Amicus Curiae Brief — Virginia v. Hicks

No. 02-371

APR 4

IN THE

Supreme Court of the United States

OCTOBER TERM. 2002

>

COMMONWEALTH OF VIRGINIA,

Petitioner.

KEVIN LAMONT HICKS.

Respondent.

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF VIRGINIA

BRIEF AMICI CURIAE OF THE AMERICAN CIVIL LIBERTIES

UNION, THE ACLU OF VIRGINIA, AND THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF RESPONDENT

Rebecca Glenberg Mark J. Lopez

ACLU FOUNDATION OF VIRGINIA (Counsel of Record)

6 N. 6th Street Steven R. Shapiro

Suite 400 AMERICAN CIVIL LIBERTIES

Richmond, Virginia 23219 UNION FOUNDATION. INC.

(804) 644-8022 125 Broad Street

New York. New York 10004

David M. Porter (212) 549-2500

(Counsel of Record)

National Association of Criminal

Defense Lawyers

1150 18th Street, N.W.

Suite 950

Washington, DC 20036

(202) 872-8600

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

TARE GE AUTH ED cecccecesescccsecscvececsescsrsesees lll

Fs ne 1

STATEMENT OF THE CASE.........crccccovoscscesssssssers 1

SUMMARY OF ARGUMENT ............ccceeceeeeeeeees 7

EET EEE 10

I. The Streets and Sidewalks Running Through

And Around Whitcomb Court are Traditional

TIT cticisiaiieciditiismeniiiiaiiainianidiiiianienmmemnneneen .10

A. Whitcomb Court is a Residential

Neighborhood Anchored by the Types of

Streets and Sidewalks that this Court has

Defined as a Public Forum in Frisby v.

RIESE SEEING Nev en eee a 10

B. The Streets in Whitcomb Court Continue to

Have the Objective Attnbutes of a Public

Forum Despite the Housing Authority’s

Adoption of a No Trespass Policy. .............. 13

Page

II. The RRHA Trespass Policy Arbitrarily

Excludes Individuals From Traditional Public

Fora in Violation of the Due Process

0 En ee 17

A. The Challenged Policy Violates the Right

To Travel Freely on the Public Streets.......... .. 17

B. The Policy is Void for Vagueness................. .. 19

III. Even When the Housing Authority Acts in its

Proprietary Capacity, its Trespass Policy is

Unreasonable Because it Arbitrarily Prevents

- Hicks and Others From Engaging in the

Fundamental Right of Intimate Association... 24

A. The Constitution Clearly Protects Hick’s

Right of Intimate Association from Undue

Intrusion by the Housing Authority............. .. 24

B. The Housing Authority’s “No Trespass”

Policy Unreasonably Interferes With

Intimate Family Associations.................:0008 « 25

CONC LIUBIOIN 2200sccccececesecceecesesesteenssnsounnsinnnennnnnnnnn 29

il

TABLE OF AUTHORITIES

Cases

Page

Amalgamated Food Employees

Union v. Logan Valley Plaza,

ee 11

Arbee v. Collins,

463 S.E.2d 922 (Ga. Ct. App. 1995) .0......eeeccceeceeseeeeeeeees 27

Arkansas Educational Television Commission v. Forbes,

a rccnnrrenensensneneaes 14

Board of Airport Comm'rs v. Jews for Jesus, Inc.,

a iadeielantiniebaipbhinecneens 26

Boos v. Barry,

I ceremeneeay 1]

Cantwell v. Connecticut,

EEE 19

Carey v. Brown, 447 U.S. 455 (1980) .0......0..cccccccceseeeeeeeeeees 12

Carey v. Population Servs. Int'l,

EE 24

Central Bus. Coll. Co. v. Rutherford,

Ee 27

Chicago v. Morales,

Ee 7, 8,9, 18

Civil Rights Cases,

EE 18

ill

Page

Coates v. City of Cincinnati,

a ee Ce icissitnrniastainnsinsisniiecinahitniinlinetaciiitaiipeiisaniticeenaciaaiad 22

Cox v. Louisiana,

es SUT csinsssinneeiniieitisiiiitnbaaniaatiniieialdataehiaaiiemaaipaanaal 21

Denver Area Educational Telecommunications Consortium

Inc. v. Federal Communications Commission,

ee 14

Evans v. Newton,

Ss MUTT ic nsnscrnsssicriieiainessanisiansiibiiniantiadiadecibasatieeaialammanani 14

Frisby v. Schultz,

I ey I arinttencniicericnsineiniinseiemmpnineliininiaeertmees passim

Gordon County Broad. Co. v. Chitwood,

og | > pC area 27

Gregory v. City of Chicago,

ts Ce ITI atic ciecieeatiataietieianiinestinsttieidapaiijidhanieenianatiaana 12

Hague v. CIO, 307 U.S. 496 (1939)...........0000. 1,9, 11, 14,19

Heffron v. International Society for Krishna

Consciousness,

TIT icciisitissiindiiadinmsniadmiiusiiiitibeans aaiietd 12, 13, 26

Hudgens v. NLRB,

re I CI iinrnti snicker iesnseetaiiiiaidhianitlameiiainciaaal 11

International Soc 'y for Krishna

Consciousness, Inc. v. Lee,

en passim

iv

Page

Johnson v. City of Cincinati,

gS Oe 18, 19

Kent v. Dulles, !

ee es I icnsieniiieteriatisciiiniiiasinciilataniciaaaiaaaliaaa 17

Kolender v. Lawson,

Sy ME UTI iscnsrsiinsiitibitaintitiiiintindaimaiiamataiiaaiail 18, 20, 23

Konick v. Champneys,

a I SI ciicrciiaciicaatieicantahiecaiicaataictaiatad 27

Lebron v. National Railroad Passenger Corp.,

ns are iicciresniainnictenianinnsiianiasitsinnteniinsiatnisiatamaiteaiied 14

Marsh v. Alabama,

es I ictninierinsinianaiiniaititnaitiieiltpaiaaiaiesaiiitaiaialbai 14

Meyer v. Nebraska,

NL iittala lait 24

Moore v. City of East Cleveland,

re ee ee iccatninnitndaenintiennniaininsinmninmcaneinias 24

Palmer v. City of Euclid,

re: ITE crsencutsnsisinicnentesnianeimnieenneidiiantitenaiaiadl 21

Papachristou v. City of Jacksonville,

Rs SU cicsestterstinenitntiensatinninnaniisneseninnies 18, 20, 22, 23

Perry Educational Ass'n v. Perry Local Educator's Ass'n,

es ae ee cisriirricrinichsiiniiticnictiicinaiitrintinsacintiiasiadiaatiiniaiiaeaatil 9

