310 F.3d 484 (6th Cir. 2002), 00-4477, Johnson v. City of Cincinnati

Docket Nº:00-4477.
Citation:310 F.3d 484
Party Name:Patricia JOHNSON; Michael Au France, Plaintiffs-Appellees, v. CITY OF CINCINNATI, Defendant-Appellant.
Case Date:September 26, 2002
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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310 F.3d 484 (6th Cir. 2002)

Patricia JOHNSON; Michael Au France, Plaintiffs-Appellees,


CITY OF CINCINNATI, Defendant-Appellant.

No. 00-4477.

United States Court of Appeals, Sixth Circuit.

September 26, 2002

Argued Feb. 1, 2002

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Bernard F. Wong (argued and briefed), Cincinnati, OH, Scott T. Greenwood (briefed), Greenwood & Associates, Cincinnati, OH, Raymond Vasvari (briefed), American Civil Liberties Union of Ohio Foundation, Cleveland, OH, for Plaintiffs-Appellees.

Richard Ganulin (argued and briefed), City Solicitor's Office, Cincinnati, OH, for Defendant-Appellant.

Before MARTIN, Chief Circuit Judge; GILMAN, Circuit Judge; EDMUNDS, District Judge.[*]

BOYCE F. MARTIN, Jr., C.J., delivered the opinion of the court, in which EDMUNDS, D.J. joined. GILMAN, J. (pp. 506-519), delivered a separate dissenting opinion.


BOYCE F. MARTIN, JR., Chief Circuit Judge.

The City of Cincinnati appeals the decision of the district court declaring the City's drug-exclusion ordinance, Cincinnati Municipal Code § 755, unconstitutional on its face, and unconstitutional as applied to plaintiffs Patricia Johnson and Michael Au France, and awarding plaintiffs attorney fees. For the reasons set forth below, we AFFIRM the judgment of the district court.



On August 7, 1996, the City enacted the Ordinance to enhance the quality of life and protect the health, safety, and welfare of persons in neighborhoods with a "significantly higher incidence of conduct associated with drug abuse than other areas of the City." Cincinnati, Ohio, Ordinance No. 229-1996, § 1(A), (D) (Aug. 7, 1996). To advance this goal, the Ordinance excludes an individual for up to ninety days from the "public streets, sidewalks, and other public ways" in all drug-exclusion zones if the individual is arrested or taken into custody within any drug-exclusion zone for one of several enumerated drug offenses.1

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Cincinnati Municipal Code § 755-5. The Ordinance extends this exclusion for a year if the individual is convicted. Id. The Ordinance defines drug-exclusion zones as "areas where the number of arrests for . . . drug-abuse related crimes for the twelve (12) month period preceding the original designation is significantly higher than that for other similarly situated/sized areas of the city." Id. § 755-1.

Excluded persons who violate the Ordinance are subject to prosecution for criminal trespass, a fourth-degree misdemeanor. Id. The City's chief of police, however, must grant a variance to any person who proves that he or she (1) resided in the drug-exclusion zone prior to receiving the exclusion notice, or (2) was employed by, or owned, a business located in a drug-exclusion zone prior to receiving the exclusion notice. Id. § 755-11(2)(b). Provided they have written regulations prohibiting "drug abuse-related activities by their clients and which have entered into a written agreement with the police division concerning the applicability of those rules," social service agencies may also grant variances "for reasons relating to the health, welfare, or well-being of the person excluded, or for drug abuse-related counseling services." Id. Variances must be in writing and the individual must keep the variance with him or her at all times within a drug exclusion zone. Id. § 755-1 l(2)(c). The variance becomes void if the holder violates its terms or is subsequently arrested for a drug offense. Id. § 755-1 l(2)(c),

The Ordinance provides an appeal mechanism whereby an excluded individual may file a written request for a hearing within five days of receiving an exclusion notice. Id. §§ 755-11; 755-13(a). On appeal, the City must prove, by a preponderance of the evidence, that the excluded individual committed a specified drug offense in a drug-exclusion zone. Id. § 755-11(1)(c). The City can sustain or vacate the exclusion notice being challenged, and that determination "is a quasi-judicial decision and is final subject only to appeal to a court of competent jurisdiction." Id. § 755-13(C)(c), (D).

