Amicus Curiae Brief — Virginia v. Hicks

No. 02-371 en

Jn the Supreme Court of the Uruted States*

COMMONWEALTH OF VIRGINIA, PETITIONER

4

>

KEVIN LAMONT HICKS, RESPONDENT

ON WRIT OF CERTIORARI

TQ) THE \/ PREME (Ol RT¢ eR | IR¢ HINA

BRIEF FOR AMICI CURIAE RICHMOND

TENANTS ORGANIZATION, CHARLOTTESVILLE PUBLIC

HOUSING ASSOCIATION OF RESIDENTS, ENPHRONT, &

MASSACHUSETTS UNION OF PUBLIC HOUSING TENANTS IN

SUPPORT OF RESPONDENT KEVIN LAMONT HICKS

WENDY HESS CATHERINE M. BISHOP

DEBRA GARDNER *Counsel of Record

Public Justice Center National Housing Law Project

500 East Lexington St 614 Grand Ave., Ste. 320

Baltimore, MD 21202 Oakland, CA 94610

(510) 251-9400

AMY COPPERMAN

Massachusetts Law HONG TRAN

Reform Institute Northwest Justice Project

99 Chauncy St. 40] 2° Ave. So., Suite 407

Boston, MA 0211/1 Seattle, WA 98177

APRIL CHARNEY

Gulf Coast Legal Services

1750 17" St., Bldg. I

Sarasota, FL 34234

BEST AVAILABLE COPY

——————r

TABLE OF CONTENTS

Page

Pee Oe RE cccccnsiccnsnintsdasiittsmbi 1

Hbarests OF Gao Ames CmtNO 0. aisccicciccdscccvscscccssecsevssresssesesessens l

I FI iiss sscisisiiisiiehiuntniathiieanandiotiosicinipiaaanaiaen 3

I. cscccsincicstiintaiiisnscimtsanidiaiieiiidiinaipuemdinmmmaiaiimaaies 6

I. PUBLIC HOUSING RESIDENTS HAVE THE WELL-

ESTABLISHED RIGHT TO INVITE AND RECEIVE

GUESTS AND VISITORS INTO THEIR HOMEGS....... 6

A. FEDERAL STATUTES AND REGULATIONS

RECOGNIZE AND PROTECT THE RIGHT OF

PUBLIC HOUSING RESIDENTS TO INVITE

AND ACCEPT GUESTS AND VISITORS INTO

PRE BP OT A cons cccccncessecesccsendsasncues 6

B. UNDER THE COMMON LAW, TENANTS HAVE

THE RIGHT TO INVITE AND RECEIVE

GUESTS AND VISITORS INTO THEIR

LAE) EI RAIN 0 oss cvcccccceccevcccesocsess 14

1. Tenants in possession of leased property have the

authority to invite persons on the property.....14

2. An invitation by a tenant operates as a defense to

the criminal charge of trespass.................. 19

C. PUBLIC HOUSING RESIDENTS HAVE

CONSTITUTIONALLY PROTECTED RIGHTS

TO ASSOCIATE WITH OTHERS IN THEIR

HOMES AND TO HAVE ACCESS TO

INFORMATION AND IDEAS. .................05 20

1. The RRHA no-trespass policy infmnges upon pub-

lic housing residents’ rights to intimate associa-

Gv accisscsccacdctuienssestosemaleeee 21

” | iii

Page Page

2. The RRHA no-trespass poiicy violates residents’

First Amendment rights to receive informa- Cases, cont.

EP TTT rrr TTriTTTTrrirrirtit titi ttt 23 Commonwealth vy. Hood. 452 N.E.2d 188 (Mass. 1983).16

Il. HOUSING AUTHORITIES CAN CREATE POLI- Commonwealth v. Richardson, 48 N.E.2d 678 (Mass.

CIES WHICH PROTECT RESIDENTS’ RIGHTS AND abel atetgnhannadonpnnagoseseeoonsecseecsoenneses 18

CONTRIBUTE TO SAFE COMMUNI- Commonwealth v. Wallace, 730 N.E.2d 275 (Mass.

ae sncnbvcseoccoescess 25 2000)... oocccccceccccecececceeecuecccscveececeececevereesesd?

[1]. THE COURT NEED NOT AND SHOULD NOT | Department of Hous. and Urban Dev. v. Rucker,

DRAW A DISTINCTION BETWEEN THE HOUSING | 122 S. Ct. 1230 (2002)...................... 22, 26, 28, 29

a AS LANDLORD AND SOVER- - | Daniel v. City of Tampa, 38 F.3d 546 (11" Cir. 1994)...20

Neen reece ccsapesuresees socpensee 2 Diggs v. Hous. Auth. of Frederick, 67 F. Supp. 24 $22

a sdaseigncpnonnpsodccnoasnccnnsces 30 (D. Md. 1999)... 0... ccc cc ccc cc ccc ccecccecesucuenes 9,10, 11

TABLE OF AUTHORITIES Hall v. Commonwealth, 49 S.E.2d 369 (Va. 1948)...17, 28

Hicks v. Commonwealth, 548 S.E.2d 249 (Va.

Conn Ct. App. 2001) (em Banc)... 66. ccc cece ee cece 20

Ashley Court Enters. v. Whittaker, 92 A.2d 1228 (N.J. —————— _—

Super. Ct. App. Div. 1991).......0cccccecseseseereseseeees 17 POS. AGP. BITTY. «0.0000 00rernveenreeveenrren 17, 19, 20, 25

Bean v. United States, 709 A 2d 85 (D.C. 1998)......20, 27 | on a mmeabinie te

eis atti teat x Icemry Club ef Duaves. f ete eccccourncovevcnnenececcvssesodsonccscnees

"aes A are 987), ntl v. Rotary Club of Duarte - | L.D.L. v. State, $69 So.2d 1310 (FI. Dist. Ct. App.

(| pn tel ad ate eae aetna Sidi pliietenehbddatananennsenesececoncsevesencons 17, 18, 20

Branish v. NHP Prop. Mgmt., 694 A.2d 1106 (Pa. ! . —

ccsscssseen comeer™ | RAM '¥, Sate, 15S So. 390 (iss. 1958)............ 1S, 18, 19

Cantwell v. State, 310 U.S. 296 (1940) .....2..scc0ce00e0 24 Raarin v. City of Serethere, 319 US. 141 (1945).....25, 26

City of Bremerton v. Widell, 51 P.3d 733 (Wash. 2002), “a em oe .

cert. denied 123 S. Ct. 497 (2002)......seseseseeseeveve 18 ao ocho a mes aia ‘

7 hin 1 . ! | Messiah Baptist Hous. Dev. Fund v. Rosser, 400

~—s ge laa a — ne i | N.Y.S.2d 306 (N.Y. City Ct. 1977). occ. cccccccceceeee 17

Commonwealth v. Burford, 73 A. 1064 (Pa. 1909)....... 18 or Rynberk, 415 N.E.2d 1087 (Ill. App. Ct.

etait aeienen mean edeesesaneenesetnnnenenesesontes 19

People v. Washington, 762 N.E.2d 698 (Ill. App. Ct.

TT hiiiliciidsdanuinampenserenceseneescortete teenesecess 19, 20

— a

iV

Page

Cases, cont.

Roberts v. United States Jaycees, 468 U.S. 609 (1984)...21

Rudder v. United States, 226 F.2d 51 (D.C. Cir. 1955)...29

Schneider v. State, 308 U.S. 147 (1939)...............23, 24

State v. Dixon, 725 A.2d 920 (Vt. 1999).............ccee es 19

State v. Holiday, 585 N.W.2d 68 (Minn. Ct. App.

State v. Lawson, 7 S.E. 905 (N.C. 1888)................0 16

State v. Schaffel, 229 A.2d 552 (Conn. Cir. Ct.

ESE ESE Sak 8 RR Sw 16, 18

State v. Shack, 277 A.2d 369 (N.J. 1971)..............055. 15

Thompson v. Ashe, 250 F.3d 399 (6 Cir. 2001)...9, 11, 20

Thorpe v. Hous. Auth. of Durham, 386 U.S. 670 (1967).29

Todisco v. Tishman Realty & Constr., 62 N.Y.S.2d 458

CLY.. Gump. CR IGE... ncvccsccccccccsscscsssccccccsescses 18

Troxel v. Granville, 530 U.S. 57 (2000)....................22

United States Dep't of Agric. v. Moreno, 413 U.S. 528

COT coccescaséussdnndscdsesdaicbeadenmeesecianoubanamnes 23

Vasquez v. Hous. Auth. of El Paso, 271 F.3d 198 (5™ Cir.

