Amicus Curiae Brief — Virginia v. Hicks

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No. 02-371 ~

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In The | WRT - 03

Supreme Court of the United States |

COMMONWEALTH OF VIRGINIA,

Appellant,

v.

KEVIN LAMONT HICKS,

Appellee.

ON GRANT OF 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

APPELLANT’S BRIEF ON THE MERITS

John A. Rupp, City Attorney

Norman B. Sales, 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*

Jonathan T. Blank

William H. Baxter II

Godfrey T. Pinn, Jr.

McGuireWoods LLP

One James Center

901 E. Cary Street

Richmond, VA 23219-4030

(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

,

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TABLE OF CONTENTS

Fee Ee Fie COIN Ie voce vesssccsosiccosessessscnccveses ill

STATEMENT OF INTEREST OF AMICI..................00 l

TIT denidindidtsidenieuninneumssansenedsensinnounensin 3

STATEMENT OF ADDITIONAL

ne SE siinidatnesinniececenssssvecssisevsiondss 4

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1. This Court should reverse the decision below

and enter final judgment for the Commonwealth

because public housing authorities have

discretion to fight drug-related and other

criminal activities in their neighborhoods and

because Kevin Hicks, who was not engaged in ~

expressive conduct at the time of his arrest,

lacked standing to challenge the trespass-

barment policy on overbreadth grounds............... 17

II. This Court should also reverse the decision

below and enter final judgment for the

Commonwealth because any alleged

overbreadth in the trespass-barment policy

was neither real nor substantial in light of the

policy’s legitimate SWEEP.............cceeeeeeeeeeeeeers 22

II]. This Court should also reverse the judgment

below and enter final judgment for the

Commonwealth because privatized sidewalks

and streets owned by a local housing authority

constitute a non-public foruM..................00ee eee 25

CONCLUSION

TABLE OF AUTHORITIES

FEDERAL CASES

Aiello v. City of Wilmington,

IGS DEED cccccccccccscccccccccsscccsccese 20

vil Liberti a

Las Vegas, 13 F. Supp. 2d 1064 (D. Nev. 1998),

appeal dismissed, 1999 U.S. App. LEXIS 6700

EE diindnidiconessenccceescsccssesceccecen 25

Brecheisen v. Mondragon, 833 F.2d 238

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

TT cidiincnducccoscecascccccccccoccocoe sees 19

Brister v. Faulkner, 214 F.3d 675 (Sth Cir.),

cert. denied, 531 U.S. 985 (2000).................ccccee ees 27

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

Champagne v. Gintick, 871 F. Supp. 1527

EE EE 22

Daniel v. City of Tampa, 843 F. Supp. 1445

(M.D. Fla. 1993), aff'd, 38 F.3d 546

(11th Cir. 1994), cert. denied,

EEE 27-29

ousi velopment

v. Rucker, 122 S. Ct. 1230 (2002) ...............60. passim

‘ Vv ounty Bo

of County Commissioners, 32 F.3d 1436

te cinnnccadtcnccenceseccevecceccesees 20

Fisher v. Coleman, 639 F.2d 191 (4th Cir. 1981)............ 21

iV

Gormley v. Director, 632 F.2d 938 (2d Cir.),

cert. denied, 449 U.S. 1023 (1980).......cccccccccceeeeee. 24

Greer v. Spock, 424 U.S. 828 (1976)......-ccccccccccceeeeecee 26

Haig v. Agee, 453 U.S. 280 (1981)......oecccccccccceeecceeee 19

Hawkins v. City and County of Denver,

170 F.3d 1281 (10th Cir.), cert. denied,

Sane ee Gee Ci cictntenictineneieicieceeisinenetesceeneedt 25-27

Khademi v. South Orange County Community

College District, 194 F. Supp. 2d 1011

a SE icitetiinieidiineiidcidnaiaets Rakes oe 24

Lovell v. City of Griffin, 303 U.S. 444 (1938)........0.0.... 21

Members of the City Council v. Taxpayers for

Vincent, 466 U.S. 789 (1984)... 0... cece cee eee ee passim

New York v. Ferber, 458 U.S. 747 (1982)........... 20, 23, 25

i izati Vv

Richmond Redevelopment and Housing

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

aff'd, 1991 WL 230214 (4th Cir. Nov. 8, 1991)......18, 24

_ v. First Judicial District C

Fee Fe OOO GP Ge BD occcccccccveseccccescccesecseens 26

Thompson v. Ashe, 250 F.3d 399 (6th Cir. 2001)....... 26, 29

Thorburn v. Austin, 231 F.3d 1114 (8th Cir. 2000).......... 23

United States v. Bader, 698 F.2d 553 (ist Cir. 1983)........ 22

United States v. Gilbert, 130 F.3d 1458

(11th Cir. 1997), cert. denied,

SID UD. BGTB (ISTE. ccccccccecccccccccccccccscvccccccscoces 27

United States v. Gilbert, 813 F.2d 1523 (9th Cir.),

cert. denied, 484 U.S. 860 (1987)...............cccceeeeees 20

United States v. Kokinda, 497 U.S. 720 (1990)............... 25

Watchtower Bible a t

Inc. v. Village of Stratton, 122 S. Ct. 2080 (2002)...... 30

STATE CASES

Commonwealth v. Moyer, 35 Pa. D. & C. 3d 475

(Pa. Ct. Common Pleas 1984).................ceeceeeeeeeees 22

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

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

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

vacated in part, 563 S.E.2d 674 (Va. 2002),

pet. for cert. granted, 123 S. Ct. 990 (2003)....... passim

People in Interest of J.M., 768 P.2d 219

Wale. 19GDP....0cccvesccccesesvcsessccessnssesesenenesoososens 22

v. , 768 N.E.2d 817 (Ill. App. Ct.),

appeal denied, 2002 Ill. LEXIS 1208

(TID. Oct. 2, 2002).........0.ceececeeceeeeceesersceseereneeeees 25

State v. Bouye, 484 S.E.2d 461 (S.C.), cert. denied,

$22 U.S. B22 (IGG )......ccccccccoccsccccscccccccccccvceseesses 23

State v. Woodworth, 234 N.W.2d 243 (N.D. 1975).........- 25

vi

Trushin v. State, 384 So. 2d 668