Pierce v. Society of Sisters,

ee SE inictrrncarerusentnnnapetsinieeninteneieniiiaianiiinbaiaas 24

Vv

Roberts v. United States Jaycees,

Es Ga a intecenttretermncsnennetmemeremenes 24, 25

Shuttlesworth v. Birmingham,

es Be re Ce irntcdetentnnenenennsiemnaninnemantel 11

Shuttlesworth v. City of Birmingham,

eee 9, 18, 21

Smith v. Oranization of Foster Families,

ee 24

Southeastern Promotions, Ltd. v. Conrad,

es SE nciterrcicnntnsrentceinenmaneimnnsnemeenemmunnmensinants 14

State v. Dixon,

Fe ee TE, Ce rercreneennnncnenmemnsennienenineenseiiis 27

State v. Schaffel,

/ FR tp, .: | hf 27

Thornhill v. Alabama,

A 21, 23

Tucker v. State of Texas,

RE 12

United States v. Grace,

Ey I SUED ITT isoiiccsasinicinprainetsatatianninnenieiidiiniaeniianns 13

United States v. Kokinda,

ge Esra 16, 25, 26

Watchtower Bible and Tract Society v. Village of Stratton,

en 17

Page

Williams v. Fears,

PPI initiate i 18

Zablocki v. Rehail,

eT TE 24

Other Authorities

10 AE. Mc Quillin, Law of Municiple

Corporations § 30.32 (3d ed. 1990) ooo.oocccccccccecceceseeeeeceeeees 14

39 AMJUR.2D Highways, Streets, & Bridges

EE Ee 14

Vil

INTEREST OF AMICI

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with more

than 300,000 members dedicated to the principles of liberty

and equality ernbodied in the Constitution. The ACLU of

Virginia is one of its state affiliates. Since its founding in

1920, the ACLU has vigorously defended the concept that

public streets should be open to the public, and has

articulated that position in numerous cases before this Court,

including the seminal case of Hague v. CJO, 307 U.S. 496

(1939).

The National Association of Criminal Defense

Lawyers (“NACDL”) is a non-profit corporation with more

than 10,000 members and 28,000 affiliate members

nationwide. Among the NACDL’s objectives are to promote

the proper and fair administration of justice and to ensure

due process for persons accused of crime.” To those ends,

NACDL has appeared as amicus curiae in this Court on

numerous occasions.

STATEMENT OF THE CASE

Whitcomb Court is a residential neighborhood in

Richmond, Virginia comprised of multiple low rise

apartment buildings that are neatly laid out on the city grid,

with streets and traditional curb and gutter sidewalks. Until

recently these were city owned streets. Title has since been

transferred to the Richmond Redevelopment and Housing

Authority (RRHA), which owns the apartments on the

property directly adjacent to the streets. The City continues

' Letters of consent to the filing of this brief have been lodged with the

Clerk of Court pursuant to Rule 37.3. Pursuant to Rule 37.6, counsel for

amici state that no counsel for a party authored this brief in whole or in

part and no person, other than amici, their members, or their counsel

made a monetary contnbution to its preparation or submission.

|

to maintain and patrol the streets. The RRHA has adopted a

policy prohibiting the use of the streets by non-residents,

their guests, or others who cannot establish a /Jegitimate

reason for being there. Enforcement is left completely to the

discretion of the local police without any requirement that

they act on a complaint lodged by RRHA officials.”

The streets that run in and around Whitcomb Court

are indistinguishable in form and function from the streets

throughout Richmond and in thousands of subdivisions

across the United States. Whitcomb Court is a neighborhood

like any other and is fully incorporated into the broader

residential community that surrounds it. There is an

elementary school and playground directly west of the

neighborhood and on public property that abuts one of the

streets that has been transferred to RRHA (the 2100-2300

block of Sussex street). See map lodged with the Court by

Respondent.’ The neighborhood is not some isolated dead-

end terminus lying at the outskirts of the city. There are no

gates or checkpoints and the streets either intersect with or

flow directly and seamlessly into other city streets. Even

more so than a cul-de-sac or other residential subdivision

that is commonly accessed by a single road, entry to the

neighborhood here is as easy as stepping off the sidewalk at

any point or driving through one of several streets that flow

into other city streets. Under these circumstances,

? Unless otherwise indicated, the facts cited herein are reported in the

opinions below.

> See website for Richmond city schools. http://www.

Richmond.112.va.us/schools/rpsredisign/es/W hitcomb/webpagel .html.

Additionally, Whitcomb Court Recreation Center, located at 2302

Carmine Street (another “privatized” street), serves as the polling place

for Richmond residents in the Sixth wren which includes voters whe

do not live in Whitcomb Court. h .

Polling Place/PollingPlacecounty-city. asp>. In addition, a local Boys

and Girls Club is located at the Whitcomb Court Recreation Center. See

<http://www. Bgcmr.org/htl.joinclub/ joinclub_location.htm>.

2

enforcement of the “no trespass” policy is neither practical

nor susceptible to evenhanded application.

People who live or visit the community continue to

use the streets and sidewalks as a conduit in their daily

affairs and as a place to meet and greet friends and

neighbors. Vehicle and pedestrian traffic continues to flow

through the neighborhood largely unfettered. Garbage is

picked up by City service vehicles, school buses travel

through, mail is delivered, the streets are patrolled by the

City police, and the City continues to be responsible for the

maintenance of the streets. Even First Amendment activity is

routinely permitted according to the testimony of the

Housing Director. J.A. 37-38. All these attributes perfectly

define the quintessential public forum. The only thing that

has changed is that people who are targeted for exclusion are

now subject to arrest for the very same conduct that was

previously beyond the reach of the law.

Concerned with the problems of inner-city blight that

plague low income neighborhoods in every major city,

Richmond and RRHA officials devised a plan to clean-up the

streets in and around Whitcomb Court by targeting “drug

dealers” and other people who threaten the safety of the

community. The City would simply abandon all or part of

the several streets that anchor the Whitcomb Court

neighborhood. To accomplish this, the City adopted a

resolution purportedly closing the streets and conveyed title

to the RRHA. This was done with the full understanding

that the streets would continue to function and be maintained

as public streets for the use and enjoyment of the residents of

that community, including their guests, as well as others who

have a “legitimate” reason to be there. To ensure that the

streets continued to function as they historically did, the City

retained responsibility for maintenance of the streets and

policing of the streets. The City also reserved a full-width

utility easement for the placement of utility poles, sewage

lines and other utility services. These interests are all

consistent with the city’s ownership of the streets throughout

Richmond.

After title to the streets was conveyed, the Housing

Authority posted ‘No Trespassing’ signs and adopted a

policy prohibiting “any unauthorized person from entering

the property.” The policy authorizes the Richmond Police to

enforce the trespass laws of the state upon the property of

Whitcomb Court. “{E]ach and every Richmond Police

Department officer [is authorized] to serve notice, either

orally or in writing , to any person [found on RRHA

property] when such person is not a resident, employee, or

such person cannot demonstrate a legitimate business or

social purpose for being on the premises.” Pet. App. 31. A

printed brochure issued by RRHA to the Whitcomb Court

residents similarly explains that the “no trespass” policy

applies to all non-residents who cannot demonstrate that they

are on the premises “visiting a lawfully residing resident, or

on the development conducting legitimate business.” /d.

