DIVISION OF LEGISLATIVE SERVICES
VIRGINIA LEGISLATIVE ISSUE BRIEF
Number 31                            June 2003

High Court Reinstates Virginia Public Housing Tresspass Policy:

Commonwealth v. Hicks

Amigo R. Wade, Senior Attorney

On June 16, 2003, the Supreme Court of the United States reversed the decision of the Virginia Supreme Court in Commonwealth of Virginia v. Hicks, 2003 U.S. Lexis 4782, finding that the trespass policy of the Richmond Redevelopment Housing Author-ity (RRHA) is not facially invalid under the overbreadth doctrine of the First Amendment of the United States Constitution. The Court remanded the case to the Virginia Su-preme Court for further proceedings, which may include the resolution of other claims.

To understand and to put in perspective the decision of the Supreme Court of the United States, it is helpful first to review the facts and the lower courts' decision.

Facts

The Richmond Redevelopment Housing Authority is a political subdivision of the Commonwealth that owns and operates 13 low-income housing developments in the City of Richmond, one of which is known as Whitcomb Court. In an effort to eradicate illegal drug activity in Whitcomb Court, RRHA sought to deny access to its property to persons who did not have legitimate reasons to visit the development. In support of this effort, the Richmond City Council on June 23, 1997, enacted an ordinance that aban-doned streets in Whitcomb Court as streets of the City of Richmond and conveyed the streets by a recorded deed to RRHA. The deed required RRHA to "make provisions to give the appearance that the closed streets, particularly at the entrances, are no longer public streets and that they are in fact private streets."¹

While the streets and sidewalks were not gated, barricaded, or otherwise closed or restricted only to Whitcomb Court traffic, "private property, no trespass" signs were posted by RRHA along the boundaries of the development and throughout the develop-ment at regular intervals. RRHA also adopted a written barment-trespass procedure to prevent unauthorized persons from entering the property unless they had a legitimate business or social purpose for being there. As a part of this written policy, RRHA authorized police officers of the City of Richmond to serve notice on any person lacking a legitimate business or social purpose for being on the grounds of the development and to arrest for trespassing any person who remains or returns after having been notified.

Under an unwritten part of the overall trespass policy, the housing manager for Whitcomb Court was required to determine whether a person can demonstrate a legiti-mate business or social purpose to use RRHA's property. Individuals seeking access to Whitcomb Court, including the streets, were required to obtain the housing manager's permission for such access.

Kevin Lamont Hicks was not a resident of Whitcomb Court, but his mother, his child, and the mother of his child were residents. Hicks was first convicted of tres-passing on the property of Whitcomb Court on February 10, 1998. On April 14, 1998, the housing manager of the development served Hicks with a written barment notice advising him that he was banned from Whitcomb Court property. The notice informed Hicks that he was not to trespass on RRHA property and if he was seen or caught on the premises he would be subject to arrest by the police.² Hicks did return to the Whit-comb Court property, was arrested and subsequently convicted of trespassing on June 26, 1998. Some time after receiving the barment notice, Hicks returned to Whitcomb Court on two occasions to request permission from the housing manager to come back on the property. In each instance, the permission was denied.

On January 20, 1999, a Richmond police officer observed Hicks walking on one of the privatized streets. The officer recognized Hicks and was aware that he had been barred from the property. Hicks told the officer that he was on the property bringing diapers to his baby. Based on the previous barment, however, the officer issued Hicks a summons for trespassing under § 18.2-119 of the Code of Virginia.

Virginia Courts' Decisions

Trial Courts

In the General District Court for the City of Richmond, Hicks was tried on the charge of trespass, for the January 20, 1999, incident, in violation of § 18.2-119 of the Code of Virginia, and three violations of the conditions of suspended sentences that had been imposed upon him for the two prior trespass convictions.³ Hicks was subsequently convicted and noted his appeal to the Circuit Court.

In a pre-trial motion, Hicks moved to dismiss the charge of trespass on the ground that RRHA's trespass policy violates the First and Fourteenth Amendments to the United States Constitution. At trial, the Circuit Court denied his motion to dismiss and found Hicks guilty of trespass.