(Fla. Dist. Ct. App. 1980), approved,

a es Se OE WE ccsiccistenestnsacsisccccncnseaie: 25

FEDERAL RULES

Supreme Court of the United States Rule 37.3(a).............. l

Supreme Court of the United States Rule 37.6................. l

STATE STATUTES

Va. Code Ann. § 15.2-2006 haddunadssionibedduccnsansseasicit 1-2, 11

ee I iciciiniciniiadennietbidaninedeonans 7,13

MISCELLANEOUS

Charter of the City of Richmond, § 2.03(a).............. 1-2, 11

Charter of the City of Richmond, § 2.04................. 1-2, 11

STATEMENT OF INTEREST OF AMICI

The City of Richmond (“City” or “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.

Created by Richmond City Council in 1940,

Richmond Redevelopment and Housing Authority

(“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

' In accordance with Supreme Court Rule 37.6, amici hereby represent

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

no person or entity other than amici has made any monetary contribution

to the preparation or submission of this brief. The parties’ written

consents are accompanying this brief pursuant to Rule 37 .3(a).

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.

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

the City of Richmond. Through its approximately 350

employees, RRHA manages over 4,000 public housing units

in the City and provides subsidized housing in over 2,700 of

these units. In all, RRHA serves approximately 12,000

public hesing residents, and its programs directly serve and

benefit over 33,000 Richmonders.

RRHA, in conjunction with City officials, formulated

the trespass-barment policy for its communities as part of an

ongoing front-line effort to nd 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.

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

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.

INTRODUCTION

A deadly mix of drugs and guns on or near several of

RRHA’s public housing communities mandated that RRHA

and the City act to protect RRHA’s tenants. The

overwhelming majority of tenants in these neighborhoods are

African-American. Most households are single-parent and

headed by women. The presence of crime, often violent

crime brought to their streets, sidewalks, and playgrounds

from without, denies those tenants the opportunity to live in

safe communities, and to raise their families free fron fear of

violence. Most do not have the capability to relocate to safer

neighborhoods. These law-abiding citizens should not be

forced to tolerate such conditions. While such problems

with violent crime in public housing are not, and have not

been, unique to the City of Richmond. Department of

Housing and Urban Dev. v. Rucker, 122 S. Ct. 1230 (2002),

RRHA and the City could not stand by idly.

In response, RRHA devised, and Richmond City

Council, after review by other City departments, approved, a

series of measures that resulted in the privatization of streets

and sidewalks in Whitcomb Court (and eventually in other

RRHA communities)? This allowed RRHA, with the

approval and support of the City Police Department, to

implement a trespass-barment policy that reduced crime in

Whitcomb Court’ until it was stricken as overbroad by five

of the seven justices of the Supreme Court of Virginia. The

events leading to this erroneous decision are as follows:

? These concerns cross racial lines. RRHA is governed by seven

commissioners. Currently, five, as well as its Executive Director, are

African-American; two are white. Richmond City Council is composed

of nine members. Currently, six are African-American, as are the City

Manager and the City’s Chief of Police; three council members are

white.

> Whitcomb Court is the only RRHA neighborhood specifically at issue

in this appeal.

STATEMENT OF ADDITIONAL RELEVANT FACTS

The Compelling Need to Reduce Crime in Richmond

During the twelve years preceding street privatization

in Whitcomb Court under City Ordinance No. 97-181-197,

and the resulting launch of RRHA’s trespass-barment policy,

the City of Richmond was known as “the murder capital of

Virginia™ and “one of the nation’s murder capitals.”

The availability of illegal drugs was a key cause of

Richmond’s “national Murder City image.” In 1986, “crack

cocaine came to town” “selling for as little as $5 a ‘rock,””*

and homicides increased dramatically.’ Between 1986 and

1997, Richmond’s homicide rate per 100,000 people ranked

perennially among the top ten in the nation, fluctuating

between seventh place (1986)'° and second place (1994,

* Gary Robertson, For the Media: *A Feeding Frenzy’; Reaction S

Overshadowed Event, 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 2 Phenomenal

Turnaround,’ Renaissance Executive Director Says, Richmond Times-

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

’ Mark Holmberg & Jim Mason, 10 Slayings in City in First 15 Days of

97 a Bloody Beginning, Richmond Times-Dispatch, Jan. 16, 1997, at B1.

* Mark Holmberg, He Escapes Crack’s Hook and Comes Alive,

Richmond Times-Dispatch, Oct. 15, 2000, at $151.

* Crack cocaine is still a major cause of death in Richmond. Paige Akin,

2002 Homicide Rate Attributed to Drugs; r an a Third Ca t

Year’s End, Richmond Times-Dispatch, Feb. 13, 2003, at B1.

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

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

1997).'' Its rate was consistently the highest in the

Commonwealth over this same period.'