2001), reh 'g en banc granted, 289 F.3d 350 (5" Cir.

2002) and petition for cert. filed, 71 U.S.L.W. 3578

(U.S. Dec. 19, 2002) (No. 02-1276)..............45 23, 24

Walker v. Georgetown Hous. Auth., 677 N.E.2d 1125

a. Fe iiiccstsarnncccncasecccsconctecnsecensstinnnesens 24

Watchtower Bible & Tract Soc. of New York, Inc. v. Vil-

lage of Stratton, 122 S. Ct. 2080 (2002)................ 23

Williams v. Lubbering, 63 A. 90 (N.J. 1906)............. 18

Williams v. Nagel, 643 N.E.2d 816 (Ill. 1994)............ 16

Page

Statutes

Housing and Urban-Rural Recovery Act of 1983,

Pum L.. NO. SS-161, 97 Stat. LISDS.......cccccccccsesess 8, 10

United States Housing Act of 1937, Pub. L. No. 75-412,

PE tl idandnncisclichidniaiapeabidadhinisndedaiebiaoduadel 15

re nihil iinet eenicmemidaiaananil 6

42 U.S.C. §§ 1437 to 1437bbb-9 (2000)..................... 6

ae Cire OF Rc nvedccnncnscnscnnevestsesoncen 27

42 U.S.C. § 1437d(J) (2000)................. 6, 10, 11, 26, 28

Se igs Ue cinchpnathabnsniauetiivaniiavnanunianen 7

ee es Oe EE dccnconnsdoseseccncccccssonss 25

Regulations

ee Or I I cccicncinecsecdncedenddseuccdasonnds 13

a Oy cede tccccinneddktetnsesencecscessons 13

24 C.F.R. § 966.4(a) (2002).......... acehnennienediinitiemanasnetl 13

24 CPR. § SEGALE) (2O0Z).......ccccccccvcccccccccee 6, 7,9, 13

ee OF I ccccccceccenccecnceseseusesacocses 27

Oe ae B Pe Cine vccccccscccsscccsess 6, 8, 11, 26

Ss Oe ivinecinccccinchensdedsatuadansats 26

es OF I caciinsecceccsenncscesescussctee 13,14

ee intedcccnccsvcuncecssstcbenmunnians 10

Lease and Grievance Procedures, 40 Fed. Reg. 33,402

SETI ie I sdihtiniidie ignites oasieaetnianidibnebiaideiaudinieaabeiedl 8

Lease Requirements, Eviction, and Hearings, 47 Fed.

Reg. 55,689 (proposed Dec. 13, 1982).................4.. 8

Tenancy and Administrative Gnevance Procedure for

Public Housing, 53 Fed. Reg. 33,216 (Aug. 30,

vl Vil

Page Page

Miscellaneous Government Documents Treatises, Articles, Annotations, etc., cont.

Be: Gee GRA. BE, Fer cccccccnsensscnccsnsoevescensssnseccecs 10 Colin O’Connor Udell, /ntimate Association: Resurrecting

HUD Circular RHM 7465.8 (Feb. 22, 1971)............. 7,8 a Hybrid Right, 7 Tex. J. Women & L. 231

HUD Circular RHM 7465.9 (Feb. 22, 1971)..........00--- - EE dcnivcionenneiinneeontadidinnisniiiniinainennniesendbiia 21

HUD, A Picture of Subsidized Households - 1998.

http: ‘www.huduser.org/datasets/assthsg.html (last

RNS BI: Ge ccc scnsveccecceccecssssceccsvescses 3

Treatises, Articles, Annotations, etc.

49 Am. Jur. 2d Landlord and Tenant § 504 (1995)...16, 19

49 Am. Jur. 2d Landlord and Tenant § 629 (1995)....... 18

75 Am. Jur. 2d Trespass § 162 (1991)...............200cee 19

75 Am. Jur. 2d Trespass § 165 (1991)...............c0000e 19

75 Am. Jur. 2d Trespass § 180 (1991)..............c00ee0e 19

Philip K. Dick, The Minority Report, in The Minority

Report and Other Classic Stories by Philip

ie MIT ci inticunibinhishiistiihisddcaieadanmeeweeed 26

A. W. Gans, Annotation, Right of Owner of Housing

Development or Apartment Houses to Restrict

Canvassing, Peddling, Solicitation of Contributions,

GR Fe PES Ce rcnts ccescesesemscdecicsesen 16

2 Powell on Real Property, § 16B.02(2) (Michael

TEs: TEI \cirmeideeenicaseeciedidinuhbehinambendnedeneuienl 15

William Stoebuck et al., Zhe Law of Property, § 7.1

i cibinphanundanndaieadttnanidvanimademsesditienseus 15

5 Thompson on Real Property, § 40.01 (David A.

RL, Bi icntaciecimniacsebicseedanmmeidinearsnents 15

5 Thompson on Real Property, § 40.22 (David A.

es Fe ceccdicesnensnancsunitncesneiantévenssen 15

—_————— —

— ee ee le ee

1

In the Supreme Court of the Gnited States

No. 02-371

COMMONWEALTH OF VIRGINIA, PETITIONER

V.

KEVIN LAMONT HICKS, RESPONDENT

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF VIRGINIA

BRIEF FOR AMICI CURIAE RICHMOND

TENANTS ORGANIZATION, CHARLOTTESVILLE PUBLIC

HOUSING ASSOCIATION OF RESIDENTS, ENPHRONT, &

MASSACHUSETTS UNION OF PUBLIC HOUSING TENANTS IN

SUPPORT OF RESPONDENT KEVIN LAMONT HICKS

INTERESTS OF THE AMICI CURIAE'

Amici Curiae are tenant organizations representing public

housing residents in communities around the nation. Their

members, and the communities in which they reside, are di-

rectly affected by trespass prohibitions similar to the one at

issue here. Each of these tenant organizations has an interest

in ensuring that this Court maintain and enforce clear and

' Amici Curiae have obtained the written consent of Petitioner's and Re-

spondent’s counsel to file this brief with the Court. The written consents

are filed accompanying this brief pursuant to Supreme Court Rule

37.3(a).

Pursuant to Supreme Court Rule 37.6, Amici Curiae note that counsel

for Amici wrote the entirety of this brief and that no person or entity,

other than the Amici Curiae, their members, or their counsel, made a

monetary contribution to the preparation or submission of this brief.

9

long-standing laws protecting their members’ nghts to have

guests and other visitors.

Amicus Richmond Tenants Organization (RTO) is a duly

incorporated Virginia organization, whose membership con-

sists of all residents of public housing in the City of Rich-

mond, Virginia. RTO, comprised of elected representatives

from Richmond Redevelopment and Housing Authonty

(RRHA) public housing projects, works to promote and fur-

ther legal, social, and economic rights of all residents of con-

ventional public housing. Through attendance at tenant

council meetings, grass-roots lobbying, dissemination of in-

formation in the community, and communication with

RRHA, the RTO has educated the thousands of individuals it

represents about their nghts and developments in the public

housing field.

Amicus Charlottesville Public Housing Association of

Residents (PHAR) is a city-wide resident-run association

serving hundreds of public housing residents in Charlottes-

ville, Virginia. Its mission is to empower residents to im-

prove their communities through collective action. PHAR

educates public housing residents about issues that affect

them, such as residents’ rights to have guests, and encourages

residents to participate in the shaping of the public housing

authority’s policies.

Amicus ENPHRONT (Everywhere and Now Public Hous-

ing Residents Organizing Nationally Together) is a resident-

led organization with members and affiliates in forty-six

states, in addition to Puerto Rico and the District of Colum-

bia. ENPHRONT advocates for the preservation, improve-

ment and development of public housing through coordinated

local and national action. The organization also works to

educate residents about the laws and policies affecting their

lives, including those governing the nght to invite business

and social visitors and guests into their homes.

Amicus Massachusetts Union of Public Housing Tenants

(Mass Union), a membership organization including individ-

3

ual public housing residents and local tenant councils, repre-

sents thousands of tenants across Massachusetts. It seeks to

create, preserve, and advance safe and secure public housing

communities through responsible behavior by both tenants

and housing authorities. In recent years, many of Mass Un-

ion’s members have objected to their housing authorities’

trespass policies too broadly restricting residents’ rights to

have guests. Mass Union members believe that while hous-

ing authorities should act vigilantly to protect families from

crime and violence, they should not unnecessarily infringe

upon residents’ nghts. Recently, Mass Union has undertaken

efforts to educate all of its members about their rights to have

guests in their homes.