The initial decision to bar someone from the streets

of Whitcomb Court can be made either by the police or

housing officials; in practice, it is more often the former than

the latter. There is no clear procedure for contesting the

decision, which can be delivered orally or in writing. There

are also no written policy guidelines that define more

precisely the circumstances under which a person can be

barred. Most significantly, a person who has been barred

and returns is subject to arrest for trespass even if there is a

“legitimate” purpose for this second visit. Once barred, for

example, a person can no longer visit immediate family

members who live in Whitcomb Court (or any other public

housing development in Richmond) without nsking arrest.

Pet. App. 32. The housing director testified that she is

unaware of anyone ever being removed from the barred list.

J.A. 35.

The respondent, Kevin Lamont Hicks, does not live

in Whitcomb Court. His mother, his baby, and his baby’s

mother all do. Hicks had been previously barred from the

property and twice previously convicted of trespass. His

requests to visit his children have been denied by RRHA

officials. There is nothing in the record that explains either

his barment or his previous convictions.* In fact, RRHA

officials have taken the position that Hicks can be barred for

any and no reason. J.A. 13. His most recent arrest for

trespass arose when he was observed walking along one of

the streets of Whitcomb Court by an officer who recognized

Hicks and knew that he had been barred from the property.

The record indicates that he was on the property “bringing

Pampers to his baby.” The record also indicates that he has

twice appealed to Housing Officials to allow him entry to

Whitcomb Court in order to visit his family. Pet. App. 32.

Hicks moved to dismiss the case against him on

several grounds -- including his nght to move freely on the

public streets and to visit with his children and his mother.

The motion was denied and Hicks was convicted. His

conviction was affirmed by the state intermediate court, and

then reversed by an en banc court of appeals, which held that

the streets in and around Whitcomb Court are

indistinguishable from a traditional public forum and that the

transfer of title from the City to RRHA was not sufficient to

strip them of that status. Pet. App. 37-38. Specifically, the

appeals court found that the streets continued to operate like

other streets in Richmond and that the transfer of title had

not fundamentally altered their form or function. Jd.” Based

* Hicks also has a conviction for destruction of property in Whitcomb

Court,. However, it is uncontested that his barment was not related to

that charge. Pet. App. 32.

> That conclusion is reinforced by the more fully developed record in

another state case involving the same challenged policy. In contrast to

this case, the trial court in Commonwealth v.Green, No. 00M-2225 (Cir.

Ct. Richmond, 2000), heard four days of testimony concerning the

5

implementation and enforcement of the No Trespass policy by RRHA

and the Richmond Police Department (RPD). The picture that emerges

from that record is completely at odds with the description of how the

streets function at Whitcomb Court that is being advanced by the

Commonwealth in this case. The evidence in Green also shows that

there is pervasive confusion over how the policy is implemented and

enforced and, more importantly, how the police have been given

unfettered discretion to enforce the policy as they see fit.

The most important testimony was from Tyrone Curtis,

Executive Director of RRHA and the person in charge of housing

management and policymaking at RRHA. He testified that the streets

and sidewalks, despite the transfer of title, remain generally accessible to

the public: “It has never been our intent to deny anyone from using the

sidewalks or streets for their intended purpose.” (July 31, 2000, Tr., p.

183); “[T]he streets, even through they’ve been privatized, are treated as

public streets for their intended purposes.” (July 31 Tr., pp. 197); “[T]hat

was not the intended purpose to close the streets for other legitimate

traffic.” (July 31 Tr., pp. 230-31). According to Mr. Curtis, the RRHA

property remains open to joggers, drive-through traffic, pedestrian “walk-

through” traffic, and all public use and travel. (July 31 Tr., pp. 192, 197,

208. 230-231). Mr. Curtis also testified that, aside from the posted “no

trespass” signs, no changes have been made in the appearance of the

streets, and the public has continued to use the streets and sidewalks as

public thoroughfares. (July 31 Tr., p. 268). RRHA officials Solomon

Akinwande, acting director of housing operations and the director of

housing management for RRHA, and Gloria Rogers, the on-site manager

at Whitcomb Court, similarly testified that the property could be used as

a public thoroughfare (July 26 Tr., p. 162; July 31 Tr., p.16).

When asked to explain the No Trespass policy in light of the

broad public access, Mr. Curtis stated: “[A]nyone who is...on RRHA

property, including a street that has been privatized, anyone who is not

visiting someone in the community or conducting legitimate or legal or

social activities in the community, is not welcome on the property.”

(July 31 Tr., p. 176). At points in his testimony, Mr. Curtis defined

“legitimate” to mean “legal.” (July 31 Tr., p. 179). He defined

“unauthorized” as “persons who are committing illegal acts on the

property or suspicion.” (July 31 Tr., p. 272). At other points, he

described trespassing as “malingering or loitering without any purpose.”

(July 26 Tr., p. 165). Mr. Akinwande explained that RPD officers were

not issued written guidelines concerning the definitions of “unauthorized

persons” or “legitimate business” because “I [Solomon Akinwande]

don’t think that would be reasonable to give a police officer, because this

is a democratic society.” (July 26 Tr., p. 136). In the same spirit, Mr.

6

on these findings, the appeals court struck down the “no

trespass” policy as an unconstitutional infringement of the

““right to move from one place to another according to

inclination,” and right to “remain in a public place of

[one’s] choice.” Pet. App. 40, quoting Chicago v. Morales,

527 U.S. 41, 53, 54 (1999). The Virginia Supreme Court

affirmed on the grounds that the challenged policy was

vague and overbroad in its impact on constitutionally

protected First Amendment activity. Pet. App. 59. The

state supreme court reached this conclusion without deciding

the public forum issue.

SUMMARY OF ARGUMENT

Both the petitioner and the United States

acknowledge that if the streets and sidewalks which traverse

and partially surround Whitcomb Court are a public forum,

Akinwande stated that he did not believe the RPD had authority to

challenge a person’s stated reason for being on the property because “I

don’t think it is the right of the police officer to determine if the person

has a right to be there.” (July 26 Tr., p. 136). According to Mr.

Akinwande, RPD may not stop someone to question them simply

because the officers do not recognize the person (July 26 Tr., pp. 154-

55), and if the person says “I am visiting someone,” the police must let

them go. (July 26 Tr., p. 140).

The police witnesses in Green presented a very different picture.

Three police officers whose duties are concentrated in different RRHA

housing communities, testified that guests must be in the presence of a

resident at all times. (July 31 Tr., pp. 332-333; Aug. 1 Tr., p. 61).

Officers approach persons they do not recognize as residents and order

them to leave the property if they are not in the presence of a resident.

(July 31 Tr., pp. 332-333). If a person refuses to answer police

questions, they are detained and ultimately arrested if they are not

cooperative. (July 31 Tr., p. 333). Uniformly, the officers testified that

loitering — “hanging out” — is not permitted. (Aug. 1 Tr. 63; Aug. 17 Tr.

37). Arrests are made without prior warning or banning. (July 31 Tr.,

pp. 65; Aug. 17 Tr., p. 23). According to Officer Christopher Wade,

vehicular drive-through traffic is permitted, but pedestrian walk-through

traffic is not permitted. (July 31 Tr., pp. 330-332).

then the ability of Housing Authority officials and City

police to enforce rules against loitering and trespass is

severely limited. See City of Chicago v. Morales, 527 U.S.

