A SUPREME COURT VICTORY FOR TRESPASS POLICIES!

By Lisa Walker Scott

On June 16, 2003, the United States Supreme Court delivered its opinion in the trespass and barring case, Virginia v. Hicks, 539 U.S. ___ (2003). Click here to read the opinion. In a unanimous and succinct eleven-page decision, the Supreme Court held that the trespass policy of the Richmond (Virginia) Redevelopment and Housing Authority (RRHA) was not facially invalid under the First Amendment's overbreadth doctrine, and any possible application of the trespass policy that might violate the First Amendment could be remedied through as-applied litigation. This decision is a victory for housing agencies seeking to include trespass policies in their arsenal of anti-crime measures, and reverses the dangerous precedent of the Virginia Court of Appeals that permitted a facial attack on the policy where no constitutionally protected speech was involved.

Justice Scalia, writing for the unanimous court, considered the narrow question of whether RRHA's trespass policy was facially invalid under the First Amendment's overbreadth doctrine. To briefly recap the facts described in the May 30, 2003 edition of HDLI's Counsellor, in order to better combat criminal activity perpetrated by mostly non-residents of a public housing development owned by RRHA (known as Whitcomb Court), the City of Richmond conveyed the streets located within Whitcomb Court to RRHA. RRHA then proceeded to give the appearance that the streets were no longer public streets by posting conspicuous "no-trespass, private property" signs on each apartment building and within every 100 feet along the streets. RRHA also enacted an anti-trespass policy authorizing the Richmond police to serve a barment notice on persons who could not demonstrate a legitimate business or social purpose on the property. The police were authorized to arrest barred persons who stayed on, or returned to, the property. Trespassers were subject to prosecution under the trespass provisions of the Virginia State Code under penalty of a Class 1 misdemeanor.

Kevin Hicks was a barred person who had a history of trespassing upon, and damaging property at, Whitcomb Court. After receiving a barment notice from the police, Hicks unsuccessfully sought permission to return to the property. When he came back on the property notwithstanding, he was arrested and later convicted of trespass. At trial, Hicks claimed that the trespass policy was both unconstitutionally overbroad and void for vagueness. On appeal of his conviction, a three-judge panel of the Court of Appeals upheld the conviction, but the en banc (entire) Court of Appeals reversed. The en banc Court of Appeals held that the streets of Whitcomb Court were still public despite their conveyance by the city to RRHA. The Court further held that the trespass policy violated the First Amendment. The Virginia Supreme Court affirmed on different grounds. Relying upon the First Amendment overbreadth doctrine, the Virginia Supreme Court determined that the trespass policy was overbroad because it could prohibit speech and conduct protected by the First Amendment. The court found that the trespass policy vested too much discretion in the property manager, since she was entitled to determine who could and could not enter the property, and the unwritten effects of the policy could undermine a person's ability to, for example, distribute flyers within Whitcomb Court. Virginia sought certiorari to the U.S. Supreme Court, first arguing that Hicks lacked standing to impose the overbreadth doctrine because standing should be limited to persons whose own conduct involved expressive activity. It also argued that the policy was constitutional. The Supreme Court granted certiorari. RRHA, along with HDLI and other housing industry groups and the United States (ostensibly on behalf of HUD) submitted amicus briefs in support of Virginia. Click here to access the "industry" amicus brief in which HDLI participated.

Central to the case was that Hicks never contended that he was involved (and, indeed, he was not involved) in constitutionally protected conduct when he was arrested. Hicks claimed to have been delivering diapers to his child. He also did not challenge the validity of the trespass statute under which he was convicted. Rather, he waged a facial attack, arguing that the trespass policy which granted "unfettered" discretion in the housing manager was unconstitutionally broad under the First Amendment. The First Amendment "overbreadth doctrine" is designed to protect against an overbroad law that might chill speech, and provides that a law that punishes a substantial amount of protected free speech, judged in relation to the law's plainly legitimate sweep, is not enforceable unless it is narrowed to remove the constitutional violation. However, as Justice Scalia wrote in the Hicks decision, ". . . there comes a point at which the chilling effect of an overbroad law, significant though it may be, cannot justify prohibiting all enforcement of that law – particularly a law that reflects ‘legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.'" As Judge Scalia noted "substantial social costs are created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct." Accordingly, the link to protected speech must be "substantial," not only in an absolute sense, but also relative to the scope of the law's plainly legitimate applications before applying the "strong medicine" of overbreadth invalidation.