SUMMARY OF ARGUMENT

Trespass prohibition practices such as the one utilized by

the Richmond Redevelopment and Housing Authority

(RRHA) pose a significant risk of trampling upon the well-

established nghts of public housing residents to associate

with and invite others into their homes. The millions of men,

women, and children who, because of their poverty, live in

publicly financed residences’ are not subject to greater in-

fringement of their nghts than those who are able to afford

private housing. To the contrary, because public housing

residents’ lack of financial resources significantly reduces

their ability to obtain private housing of their choice,” it is all

* In 1998, nearly three million people lived in public housing. See HUD,

A Picture of Subsidized Households - 1998. At http://www.huduser.org/

datasets/assthsg.html (last modified Mar. 20, 2003).

* Petitioner and Amici in support of Petitioner concede that public hous-

ing residents lack the financial resources to obtain different housing. Pet.

Br. at 35-36 (“low-income tenants in public housing often have few

choices about where they live”); Amici City of Richmond and RRHA Br.

at 3 (stating that most residents do not have the “capability to relocate”);

see also Amicus Criminal Justice Legal Foundation Br. at 3 (stating that

residents “must” live in public housing); Amici States Br. at 19 (stating

4

the more important to defend their nghts from encroachment

by housing authonties.

Public housing residents’ nghts to associate with and in-

vite others into their homes are recognized in several bodies

of jurisprudence. Federal law and regulations acknowledge

and protect public housing residents’ nght to accommodate

guests and visitors in their residences. The common law

governing landlord-tenant matters recognizes that a tenant

obtains possession of the leased premises and therefore has

the nght to invite others into her home. Finally, the Constitu-

tion protects the nght of intimate association and mght to

have access to information, undergirding public housing resi-

dents’ rights to interact with persons of their choosing on

their leased property.

The RRHA no-trespass policy, and others like it across the

country, could have far-reaching and untenable consequences

for public housing residents. RRHA’s policy authorizes law

enforcement to notify unauthorized persons (i.e., nonresi-

dents, non-employees, or persons who cannot demonstrate a

“legitimate business or social purpose” for being on the

premises) that they are forbidden from returning to the prop-

erty.’ J.A. 84. The policy does not adequately explain what

a “legitimate” purpose is or how the nonresident can demon-

strate such a purpose. Under this broad standard, it is all too

likely that law-abiding nonresidents such as family members,

friends, clergypersons, health professionals, tenant organiz-

ers, legal advocates, and other persons with whom a resident

wishes to interact can be banned from the resident’s property.

that public housing residents are “among the most vulnerable in our soci-

ety”).

* The determination as to the legitimacy of the person’s presence, in the

first instance, is left to an individual police officer. In addition, if a per-

son requests permission to come on the property for any reason such as

leafleting or to hold a religious meeting, the housing authority manager

makes the standardless determination of whether to grant permission or

not. J.A. 37-38.

5

An individual who has been barred from the property, al-

though not for the commission of a crime or other disruptive

behavior, can be arrested and convicted of trespass if he en-

ters the property again for a lawful and reasonable purpose

such as the invitation of a friend or family member residing

on the property.

The RRHA policy does not require that the resident be

notified that a person asserting that he is a visitor is

attempting to see him or her — not at the initial barring or at

any subsequent return to the property resulting in arrest for

trespass. Furthermore, the policy does not require that a

banned person, or the resident affected by the barment, be

notified of any procedure for challenging the banning. Even

if the person learns of the established mechanism for

challenging his barment, the only way that a person may be

removed from banned status is to file a written request with

the director of operations of the housing authority who

appears to exercise unfettered discretion without the

assistance of any written guidelines. J.A. 34-36.

Inarguably, public housing residents should not have to

tolerate dangerous and crime-ridden communities. Yet, it

would be perverse to pursue the goal of crime prevention to

the exclusion of all other rights and interests of public hous-

ing residents. The quality of residents’ lives is comprised of

a multitude of factors, not simply safety. Public housing

residents, like those who live in private housing, can and

should expect to be safe in their communities and to exercise

their nights to live a “normal” life.

Amici agree with Respondent that the RRHA no-trespass

policy is both vague and overbroad. In addition, the policy is

problematic because it unnecessarily and unreasonably en-

croaches upon residents’ rights to have guests and visitors

come to their homes. Amici respectfully request that the

Court, in deciding the issues presented in this case involving

access of a nonresident to public housing, remain cognizant

6

of the danger that the no-trespass policy poses to residents’

rights.

ARGUMENT

I. PUBLIC HOUSING RESIDENTS HAVE THE

WELL-ESTABLISHED RIGHT TO INVITE AND RE-

CEIVE GUESTS AND VISITORS INTO THEIR

HOMES.

A. FEDERAL STATUTES AND REGULATIONS REC-

OGNIZE AND PROTECT THE RIGHT OF PUB-

LIC HOUSING RESIDENTS TO INVITE AND

ACCEPT GUESTS AND VISITORS INTO THEIR

DWELLINGS.

Federal law and regulations recognize the right of public

housing residents to accommodate their guests and to be free

from unreasonable lease conditions and regulations. The

United States Housing Act of 1937 established a mechanism

to promote the provision of “decent and affordable housing”

for low-income families. 42 U.S.C. § 1437(a)(4) (2000).

Under the Act, Congress authorizes the U.S. Department of

Housing and Urban Development (HUD) to provide various

methods of financial assistance to local public housing agen-

cies (PHAs) for the construction and operation of low-

income housing. See 42 U.S.C. §§ 1437 to 1437bbb-9

(2000). Local PHAs that are responsible for administering

the federally financed housing projects are subject to exten-

sive statutory and regulatory requirements governing virtu-

ally every aspect of public housing. Of particular importance

to the case now before this Court, PHAs are required to ac-

knowledge that residents have the right to reasonably ac-

commodate guests and visitors in their homes. 24 C.F.R. §

966.4(d) (2002). Federal law also mandates that PHAs can-

not subject tenants to unreasonable terms and conditions in

their leases, 42 U.S.C. § 1437d(/) (2000), or require them to

abide by PHA regulations that are not necessary and reason-

able. 24 C.F.R. § 966.4(f). No-trespass policies that work in

-

reality to bar invited guests and other visitors who have done

nothing to warrant exclusion from the premises violate these

protected nghts.

Federal regulations mandate that a public housing “lease

shall provide that the tenant shall have the right to exclusive

use and occupancy of the leased unit by the members of the

household authorized to reside in the unit in accordance with

the lease, including reasonable accommodation of their

guests.” 24 C.F.R. § 966.4(d)(1) (emphasis added). The

night of public housing residents to reasonably accommodate

guests in their homes has long been recognized by HUD.

Prior to codifying the right, HUD issued a circular and a

model lease form to local housing authorities regarding re-

quirements and recommendations to be reflected in tenant

dwelling leases for low-rent public housing projects. HUD

Circular RHM 7465.8 (Feb. 22, 1971). The circular and the

model lease were developed with the intention of improving

management-tenant relationships and promoting an “im-

proved housing environment to the advantage of the low-rent

housing program, its beneficiaries, and the communities in

which such housing is located.” /d. at 1.° The model lease

required PHAs to include a provision that the tenant’s “rea-

sonable accommodation” of guests and visitors was not ex-

cluded.’ Circular RHM 7465.8, App. 1, at 3. The model

* HUD has the statutorily-granted power to promulgate regulations neces-

sary to implement the federal public housing programs. 42 U.S.C. §

3535(d) (2000).

* HUD also issued Circular RHM 7465.9 (Feb. 22, 1971) regarding griev-

ance procedures in low-rent public housing Projects. See City of Omaha

v. United States Hous. Auth., 468 F.2d 1, 3 (8° Cir. 1972) for brief dis-

cussion of background leading up to the issuance of these circulars.

” The provision in the Model Lease provided as follows:

OCCUPANCY OF THE DWELLING UNIT. Tenant

agrees not to assign this lease, not to sublet or transfer

possession of the premises; nor to give accommodation

to boarders or lodgers without the written consent of

Management. Tenant further agrees not to use or per-

8

lease requirement for reasonable accommodation of guests

later became a federal regulatory mandate.” One of the “cen-

tral aspects of the subsidized tenancy,” the requirement has

remained a constant protection for public housing residents.

Additional federal regulations further demonstrate HUD's

recognition of a tenant’s right to have visitors and guests.