41 (1999).° We agree with this assessment. Consequently,

we also believe that the public forum issue is central to

resolving this case. It is the State’s burden to demonstrate

that the conveyance of title from the City of Richmond to the

Richmond Redevelopment and Housing Authority so

fundamentally altered the form and function of these public

streets that they no longer qualify as a traditional public

forum. That burden has manifestly not been met on this

record. Moreover, the State’s failure to carry its burden of

proof is even more glaring when one considers other

evidence in the public record describing the nature and use

of the streets in Whitcomb Court. See n.5, supra. We

recognize, of course, tht the Virginia Supreme Court found it

unnecessary to address the public forum question in its

decision. But this Court can affirm that decision on any

ground raised and argued below. If the Court finds that the

streets at issue here are indistinguishable from the streets in

many other residential neighborhoods, see Frisby v. Schultz,

487 U.S. 474 (1988), the “no trespass” policy cannot stand.

If the Court determines that the record is insufficient to

resolve the public forum question (and the decision is not

affirmed on other grounds), we respectfully submit that the

proper course is to remand for further proceedings on that

issue.

The right to travel on the public streets is a basic

aspect of the liberty protected by the Due Process Clause.

Whether relying on vagueness or overbreadth or substantive

First Amendment doctrine, this Court has repeatedly and

° Petitioner’s brief at 36 (as sovereign, government generally may not

ban persons from public streets and sidewalks); Brief of the United States

at 11 (“If the property at issue remains a public forum, then the vesting of

discretion and the management of First Amendment issues become

serious problems.”).

consistently held that government officials cannot be given

unfettered discretion to interfere with that right. City of

Chicago v. Morales, 527 U.S. at 53-54; Shuttlesworth v. City

of Birmingham 382 U.S. 87 (1965). The fact that legal title

has passed to another government entity does not negate the

public forum status of municipal streets under circumstances

where they continue to function as municipal streets for all

intent and purposes. Hague v. C/O, 307 U.S. 496, 515-16

(1939). The government cannot overcome that presumption

by mere fiat; “it must alter the objective physical character or

physical uses of the property, and bear the attended costs.”

International Soc'y for Krishna Consciousness, Inc. v. Lee

505 U.S. 672, 700 (1992) (Kennedy, J., concurring in

judgment). No such alteration has occurred here.

This Court’s decision in Frisby is controlling on the ©

present record. Although the Housing Authority was

established to provide safe and affordable housing for low-

income residents, communities all across America seek to

preserve the quality of life and the residential character of

their neighborhoods through the adoption of zoning and

other land use restrictions. While property owners can

assuredly keep trespassers off their property, they have no

nght to prevent individuals from passing freely on the local

streets and sidewalks. There is no reason to come to a

different result in this case.

Finally, we emphasize that even when the

government is acting in a proprietary capacity, as when it

manages an airport or post office, there are constitutional

limits on its discretion. Its regulations must be viewpoint-

neutral and they may not unreasonably burden the exercise

of constitutional rights. Perry Educational Ass'n v. Perry

Local Educator's Ass'n, 460 U.S. 37, 45 (1983). Here, the

undeniable impact of the challenged policy is to prohibit

respondent from visiting his mother and children in their

own homes. The Constitution protects these intimate

9

associations and the government cannot — as it has here -

arbitrarily interfere with those interests. When he was

arrested, respondent was not loitering or engaging in any

other purported illegal activity. So far as the record

discloses, he was carrying diapers on his way to see his

child. The Housing Authority’s position is that like any

landlord it is free to exclude all guests for any and no reason.

While this probably exceeds the common law authority of

even private landlords, we submit that a policy that vests

such unfettered discretion in Housing Authority officials is

unreasonable on its face, and unconstitutionally interfered in

this case with respondent’s right to visit his immediate

family.

ARGUMENT

I. THE STREETS AND SIDEWALKS RUNNING

THROUGH AND AROUND WHITCOMB COURT

ARE TRADITIONAL PUBLIC FORA

A. Whitcomb Court is a Residential Neighborhood

Anchored by the Types of Streets and Sidewalks that this

Court has Defined as a Public Forum in Frisby v. Schultz.

We begin with the proposition that streets and

sidewalks have historically been considered to be public

forums, with all that connotes for free public access.

Wherever the title of streets and parks may

rest, they have immemorially been held in

trust for the use of the public and, time out of

mind, have been used for purposes of

assembly, communicating thoughts between

citizens, and discussing public questions.

Such use of the streets and public places has,

from ancient times, been a part of the

privileges, immunities, rights, and liberties of

citizens. The privilege of a citizen of the

10

— re a eee ~

a .

— —

United States to use the streets and parks for

communication of views on _ national

questions may be regulated in the interest of

all; it is not absolute, but relative, and must be

exercised in subordination to the general

comfort and convenience, and in consonance

with peace and good order; but it must not, in

the guise of regulation, be abridged or denied.

Hague v. CIO, 307 U.S. at 515-16 .”

Whether the government purports to be acting in its

sovereign Or proprietary capacity, it cannot place the streets

of an entire residential neighborhood beyond the reach of the

public forum doctrine. Frisby v. Schultz, 487 U.S. 474.

There are no doubt thousands of subdivisions scattered

throughout this country, like those involved in Frisby and in

this case, whose streets are part of the daily life and

transportation grid in those communities. Homes like the

ones in Frisby’s residential subdivision were conceived, built

and purchased as private residences and as havens from our

loud and contentious inner cities. The residential character

, on

This Court has repeatedly reaffirmed the Hague principle. See, e.g.

United States v. Grace, 461 U.S. 171, 179 (1983)(“sidewalks, of course,

are among those areas of public property that traditionally have been held

open for expressive activities and are clearly within those areas of public

property that maybe considered generally without further inquiry to be

public forum property”); Frisby v. Schultz, 487 U.S. at 480; (Public

streets are the “archetype of traditional public forum”); Boos v. Barry

485 U.S. 312, 318 (1988) (same); Amalgamated Food Employees Union

v. Logan Valley Plaza, 391 U.S. 308, 315 (1968). (“streets....are so

historically associated with the exercise of First Amendment rights that

access to them for the purpose of exercising such rights cannot

constitutionally be denied broadly and absolutely”); see also Carey v.

Brown, 447 U.S. 455, 460 (1980); Hudgens v. NLRB, 424 U.S. 507, 515

(1976); Shuttlesworth v. Birmingham, 394 U.S. at 147, 152 (1969).

11

of those streets, however, did not affect the forum analysis.

Id. at 484.

No less is true in this case. While the residents of

Whitcomb Court also seek haven from the blight of the city,

the streets anchoring their community are like the streets in

Frisby and communities everywhere. It seems incongruous

to decide that these particular streets in Whitcomb Court are

not a public forum simply because they involve a low-

income residential neighborhood rather than the suburban

neighborhood at issue in Frisby. After all, it is not as if the

public forum doctrine originated in suburban America.

