cotton, 769 So. 2d

345, 356 (Fla. 2000); State v. Musser, 977 P.2d 131, 132-33

(Anz. 1999); State v. Nye, 943 P.2d 96, 103 (Mont. 1997);

Ino Ino, Inc. v. City of Believue, 937 P.2d 154, 172 (Wash.

1997), cert. denied, 522 U.S. 1077 (1998); United States v.

Smith, 685 A.2d 380, 387 (D.C. 1996), cert. denied, 522

U.S. 856 (1997); State v. Brown, 648 So. 2d 872, 878 (La.

1995); Aguilar v. People, 886 P.2d 725, 727 (Colo. 1994);

State v. Thiel, 515 N.W.2d 847, 853 (Wis.), cert. denied, 513

U.S. 878 (1994); State v. Todd, 468 N.W.2d 462, 466 (lowa

1991); In re Appeal of Suspension of Huffer from Circleville

High Sch., 546 N.E.2d 1308, 1313 (Ohio 1989); Cranston

Teachers Alliance Local No. 1704 AFT v. Miele, 495 A.2d

233, 235 (R.I. 1985); Morrisette v. Dilworth, 452 N.E.2d

1222, 1224 (N.Y. 1983); People v. Holder, 451 N.E.2d 831,

834 (Ill. 1983); Spilotro_v. State ex rel, Nev. Gaming

Comm'n, 661 P.2d 467, 471 (Nev. 1983); Moms _v.

Municipal Court for the San Jose-Milpitas Judicial Dist. of

Santa Clara County, 652 P.2d 51, 58 n.14 (Cal. 1982); Caby

v. State, 287 S.E.2d 200, 202 (Ga. 1982); Woll v. Kelley,

297 N.W.2d 578, 593 (Mich. 1980); State v. Baysinger, 397

N.E.2d 580, 587 (Ind. 1979), appeal dismissed sub nom.

Clark v. State, 446 U.S. 931 (1980); Gabriel v. Town of Old

Orchard Beach, 390 A.2d 1065, 1068-69 (Me. 1978);

Commonwealth v. DeFrancesco, 393 A.2d 321, 330 (Pa.

1978); Jn re Banks, 244 S.E.2d 386, 391 (N.C. 1978); State

v. Woodworth, 234 N.W.2d 243, 250 (N.D. 1975); State ex

rel. Gonzales v. Manzagol, 531 P.2d 1203, 1207 (N.M.

1975).

17

The inescapable fact that the trespass-barment policy

is directed at conduct, not speech, is easily confirmed by the

history behind its adoption. For example, it has been

reported in a published decision that “RRHA tenants are the

victims of an extraordinarily high incidence of crime, much

of which is connected to illegal drug traffic.” Richmond

Tenants Org., Inc. v. Richmond Redevelopment and Housing

Auth., 751 F. Supp. 1204, 1207 (E.D. Va. 1990), aff'd, 1991

U.S. App. LEXIS 27694 (4th Cir. Nov. 8, 1991) (per

curiam) (allowing lease changes, including a ban on gun

ownership, on RRHA premises). As noted supra, RRHA

devised and executed the trespass-barment policy to increase

public safety, and lower criminal activity by unwelcome

outsiders and trespassers, in its communities. The clear and

present danger created by the violent conditions in

Whitcomb Court and elsewhere justifies implementation of

the policy. See, e.g., Khademi v. South Orange County

Community College Dist., 194 F. Supp. 2d 1011, 1026 (C.D.

Cal. 2002) (“The state has a compelling interest in the

enforcement of its criminal laws.”) (citing Branzburg v.

Hayes, 408 U.S. 665, 700-01 (1972); National Paint &

Coatings Ass’n v. City of Chicago, 803 F. Supp. 135, 143-44

(N.D. Ill. 1992) (discussing exercise of a city’s police power

to deter illegal activity and preserve property values).

In contrast to the policy’s “plainly legitimate sweep,”

Broadrick, 413 U.S. at 615, the record displays no “real” or

“substantial” concern that speech is being silenced. Gloria

Rogers testified that she had never denied permission to

anyone wishing to distribute flyers in RRHA developments.

Hicks was not arrested for engaging in protected speech, but

for trespassing post-barment in Whitcomb Court. During his

criminal proceedings, Hicks offered no witnesses to establish

that anyone had refused to come into Whitcomb Court for

18

fear of arrest or prosecution” under the policy. Simply

stated, there was a complete failure by Hicks to offer

evidence that the policy was chilling or prohibiting any

protected, or arguably protected, speech.

“The premise that a law should not be invalidated for

overbreadth unless it reaches a substantial number of

impermissible applications is hardly novel.” New York y.

Ferber, 458 U.S. 747, 771 (1982). Because this is indeed

“the paradigmatic case of a [policy] whose legitimate reach

dwarfs its arguably impermissible applications,” the Petition

for Appeal should be granted to correct the error below. /d.

at 773.