See 24 C.F.R. § 966.4(f)(10) (requimng lease provision that

tenant is responsible for damages to dwelling or project

caused by the tenant, a member of the household, or a guest),

24 C.F.R. § 966.4(f)(11) (requiring lease provision that ten-

ant, a household member, or a guest should act in manner

that does not disturb other residents’ peaceful enjoyment and

will be conducive to maintaining the project in a decent, safe,

and sanitary condition); 24 C.F.R. § 966.4(f)(12) (requiring

mit the use of the dwelling unit for any purpose other

than as a private dwelling unit solely for the Tenant and

his family and/or dependents. This provision does not

exclude reasonable accommodation of tenant's guests

or visitors. Tenant agrees to abide by such necessary

and reasonable regulations as may be promulgated by

Management for the benefit and well being of the hous-

ing project and the tenants.

HUD Circular RHM 7465.8, App. 1 at 3 (emphasis added).

® See Lease and Grievance Procedures, 40 Fed. Reg. 33,402, 33,404

(Aug. 7, 1975).

* Tenancy and Administrative Grievance Procedure for Public Housing,

53 Fed. Reg. 33,216, 33,220 (Aug. 30, 1988).

Remarkably, in 1982, when HUD attempted to dismantle many of its

regulations affording protections to public housing tenants, it did not seek

to eliminate the regulatory acknowledgement of their right to reasonably

accommodate guests. See Lease Requirements, Eviction, and Hearings,

47 Fed. Reg. 55,689 (proposed Dec. 13, 1982) (proposing, inter alia, to

limit grievance procedures available to tenants). Congress blocked

HUD’s deregulatory efforts by passing the Housing and Urban-Rural

Recovery Act of 1983, Pub L. No. 98-181, § 204, 97 Stat. 1153 (adding

statutory provisions to U.S. Housing Act of 1937 to require, inter alia,

that HUD develop regulations requiring PHAs to establish and implement

administrative grievance procedures and that PHAs shall utilize leases

that “do not contain unreasonable terms and conditions”).

= 7 ae

9

lease provision prohibiting tenant, household member, guest,

or “other person under the tenant's controf’ from engaging

in certain criminal activities) (emphasis added).

Lower courts that have considered the effect of section

966.4(d)(1) on policies affecting residents’ night to have visi-

tors have agreed that it “substantively prohibits public hous-

ing authonties from unreasonably interfering with tenants’

ability to entertain guests in the tenants’ public housing

apartments.” Diggs v. Hous. Auth. of Frederick, 67 F. Supp.

2d 522, 532 (D. Md. 1999); see also Thompson v. Ashe, 250

F.3d 399, 409 (6" Cir. 2001) (“Federal law requires reason-

able accommodation of guests in public housing.”);'' Lancor

v. Lebanon Hous. Auth., 760 F.2d 361, 363 (1* Cir. 1985)

(holding that a policy requiring public housing residents to

obtain wnitten permission from housing authority manage-

ment for overnight guests does not provide for the reasonable

accommodation of a tenant's guests or visitors).

In Diggs, the federal district court considered the legiti-

macy of a public housing no-trespass policy similar to the

RHHA practice at issue here. In that case, persons believed

to be on the public housing authority property with “no ap-

parent legitimate reason” were issued citations that warned

‘' Although Thompson recogmzed the nght of public housing residents to

reasonably accommodate thew guests, it did not reach the question of

whether the policy in question violated tenants’ rights because Thomp-

son, arrested for trespass, lacked standing to assert tenants’ rights and was

not on the property at the invitation of a resident. Thompson, 250 F.3d at

409.

In the case now before this Court, Petitioner asserts that Mr. Hicks

lacks standing to assert the First Amendment rights of others. As Re-

spondent correctly observes, however, the function of overbreadth stand-

ing is precisely to consider the First Amendment rights of third parties.

Furthermore, although a criminal case directly involves only the trespass

charge brought against a defendant, if the Court overlooks the impact of

the policy on public housing residents, it may lead to a decision that sub-

cide this case in such a vacuum. Amici submit this brief in order to voice

the concerns of residents who are affected by this no-trespass policy.

10

them that they would be arrested and charged with cnminal

trespass if they retuned. Diggs, 67 F. Supp. 2d at 525 (inter-

nal quotations omitted). The decision whether to remove the

person from the list of persons prohibited from reentering the

property was completely discretionary on the part of the

housing authority’s executive director, there were no wnitten

standards or time deadlines to govern her decision. /d. at

527. The court granted the resident plaintiffs’ request for a

preliminary injunction and in doing so, reasoned that the no-

trespass policy caused substantial harm to tenants’ nghts be-

cause it operated as a “virtually permanent bar to a tenant's

nght to invite a guest into her own home, no matter how

close a fnend or relative that potential guest might be.” /d. at

$33.

In addition to the explicit recognition of public housing

residents’ mghts to have guests and visitors, federal statutory

and regulatory provisions more broadly prohibit the imposi-

tion of unreasonable lease terms and other requirements upon

public housing tenants. The U.S. Housing Act of 1937 pro-

hibits the inclusion of “unreasonable terms and conditions” in

public housing leases. 42 U.S.C. § 1437d(/)(2).'* Similarly,

* No exhaustive list of prohibited terms and conditions is explicitly iden-

tified by the statute or its .mplementing regulations. Rather, many at-

tempted actions by a housing authority may be considered to be unrea-

sonable. See H. R. Rep. No. 98-123, at 36 (accompanying earlier version

of Housing and Urban-Rural Recovery Act of 1983 (H.R. 1); the provi-

sions in H.R. | that added requirement that leases not contain unreason-

able terms and conditions are same as the bill that was ultimately passed

by both House and Senate (H.R. 3959), see Pub. L. No. 98-181, 97 Stat.

1153) (“The PHA leases must also not contain unreasonable, unfair, or

unconscionable provisions, such as requirements that the tenants waive

rights granted by state or federal law. Since 1970 HUD has prohibited

PHAs from utilizing unfair clauses [such as confession of judgment; dis-

traint clauses; exculpatory clauses; waivers of legal notices, legal pro-

ceedings, jury trials, and appeals; and clauses requiring tenants to pay

costs regardless of outcome]. The bill requires that those regulatory pro-

hibitions be retained and that HUD prohibit as well any additional clauses

which are unreasonable”); see also 24 C.F.R. § 966.6 (2002).

11

federal regulation of PHAs requires a lease provision that

tenants’ obligations include abiding by regulations that are

“necessary and reasonable.” 24 C.F.R. § 966.4(f)(4).°° Un-

der these provisions, the abndgement of public housing resi-

dents’ mght to receive visitors is “patently unreasonable.”

Diggs, 67 F. Supp. 2d at 531 (interpreting § section

1437d(/\(2)). See also Thompson, 250 F.3d at 409 (referenc-

ing section 1437d(/\(2)); Lancor, 760 F.2d at 363 (holding

that housing authority requirement that tenants obtain wnitten

permission from management for overnight guests was ne!-

ther necessary nor reasonable as required by section

966.4(f)(4)).

No-trespass policies like the one used by the RHHA

unlawfully encroach upon residents’ nghts to reasonably ac-

commodate guests and other visitors. It is all too likely that

the RHHA procedure will have the effect of improperly ex-

cluding residents’ lawful visitors in the first place and con-

tinuing to exclude them solely because of their initial bar-

ment. The policy also does not adequately consider or allow

for residents’ choices or provide proper procedures to remedy

unfair or erroneous barments.

Nonresidents who have not committed any crime or en-

gaged in any behavior that would jeopardize the health and or

safety of residents may nevertheless, under the policy, be

forbidden from returning to the property if they have not sat-

isfied the vague requirement that they be there for a “legiti-

mate business or social purpose.” What comprises a “legiti-

mate purpose” is not set forth in any wmitten policy for the

benefit of police, housing authority staff, or residents. See

J.A. 17-18. Thus, under this broad policy, a clergyperson,

nonresident child, or grandparent of a public housing resident

'’ The regulation requires a lease provision obligating the tenant to “abide

by necessary and reasonable regulations promulgated by the PHA for the

benefit and well-being of the housing project and the tenants which shall

be posted in the project office and incorporated by reference in the

lease[.]” 24 C.F.R. § 966.4(f)(4).

12

who visits a resident in response to an express or implied in-

vitation could be banned from the property if unable to sat-

isfy the nearly standardless requirement of legitimacy.

Moreover, the only procedure available to such a banned

person to challenge his barment is to submit a written request

to the director of operations of the housing authority, but

there is apparently no notice given by the law enforcement

officer issuing the barment notice that this is the required

procedure. The record does not demonstrate that there are

any guidelines or time deadlines that bind the director’s deci-

sion. J.A. 34-35. Thus, although Mr. Hicks apparently twice

asked to be removed from the banned list, J.A. 40, his re-

quests were refused, with no apparent explanation, and there

is nothing in the record to indicate that he was ever told that

he had to make his requests in writing.