Appellate Courts

Hicks appealed his conviction in the Circuit Court for the City of Richmond to a three judge panel of the Virginia Court of Appeals, asserting, among other things, that the trial court erred in denying his motion to dismiss the prosecution on the grounds that his due process and First Amendment rights were violated by RRHA's policy, and that the trespassing statute was unconstitutionally vague and overbroad.

The panel (2-1), in affirming the judgment of the trial court upholding the conviction, ruled that the streets of Whitcomb Court were private and therefore, to the extent that Hicks barment from the property interfered with his due process and First Amendment rights, such interference was reasonable, limited, and justified. The panel also held that the trespassing statute was not unconstitutionally vague or overbroad.⁴

The Court of Appeals en banc (6-5) disagreed with the panel and ruled that RRHA's policy violated the First Amendment and vacated Hicks' conviction. The majority stated that "[t]he critical issue is whether the 'privatized' streets and sidewalks are public and as such are a 'traditional public forum,' or whether they are 'private' and, thereby, a 'nonpublic forum.'"⁵ The Court held that the City "cannot transform the public streets and sidewalks in Whitcomb Court into private, non-public property simply by passing an ordinance declaring them closed, conveying them to another governmental entity when they continue to serve the same public purpose as before."⁶ The Court held that RRHA's policy violated the First Amendment because the streets of Whitcomb Court were a traditional public forum, notwithstanding the city ordinance declaring them closed.

The Commonwealth appealed this decision to the Supreme Court of Virginia, which upheld the Court of Appeals' decision to overturn Hicks' trespass conviction on First Amendment grounds, but under a different rationale. Without deciding whether the streets of Whitcomb Court were a public forum, the Court concluded that RRHA's policy was unconstitutionally overly broad. The Court stated while the policy was "designed to punish activities that are not protected by the First Amendment, the policy also pro-hibits speech and conduct that are clearly protected by the First Amendment." The court also held that Whitcomb Court's housing manager had unfettered discretion to determine not only who has a right to speak on the Housing Authority's property, but the manager could prohibit speech that she found personally distasteful or offensive even though the speech may be protected by the First Amendment.

While there were several issues raised by Hicks on his appeal, the decision of the Court was confined to the narrow basis that RRHA's trespass policy was overly broad. Regarding the extent of its holding, the Court stated:

We recognize that the Court of Appeals decided this case on the basis that the Housing Authority's private streets constitute a public forum and that the Housing Authority's ef-forts to regulate speech in that forum contravene the First Amendment. In view of our limited holding, we need not resolve this issue and, thus, we will vacate that portion of the judgment of the Court of Appeals, and we will reserve consideration of this issue for an-other day. Also, we need not, and we do not, express any views regarding the litigants' re-maining contentions.⁷

Decision Of The Supreme Court Of The United States

The Supreme Court of the United States held that the RRHA trespass policy was not overly broad and therefore reversed the holding of the Virginia Supreme Court.

In reaching this decision the Court explained that the First Amendment overbreadth doctrine is an expansive remedy that is an exception to the normal rules used to deter-mine whether a law violates the First Amendment. Under the normal rules, the Court would restrict its review to a law's impact on the particular First Amendment protected conduct or expression of the person before the Court in determining whether the pur-pose of the law is sufficiently substantial to justify such impact, and whether that im-pact is no greater than necessary to accomplish the purpose.

On the other hand, under the overbreadth doctrine, a person whose conviction under a statute does not in any way involve or abridge his First Amendment rights⁸, can, nonetheless, attempt to have his conviction (and the statute) thrown out based on his showing that the statute may prohibit unknown other persons from engaging in activities that are protected by the First Amendment.