Indeed, one of the Court’s earliest First Amendment cases

involved Federal Housing Authority property established for

defense industry workers in a town established and owned by

the United States. See Tucker v. State of Texas, 326 US.

517, 518-19 (1946).

The residential character of a street may affect the

government’s ability to impose time, place, or manner

regulations, but the street nevertheless remains a public

forum. Prior to Frisby, for instance, the Supreme Court

twice upheld the nght of demonstrators to picket the streets

fronting the private residence of the Mayor of Chicago.

Carey v. Brown, 447 U.S. 455 (1980); Gregory v. City of

Chicago, 394 U.S. 111 (1969). In neither case was the

residential character of the neighborhoods sufficient to

transform the streets at issue from public to non-public

forums. In Frisby, the Court characterized Carey’s

description of the public streets and sidewalks in residential

neighborhoods as “virtually foreclos{ing) appellant’s

argument.” 487 U.S. at 480. The Court made a similar point

in Heffron v. International Society for Krishna

Consciousness, 452 U.S. 640 (1981), when it rejected the

respondents’ attempt to describe the state fairgrounds at

issue in that case as a traditional public forum, like the public

streets. “{I]t is clear that there are significant differences

12

oa ee ee ee

cee tia pea ti ee eee

between a street and the fairgrounds. A street is continually

open, often uncongested, and constitutes not only a

necessary conduit in the daily affairs of a locality’s citizens,

but also a place where people may enjoy the open air or the

company of friends and neighbors in a relaxed environment.”

Id. at 651. Justice White’s description in Heffron of a

hypothetical “street” entitled to characterization as a

quintessential public forum serves as an accurate description

of the Whitcomb Court streets.

A holding that streets located in residential areas are

not public forums would have far reaching consequences.

Even if limited to government housing developments, it

would have a significant impact in most major American

cities. For that reason, this Court has held that “{nJo

particularized inquiry into the precise nature of a specific

street is necessary; all public streets are held in the public

trust and are properly considered traditional public fora.”

Frisby v. Schultz 487 U.S. at 480-81. That principle is

controlling here.

B. The Streets in Whitcomb Court Continue to Have

the Objective Attributes of a Public Forum Despite the

Housing Authority’s Adoption of a No Trespass Policy.

In United States v. Grace, the Court held that the

sidewalks outside its own building were a public forum.

Sidewalks, of course, are among those areas

of public property that traditionally have been

held open to the public for expressive

activities and are clearly within those areas of

public property that may be considered,

generally without further inquiry, to be public

forum property.

461 U.S. at 179.

13

That is equally true here. Formalities of title do not

control the public forum analysis. Hague v. C/O, 307 U.S.

at 515 (“wherever the title of streets and parks may rest, they

have immemorially been held in trust for use by the

public...”); cf Marsh v. Alabama, 326 U.S. 501, 506 (1946)

(“ownership does not always mean absolute dominion.”) See

also Evans v. Newton, 382 U.S. 296, 302 (1966) (mere fact

of private ownership was not enough to divest the park of its

“public character”; the Fourteenth Amendment applied

“regardless of who now has title under state law”).® Simply

declaring an entity to be private “does not alter its

characteristics so as to make it something more than it

actually is.” Lebron v. National Railroad Passenger Corp.,

513 U.S. 374, 393 (1995). The City of Richmond cannot

transform public streets and sidewalks into private, non-

public property simply by passing an ordinance declaring

them ff limits” when they continue to otherwise function

the same as they had in all previous respects. As Justice

Kennedy has explained , in order to change a property’s

public forum status the State “must alter the objective

physical character or uses of the property.” Lee, 505 US. at

700 (Kennedy, J., concurring)’

® Indeed, title to streets and sidewalks often rests with the abutting

landowner. Cf Denver Area Educational Telecommunications

Consortium, Inc. v. Federal Communications Commission 518 U.S. 727,

792 (1996) (Kennedy, J., concurring in part, concurring in the judgment

in part, and dissenting in part) (observing that in the majority of

jurisdicitions, title to some of the most traditional of public fora, streets,

and sidewalks remain in private hands). See also 10 A E. Mc Quillin,

Law of Municiple Corporations § 30.32 (3d ed. 1990). 39 AMJUR.2D

Highways, Streets, & Bridges 182-83 (1999) (citations omitted).

* The government's intent has relevance in determining whether it has

created a designated public forum. Southeastern Promotions, Ltd. v.

Conrad, 420 U.S. 546 (1975). By contrast, “traditional public for a open

for expressive activity regardless of the government’s intent.” Arkansas

Educational Television Commission v. Forbes, 523 U.S. 666, 678 (1998).

MS

=

Here, there has been no fundamental alteration in

“the objective physical characteristics or uses of the

property.” To the contrary, the streets and sidewalks

continue to serve as a pedestrian and vehicle throughway for

the members of the community and the surrounding

neighborhood. They remain part of the neighborhood

transportation grid and are easily accessible to the general

public. Their basic configuration and appearance are

unchanged. To the extent the streets provide access to

RRHA buildings, the former “public streets” did the same.

The absence of fences or gates that distinguish gzied

communities from other residential neighborhoods is also

telling. See Lee, 505 U.S. at 698-99 (Kennedy, J.,

concurring in judgment) (whether property shares physical

similarities with traditional public forums is one of the most

important factors in defining public fora.)

Residents who once freely drove or walked along

Bethel or Sussex streets when they were owned by the City

continue to do so. So do their guests and the public in

general unless they are unfortunate enough to be stopped by

a policeman and cannot establish they have legitimate

reasons to be in the neighborhood. Moreover, as in other

neighborhoods, the streets in Whitcomb Court are not simply

conduits. They are places where friends and neighbors

gather and where children play. We know from the record

that First Amendment activity continues to be allowed

largely unregulated — especially by people who are church

affiliated and people distributing literature. J.A. 37-38.

This is also an important consideration in the Court’s cases.'®

'° See e.g. Lee 505 U.S. at 698-99 (Kennedy, J., concurring) (“If the

objective physical characteristics of the property and the actual public

access and uses that have been permitted by the government indicate that

expressive activity would be appropriate and compatible with those uses,

the property is a public forum.”) Lee 505 U.S. at 698-99 (Kennedy, J.,

concurring); /d. at 686 (O’Connor, J., concurring) (In assessing the

property for First Amendment purposes, the question is whether

15

The only thing that has changed in function is that people

who are targeted for exclusion can be arrested for trespass

for the very same conduct that was previously beyond the

reach of the law.

The Commonwealth contends that not all walkways

are sidewalks and that the sidewalks here are more similar to

the walkways at issue in United States v. Kokinda, 497 U.S.