If the circumstances of the original barmeni are flawed as

described above, a significant and lasting invasion of the

nights of public housing residents can ensue, despite the

stated intention to preserve the right of residents to visit with

“legitimate” guests set forth in the pamphlet issued to resi-

dents when the streets were privatized in 1997. J.A. 87.'* If

a banned person returns to the public housing property to

visit a friend or relative that lives there, he or she will be ar-

rested for trespass. A lawful and otherwise suitable visitor

who has previously been forbidden from returning to the

property can be subject to arrest for trespassing without re-

gard to the purpose of his visit. Even a person who is invited

onto the property is prohibited from doing so if he was previ-

ously banned. J.A. 42. As in the case of Mr. Hicks, a non-

resident parent who seeks to provide care and nurture to his

infant child will also be subject to arrest if he returns to the

'* While the policy appears to protect the rights of residents to have

guests, in practice, it is too vague to do so. Note, for example, that Kevin

Hicks had relatives in Whitcomb Court but the record does not reflect the

circumstances under which he was first told that he was not permitted to

return to the property.

13

property if previously found to be there without a “legitimate

reason.” Residents risk their own tenancy if they invite a

banned person to their property, even if the person is a close

family member and/or the invitation is inadvertently given

without knowledge that a person has been banned. J.A. 39.

The “option” presented by Petitioner that public housing

residents can simply meet with friends, family, and other in-

dividuals off of their leased property is not a workable solu-

tion; rather, it proposes reducing public housing residents to

second-class citizens.

Furthermore, resident notification and participation is non-

existent in the RRHA scheme. For example, neither at the

initial barment nor at any subsequent arrest does the RRHA

no-trespass policy require that a resident be notified that a

person is trying to visit with her; thus, the policy never al-

lows the resident to assist in the determination of the non-

resident’s legitimacy of purpose by vouching for and accept-

ing him as a visitor.'° In addition, the policy does not require

° In addition, there is no evidence in the record to suggest that Whitcomb

Court residents have consented to such a no-trespass policy as a condition

of their lease. By law, public housing residents are afforded procedural!

protections before they can be made subject to changed lease provisions

or other housing authority regulations. HUD recognizes the “importance

of resident involvement in creating a positive living environment and

actively participating in the overall mission of public housing.” 24 C_F.R.

§ 964.1 (2002). Before a public housing authority can change provisions

in the lease form it uses, it must provide at least thirty days notice to ten-

ants and resident organizations setting forth the proposed changes in the

lease. 24 C.F.R. § 966.3 (2002). The PHA must also provide an oppor-

tunity for written comments which it is required to consider before adopt-

ing any new terms in the lease form. /d Before the lease may be

changed, it must be by written agreement of the PHA and the tenant. 24

CF.R. § 966.4(a)(3).

Apparently, the RRHA policy was also not properly promulgated as a

rule with which public housing tenants must comply. 'n order for a ten-

ant to abide by necessary and reasonable housing authority regulations, a

PHA must promulgate the regulations in compliance with procedural re-

quirements to post them in a conspicuous manner. 24 CFR. §

966.4(d)(4); 24 C.F.R. § 966.5 (2002). In addition, if the PHA modifies

14

that a resident receive notice that a guest has been banned or

provide a procedure by which the resident can challenge the

prohibition.

No-trespass policies like the one in this case unreasonably

deprive residents of the right to accommodate persons with

whom they choose to interact in their own dwellings. This is

so because standardless policies can far too easily result in

erroneous banning, and procedureless policies can far too

easily result in trespass convictions. Certainly, in its efforts

to protect public housing residents from crime in their com-

munity, RHHA could not have intended that public housing

residents needed to be protected from persons whose sole

criminal act was that of trespass when they returned to the

property to visit a resident. In this regard, the housing au-

thority has created the crime and the criminal.

B. UNDER THE COMMON LAW, TENANTS HAVE

THE RIGHT TO INVITE AND RECEIVE GUESTS

AND VISITORS INTO THEIR LEASED DWELL-

INGS.

1. Tenants in possession of leased property have the

authority to invite persons on the property.

It is with good reason that federal law concerning public

housing protects and preserves the rights of residents to ac-

commodate their guests. Under long-standing common law

rules and regulations, it must give at least thirty days written notice to

each affected tenant and provide an opportunity for the tenant(s) to pre-

sent written comments which must be taken into consideration by the

PHA before making the proposed modification effective. 24 C.F.R. §

966.5. The housing authority manager testified that the pamphlet distrib-

uted to residents when the streets were privatized was not a policy, rule,

or regulation. J.A. 17, 22. The only other writing concerning the “pol-

icy” was a written authorization given to law enforcement to ban persons

with no “legitimate purpose” to be on the property and to arrest them if

they return. J.A. 17-18. Thus, RRHA failed to recognize its obligation to

give residents notice and an opportunity to comment before instituting the

new rule reflected in these documents.

a.

15

in virtually every jurisdiction in the United States, a tenant

obtains legal possession of leased premises and enjoys the

rights associated therewith.'° When a landlord and a tenant

enter into a residential lease, possession of the property is

transferred to the tenant for a limited period of time in ex-

change for rent, and the landlord must, at the lease’s start,

relinquish certain rights. 5 Thompson on Real Property, §

40.01, at 5-6, § 40.22(b), at 134 (David A. Thomas ed.,

1994). The tenant, during the lease period, should be treated

as a purchaser of the property. Lott v. State, 132 So. 336, 338

(Miss. 1931).

Property rights serve human values. They are

recognized to that end, and are limited by it.

Title to real property cannot include dominion

over the destiny of persons the owner permits

to come upon the premises. Their well-being

must remain the paramount concern of a sys-

tem of law.

State v. Shack, 277 A.2d 369, 372 (N.J. 1971) (holding that

ownership of real property does not include right to bar ac-

cess to governmental services available to migrant workers or

to visitors of the workers’ choice).

At its core, the tenant’s legal possession includes the abil-

ity to exclude all others from the property, and, in fact, cre-

ates a duty to ward off trespassers. 2 Powell on Real Prop-

erty, § 16B.02(2) (Michael Wolf ed., 1995). Conversely, this

means that the tenant in possession has the authority to invite

people onto the property as he or she so chooses. William

Stoebuck et al., The Law of Property, § 7.1, at 411 (2000).

Unless there is a specific agreement to the contrary, this right

'* The United States Housing Act of 1937 recognized state “civil and

criminal jurisdiction in and over” federally owned public housing projects

and explicitly preserved “the civil rights under the State or local law of

— on such property” Pub. L. No. 75-412, § 13(b), 50 Stat.

16

is absolute.'’

[T]he tenant, when in possession of the demised

premises, has the right to invite or permit such

persons as the tenant’s business interests or

pleasure may suggest to come upon the premises,

for any lawful purpose, and the landlord has no

right to prohibit such persons from coming on the

demised premises.

49 Am. Jur. 2d Landlord and Tenant § 504 (1995). See also

Commonwealth v. Hood, 452 N.E.2d 188, 194 (Mass. 1983).

Many state courts have weighed the tenant’s possessory

interest to invite guests against the landlord’s desire to bar

the particular guest. They have held that the tenant, as the

one in possession of the property, has legal control over who

may enter the premises, and this control can be exercised re-

gardless of the landlord’s objections. See A. W. Gans, Anno-

tation, Right of Owner of Housing Development or Apartment

Houses to Restrict Canvassing, Peddling, Solicitation of Con-

tributions, etc., 3 A.L.R.2d 1431 (1949); State v. Lawson, 7

S.E. 905 (N.C. 1888) (overturning trespass conviction where

jury was improperly instructed that tenant’s authority was

“subservient” to landlord’s) (internal quotations omitted).

The tenant enjoys the “final word” on who may come onto

the premises. State v. Schaffel, 229 A.2d 552, 561 (Conn.

A tenant possessor’s right to invite guests could be altered in advance

by the lease contract, but only if the tenant agrees to such language. See

e.g., Williams v. Nagel, 643 N.E.2d 816, 822 (Ill. 1994) (holding that ten-

ant had not extended valid invitation because lease provided that man-

agement had the right to bar people from the property). There is no evi-

dence in the record that the RRHA lease contained an agreed upon provi-

sion that management is permitted to bar residents’ guests and visitors

from the property. Even if RRHA had complied with proper procedures

to include a lease provision regarding any regulations concerning resi-

dents’ accommodation of guests and visitors, it could not limit these

rights to the extent that its practice does so here. See discussion of fed-

eral statutory and regulatory right to reasonable accommodation supra

Part L.A.