The Court explained that this exceptional remedy is provided out of concern "that the threat of an overbroad law may deter or 'chill' constitutionally protected speech."⁹

Many persons, rather than undertake the considerable burden (and sometimes risk) of vin-dicating their rights through case-by-case litigation, will choose simply to abstain from protected speech, - harming not only themselves but society as a whole, which is deprived of their ideas.¹⁰

The Court stated, however, that the overbreadth doctrine also creates substantial so-cial costs because it necessarily prohibits a law's application to harmful conduct that is not constitutionally protected. Accordingly, the "strong medicine" of overbreadth invali-dation may only be used upon a showing that a law's application to protected speech is substantial relative to the scope of the law's plainly legitimate applications. If a law's application to protected speech is shown merely to be possible, but not substantial, then an overbreadth challenge will not prevail. Instead, the courts will consider any potential future claims that the law was actually applied to protected speech or con-duct on a case-by-case basis.

When the Court applied this standard to the case at hand it found that "Hicks has not shown. . . that the RRHA trespass policy as a whole prohibits a substantial amount of protected speech in relation to its many legitimate applications." In fact, the Court found that Hicks failed to demonstrate that any First Amendment activity falls outside the "legitimate purposes" that would permit entry onto the streets in question.

The Court found it "most important" that RRHA's trespass policy applied to all persons who enter the streets of Whitcomb Court, not just those who seek to engage in expression. The policy applies "to strollers, loiterers, drug dealers, roller skaters, bird watchers, soccer players, and others not engaged in constitutionally protected conduct - a group that would seemingly far outnumber First Amendment speakers."¹¹

The Court found it unnecessary in this case to determine whether the streets in Whitcomb Court are a pubic forum:

Even assuming the streets of Whitcomb Court are a public forum, the notice-barment rule subjects to arrest those who reenter after trespassing and after being warned not to return -- regardless of whether, upon their return, they seek to engage in speech. Neither the ba-sis for the barment sanction (the prior trespass) nor its purpose (preventing future tres-passes) has anything to do with the First Amendment.

What's Next

The holding of the United States Supreme Court remanded the case back to the Vir-ginia Supreme Court and left open whether Hicks may challenge his trespass conviction on other grounds and whether those grounds have been properly preserved. These grounds include (i) whether RRHA's barment-trespass policy is unconstitutionally vague,¹² (ii) whether the policy unconstitutionally infringes upon Hicks' right of intimate association, and (iii) whether the policy unconstitutionally inhibits Hicks' right of free movement. Also yet to be resolved by the Virginia Supreme Court is the issue of whether or not the streets of Whitcomb Court are a public forum.

Attorneys representing Hicks have indicated their intention to pursue the case further on behalf of their client. Based on the claims that may be raised by Hicks in any subsequent proceedings, the final disposition of the RRHA barment-trespass policy and Hicks' trespass conviction is unclear.

Notes

¹ Commonwealth v. Hicks, 264 Va. 48, 52 (2002).
² Hicks was also convicted on April 27, 1998, of damaging property in Whitcomb Court. The Court of Appeals noted, however, that the barment notice was not related to Hicks' damaging property at Whitcomb Court.
³ At the trial, Hicks was represented by counsel but no prosecutor was present on behalf of the Commonwealth.
⁴ The panel noted that while Hicks challenged the trespassing statute as unconstitutionally vague and overbroad, his arguments focused instead on the RRHA's policies.
⁵ Hicks v. Commonwealth, 36 Va. App. 49, 56 (2001)
⁶ Id. at 60.
⁷ Commonwealth v. Hicks, 264 Va. at 60.
⁸ Hicks did not contend that he was engaged in constitutionally protected conduct when he was arrested.
⁹ Commonwealth v. Hicks, 2003 U.S. Lexis, p. 10.
¹⁰ Id. at p. 11.
¹¹ Id. at p. 18.
¹² Under the vagueness doctrine, a law, or in this case a policy, may be deemed unconstitutional if it does not define the criminal offense with sufficient specificity that ordinary people can under-stand what conduct is prohibited.

Virginia Legislative Issue Brief is an occasional publication of the Division of Legislative Services, an agency of the General Assembly of Virginia.

E.M. Miller, Jr., Director
R.J. Austin, Manager, Special Projects
K.C. Patterson, Editor

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