Commentators and City residents have stated various

rationales for Richmond’s ranking, the most 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.”'* This perception was supported by

empirical evidence. During January-June 1990, only 6% of

Richmonders lived in public housing, but 41% of homicides

committed in the City occurred there.'* Similarly, during

January-April 1990, a disproportionate number of robberies

(15%), rapes (17%), and aggravated assaults (24%) occurred

in public housing.'®

Richmond sought and received federal assistance

with its 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 $1.1 million grant

'' Gordon Hickey, FBI Numbers Confirm Trend; Richmond No. 2 in "94

Murder Rate, Richmond Times-Dispatch, May 22, 1995, at Al; Gordon

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

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

'? 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.

'S Gordon Hickey, Homicides Found to Occur Mostly in Housing

Projects, Richmond News Leader, Aug. 11, 1990, at 17.

'© Gordon Hickey, Violent Crime Rate Is Confirmed Higher in City

Housing Projects, Richmond News Leader, May 21, 1990, at 1.

'’ 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 — and implement a

strategy to reduce homicides in the city . . =

Despite the increased resources that were deployed to

combat these evils, violent crime and drug-related activities

continued in RRHA-managed neighborhoods. Indeed, “(t]he

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. -

This tragic situation posed serious consequences for

the law-abiding residents and tenants of public housing

developments. Recognizing their plight, RRHA and the City

worked together to convert Richmond 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

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

9, 1994, at BY.

'? Dorine Bethea, City Gets $350,000 Grant to Plan Strategy for Curbing

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

7° Mark Holmberg, First Half of "94 Sets Homicide-Rate Record,

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

' Id.

22 Carrie Johnson & Gordon Hickey, Back from the Brink; Deaths Dip as

City Takes Blight Out of Crime, Richmond Times-Dispatch, Oct. 11,

1999, at A-1.

23 Teresa Lemons, No-Trespassing Policy to Begin in Gilpin Court,

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

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; penalties”).

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 Cjty Police,

will begin prosecuting all trespassers in the

Gilpin Court public housing community .. . .

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.

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

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

(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, including Whitcomb Court.

The Need to Privatize Streets and Sidewalks

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

RRHA-owned buildings and grounds, these intruders could

avoid arrest and prosecution by simply stepping onto an

adjacent public street or sidewalk. More was needed for

RRHA to protect the health, safety, and welfare of 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 complex

be privatized. Street privatization promised to achieve the

following benefits: reduce the sale of drugs on streets and

sidewalks; hold criminals accountable for unlawful acts; cut

crime in public housing; and abolish open air drug markets.

Three days later, RRHA officials told 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.

25 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”).

The Need to Reduce Illegal Activity in Whitcomb Court

The streets of Whitcomb Court, which is home to

families living in 441 units, were among those 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 popular

venue for open air drug dealing.”’

It was a place where a drug dealer choked to death

trying to swallow packages of heroin,”® an innocent 18-year-

old woman was randomly killed when another teen fired a

.45-caliber pistol] into a passageway “[o]ut of frustration”

because “a friend had been robbed of drugs,””” children could

find guns while walking and bring them to an elementary

school,” crack rocks were found under carpets lying on the

street’' or in a housing unit “in the refrigerator next to milk

for a baby,””” assault rifles and other weapons stashed by

drug dealers were found in trashcans, and U.S. mail

delivery was temporarily halted at a time when “many

residents were expecting Social Security and other assistance

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

Dispatch, Aug. 30, 1998, at B1.

?? Battino Batts Jr., Poli nit is Forcing the Issue: Strike Force Hi

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

7* Area/State, Bag Got Stuck in Suspect’s Throat, Richmond Times-

Dispatch, Dec. 21, 1990, at B6.

? Alan Cooper, City Youth Gets 10-Year Term for ‘Recklessness’ in

Girl’s Death, Richmond News Leader, Nov. 7, 1990, at 24.

*° Robin Farmer, Two Expelled Pupils Will Return to School, Richmond

Times-Dispatch, Jan. 28, 1993, at B3.

*' Sara Oppenheim, Patrol Officer Encounters Variety on Beat; Helping

People is Policeman’s Job Incentive, Richmond Times-Dispatch, Sept. 2,

1993, at B8.

2 Area/State, Attempted Rape, Other Charges Dropped, Richmond

Times-Dispatch, Sept. 7, 1990, at BS.

*> Mark Holmberg, Raiding Trash Nets Contraband; Whitcomb Court

Cleanup Turns Up Illegal Cache of Guns, Drugs, and Cash, Richmond

Times-Dispatch, Aug. 3, 1994, at Al.

10

checks” because a postman was frightened after witnessing a

murder.”

Within Whitcomb Court, the 2300 block of Bethel

Street was especially violent — a block, where a man was

murdered while children played nearby,» major heroin and

crack cocaine suppliers set up their shops*® and dealt drugs

within 1,000 feet of an elementary school,’’ a teenager was

shot in the head while simply sitting in a car, ” angry “words

and a punch in the face” could Jead to a deadly or paralyzing

gunshot wound,’” and police might find fifty people — several

screaming — surrounding a fatality, but no witnesses. 0 The

corner of Bethel and Deforrest Streets was “the city’s most

notorious drug corner.”*' Unsurprisingly, that corner and the

2300 block of Bethel Street were included in the streets and

sidewalks of Whitcomb Court selected for privatization.

Officials from RRHA and the City further discussed

privatization efforts in March 1997. At that time, the City

police had “expressed support” for the proposed policy. It

stated that “[t]he Police Department is expected to be the

4 Gordon Hickey, Whitcomb Court Gets Mail Back but Postal Carriers

Receive No Special Police Protection, Richmond Times-Dispatch, Oct. 5,

1994, at BI.

** Mark Holmberg, Crume_Has_Cut_a_Path Through _Her Family.

Grandmother Wonders Why It Went So Wrong, Richmond Times-

Dispatch, Mar. 11, 1994, at Al.

