# Amicus Curiae Brief — Virginia v. Hicks

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0601%3A14

## Record

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

## Text

~~
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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

,

A |

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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
ATER CF ATRIFUIEEING cc cccccccsccescsccscccccssccccees 15
EE iaitbitstdcnnidanneeessgninersesiecsansendassiasconses 17

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0601%3A14. Public record. Not legal advice.