720 (1990). Its reliance on Kokinda is misplaced. In

Kokinda, the Court held that the sidewalks leading to a post

office were not public fora because they led only from the

post office parking lot to the post office building, and their

sole purpose was to provide ingress and egress to the post

office. Jd. at 727 (plurality opinion of O’Connor, J.) (“[t}he

postal sidewalk at issues does not have the characteristics of

public sidewalks” because it is not a “public passageway” or

“thoroughfare” but “leads only from the parking area to the

front door of the post office....[and] was constructed solely

to provide for the passage of individuals engaged in postal

business.””). Here, however, the purpose of the sidewalks is

not limited to ingress and egress to Housing Authority

buildings. Rather, they function more generally for

pedestrian passage and enjoyment, and are thus

indistinguishable from those sidewalks that have been held

to be public fora. See Frisby v. Schultz

The purported closure of these streets and the adoption of

a No Trespass policy is nothing more than a thinly veiled

attempt to extinguish the public forum status of the property.

The Court should reject this dangerous and far reaching

assault on public forum doctrine. “As society becomes

more insular in character, it becomes essential to protect

public places where traditional modes of speech and

expression can take place.” Kokinda 497 U.S. at 737

expressive activity is compatible with the purposes and uses to which the

government has lawfully dedicated the property, not whether government

has designated speech as the purpose of the property).

16

~- es

(Kennedy, J., concurring in judgment). At the heart of

public forum analysis lies the principle that in a free nation

citizens must have the right to gather and speak with other

citizens in public places. This principle may not be breached

by an attempt by government officials to establish and

preserve a particular type of residential atmosphere, whether

using the pretext of maintaining that atmosphere, as in

Frisby, or combating crime, as here. See Watchtower Bible

and Tract Society v. Village of Stratton, 536 U.S. 150 (2002)

(discussing how the threat of burglars is often advanced in

the Court’s canvassing cases). On these facts, the Housing

Authority has no greater right to exercise dominion over

these streets than the City of Richmond itself did when title

to the streets rested with it.

Il. THE RRHA TRESPASS POLICY ARBITRARILY

EXCLUDES INDIVIDUALS FROM TRADITIONAL

PUBLIC FORA IN VIOLATION OF THE DUE

PROCESS CLAUSE

A. The Challenged Policy Violates the Right to

Travel Freely On the Public Streets.

Although the Supreme Court has not expressly

recognized a fundamental nght to move at will on the streets

and sidewalks in the city where one resides. Justice Stevens

, joined by Justice Souter and Justice Ginsburg, observed:

[I]t is apparent that an individual’s decision to

remain in a public place of his choice is as

much a part of his liberty as the freedom of

movement inside frontiers that is “a part of .

our heritage” Kent v. Dulles, 357 U.S. 116,

126, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), or

the nght to move “to whatsoever place one’s

own inclination may direct” identified in

Blackstone’s Commentaries. 1 W.

17

Blackstone, Commentaries on the Laws of

England 130 (1765).

City of Chicago v. Morales, 527 U.S. at 54; see also

Kolender v. Lawson, 4621 U.S. 352, 358 (1983) (noting that

anti-loitering statute, which required individuals to provide

“credible and reliable” identification “implicated

consideration of the constitutional nght to freedom of

movement”); Papachristou v. City of Jacksonville, 405 U.S.

156, 164 (1972) (describing walking, loitering, and

wandering as “historically part of the amenities of life as we

have known them”). Over one hundred years ago, the Court

noted “the right of locomotion, the nght to remove from one

place to another according to inclination, is an attribute of

personal liberty, and the right, ordinarily, of free transit from

or through the territory of any state is a mght secured by the

14th Amendment and by other provisions of the

Constitution.” Williams v. Fears, 179 U.S. 270, 274 (1900).

See also Civil Rights Cases, 109 U.S. 3, 39 (1883) (Harlan,

J., dissenting) (stating that the nght to use public highways is

“fundamental in the state of freedom, established in this

country. . .”) See also Johnson v. City of Cincinati, 310 F.

3d. 484, 495-501 (6" Cir. 2002) (canvassing the solid

historical foundation for the mght to move freely on the

city’s streets and sidewalks).

The right to move freely on the public streets is

implicit in the Court’s many cases involving local

ordinances targeting loitering in public places. See Morales,

supra; Papachristou, supra. While these cases typically

turn on considerations of vagueness, they recognize the

difficulty of crafting an ordinance that attempts to

criminalize conduct that involves nothing more than

peacefully and unobtrusively using the public streets. The

right to move freely is also implicit in the Court’s many

public forum cases involving situations where the plaintiff or

defendant is doing nothing more than standing on a street

18

a emg st i. yy

comer distributing literature, gathering signatures, or

speaking to people who stop to listen, e.g., Cantwell v.

Connecticut, 310 U.S. 296 (1940), and in its cases involving

the use of the streets for picketing and protest marches, e.g.

Shuttlesworth v. Birmingham, 394 U.S. 147. Streets and

sidewalks cannot retain their traditional function of

“assembly, communicating thoughts between citizens, and

discussing public questions,” Hague v. CIO, 307 U.S. at 515-

16, if | individuals may be arbitrarily be excluded from

them.

The RRHA policy directly abridges this basic right.

For those who have been banned, the right to move freely in

certain public places has simply been eliminated. In our

view, this is sufficient to render the policy facially

unconstitutional.'* As in Morales, however, “[t]here is no

need . . . to decide whether the impact of the [RRHA policy]

on constitutionally protected liberty alone would suffice to

support a conviction,” because the policy is also void for

vagueness.

B. The Policy is Void for Vagueness

The RRHA trespass policy allows police to ban any

person from public streets and sidewalks if he cannot

demonstrate a “legitimate business or social purpose”

without explaining what constitutes “legitimate business.”

This Court has repeatedly found similar language to be

unconstitutionally vague, and it should do so here as well.

“Vagueness may invalidate a criminal law for either of two

independent reasons. First, it may fail to provide the kind of

'' This proposition is not contested by the Petitioner or the United States.

See note 6, supra.

'2 Ia Johnson v. City of Cincinnati, the 6” Circuit invalidated an

ordinance that prohibited persons convicted of drug crimes from entering

certain parts of the city on the grounds that it abridged the

constitutionally protected right to travel locally through public spaces

and roadways. 310 F.3d. at 494-498.

19

notice that will enable ordinary people to understand what

conduct it prohibits; second, it may authorize and even

encourage arbitrary and discriminatory enforcement.”

Morales, 527 U.S. at 56 (citing Kolender v. Lawson, 461

U.S. at 357). The RRHA trespass policy fails on both

counts.

This Court has nghtly condemned laws that allow

police to decide based on their own hunches and biases who

should be allowed at large in a public place. Most recently,

in Morales, the Court invalidated an ordinance that allowed

police to order a group in a public place to disperse if the

group included a street gang member and the group was

“remain{ing] in any one place with no apparent purpose.”

Failure to obey the dispersal order resulted in arrest. The

ordinance was unconstitutionally vague because it failed to

“establish minimal guidelines to govern law enforcement.”

527 U.S. at 60 (quoting Kolender v. Lawson, 461 U.S. at

358). Specifically, the phrase “no apparent purpose”

allowed the police to make unconstrained judgments about

whether a purpose was “apparent.”