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

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

*” Randolph 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.

*° Frank Green, Encounter among Friends Was Deadly, Richmond Times-

Dispatch, Sept. 13, 1991, at B11.

Area/State, South Si ill

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

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

Dispatch, May 2, 1994, at Al.

1]

primary enforcement unit that will issue summons [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.

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

RRHA-owned private property.”

The City Planning Commission unanimously voted to

recommend approval of the closing of public rights-of-way

in Whitcomb Court after a public hearing in May 1997. On

May 12, 1997, after a public hearing, City Council adopted

Ordinance No. 97-143-124, which privatized the interior

streets and sidewalks in Whitcomb Court, according to its

powers under Va. Code Ann. § 15.2-2006, and §§ 2.03(a)

and 2.04 of the City Charter. A newspaper editorial lauded

the decision,‘ * noting that it would make

it easier to rid projects of criminals — often

outsiders — preying on law-abiding residents

* Gordon Hickey, Roads Plan Aimed at Curbing Crime, Richmond

Times-Dispatch, May 6, 1997, at B3.

” Editorial, The Streets, Richmond Times- -Dispatch, May 17, 1997, at

A6. See generally Editorial, In Good Hands, Richmond Times-Dispatch,

Mar. 17, 1998, at A10.

12

and transforming what should be peaceable

habitations into combat zones.

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. Similar ordinances privatizing

streets in other RRHA-managed neighborhoods followed.

The City rev ounced 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 would subject them to arrest.

The Success 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 impemented.“

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

“ 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.

13

This notable reduction was a contributing cause to a general

trend in Richmond, where the number of homicides (160 in

1994)*° — dropped from 94 in 1998 to 69 in 2001 — the

lowest total in the city since 1983.”

Hicks’ Legal Challenge to the Trespass-Barment Policy

Under this policy, Kevin Lamont Hicks was arrested

twice in 1998 for trespassing in Whitcomb Court, and a third

time for damaging property in Whitcomb Court. Hicks was

barred from Whitcomb Court (and all other RRHA property)

on April 14, 1998. He signed the written barment notice that

was served on him on that date. That notice plainly stated

that he was not to trespass on RRHA property, and that if he

did so in the future, he would be subject to arrest. The notice

also recited the following excerpt from Virginia’s criminal

trespass statute, Va. Code Ann. § 18.2-119:

‘If any person without authority of law goes

upon or remains upon the lands, buildings,

or premises of another, or any part, portion

or area thereof, after having been forbidden

to do so, either orally or in writing by the

owner, lessee, custodian, or other person

lawfully in charge thereof, or after having

forbidden to do so by a sign or signs posted .

. on such lands, buildings, premises or

portion of area thereof at a place or places

where it may be reasonably seen . . . he

and/or she shall be guilty of a Class |

Misdemeanor.’

* Evelyn V. McGill, Letter, i

Richmond Times-Dispatch, Sept. 20, 2001, at A20.

“ Jim Mason, Homicide Rate Drops: Toll of 69 «

eo

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. Hicks was

convicted in general district court. That conviction was later

affirmed by the Circuit Court for the City of Richmond, and

by a divided three-judge panel of the Court of Appeals of

Virginia in a decision reported at 535 S.E.2d 678 (2000).

The Court of Appeals of Virginia, sitting en banc,

reversed Hicks’ conviction in a 6-5 decision reported at 548

S.E.2d 249 (2001), because the majority concluded that

RRHA’s trespass-barment policy was unconstitutional. In a

5-2 decision, the Supreme Court of Virginia affirmed that

conclusion on the “narrow basis” that the trespass-barment

policy was overbroad in violation of the First Amendment.

Commonwealth v. Hicks, 563 S.E.2d 674 (2002). Two

dissenting justices believed that the trespass-barment policy

did not target First Amendment activity, that Hicks was not

engaged in expressive conduct at the time of his arrest, and

that the policy was valid because it sought “to create a safe,

drug-free environment for the residents of Whitcomb Court.”

563 S.E.2d at 685 (Kinser & Lemons, JJ., dissenting).

Ominous Evidence that Crime Is on the Rise

Despite the past success of law enforcement efforts,

violent crime has increased in the months following the

Supreme Court of Virginia’s decision below. In 2002, the

number of homicides in the City increased 20% from seventy

to eighty-four. Twenty-nine (35%) of these murders

occurred in November—-December.*’

“ Mark Holmberg,

Killings Rise in Richmond; Spike in Homicides

Comes as Solved Cases Drop, Richmond Times-Dispatch, Jan. 3, 2003, at

Al.

cm

15

Unfortunately, Whitcomb Court is not immune from

these trends. In September 2002, 12 man was found dead in a

car parked on Whitcomb Street.“* Later that month, a teen

shot another teen in the back on Ambrose Street.*”? A woman

who helped the victim lamented that “‘we have to see young

kids like him struggling for their lives because of dope.”

Open-air drug markets have returned to Whitcomb

Court. Heroin is widely known to be available on Deforrest

Street, crack cocaine on Ambrose Street, and marijuana on

Bethel Street. When trespassers and other criminals see the

police approach, they do, in fact, step onto the sidewalks and

into the streets as they did before the trespass-barment policy

was effected in 1997, thereby avoiding prosecution. They do

not fear arrest or reprisal because of the decision below.

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 at least three principal areas.

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 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.

“ Area/State, Police Identify Shooting Victim, Richmond Times-

Dispatch, Sept. 11, 2002, at BB.

” Area/State, Teen Charged with Shooting Another, Richmond Times-

Dispatch, Sept. 18, 2002, at B4.