Ill. This Court should grant a writ to decide whether

privatized sidewalks and streets owned by a local

housing authority constitute a non-public forum.

In its panel and en banc decisions below, the Court of

Appeals of Virginia debated at length whether the privatized

streets and sidewalks in Whitcomb Court are public or non-

public fora under decisions by this Court. Compare Hicks v.

Commonwealth, 535 S.E.2d 678, 683-84 (Va. Ct. App.

2000) (non-public fora), with id. at 685-88 (Coleman, J.,

concurring in part and dissenting in part) (public fora); Hicks

v. Commonwealth, 548 S.E.2d 249, 253-55 (Va. Ct. App.

2001) (en banc) (non-public fora), with id. at 259-61

(Humphreys, Willis, Bray, Bumgardner, and Agee, JJ.,

dissenting) (public fora).

But the debate at the Supreme Court of Virginia was

decidedly one-sided. While none of the justices conducted a

forum analysis, the dissent and even Hicks recognized that

* Gloria Rogers testified that nobody is arrested until after being warned

not to trespass on RRHA property. Her testimony was uncontested, and

Hicks was admittedly warned before being barred and later arrested.

19

the Kokinda framework — i.e., that “‘the extent to which the

Government can control access depends on the nature of the

relevant forum’””’ — controlled. Hicks, 563 S.E.2d at 684-85

(Kinser and Lemons, JJ., dissenting) (“The defendant agrees

that this analytical framework applies in this case... .”)

(quotation at 684). Given this consensus, the majority’s

decision to sidestep this question and to strike down the

trespass-barment policy based upon Gloria Rogers’ allegedly

“unfettered discretion [as] a government official” warrants

further review by this Court. /d. at 681.

An excerpt from Rogers’ testimony is included in the

majority decision below. /d. at 680-81. But the testimony

that immediately followed that colloquy was omitted.

Q: Are there any particular guidelines . . . that

you refer to determine whether or not any

group or type of religion will be allowed to

circulate [flyers or other materials]?

A: Yes. I refer all those to community

council and they meet with the board and the

residents to decide, because there’s so many

residents and so many things, the City Council

and housing management work out... .

Even in situations where Rogers was shown a church flyer,

which she was used to seeing, she would often refer it to her

immediate supervisor for approval.

It is apparent that RRHA installed a series of checks

and balances to prevent content-based restrictions on speech

from occurring. While these safeguards could arguably have

been stronger, the constitutionality of the trespass-barment

policy turns not upon the strength of these checks, but upon

> Kokinda, 497 U.S. at 726 (citation omitted).

20

their existence. Such policies have been held constitutional

by several federal courts of appeals and state courts of last

resort. (Pet. for Appeal at 22-25.) The conflict in authority

generated by the majority decision below, coupled with the

fact that this Court has not yet resolved this important issue

of federal law, warrants the issuance of a writ here.

CONCLUSION

This Court “[flor over 50 years . . . has invalidated

restrictions on door-to-door canvassing and pamphleteering.”

Watchtower, 122 S. Ct. at 2086. But this Court also held 8-0

in Rucker that “local housing authorities . . . are in the best

position to take account of . . . the degree to which the

housing project suffers from ‘rampant drug-related or violent

crime,” and to implement “‘reasonable steps to prevent or

mitigate the offending action.” 122 S. Ct. at 1235 (citations

omitted). This case amply demonstrates the conflict between

these two holdings, and, as the Commonwealth describes it

in its Petition, between government as sovereign and

government as landlord. Whether the Watchtower rationale

or the Rucker logic prevails is a decision that only this Court

can properly (and finally) make.

RRHA’s trespass-barment policy helped reduce crime

in Whitcomb Court. It is a front-line policy in the war

against drugs that is run by dedicated laypersons, not

constitutional scholars. If a writ is not issued, and the

Supreme Court of Virginia’s decision is allowed to stand,

many good works that have been accomplished in that

neighborhood in the past four years will have been for

naught. As crime levels again begin to increase,”° this should

not be allowed to occur.

See Michael Hardy, Crime Rate Up 2.3 Percent in VA: Reported Rise

Reverses Decade of Steady Drops, Richmond Times-Dispatch, July 12,

2002, at B2.

21

Respectfully submitted:

John A. Rupp (V.S.B. No. 15475)

City Attorney

Norman B. Sales (V.S.B. No. 23408)

Senior Assistant City Attorney

City Hall, Room 300

900 East Broad Street

Richmond, VA 23219

(804) 646-7940

Counsel for Amicus Curiae City of Richmond, Virginia

William G. Broaddus (V.S.B. No. 05284)

*(Counsel of Record)

Jonathan T. Blank (V.S.B. No. 38487)

William H. Baxter II (V.S.B. No. 42587)

Godfrey T. Pinn, Jr. (V.S.B. No. 43106)

McGuireWoods LLP

One James Center

901 East Cary Street

Richmond, VA 23219

(804) 775-1000

Counsel for Amicus Curiae Richmond Redevelopment and

Housing Authority