The Morales holding had ample precedent. In

Papachristou v. City of Jacksonville, supra, the Court

invalidated an ordinance that prohibited, among other things,

"wandering or strolling around from place to place without

any lawful purpose or object." 405 U.S. at 156 n. 1. The

Court struck the ordinance down as void for vagueness, both

because it "fail[ed] to give a person of ordinary intelligence

fair notice that his contemplated conduct was forbidden ...

and because it encourage[d] arbitrary and erratic arrests and

convictions." Jd. at 162 (citations omitted). The "restriction"

that the wandering or strolling had to be "without any lawful

purpose or object" did nothing to cure the ordinance's

inherent vagueness but rather set "a trap for innocent acts."

Id. at 164.

20

Sey

Similarly, in Palmer v. City of Euclid, 402 U.S. 544,

545 (1971), the Court considered an ordinance penalizing

"any person who wanders about the streets or other public

ways or who is found abroad at late or unusual hours in the

night without any visible or lawful business...." This

ordinance was deemed "vague and lacking ascertainable

standards of guilt." Jd. at 545. See also Shuttlesworth v. City

of Birmingham, 382 U.S. 87, 90 (1965) (ordinance

forbidding "any person to stand or loiter upon any street or

sidewalk ... after having been requested by any police officer

to move on" did "not provide for government by clearly

defined laws, but rather for government by the moment-to-

moment opinions of a policeman on his beat." Jd. (quoting

Cox v. Louisiana, 379 U.S. 536, 579 (1965) (separate

opinion of Black, J.); Thornhill v. Alabama, 310 U.S. 88,

100 (1940) (in an anti-loitering and anti-picketing statute, the

qualification " ‘without just cause or legal excuse’ does not in

any effective manner restrict the breadth of the regulation,”

because "the words themselves have no ascertainable

meaning either inherent or historical").

The present case falls squarely within this line of

precedents. Like the ordinances in those cases, the RRHA

policy is designed to prevent crime by allowing police

simply to get rid of individuais they deem suspicious. To be

banned from RRHA streets and sidewalks, a person need not

engage in or even threaten misconduct. It is enough that the

police do not like the look of him. The “limitation” that only

people with “no legitimate business or social purpose” may

be banned is meaningless. That phrase is no clearer than

“without just cause or legal excuse,” “without any visible or

lawful business,” "without any lawful purpose or object,” or

“no apparent reason.”

The RRHA trespass policy is also defective under

this line of authority because it does not provide any

meaningful standard to which persons may conform their

21

conduct. Coates v. City of Cincinnati, 402 U.S. 611, 614

(1971) (ordinance prohibiting "three or more persons to

assemble ... on any of the sidewalks, street corners ... and

there conduct themselves in a manner annoying to persons

passing by" held unconstitutionally vague because "it

subjects the exercise of the mght to assembly to an

unascertainable standard"); Papachristou, 405 U.S. at 162

(vagrancy ordinance held void for vagueness because "it

‘fails to give a person of ordinary intelligence fair notice that

his contemplated conduct is forbidden by the statute’’)

(citation omitted). A prohibition on being in a public place

with “no legitimate business or social purpose” does not

allow people of ordinary intelligence to comply with its

requirement, because no person can predict which lawful

conduct will be perceived as “legitimate” by any particular

police officer.

It is true that in some cases, a person is not arrested

for criminal trespass until after he has been warned or

received a barment letter. This is not the practice in all

cases, however; the evidence shows that the police have

complete discretion to make arrests. See note 5 supra. Even

so, the trespass policy is analogous to the loitering ordinance

in Morales. Under that ordinance, a person could not be

arrested without first being ordered, and refusing, to leave

the area. But, as a plurality of the Court explained, such

“notice” did not render the statute constitutional.

Although it is true that a loiterer is not subject to

criminal sanctions unless he or she disobeys a

dispersal order, the loitering is the conduct that the

ordinance is designed to prohibit.. . . .If the police are

able to decide arbitrarily which members of the

public they will order to disperse, then the Chicago

ordinance becomes indistinguishable from the law we

held invalid in Shuttlesworth. Because an officer

may issue an order only after prohibited conduct has

22

already occurred, it cannot provide the kind of

advance notice that will protect the putative loiterer

from being ordered to disperse.

Morales, 527 U.S. at 58-59. The same rule applies here.

The police may decide arbitrarily whom they will ban from

RRHA property, and there is no advance notice that protects

one from being banned. By the time the banning order is

issued, it is too late.

Finally, "[{t}he most important aspect of the

vagueness doctrine is ... the requirement that a legislature

establish minimal guidelines to govern law enforcement.”

Kolender, 461 U.S. at 358 (internal quotation and citation

omitted). Where a criminal statute fails to provide such

minimal guidelines, it "may permit a standardless sweep

[that] allows policemen, prosecutors, and juries to pursue

their personal predilections." Id. (internal quotation and

citation omitted). It furnishes a convenient tool for " ‘harsh

and _discnminatory enforcement by local prosecuting

officials, against particular groups deemed to merit their

displeasure.' " Papachristou, 405 U.S. at 170 (quoting

Thornhill v. Alabama, 310 U.S. at 97-98).

. For much the same reasons that the RRHA policy

fails to give adequate notice, it also fails to cabin the

discretion of law enforcement officers. Since the RRHA

policy provides no definition of “legitimate business or

social purpose,” each particular police officer gets to decide

what is “legitimate.” “Indeed, because any person standing

on the street has a general ‘purpose’ — even if it is simply to

stand — the [policy] permits police officers to choose which

purposes are permissible.” Morales, 527 US. at 65-66

(O’Connor, J., concurring) (emphasis in original).

The manifest intent of this open-ended discretion is

to cast a wide enough net to encompass virtually any non-

resident appearing on RRHA property, and then let the

23

police decide which individuals are unsavory enough to ban.

Such a preemptive approach to law enforcement is

inconsistent with our justice system’s insistence on a

presumption of innocence.

Ill. EVEN WHEN THE HOUSING AUTHORITY

ACTS IN ITS PROPRIETARY CAPACITY, ITS

TRESPASS POLICY is UNREASONABLE BECAUSE

IT ARBITRARILY PKEVENTS HICKS AND OTHERS

FROM ENGAGING IN THE FUNDAMENTAL RIGHT

OF INTIMATE ASSOCIATION

A. The Constitution Clearly Protects Hicks’ Right of

Intimate Association from Undue Intrusion by the

Housing Authority

The Court has “long recognized that because the Bill

of Rights is designed to secure individual liberty, it must

afford the formation and preservation of certain kinds of

highly personal relationships a substantial measure of

sanctuary from unjustified interference by the State.”

Roberts v. United States Jaycees, 468 U.S. 609, 618-19

(1984) (citing Pierce v. Society of Sisters, 268 U.S. 510, 534-

35 (1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).

While not identifying precisely the range of relationships

protected by the nght of intimate association, this Court has,

from time to time, noted several “personal affiliations”

worthy of constitutional protection. /d. at 619. This

protected family sphere includes, at a minimum, mariage,

Zablocki v. Rehail, 434 U.S. 374 (1978); childbirth, Carey v.