17

Cin. Ct. 1966) (holding that tenants could invite housing in-

spectors on property); see also Hall v. Commonwealth, 49

S.E.2d 369, 378 (Va. 1948) (commenting that each “house-

holder and not the owner exercises the right to determine

whether he will receive the visitor, be he an acquaintance or a

stranger’). In some instances, courts have found that land-

lords have breached the warranty of quiet enjoyment for at-

tempting to interfere with a tenant’s ability to invite guests.

See, e.g., Ashley Court Enters. v. Whittaker, 592 A.2d 1228,

1231 (N.J. Super. Ct. App. Div. 1991); Branish v. NHP Prop.

Memt., 694 A.2d 1106, 1108 (Pa. Super. Ct. 1997).

All landlords who enter into a lease relationship are sub-

ject to these principles, regardless of whether they operate

public or private housing. See L.D.L. v. State, 569 So.2d

1310, 1312-13 (Fl. Dist. Ct. App. 1990) (reversing criminal

trespass conviction where nonresident invited by public hous-

ing resident); Jn re Jason Allen D., 733 A.2d 351, 368 (Md.

Ct. Spec. App. 1999) (holding that housing authority has no

more or less right to exclude social guest of tenant than does

landlord whose tenants are not recipients of a public sub-

sidy); Messiah Baptist Hous. Dev. Fund v. Rosser, 400

N.Y.S.2d 306, 308 (N.Y. City Ct. 1977) (holding that subsi-

dized tenants may enjoy residence in manner similar to pri-

vate tenants). |

A nonresident who is invited onto a property by a tenant

who lives in a rental property with multiple units must neces-

sarily use common areas to get to the tenant’s property. The

law is clear that an invitation by a tenant necessarily includes

the right to use any common walkways, hallways, or any

other methods of ingress or egress in order to get to the ten-

ant’s unit and effectuate the invitation.

[T]hird persons who come upon the-premises

at the express or implied invitation of a tenant

or whose entry is naturally incident to busi-

ness carried on by the tenant, have the right, as

occasion requires, to make reasonable use of

18

the tenant’s means of ingress to and egress

from the demised premises. ... The easement

which a tenant has for purposes of access to

the premises extends to the members of the

tenant’s family and to guests and invitees.

49 Am. Jur. 2d Landlord and Tenant § 629 (1995). Other-

wise, an invitation would be meaningless if guests could not

use common areas to travel to the tenant’s leased premises.

See State v. Schaffel, 229 A.2d at 562 (holding that inspectors

invited by tenants had right to be in common areas); L.D.L. vy.

State, 569 So.2d at 1312 (overturning trespass conviction

where defendant was invited by tenant, stating that a “land-

lord generally does not have the right to deny entry to per-

sons a tenant has invited to come onto his property. This law

also applies to the common areas of the premises.”’); Lott v.

State, 132 So. at 338 (concluding that rights essential to en-

joyment of premises include those of ingress and egress);

Williams v. Lubbering, 63 A. 90 (N.J. 1906) (holding that

visitor, like tenant, entitled to ingress and egress); Todisco v.

Tishman Realty & Constr., 62 N.Y.S.2d 458, 459 (N.Y. Sup.

Ct. 1946) (holding that invitee has right to use tenant’s usual

means of ingress and egress); Commonwealth v. Burford, 73

A. 1064 (Pa. 1909). This right of non-residents to use com-

mon areas has sometimes been conceptualized as an ease-

ment or license, see Commonwealth v. Richardson, 48

N.E.2d 678, 682 (Mass. 1943), or as joint ownership, see City

of Bremerton v. Widell, 51 P.3d 733, 738 (Wash. 2002), cert.

denied 123 S. Ct. 497 (2002).

Under common law principles, public housing residents,

like those living in Whitcomb Court, retain the right of exclu-

sive possession of leased premises and, accordingly, the right

to invite and receive guests and visitors. Their guests and

visitors are further allowed to use the common public and

private streets, sidewalks, walkways, and hallways as a

19

method of ingress and egress.'*

2. An invitation by a tenant operates as a defense to the

criminal charge of trespass.

The overwhelming recognition of invitation as a defense

to a charge of criminal trespass further underscores public

housing residents’ rights to have guests and other visitors in

their homes. Criminal trespass statutes arose out of the afore-

mentioned common property law principles. 75 Am. Jur. 2d

Trespass §§ 162, 165 (1991). Because the purpose of these

criminal statutes is to protect the possessor of the property

“whether titleholder or not” from unwanted intrusions, an

invitation by a tenant in possession provides a defendant with

a legal defense to a landlord’s charge of criminal trespass:

“One who thus comes upon the premises upon the invitation

of the tenant, although expressly forbidden to do so by the

landlord, is not guilty of a criminal trespass.” 49 Am. Jur. 2d

Landlord and Tenant § 504; accord 75 Am. Jur. 2d Trespass

§ 180 (1991). Numerous courts have recognized invitation as

a defense. See e.g., People v. Washington, 762 N.E.2d 698,

700 (Ill. App. Ct. 2002) (reversing criminal trespass

conviction because defendant invited by a resident); State v.

Dixon, 725 A.2d 920, 922 (Vt. 1999) (reversing criminal

trespass conviction because tenant had consented to

defendant’s presence even though landlord had banned de-

fendant from building); cf People v. Rynberk, 415 N.E.2d

1087, 1091 (Ill. App. Ct. 1980) (observing that tenant’s in-

vitee cannot be deemed a trespasser as a matter of law). The

defense of tenant invitation is also valid when a trespass is

charged for entry onto the common areas. See Lott v. State,

132 So. at 337. The tenant invitation defense also applies in

cases of nonresidents who are charged with criminal trespass

onto public housing authority property. See Jn re Jason Allen

'§ These common law rights are unrelated to and unaffected by any analy-

sis of whether the streets in Whitcomb Court are a public or nonpublic

forum for purposes of the First Amendment.

20

D., 733 A.2d at 363; L.D.L. v. State, 569 So.2d 1310; of

Thompson v. Ashe, 250 F.3d at 405; Daniel v. City of Tampa,

38 F.3d 546, 550 (11" Cir. 1994). Once a criminal trespass

defendant asserts this defense, the prosecution carries the

burden of demonstrating that the defendant had no legitimate

reason to be on the property. See Bean v. United States, 709

_A.2d 85, 86-87 (D.C. 1998); see also People v. Washington,

762 N.E.2d at 700-01; cf In re Jason Allen D., 733 A.2d at

365-66.

In this case, Respondent was charged with criminal tres-

pass for coming to the property even though he told the

charging police officer that he was there to get “pampers for

his baby.” J.A. 55. The Petitioner asserts that the summons

was issued because Respondent returned to the property after

being issued a permanent barment notice by the landlord

RRHA. Pet. Br. at 21. This notice was issued even though

there are no facts in evidence that the Respondent engaged in

drug-related or dangerous criminal activity that RRHA

sought to curb,'” or that RRHA considered Respondent’s re-

lationships with residents. Visiting a tenant who is a relative

is certainly a legitimate reason to be on the property.

Inconsistent with the civil and criminal law of trespass, the

RRHA policy impermissibly fails to recognize invitation as

an acceptable reason to be on the property.

C. PUBLIC HOUSING RESIDENTS HAVE CONSTI-

TUTIONALLY PROTECTED RIGHTS TO ASSO-

CIATE WITH OTHERS IN THEIR HOMES AND

'? The only criminal conviction attributed to the Respondent other than

trespassing is a charge of damaging property, which the state intermediate

court found was not related to the RRHA barment notice issued to Mr.

Hicks. Hicks v. Commonwealth, 548 S.E.2d 249, 252 n.2 (Va. Ct. App.

2001) (en banc). In any event, although the record does not reflect why,

the Respondent must have already been banned from RRHA property on

some earlier occasion, as he had already been convicted of trespassing

there earlier. J.A. 66.

21

TO HAVE ACCESS TO INFORMATION AND

IDEAS.

1. The RRHA nv-trespass policy infringes upon public

housing residents’ rights to intimate association.

The right of intimate association recognizes the impor-

tance of constitutionally sheltering the choice to enter and

maintain certain intimate human relationships free from un-

due interference from the State “because of the role of such

relationships in safeguarding the individual freedom that is

central to our constitutional scheme.” Roberts v. United

States Jaycees, 468 U.S. 609, 617-18 (1984); see also Board

of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S.

537, 544-45 (1987).7° Under Supreme Court jurisprudence,

family relationships represent the high end of the continuum

of the types of personal bonds deserving of constitutional

protection. “Family relationships, by their nature, involve

deep attachments and commitments to the necessarily few

other individuals with whom one shares not only a special

community of thoughts, experiences, and beliefs but also dis-

tinctively personal aspects of one’s life.” Roberts, 468 U.S.

at 619-20.