* Jim Mason, Teenager Is Shot, Critically Wounded, Richmond Times-

Dispatch, Sept. 17, 2002, at B7 (citation omitted).

16

On each occasion, he was found guilty, but his sentence was

suspended. Hicks was banned from RRHA properties in

April 1998 for these and other offenses. Because Hicks’

conduct falls squarely within the non-protected conduct

proscribed by the trespass-barment policy, he lacked

standing to raise an overbreadth argument.

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,

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

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

trespass-barment policy was adopted to meet tenant concerns

about criminal acts committed by outsiders in public

housing. It was not directed at limiting First Amendment

activities, and there was no evidence that it has 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 for one of his children.

This conduct was not entitled to any First Amendment

protection. Hicks, 563 S.E.2d at 683-85 (Kinser & 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

that the government can adopt content-neutral restrictions on

speech in a non-public forum so long as those limitations are

reasonable. Whitcomb Court was clearly a non-public forum

when its streets and sidewalks were privatized, the “No

Trespassing” signs were erected, and the trespass-barment

policy went into effect - all of which occurred before Hicks

barment from that forum and arrest.

17

ARGUMENT

I. This Court should reverse the decision below and

enter final judgment for the Commonwealth

because public housing authorities have discretion

to fight drug-related and other criminal activities

in their neighborhoods and because Kevin Hicks,

who was not engaged in expressive conduct at the

time of his arrest, lacked standing to challenge the

trespass-barment policy on overbreadth grounds.

At the federal level, as this Court has recognized,

Congress has acknowledged that drug dealers are

“increasingly imposing a reign of terror on public and other

federally assisted low-income tenants,” that “drugs lead{] to

murders, muggings, and other forms of violence against

tenants, and . . . deterioration of the physical environment” in

which they live, and that persons have a right to live, and to

raise their families, in “public and other federally assisted

low-income housing that is decent, safe, and free from illegal

drugs.” Rucker, 122 S. Ct. at 1232, 1235 (internal quotation

marks and citations omitted).

These concerns motivated Chief Justice Rehnquist,

writing without dissent for seven other justices and himself

in Rucker, to conclude that the law affords public housing

authorities “discretion to evict tenants for the drug-related

activity of household members and guests” regardless of

whether the tenant knew about or suspected criminal acts on

the premises. 122 S. Ct. at 1233.

Unfortunately, the residents of Whitcomb Court and

other public housing developments in Richmond have for

years been exposed to the scourges of drugs that have

negatively impacted the quality of life in their

neighborhoods. Rucker, 122 S. Ct. at 1235. Indeed, more

than a decade ago, when reviewing the reasonableness of

18

RRHA’s “good faith” lease-based efforts at that time “to

improve the safety and quality of life in public housing,” and

“stem the rising tide of crime and violence,” one federal

judge found that a “widespread presence of drugs and guns”

has “created an atmosphere of fear and intimidation which

now permeates” all “Richmond public housing.” Richmond

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

Auth., 751 F. Supp. 1204, 1205 (E.D. Va. 1990), aff'd, 1991

WL 230214 (4th Cir. Nov. 8, 1991).

The concerns in Rucker and Richmond Tenants Org.

mirror those that compelled RRHA, in coordination with the

City, to seek to lower illegal drug and other criminal activity

in Whitcomb Court through a trespass-barment policy that

targeted the conduct, but not the speech, of non-residents.

Although the majority and dissent*' understood the

undeniable public safety rationale behind RRHA’s policy,

the majority wrongly concluded that Hicks could

nevertheless “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, the majority merely observed that

decisions from this Court and the Supreme Court of Virginia

have “permitted criminal defendants to assert constitutional

challenges to various ordinances in criminal prosecutions.

‘| Compare Hicks, 563 S.E.2d at 676 (“In an effort to eradicate illegal

drug activity in Whitcomb Court, which was described as an ‘open-air

drug market,’ [RRHA] sought to deny access to its property to persons

who did not have legitimate reasons to visit the housing development.

The majority of persons who had been arrested for drug crimes at the

Whitcomb Court housing development were individuals who did not live

there.”), with id., 563 S.E.2d at 685 (Kinser & Lemons, i., dissenting)

(“The undisputed purpose of the [trespass-barment) policy is to create a

safe, drug-free environment for the residents of Whitcomb Court. It

cannot be questioned . . . that the prevention of crime in public housing 1s

a legitimate governmental goal.”) (citing Rucker, 122 S. Ct. at 1232).

19

Id. (citing inter alia Lovell v. City of Griffin, 303 U.S. 444

(1938)). This erroneous perception of standing conflicts

with this Court’s recognition that only those whose rights to

speech have possibly been silenced or chilled have standing

to claim overbreadth.

It is apparent that whenever a person’s conduct “falls

within the core of the regulation” at issue, he “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)). See also Brecheisen v.

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

denied, 485 U.S. 1011 (1988) (holding 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).

In Broadrick, three public servants challenged as both

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... .’” /d. 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 that reflect legitimate

state interests in maintaining comprehensive controls over

20

harmful, constitutionally unprotected conduct.” Jd. at 615.

Notably, this Court further explained that although laws,

if too broadly worded, may deter protected

speech to some unknown extent, there

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). See also Members of the City Council

v. Taxpayers for Vincent, 466 U.S. 789, 799 (1984) (citing

favorably this principle); Ferber, 458 U.S. at 770 (same).