Population Servs. Int'l, 431 U.S. 678 (1977); the raising and

education of children, Smith v. Oranization of Foster

Families, 431 U.S. 816 (1977); and the choice of living

arrangements among relatives, Moore v. City of East

Cleveland, 431 U.S. 494 (1977). As the Court noted in

Roberts,

24

[f]amily relationships, by their nature, involve

deep attachments and commitments to the

necessarily few other individuals with whom

one share not only a special community of

thoughts, experiences, and beliefs but also

distinctively personal aspects of one’s life....

As a general matter, only relationships with

these sorts of qualities are likely to reflect the

considerations that have led to aan

understanding of freedom of association as an

intrinsic element of personal liberty.

468 U.S. at 620 (emphasis added).

Here, Hicks’ constitutionally protected intimate

relationships are clearly implicated because Hicks’ mother,

his baby and his baby’s mother all live at Whitcomb Court.

When officer Laino issued Hicks a citation for trespassing at

Whitcomb Court on January 20, 1999, Hicks was on the

Housing Authority’s property to bring “Pampers to his

baby.” His repeated efforts to have his barment lifted and to

visit his children without risk of arrest have been rejected

without explanation. The impact on respondent’s “highly

personal relationships,” Roberts, 468 U.S. at 618, is clear

and substantial.

B. The Housing Authority’s “No Trespass” Policy

Unreasonably Interferes With Intimate Family

Associations

In non-public fora, such as airports, courthouses, and

other municipal, state, or federal buildings, the government

admittedly has broader discretion to regulate asserted

constitutional nghts. Unlike a private property owner,

however, the government’s actions are not completely

untethered from constitutional limitations. “{E]ven when

acting in its proprietary capacity, [the government] does not

enjoy absolute freedom from First Amendment constraints.”

25

Kokinda, 497 U.S. at 725; cf. Board of Airport Comm rs v.

Jews for Jesus, Inc., 482 U.S. 569, 574-75 (1987) (striking

down a regulation prohibiting all First Amendment activities

in the Los Angeles International Airport because such a ban

cannot be justified oy any conceivable government interest).

Its regulations must not be based on viewpoint and must be

reasonable in light of the purposes of the government forum.

Perry, 460 U.S. at 45.

In Lee, the Court held that an airport terminal was not

a public forum. 505 U.S. at 680. Applying the

reasonableness standard appropriate for non-public fora, the

Court concluded that airport officials could not ban the

distribution of literature inside the terminal. Justice

O’Connor’s concurring opinion summarized the relevant

inquiry for determining the reasonableness of a restriction:

The reasonableness of the Government's

restriction [on speech in a nonpublic forum]

must be assessed in light of the purpose of the

forum and all the surrounding circumstances.”

Cornelius, supra, 473 U.S. at 809, 105 S.Ct.,

at 3453. "{C]onsideration of a forum's special

attributes is relevant to the constitutionality of

a regulation since the significance of the

governmental interest must be assessed in

light of the characteristic nature and function

of the particular forum involved.” Kokinda,

supra, 497 U.S. at 732, 110 S.Ct., at 3122,

quoting Heffron v. International Soc. for

Krishna Consciousness, Inc., 452 U.S. 640,

650-651, 101 S.Ct. 2559, 2566, 69 L.Ed.2d

298 (1981).

Lee, 505 U.S. at 687.

Here, too, the reasonableness of the government's

actions in this case cannot be considered in a vacuum but

26

- me ee eee ~

_—<

must be assessed “in light of . . . all the surrounding

circumstances.” The State has never asserted a significant

interest in barring respondent from visiting his children.'’

Nor has it ever articulated why respondent’s past conduct

justifies a potential lifetime ban from Whitcomb Court.

Indeed, the State apparently regarded respondent’s past

conduct as so irrelevant to the issues before the Court that it

did not bother to explain the reason that respondent had been

banned from the premises. That cavalier attitude is

revealing. In petitioner’s view, the State need not explain

why respondent was barred from visiting his family because,

in its view, the government acting as landlord can exclude

respondent from its property for any reason or no reason.

J.A. 13.

Even at common law, “the landlord may not prevent

invitec : or licensees of the tenant from entering the tenant’s

premises by passing through the common area. Moreover,

the law is clear that an invitee or licensee who does so, even

after a specific prohibition by the landlord, is not a trespasser

and does not violate a criminal trespass statute.” State v.

Dixon, 725 A.2d 920, 922 (Vt. 1999); see also Gordon

County Broad. Co. v. Chitwood, 87 S.E.2d 78, 79 (Ga.

1955); Konick v. Champneys, 183 P. 75, 77 (Wash. 1919);

Central Bus. Coll. Co. v. Rutherford, 107 P. 279, 280-81

(Colo. 1910); Arbee v. Collins, 463 S.E.2d 922, 925 (Ga. Ct.

App. 1995); State v. Schaffel, 229 A.2d 552, 562 (Conn. Cir.

Ct. 1966). When the state interferes with a father’s right to

visit his children, it surely must show more than the state has

shown on this record.

> While the challenged policy on its face does not and could not prevent

all family visits, it allows RRHA officials to target individuals who they

do no want on the premises and prevent them from visiting with family

and friends. Because of the “no trespass” policy in force at Whitcomb

Court, respondent has been sentenced to jail for doing nothing more than

visiting his family.

27

This is not a domestic abuse case where a protective

order has issued. Nor does it involve any allegation of drug

dealing, weapons charges or other violence. So far as the

record reveals, Hicks is guilty of nothing more than being

stopped and questioned repeatedly by the police and then

arrested and convicted for being present in the neighborhood

where his mother and children live. As the RRHA’s own

policy allowing guests evidences, government landlords have

no greater power to interfere with tenant’s lawful guests than

private landlords. Even if the common law rule is not

controlling, RRHA must act reasonably in light of the

purposes for which it was established and the asserted

interests at stake. Lee, 505 U.S. at 687-88. Whitcomb Court

is a residential neighborhood that provides housing for

hundreds of families. It is laid out on the city grid and

seamlessly incorporated into the surrounding neighborhood.

The comings and goings of friends and other guests —

especially family members — is fundamentally consistent

with the RRHA’s purpose and mission. While RRHA

officials could certainly limit access to uninvited guests, the

justification for excluding invited guests is not compatible —

rather, it is patently incompatible —with the purposes of

public housing. /d.

28

CONCLUSION

For the reasons stated herein, the judgment below

should be affirmed.

Dated: April 4, 2003

Respectfully Submitted,

Mark J. Lopez

(Counsel of Record)

Steven R. Shapiro

American Civil Liberties

Union Foundation

125 Broad Street

New York, New York 10004

(212) 549-2608

Rebecca Glenberg

ACLU Foundation of Virginia

6 N. 6" Street

Suite 400

Richmond, VA 23219

(804) 644-8022

David M. Porter

(Counsel of Record)

National Association of

Criminal Defense Lawyers

1150 18" Street, N.W.

Suite 950

Washington, DC 20036

29