Mr. Hicks’ mother, aunt, children and his children’s

mother live in the public housing complex owned by RRHA.

J.A. 70. Certainly, at a minimum, the relationship between a

mother and her son and a father and his children exemplify

the highly personal relationships that deserve the constitu-

*° It is not clear whether the right of intimate association has its origins in

the First Amendment, substantive due process under the Fourteenth

Amendment, or a hybrid of the First and Fourteenth Amendments. See

Colin O’Connor Udell, /ntimate Association: Resurrecting a Hybrid

Right, 7 Tex. J. Women & L. 231, 233-43 (1998). Although the Court in

Roberts did not identify the exact constitutional source of the right of

intimate association, it left no doubt that the freedom of intimate associa-

tion is protected as a “‘fundamental element of personal liberty."” /d. at

237 (quoting Roberts v. United States Jaycees, 468 U.S. at 618).

22

tional protection recognized in Roberts.”' The RRHA tres-

pass policy, however, bans Mr. Hicks from visiting his

mother or his children in their public housing homes and

eviscerates the right of public housing residents to decide

who they can invite into their homes.

Undeniably, RRHA has an interest in eradicating danger-

Ous criminal activity in public housing. Allowing RRHA to

exercise virtually limitless authority to exclude all nonresi-

dents from visiting their family members in their own homes

is not the least restrictive or even a reasonable alternative to

eliminate the criminal activity on RRHA property. Cf

McKenna vy. Peekskill Hous. Auth., 647 F.2d 332 (2™ Cir.

~ 1981) (holding that housing authority’s requirement that resi-

dents obtain permission for and register overnight guests vio-

lates residents’ freedom of association under the First

Amendment); State v. Holiday, 585 N.W.2d 68, 70-71 (Minn.

Ct. App. 1998) (concluding that exclusion of nonresident

from all housing authority properties “seriously impinges

upon the freedom of association of persons such as [nonresi-

dent], who testified that he had friends and family living in

[housing authority] properties.”).”” Indeed, other options ex-

*" At the time Mr. Hicks was cited for trespass, he “stated he was bringing

pampers to his baby.” J.A. 57. At his sentencing he explained, “prior to

all the trespass charges that I have, it was due to the fact of me trying my

best to take care of my children and make sure that my girl get everything

that she needed.” J.A. 67. Mr. Hicks’ desire to maintain a relationship

with his children strikes at the heart of the right of intimate association.

Supreme Court jurisprudence has long extended constitutional protection

to personal relationships that “attend the creation and sustenance of a

family.” Roberts, 468 U.S. at 619 (citations omitted); cf Troxel v. Gran-

ville, 530 U.S. 57 (2000) (holding that substantive due process clause of

Fourteenth Amendment protects right of parents to make decisions re-

garding the care, custody, and control of their children without undue

state interference).

2 The Court’s decision in Department of Hous. and Urban Dev. v.

Rucker is not to the contrary. 122 S. Ct. 1230 (2002). Rucker rejected

tenants’ claims that the housing authority's statutory right to evict tenants

for unlawful drug-related activities of others implicated tenants’ right of

EO ent cay

23

ist to address illegal activity on the property including inter-

vention by law enforcement to arrest a person who engages

in criminal activity and prohibiting persons from returning to

the property who have committed certain dangerous criminal

activities.”> Suggesting that Mr. Hicks should arrange to visit

his mother and young children at a location other than RRHA

property cannot save the trespass policy from its constitu-

tional infirmities. The right of association “is too basic in our

constitutional regime to deal with roughshod.” United States

Dep't of Agric. v. Moreno, 413 U.S. 528, 543 (1973) (Doug-

las, J., concurring); cf Schneider v. State, 308 U.S. 147, 163

(1939) (“one is not to have the exercise of his liberty of ex-

pression in appropriate places abridged on the plea that it

may be exercised some other place”).

2. The RRHA no-trespass policy violates residents’

First Amendment rights to receive information.

Residents of public housing have the constitutionally pro-

tected right to have access to information and ideas offered to

them by residents and nonresidents through such mechanisms

as campaigning, leafleting, and organizing. “For over 50

years, the Court has invalidated restrictions on door-to-door

canvassing and pamphleteering.” Watchtower Bible & Tract

Soc. of New York, Inc. v. Village of Stratton, 122 S. Ct. 2080,

2086 (2002). Correlated with nonresidents’ constitutionally

protected right to distribute information, residents necessarily

have the right to receive it. Martin v. City of Struthers, 319

U.S. 141, 143 (1943); Vasquez v. Hous. Auth. of El Paso, 271

F.3d 198, 202 (5™ Cir. 2001) (holding that the First Amend-

association. 122 S. Ct. at 1236 n.6. Here, however, the policy directly

and substantially intrudes upon residents’ nght to associate with nonresi-

dent family members in their public housing homes in order to engage in

lawful activities. In addition, the residents of Whitcomb Court whose

constitutional freedom of association is infringed by the no-trespass pol-

icy have not failed to abide by a term of their lease.

* See the discussion of alternative guest policies infra Part II.

24

ment guarantee of an unrestricted flow of information into

the marketplace of ideas “extends not only to those who con-

tribute to the market place of ideas, but necessarily extends to

those who seek to benefit from the resultant dialogue”), reh ‘g

en banc granted, 289 F.3d 350 (5" Cir. 2002) and petition for

cert. filed, 71 U.S.L.W. 3578 (U.S. Dec. 19, 2002) (No. 02-

1276). Public housing residents, not PHAs, must be the final

arbiter in the decision regarding whether they will receive

information and ideas that are offered to them. See Martin,

319 U.S. at 147 (holding “each householder” should have

“the full right to decide whether he will receive strangers as

visitors”).

The RRHA no-trespass policy poses a substantial risk of

infringing upon the nights of public housing residents to have

constitutionally protected access to the marketplace of infor-

mation and ideas. Under the unwritten policy, the housing

authority manager has the unbounded discretion to deny re-

quests by nonresidents to enter the public housing property in

order to distribute information to residents or to hold reli-

gious services. J.A. 37-38. Residents’ First Amendment

right to receive information or be exposed to ideas should not

be controlled by a government agent’s sole discretion. See

Cantwell v. State, 310 U.S. 296 (1940) (holding statute un-

constitutional that required approval of government before

soliciting for religious cause door-to-door); Schneider v.

State, 308 U.S. 147 (holding ordinance unconstitutional that

prohibited canvassing, solicitation, or distribution of circulars

house-to-house without a permit from chief of police). The

housing authority manager’s ability to prevent public housing

residents from receiving potentially welcomed information

on the streets and sidewalks of the property or in residents’

own homes violates the First Amendment rights of residents

as well as the rights of nonresidents. See Vasquez, 271 F.3d

198 (holding that housing authority’s policy of completely

barring nonresidents from distributing political literature and

campaigning on its property was unreasonable); Walker v.

25

Georgetown Hous. Auth., 677 N.E.2d 1125 (Mass. 1997)

(holding that prohibition on door-to-door solicitation and

campaigning violated First Amendment rights of residents).

Such limitless discretion infringes on the rights of public

housing residents to make their own decisions whether to re-

ceive or reject information regarding political, religious, cul-

tural or other matters of potential interest and importance to

their lives, thus isolating them from the broader spectrum of

ideas and information.

Il. HOUSING AUTHORITIES CAN CREATE POLI-

CIES WHICH PROTECT RESIDENTS’ RIGHTS AND

CONTRIBUTE TO SAFE COMMUNITIES.

The broad no-trespass policy used by RRHA is not neces-

sary to protect residents from criminal activity in their com-

munity. While the public housing tenants submitting this

brief are entitled to and desire assistance from housing au-

thorities to control drugs and violence on the property, the

standardless policy promulgated by RRHA is unwelcome and

unlawful. Public housing tenants sign residential leases as do

private tenants, and central to those contracts is the tenant’s

right to be the full possessor of the premises during the lease

term. Public housing residents want safety but do not wish to

lose basic rights in the process. The broad discretion sought

to be exercised by the Petitioner will too often target nonresi-

dents who are lawful visitors. This unfortunate result is the

inevitable consequence of a practice which places too much

power in a landlord’s hands and ignores a tenant’s statutory,

common law, and constitutional rights.

RRHA’s ability to address crime on the property is not

hindered by recognition of a tenant’s right to accommodate

law-abiding gusts and other visitors. See /n re Jason Allen

D., 733 A.2d at 368 (“our holding does not undermine the

Housing Authority’s ability to invoke the provisions of [the

criminal trespass statute] against persons who trespass on

Housing Authority property without a bona fide claim of

26

right, or who otherwise engage in criminal activity”). Rather,

housing authorities and states can simultaneously address

critical safety issues on the public housing property, preserve

tenants’ nights, and ensure fairness.

