899 F.2d 255 (3rd Cir. 1990), 89-5252, Lutz v. City of York, Pa.

Docket Nº:89-5252.
Citation:899 F.2d 255
Party Name:LUTZ, David D., Appellant, v. CITY OF YORK, PENNSYLVANIA.
Case Date:March 28, 1990
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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899 F.2d 255 (3rd Cir. 1990)

LUTZ, David D., Appellant,



No. 89-5252.

United States Court of Appeals, Third Circuit

March 28, 1990

Argued Sept. 7, 1989.

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Daniel M. Fennick (argued) and William C. Anderson, Anderson, Converse and Fennick, P.C., York, Pa., for appellant.

Edward C. Roberts (argued), Kain, Brown & Roberts, York, Pa., for appellee.

Before BECKER, COWEN and ROSENN, Circuit Judges.


BECKER, Circuit Judge.

In 1988, the city of York, Pennsylvania enacted an ordinance outlawing "cruising," which consists of driving repeatedly around a loop of certain major public roads through the heart of the city, an apparently popular activity among local youth. Plaintiffs Lutz and Weber brought suit in the district court for the Middle District of Pennsylvania seeking declaratory and injunctive relief on the grounds that the ordinance violates their right to travel and is overbroad. 1 The district court rejected these challenges, held that the ordinance was a valid traffic regulation, and dismissed the action.

The appeal implicates an important and largely unexplained area of constitutional jurisprudence--whether there exists an unenumerated constitutional right of intrastate travel. We conclude that such a right exists, and grows out of substantive due process. In setting a standard of review to evaluate restrictions that significantly impinge on that right, we apply intermediate scrutiny, as suggested by analogy to the time, place and manner doctrine so firmly entrenched in the jurisprudence of free speech. Concluding that the York ordinance constitutes, in essence, a reasonable time, place and manner restriction on localized intrastate movement, we reject the plaintiffs' right to travel challenge. Also, because the overbreadth doctrine does not apply outside of the First Amendment context, we reject plaintiffs' overbreadth challenge as well. Therefore, although our

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reasoning differs from that of the district court, we will affirm.


The York ordinance prohibits cruising in a designated area of the city. "Cruising" or "unnecessary repetitive driving" is defined as

driving a motor vehicle on a street past a traffic control point, as designated by the York City Police Department, more than twice in any two (2) hour period, between the hours of 7:00 p.m. and 3:30 a.m. The passing of a designated control point a third time under the aforesaid conditions shall constitute unnecessary repetitive driving and therefore a violation of this Ordinance.

York, Pa., Ordinance No. 6, Sec. 3(a) (Apr. 19, 1988). "Traffic control points" are "clearly identified reference point[s]" designated by the police, which may be placed only along certain blocks of Philadelphia and Market Streets, two major thoroughfares in downtown York. See id. Secs. 3(b), 3(c). 2 Whenever a violation occurs, exactly one person is deemed to be cruising--the car's owner, if present, or otherwise the driver. See id. Sec. 4. Violators, if convicted, are fined $50. See id. Sec. 7. Municipal and commercial vehicles are excluded from the ordinance, see id. Sec. 5, which also contains a standard severability clause, see id. Sec. 8.

The ordinance was passed in response to the following legislative findings:

It is hereby found that with consistency, on certain days and times, a threat to the public health, safety and welfare arises from the congestion created by repetitive unnecessary driving of motor vehicles on main thoroughfares within the City of York. The purpose of this Ordinance is to reduce the dangerous traffic congestion, as well as the excessive noise and pollution resulting from such unnecessary repetitive driving, and to insure sufficient access for emergency vehicles to and through the designated city thoroughfares now hampered by this repetitive driving of motor vehicles. Id. Sec. 2.