In September 1998, the City Council designated Over the Rhine—a mixed residential/commercial neighborhood located immediately north of the City's downtown business district—a drug exclusion zone. The City's designation of Over the Rhine followed a police report examining Citywide drug arrests from June 1996 to May 1997. The report, which was subsequently incorporated into the Ordinance's factual findings, detailed that 18.7% of City drug arrests occurred in Over the Rhine. According to the report, reducing the number of drug offenses in Over the Rhine was extremely difficult because many arrested individuals returned to the neighborhood immediately upon release. Citing Portland, Oregon's 38% crime reduction in certain neighborhoods following the establishment of a drug exclusion ordinance, the police report characterized a drug-exclusion ordinance as an additional tool to reduce crime and improve the quality of life in Over the Rhine.

In 1998, the City amended the Ordinance to provide that the ninety-day exclusion period terminates upon acquittal, dismissal of charges, or failure to prosecute.


Johnson was arrested on March 18, 1998, for a marijuana trafficking offense in

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Over the Rhine. At the time of her arrest, she variously lived with Katrina Chambers and Frank Johnson, two of her adult children. Marquisa Harmon, Johnson's other adult daughter, resided in Over the Rhine. Johnson did not reside with Harmon, but she helped care for Harmon's five minor children and regularly took two of the children, Tania and Jaquanna, to school.

As a result of her arrest, Johnson received an exclusion notice prohibiting her from entering Over the Rhine from March 24, 1998, until June 22, 1998. Because she was not a bona fide resident of, or employed in, Over the Rhine, Johnson did not qualify for a variance, and she did not appeal her exclusion notice.

After an Ohio grand jury took no action on the marijuana trafficking charge against Johnson, the case against, her was terminated on March 27, 1998. Because the Ordinance had not yet been amended to provide for immediate termination of the exclusion, Johnson remained banned from Over the Rhine. Thus, when Johnson was found within Over the Rhine on April 8, 1998, the City charged her with criminal trespass. This charge was dismissed on February 8, 1999.

Au France, a homeless man, was first arrested in Over the Rhine for possession of drug paraphernalia in October 1996. He was convicted of this offense on November 11, 1996. He was subsequently arrested and convicted for multiple Ordinance violations and additional drug-related crimes in the neighborhood. As a result of these arrests, convictions, and related exclusions, Au France claims he was prohibited from entering Over the Rhine for four years and spent over four hundred days in jail.

Au France regularly sought food, clothing, and shelter from social service organizations located in Over the Rhine. Moreover, Au France's attorney's office is located in Over the Rhine. Au France applied for a variance on November 17, 1998. The City denied his application, citing his criminal record and lack of a permanent residence in Over the Rhine.


Johnson initially filed suit on June 19, 1998, and both Johnson and Au France filed an amended complaint on December 18, 1998. The plaintiffs alleged that the Ordinance (1) unconstitutionally infringes on their rights to freedom of speech and freedom of association; (2) infringes on their right to freedom of movement in intrastate travel in violation of the Fourteenth Amendment's Due Process and Equal Protection Clauses; (3) violates the Eighth Amendment's prohibition against cruel and unusual punishment; and (4) violates the Fifth Amendment's Double Jeopardy Clause. Plaintiffs sought a declaration that the Ordinance is unconstitutional on its face and as applied to them, a permanent injunction prohibiting the City from enforcing the Ordinance, compensatory damages, and reasonable attorney fees and costs.

The district court held that the Ordinance was unconstitutional both as applied and on its face, because it (1) violated the plaintiffs' right to freedom of association; (2) violated the right of excluded persons to freedom of movement in the form of their right to intrastate travel; and, (3) violated Au France's right to be free from double jeopardy. The district court enjoined enforcement of the Ordinance and awarded plaintiffs $38,500 in fees.

Subsequent to the district court's decision, the Ohio Supreme Court declared that the post-conviction portion of the Ordinance violated both the United States Constitution and the State of Ohio Constitution. State v. Burnett, 93 Ohio St.3d 419,

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755 N.E.2d 857, 865-868 (2001), cert. denied, — U.S.—, 122 S.Ct. 1790, 152 L.Ed.2d 649 (2002). According to all but one Justice of the Ohio Supreme Court, the Ordinance impermissibly infringed on a convicted individual's due process right to intrastate travel, specifically, the right to "travel locally through public spaces and roadways" of the state. Id. at 865. The Burnett court also ruled that the Ordinance impermissibly exceeded the local authority granted to the City by Section 3, Article XVIII of the Ohio Constitution. Id. at 868.


In light of the Ohio Supreme Court's recent decision in Burnett, we must first address whether an "actual controversy still exists between the parties." WJW-TV, Inc. v. City of Cleveland, 878 F.2d 906, 909 (6th Cir. 1989) (per curiam) (citations omitted); see also CBI Info. Servs., Inc. v. Reno, 278 F.3d 616, 618 (6th Cir...

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