The first obvious method of crime deterrence is the use of

existing criminal prohibition statutes if a resident or nonresi-

dent commits a crime on housing authority property.” In

addition, federal regulations already fully address issues of

crime prevention in public housing. For example, a tenant

can be held responsible for the criminal and disruptive acts of

her household members, guests, and other visitors. See 42

U.S.C. § 1437d(J(6); 24 C.F.R. § 966.4(f)(10) — (12); 24

C.F.R. § 966.4(/)(5)(vii(C) (providing that tenant can be re-

quired to exclude culpable household member in order to

continue residing in housing unit); see also Department of

Hous. and Urban Dev. v. Rucker, 122 S. Ct. at 1233; cf Va.

Code Ann. § 55-248.31:01 (forbidding a landlord from bar-

** The use of no-trespass policies to preempt possible criminal behavior

that has not yet occurred treads in very dangerous territory. Courts

should not be persuaded by the housing authority cry that without trespass

barment policies “PHAs must, in their crime control efforts, rely entirely

on catching criminal offenders in the act . . . on each and every occasion.”

Amici Large Public Housing Authorities et al. Br. at 13. Our criminal

justice system does not embrace the idea that one can punish a crime be-

fore it is committed or even attempted. To proceed otherwise would un-

dermine our current judicial system and turn the operation of public hous-

ing properties into science-fiction-like police states.

The basic legalistic drawback to precrime methodology

[is] . . . [w]e’re taking in individuals who have broken

no law. ... Happily they don 't — because we get them

first, before they can commit an act of violence. So the

commission of the crime itself is absolute metaphysics.

We claim they're culpable. They, on the other hand,

eternally claim they’re innocent. And, in a sense, they

are innocent.

Philip K. Dick, The Minority Report, in The Minority Report and Other

Classic Stories by Philip K. Dick 71 (1987) (words of Precrime Commis-

sioner John Anderton).

27

ring a tenant’s guest, except where the guest violates the

lease or a local, state, or federal law). What distinguishes

these existing methods from the RRHA no-trespass policy is

that, in situations such as these, the nonresident’s conduct

violates a proscribed standard. The use of a broad trespass-

barment policy such as the RRHA practice is made unneces-

sary in light of these and other appropriate law enforcement

methods.

In order to avoid unnecessary, illegal, and inequitable pit-

falls, reasonable housing authority policy governing nonresi-

dent entry on property should, at a minimum, be drafted in

conjunction with tenant participation.”> It should also outline

the specific conduct that will trigger a notice of barment, pro-

vide a method by which residents and nonresidents can

challenge such barment and notice of that procedure,”® pro-

vide a periodic review or expiration of each notice, and pro-

vide a set of criteria which will result in the barment being

lifted. See e.g., Commonwealth v. Wallace, 730 N.E.2d 275

(Mass. 2000) (upholding injunction prohibiting non-resident

from returning who had committed violent and destructive

acts on housing authority property; injunction was obtained

through procedure pursuant to statute affording opportunity

for trial on merits). Other simple checks could include the

housing authority or police confirming a guest’s explicit or

implicit invitation with the relevant resident prior to issuing

any trespass summons or arrest. See Bean v. United States,

709 A.2d at 87 (overturning conviction because prosecution

presented no evidence that police determined whether defen-

> See earlier discussion of importance of tenant participation supra n.15.

© PHAs are required to notify a tenant of any grounds for a proposed

adverse action by the PHA and “afford the tenant the opportunity for a

hearing under the PHA grievance procedure.” 24 C.F.R. § 966.4(e)(8).

See also 42 U.S.C. § 1437d(k). Certainly, the prohibition of a resident's

guest or visitor and the jeopardizing of a tenant’s ‘ease if he accommo-

dates a banned person are adverse actions against a tenant warranting

these procedural protections.

28

dant was with a tenant); Hall v. Commonwealth, 49 S.E.2d at

371-72 (concluding that system of announcing visitors to

tenants prior to entry allows tenant to make appropriate de-

terminations of who can visit). Safety can be gained without

using practices that eviscerate a tenant’s full enjoyment of the

leased premises.

Ill. THE COURT NEED NOT AND SHOULD NOT

DRAW A DISTINCTION BETWEEN THE HOUSING

AUTHORITY AS LANDLORD AND SOVEREIGN.

No justification exists to support the adoption of Peti-

tioner’s proposal to create a distinction between the housing

authority as landlord and as a sovereign entity, thereby per-

mitting government landlords to act in manners that would

otherwise violate the Constitution. Neither Rucker nor any

other authorities cited by Petitioner countenance such a

conclusion.”’

In Rucker, the Court held that section 1437d(/)(6) of the

U.S. Housing Act “requires lease terms that give local public

housing authorities the discretion to terminate the lease of a

tenant when a member of the household or a guest engages in

drug-related activity, regardless of whether the tenant knew,

or should have known, of the drug-related activity.” 122 S.

Ct. at 1238. In response to concerns about due process for

residents’ property interests, the Court noted that the housing

authority was not acting as a sovereign but as a landlord in

invoking its right under a statutorily sanctioned lease clause

to evict tenants for the drug activity of its household mem-

bers or guests. 122 S. Ct. at 1236. The discussion of the

sovereign issue only served to distinguish that the housing

authority’s discretion to evict tenants for the drug activity of

others was not based on a policy of the housing authority's

*” Notably, only one of the six amici in support of Petitioner supports this

novel proposal. See Amici Large Public Housing Authorities Br. at 16.

Not even RRHA, the City of Richmond, or the U.S. Solicitor General saw

fit to do so.

29

own design; rather, on this limited issue, like a private land-

lord, the housing authority’s authority to evict arose from a

statutorily required lease provision. ® Unlike Rucker, no

statute or lease provision permits or requires RRHA to bar

residents’ guests or other visitors from the housing authority

property.”

Furthermore, the Court need not answer the question ar-

ticulated by the Petitioner as to whether the public housing

authority acts as landlord or sovereign. In making the deter-

mination of whether the conduct occurred in a public or non-

public forum for purposes of the First Amendment, the Court

assesses the nature of the housing authority’s functions and

responsibilities toward its residents. This new suggestion

adds nothing to the analysis of a government landlord’s func-

tions, and the Court should avoid creating a new distinction

in a case where it adds nothing to the analysis and the conse-

quences are unforeseeable and potentially devastating to

well-established rights of residents. If such a distinction ever

must be drawn, this is not the appropriate case or set of cir-

cumstances for doing so.

Finally, to the extent that the law should distinguish gov-

ernment as landlord and sovereign, the difference is that pub-

lic housing tenants have additional substantive and proce-

dural rights arising from the constitutional limitations on the

exercise of government power. E.g., Thorpe v. Hous. Auth.

of Durham, 386 U.S. 670, 678 (1967) (Douglas, J., concur-

ring) (quoting Rudder v. United States, 226 F.2d 51, 53 (D.C.

Cir. 1955)) (“‘The government as landlord is still the gov-

ernment. It must not act arbitrarily, for, unlike private land-

lords, it is subject to the requirements of due process of

law.””’).

* Amici also agree with Respondent that the distinction in Rucker is in-

apposite here because the RRHA is attempting to broadly regulate the

general populace; i.e., nonresidents.

?° Such a lease provision would be impermissible under the U.S. Housing

Act. See discussion supra Part I.A.

30

The Court should not fundamentally alter the relationship

between PHAs and public housing residents without more

careful consideration than this case can allow.

CONCLUSION

Amici respectfully request that this Court affirm the Vir-

ginia Supreme Court’s reversal of Mr. Hicks’ conviction and

its determination that the RRHA no-trespass policy is uncon-

stitutional. The important and established statutory, common

law, and constitutional rights of public housing residents to

accommodate guests and visitors provide further justification

for this outcome.

Respectfully submitted,

WENDY HEss CATHERINE M. BISHOP

DEBRA GARDNER *Counsel of Record

Public Justice Center National Housing Law Project

500 East Lexington St. 614 Grand Ave., Ste. 320

Baltimore, MD 21202 Oakland, CA 94610

(510) 251-9400

AMY COPPERMAN

Massachusetts Law HONG TRAN

Reform Institute Northwest Justice Project

99 Chauncy St. 401 2" Ave. So., Suite 407

Boston, MA 0211] Seattle, WA 98177

APRIL CHARNEY

Gulf Coast Legal Services

1750 17" St., Bldg. 1

Sarasota, FL 34234

April, 2003