# Amicus Curiae Brief — Virginia v. Hicks

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0601%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 539 U.S. 113

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0601%3A05. Public record. Not legal advice.