The Supreme Court first addressed the standing issue and determined that the federal standing rules only limit the jurisdiction of federal courts, and not state courts, over certain claims. The Court noted that state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law. Accordingly, the Supreme Court held that whether the Virginia courts should have entertained Hicks' overbreadth challenge was entirely a matter of state law. Without determining whether Virginia state law permitted the challenge, the Supreme Court went on to decide the First Amendment issue.

The Supreme Court considered whether the claimed overbreadth in the RRHA policy was sufficiently "substantial" to produce facial invalidity, and decided that it was not. Considering the so-called "unfettered" discretion of the Whitcomb Court property manager that might prohibit true speech, the Court noted that Hicks was not arrested for leafleting or demonstrating without permission. Rather, the Court noted that he was arrested for violating an established, written policy against trespass. The Supreme Court distinguished this "written requirement" of the trespass policy from the policy's "unwritten requirement" that demonstrators or leafleters obtain advance permission to enter the property - - the basis for the Virginia Supreme Court's decision. The Supreme Court noted that whether these two provisions (written v. unwritten) are severable is a matter of state law and that the Virginia Supreme Court implicitly had decided that they were inextricable since it invalidated the entire policy. However, the Supreme Court held that the Virginia Supreme Court could not have invalidated the entire policy under the overbreadth doctrine unless the policy, "taken as a whole, is substantially overbroad judged in relation to its plainly legitimate sweep." The Supreme Court found that Hicks had not met his burden concerning the policy taken as a whole, since he had failed to show that the barring notice directed to persons with no legitimate business or social purpose in Whitcomb Court would even be given to persons engaged in constitutionally protected speech. The housing manager had testified at trial that demonstrators and leafleters were permitted onto the property with advance permission. The Court went on to hold that Hicks had failed to demonstrate that any First Amendment activity falls outside the legitimate business or social purposes that permit entry.

Next, not only did the Supreme Court determine that the written trespass policy provision authorizing police to arrest barred persons ". . . certainly does not violate the First Amendment a applied to persons whose postnotice entry is not for the purpose of engaging in constitutionally protected speech," but it found that Hicks had failed to establish that the policy would violate the First Amendment when applied to legitimately protected speech. The Court reasoned that, even assuming the streets of Whitcomb Court were a public forum (an analysis that the Virginia Supreme Court failed to undergo), the notice-barment rule subjects to arrest all persons who reenter the property, regardless of whether the purpose for reentering involves protected speech. Notably, the Court held that

[n]either the basis for the barment sanction (the prior trespass) nor its purpose (preventing future trespasses) has anything to do with the First Amendment. Punishing its violation by a person who wishes to engage in free speech no more implicates the First Amendment than would the punishment of a person who has (pursuant to lawful regulation) been banned from a public park after vandalizing it, and who ignores the ban in order to take part in a political demonstration.

Justice Souter concurred in the decision, in which Justice Breyer joined. The focus of their concurrence was to underscore that the proper review was of the entire policy, rather than the "written" versus "unwritten" components of it, and to highlight the shoddy facts of the Hicks case. Justice Souter and Breyer warned, however, that a future circumstance might involve a closer case for comparison, that is, where the scrutinized law prohibits a more "substantial" amount of free speech, such as where a city's speech ordinance for a public park might be analyzed as one element of the combined policies governing expression in public schoolyards, municipal cemeteries, and the city council chamber.

The Hicks decision and its concurrence provide somewhat of a road map for PHAs seeking to design a trespass policy that will survive a First Amendment challenge. They instruct that before establishing a trespass policy, a PHA must consider all applicable policies or practices governing public expression in the locale, and that the policy must avoid prohibiting a "substantial" amount of free speech. The definition of "substantial" for purposes of analysis was left undefined, however, and will be subject to future case-by-case determinations. Of course, the trespass policy must further a law's plainly legitimate sweep (e.g., to protect against criminal activity), and must be narrowly tailored to avoid restricting constitutionally protected speech.