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

As noted supra, Hicks had been convicted on multiple prior

occasions for trespassing in Whitcomb Court. He was

ultimately barred from that community, and all other RRHA

neighborhoods, on that basis. Moreover, the state trial court

judge who first tried Hicks had ordered him in open court not

to return onto RRHA property. Rather than heed these legal

directives, Hicks proceeded to trespass again in Whitcomb

Court. When he was stopped and questioned by a policeman

who knew about Hicks’ barnient, he indicated that he was

delivering diapers, not engaging in protected speech. Hicks,

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

*2 See also New York v. Ferber, 458 U.S. 747, 770 (1982); Dodger’s Bar

& Grill, Inc. v. Johnson County Bd. of County Comm'rs, 32 F.3d 1436,

1442-43 (10th Cir. 1994) (expressive conduct was too attenuated for First

Amendment protection); United States v. Gilbert, 813 F.2d 1523, 1530-31

(9th Cir.), cert. denied, 484 U.S. 860 (1987) (no overbreadth where

“possibility of the statute’s reach into substantial, impermissive, protected

activity appears remote”) (quotation at 1531), overruled in part on other

grounds, United States v. Hanna, 293 F.3d 1080 (9th Cir. 2002); Aiello v.

City of Wilmington, 623 F.2d 845, 852-56 (3d Cir. 1980).

21

Hick’s conduct at the time of his arrest was clearly

not subject to any First Amendment protections, and did not

afford him any basis to raise a facial overbreadth challenge

below. Broadrick, 413 U.S. at 612 (“{O]verbreadth claims, if

entertained at all, have been curtailed when invoked against

ordinary criminal laws that are sought to be applied to

protected conduct.”). RRHA’s trespass-barment policy was

clearly designed to help eliminate crime and reduce drug-

related activity in public housing, not to chill any forms of

protected speech. it is equally clear that Hicks’ “undisputed

conduct . . . fell clearly within the challenged” RRHA policy.

Cf. Fisher v. Coleman, 639 F.2d 191, 192 (4th Cir. 1981) (per

curiam) (affirming that defendant’s fifty-nine convictions in

roughly two years for public drunkenness did not confer

standing to challenge alleged overbreadth of statute

prohibiting sale of alcohol to a “habitual drunkard”).

The majority’s citation below to Lovell in conferring

standing on Hicks was misplaced. In Lovell, this Court

invalidated an ordinance that sought to bar the distribution of

““circulars, handbooks, advertising, or literature of any

kind’” without a permit. 303 U.S. at 447, 450-52 (quotation

at 450). That ruling has no bearing when, as here, the

conduct being proscribed (trespassing and criminal activity,

including drug-related activity) does not chill speech.

Because Hicks knew that he had been banned from

RRHA properties, never appealed or challenged his barment,

and then proceeded to trespass in Whitcomb Court on private

property after he had been warned not to do so, his conduct

unequivocally fell within the scope of the trespass-barment

policy, and the Supreme Court of Virginia erred by not

denying his overbreadth challenge ab initio for lack of

standing.

22

Il. This Court should also reverse the decision below

and enter final judgment for the Commonwealth

because any alleged overbreadth in the trespass-

barment policy was neither real nor substantial in

light of the policy’s legitimate sweep.

Assuming arguendo that Hicks had standing to raise

an overbreadth challenge, the majority below erred through

its refusal to recognize that RRHA’s trespass-barment policy

bars conduct, not speech. Thus, the trespass-barment policy

could only be stricken as overbroad if the overbreadth was

both real and substantial. Broadrick, 413 U.S. at 615 (noting

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”). Because Hicks offered no evidence of

real or substantial overbreadth, the decision below should not

stand.

It is readily apparent that a policy designed to reduce

trespassing, and drug-related and other criminal activities, is

one that reaches conduct, not speech. See, e.g., United States

v. Bader, 698 F.2d 553, 556 (1st Cir. 1983) (regulation of

disorderly conduct did not target speech); Champagne v.

Gintick, 871 F. Supp. 1527, 1533 (D. Conn. 1994) (anti-

stalking law only prohibited conduct); People in Interest of

J.M., 768 P.2d 219, 224 (Colo. 1989) (juvenile curfew law

regulated conduct); Commonwealth v. Moyer, 35 Pa. D. &

C.3d 475, 488 (Pa. Ct. Common Pleas 1984) (noise law

directed towards conduct, not communication). Thus, when

conduct is primarily involved, a policy is not made

overbroad because it can theoretically be extended to include

speech. Taxpayers for Vincent, 466 U.S. at 800 (“It is clear .

. that the mere fact that one can conceive of some

impermissible applications of a statute is not sufficient to

render it susceptible to an overbreadth challenge.”) (internal

footnote omitted).

23

Moreover, this Court confirmed in Ferber that it has

‘repeatedly expressed its reluctance to strike

down a statute on its face where there were a

substantial number of situations to which it

might be validly applied’... . ‘[T]he

presumption must be that only substantially

overbroad laws set up the kind and degree of

chill that is judicially cognizable.’

Moreover, ‘[without] a substantial

overbreadth limitation, review for

overbreadth would be draconian indeed. It

is difficult to think of a law that is utterly

devoid of potential for unconstitutionality in

some conceivable application.’

458 U.S. at 770 n.25 & 772 n.27 (citations omitted). It also

verified that “substantial overbreadth” can only arise if a law

or policy reaches “‘a substantial number of impermissible

applications ....’” Jd. at 771.

Here, Hicks had the burden to show that the trespass-

barment policy was “substantially overbroad” — i.e., Hicks

had to demonstrate that there is “a realistic danger that the

[trespass-barment policy] itself will significantly

compromise recognized First Amendment protections of

parties not before the Court for it to be facially challenged on

overbreadth grounds.” Taxpayers for Vincent, 466 U.S. at

801. See also Thorburn v. Austin, 231 F.3d 1114, 1121-22

(8th Cir. 2000) (no such danger in law prohibiting targeted

picketing against specific person); State v. Bouye, 484

S.E.2d 461, 465 (S.C.), cert. denied, 522 U.S. 822 (1997).

But the realistic danger here arises not from the

trespass-barment policy itself, but by its absence. For years,

tenants in Whitcomb Court and other neighborhoods were

24

“victims of an extraordinarily high incidence of crime, much

of which is connected to illegal drug traffic.” Richmond

Tenants Org., 751 F. Supp. at 1207. 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 violent conditions in Whitcomb

Court and other RRHA_ neighborhoods justified

implementation of the policy. See supra text accompanying

n.51. See also 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)).

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.

During his criminal proceedings, Hicks offered no witnesses

to establish that anyone had refused to come into Whitcomb

Court for fear of arrest or prosecution™ under the policy.

Simply stated, Hicks utterly failed his burden to show

that the trespass-barment policy was chilling or prohibiting

any protected, or arguably protected, speech. This is fatal to

his overbreadth claim. Taxpayers for Vincent, 466 U.S. at

801 (no overbreadth in part due to lack of evidence of impact

on third parties).

3 See generally Gormley v. Director, 632 F.2d 93g, 942 (2d Cir.), cert

denied, 449 U.S. 1023 (1980) (“The risk that the statute will chill people

from. . . the exercise of free speech is remote. The evil against which

the statute is directed is both real and ugly.”).

** 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 arrested after being both warned and barred.

25

Because criminal conduct is not entitled to any First

Amendment protections,”° and because this appeal presents a

“paradigmatic case of a [policy] whose legitimate reach

dwarfs its arguably impermissible applications,” this Court

should reverse the error below and enter final judgment for

the Commonwealth. Ferber, 458 U.S. at 773.

Ill. This Court should also reverse the decision below

and enter final judgment for the Commonwealth

because privatized sidewalks and streets owned by

a local housing authority constitute a non-public

forum.

Although the Supreme Court of Virginia held that the

trespass-barment policy was overbroad in violation of the

First Amendment, the majority did not consider whether the

privatized streets and sidewalks of Whitcomb Court are

public or non-public fora.*° Instead, it vacated that portion

of the Court of Appeals’ decision below without addressing

that issue. Hicks, 563 S.E.2d at 681.

> See, e.g., Trushin v. State, 384 So. 2d 668, 674 (Fla. Dist. Ct. App.

1980), approved, 425 So. 2d 1126 (Fla. 1982) (no substantial overbreadth

where law “confined to non-protected, clearly criminal conduct”); People

v. Jamesson, 768 N.E.2d 817, 824 (Ill. App. Ct.), appeal denied, 2002 II.

LEXIS 1208 (Ill. Oct. 2, 2002) (unlawful contact with street gang

members not protected by First Amendment); State v. Woodworth, 234

N.W.2d 243, 250 (N.D. 1975) (no substantial overbreadth where law

“intended to regulate conduct which threatens the public peace”).

*° The mere fact that Hicks was arrested on a sidewalk is not dispositive

of this issue. United States v. Kokinda, 497 U.S. 720, 727-29 (1990)

(sidewalk from a parking lot to a post office was a non-public forum);

Hawkins v. City a ounty of Denver, 170 F.3d 1281, 1287 (10th Cir.),

cert. denied, 528 U.S. 871 (1999) (pedestrian walkway not generally

utilized “as a throughway to another destination” was non-public forum);

American Civil Liberties Union v. City of Las Vegas, 13 F. Supp. 2d

1064, 1074 n.2 (D. Nev. 1998), appeal dismissed, 1999 U.S. App. LEXIS

6700 (9th Cir. Feb. 4, 1999) (“[N]ot all public sidewalks are traditional

public fora.”) (citing inter alia Kokinda).

26

Assuming arguendo that the trespass-barment policy

can be properly subjected to a First Amendment overbreadth

challenge,”’ the majority below erred in subjecting the policy

to a strict scrutiny analysis because Hicks was in a non-

public forum at the time he was arrested under a policy that

was both reasonably related to the purpose of that forum and

viewpoint-neutral. This conclusion is compelled by

principles that are firmly rooted in decisions of this Court.

First, “‘the First Amendment does not guarantee

access to government property simply because it is owned or

controlled by the government.”” Taxpayers for Vincent, 466

US. at 814 (citation omitted). See a/so Sammartano v. First

Judicial Dist. Court, 303 F.3d 959, 966 (9th Cir. 2002)

(“*[N]ot all publicly owned property becomes a public forum

simply because the public is permitted to come and go at the

site”) (citation omitted); Hawkins, 170 F.3d at 1287.

Second, ““[t]he State, no less than a private owner of

property, has power to preserve the property under its control

for the use to which it is lawfully dedicated.” Greer v.

Spock, 424 U.S. 828, 836 (1976) (quoting Adderley v.

Florida, 385 U.S. 39, 47 (1966)).

Third, the government can put persons on notice of a

non-public forum by erecting some sort of “indication . . .

The dissenting justices on the Supreme Court of Virginia analyzed the

trespass-barment policy under the Fourteenth Amendment, not the First

Amendment, because the policy “does not directly regulate activity

protected by the First Amendment” and because Hicks “was not engaged

in speech or expressive” conduct when arrested. Hicks, 563 S.E.2d at

682, 684 (Kinser & Lemons, JJ., dissenting). See also Thompson v.

Ashe, 250 F.3d 399, 407 (6th Cir. 2001) (“Because the no-trespass policy

does not implicate any fundamental right, we review it under the rational

basis standard.”).

27

that they have entered some special type of enclave.”

Grace, 461 U.S. at 180.

Here, by prominently erecting “No Trespassing”

signs “every 100 feet” along these very streets and

sidewalks, RRHA put all on notice that Whitcomb Court and

its streets and sidewalks were now “private property . . .

owned by RRHA” and that “[u}nauthorized persons will be

subject to arrest and prosecution.” Hicks, 563 S.E.2d at 676.

Those signs gave prominent notice that Whitcomb Court was

a non-public forum, and were clearly visible to Hicks when

he was arrested.

Arguably, RRHA did not have to privatize the streets

and sidewalks in order to effect its trespass-barment policy.

In Daniel v. City of Tampa, 843 F. Supp. 1445 (M.D. Fla.

1993), aff'd, 38 F.3d 546 (11th Cir. 1994), cert. denied, 515

U.S. 1132 (1995), a case squarely on point with Hicks, the

United States Court of Appeals for the Eleventh Circuit

upheld the Tampa Housing Authority’s trespass-barment

policy against someone clearly engaging in expressive

conduct (unlike Hicks) without any finding that the streets or

sidewalks in Tampa public housing had been privatized

(unlike Hicks).

Like RRHA, the Tampa Housing Authority had used

a trespass-barment policy “to deter drug transactions” in

areas known to “have a history of drug problems.” 843 F.

Supp. at 1446. Plaintiff had been arrested three times in two

years for trespassing in public housing properties to

distribute leaflets and post signs. /d. at 1447. He ultimately

challenged the trespass-barment policy on _ various

** See also Brister v. Faulkner, 214 F.3d 675, 682 (Sth Cir.), cert. denied,

531 U.S. 985 (2000) (public forum where no indicia present); Hawkins,

170 F.3d at 1287; United States v. Gilbert, 130 F.3d 1458, 1460-61 (11th

Cir. 1997), cert. denied, 523 U.S. 1088 (1998) (non-public forum set off

by a row of planters across plaza).

28

constitutional grounds, including that it was overbroad and

violative of the First Amendment. /d. at 1446-47. The

district court rejected his arguments and entered judgment as

a matter of law for the housing authority in part because

these properties were non-public fora. Jd. at 1447. The fact

that the housing authority “never allowed non-residents to

solicit, canvass, or distribute literature on its properties, and

the lack of a formal policy forbidding this activity [did] not

amount to the designation of the property as a public forum.”

Id. Thus, strict scrutiny did not apply, and the policy easily

met the reasonableness standard because it was tied to “the

public’s compelling interest in keeping out dangerous drug

dealers,” and was not content-based in nature. /d. at.1447-48

(quotation at 1448).

The Eleventh Circuit affirmed, noting that the

official mission of the Housing Authority is

to provide safe housing for its residents, not

to supply non-residents with a place to

disseminate ideas. Further, in practice,

access to Housing Authority property is

carefully limited to lawful residents, their

invited guests, and those conducting official

business. We therefore have little difficulty

concluding that the Housing Authority

property is a nonpublic forum.

38 F.3d at 550 (citing inter alia Kokinda, 497 U.S. at 727).

Here, it is equally beyond dispute that the privatized

streets and sidewalks of Whitcomb Court are non-public fora.

Whitcomb Court does not have to be transformed into a gated

te a ee

29

° 59 eee : ”? >

community” or a “‘mental concentration camp[]’"”” in order

for this non-public status to attach. This is especially true in

light of its unique geography — it is bounded by an interstate

highway, and its interior streets and sidewalks cannot be used

as shortcuts to destinations beyond that neighborhood.

Because Hicks was not engaged in protected speech

at the time of his arrest pursuant to a trespass-barment policy

that did not chill the exercise of First Amendment rights, the

analysis in Daniel and Thompson®' shou!d control. Likewise,

this Court should reverse the erroneous ruling below, uphold

the constitutionality of RRHA’s trespass-barment policy, and

enter final judgment for the Commonwealth.

CONCLUSION

In March 2000, a city resident rhetorically asked:

“Does a child in Whitcomb Court have the same likelihood

of happiness and success as a child born anyplace else in the

U.S.? If the answer is no, we have [] work to do.”

At that time, a child being raised in Whitcomb Court

was protected in no small part by a trespass-barment policy

designed to reduce crime and to provide him or her with a

much safer environment in which to grow. This frontline

policy failed not because it chilled speech, but because the

Supreme Court of Virginia wrongly likened Hicks, who was

** Gordon Hickey, Richmond to Get illion for Poli

Bill; 18 New Officers Financed for Three Years, Richmond Times-

Dispatch, Oct. 11, 1994, at B3 (observing that this concept was once

considered).

* Lea Setegn, Where Will They Go? Planned Public Housing Losses

Worry Residents, Richmond Times-Dispatch, May 13, 2002, at Al

(citation omitted).

*' See supra text accompanying n.57.

® Robin Farmer, Candidates Have a Parental View, Richmond Times-

Dispatch, Mar. 22, 2000, at B6.

30

delivering diapers, to someone who was engaged in “door-

to-door canvassing and pamphleteering.” Watchtower Bible

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

Ct. 2080, 2086 (2002). This was error.

In Rucker, this Court held without dissent 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). If

the analysis below is allowed to stand, RRHA, and other

public housing authorities across the United States, will lose

that discretion, and the ability to help protect tenants from

deadly external forces. This should not be allowed to occur.

For the reasons discussed above, and for the reasons

explained by the Commonwealth and other supporting amici

in their briefs, this Court should reverse the decision below

by the Supreme Court of Virginia, and enter final judgment

for the Commonwealth.

3]

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