Several York officials defended the ordinance in testimony before the district court. Thomas Gross, a York police officer assigned to coordinate traffic safety, recited findings of a study indicating that traffic in the affected area, measured in terms of cars passing per unit time, is almost as high from 9 p.m. to 11 p.m. on a Friday night as it is during the afternoon rush hour. 3 Gross testified further, from personal observation, that congestion during cruising hours was even worse than congestion during rush hour: during rush hour, traffic was "heavy, but flow[ed] smoothly," while traffic during cruising hours was often at "virtually a complete standstill, for minutes at a time." App. at 37, 39.

Keith Ressler, the night shift supervisor of the York Police Department, testified that because of cruising, traffic often became bumper-to-bumper for several blocks. As a result, it could take as long as 20 minutes to travel two blocks in the affected areas. He further testified that emergency vehicles were unable to respond quickly to calls during cruising hours, and that sometimes police cars had been forced to drive on the sidewalk to circumvent the congestion. Echoing Gross's testimony, Ressler stated that the traffic problem was worse during cruising hours than during rush hour: during rush hour, "traffic flows smoother [sic]" because motorists "are going somewhere"; during cruising hours, by contrast, "[t]raffic on the loop flows erratically and sometimes not at all" because "[c]ars will remain stopped in lanes of traffic so the occupants of one car can talk to the occupants of another car even though there is a green light." Id. at 50-52.

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George Kroll, the York fire chief and ambulance administrator, testified that two of York's fire stations were located within the loop frequented by the cruisers. He stated that traffic in front of the central fire station on Market Street was often at "a total standstill" during cruising hours, making it impossible for the fire engines to exit the station. Kroll emphasized that "seconds, not even minutes" can be critical in controlling fires and saving lives. Id. at 56-58.

The plaintiffs did not seriously contest the magnitude of the congestion problem described by the city officials. Lutz himself admitted that traffic late on a weekend night could be "bumper-to-bumper," so that it might take 20 minutes to travel three blocks on Market Street within the cruising area. Id. at 18-20.


Initially, only Lutz challenged the ordinance. Claiming that it violated his right to travel and was overbroad, he moved for a preliminary injunction to prevent its enforcement. Following a hearing, the district court denied the preliminary injunction. The district court reasoned that Lutz was unlikely to prevail on the merits of his right to travel claim: because the freedom to cruise throughout downtown York rose "only" to the level of a "liberty interest" (as opposed to a "fundamental right"), the statute would be upheld because it was "rationally related to a legitimate governmental objective." See Lutz v. City of York, 692 F.Supp. 457, 459-61 (M.D.Pa.1988). 4 The district court rejected the overbreadth claim on the ground that the ordinance does not significantly infringe upon First Amendment activity. See id. at 461. Lutz then amended his complaint to add Weber as a second plaintiff, and the plaintiffs again sought a preliminary injunction. The district court applied the same reasoning to Weber's claims as it had to Lutz's. See Dist.Ct.Op. at 1-3 (Feb. 22, 1989). Instead of simply denying a preliminary injunction, however, the district court dismissed the action. 5 This appeal followed.


  1. Is a Protected Right Implicated?

    Plaintiffs argue that the cruising ordinance infringes upon their right to travel, which the modern Supreme Court recognized as fundamental in United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). The leading modern travel case, however, is Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Shapiro struck down on equal protection grounds a minimum durational residency requirement imposed as a condition of eligibility for welfare benefits. The Court noted that the relevant statute on its face treated some residents (new arrivals from other states) less well than other (long-time) residents solely on the basis of their having exercised the right to travel from one state to another. See id. at 627, 89 S.Ct. at 1327. Because that right is fundamental, the Court reasoned, "any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling government interest, is unconstitutional." Id. at 634, 89 S.Ct. at 1331 (emphasis in original). On the facts of the case before it, the Court held that none of the state's asserted justifications

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    for its minimum durational residency requirement survived the strict scrutiny test. See id. at 633-37, 89 S.Ct. at 1330-33.

    Since Shapiro, virtually all of the Court's right to travel cases have involved closely analogous situations. Thus, under reasoning essentially the same as Shapiro's, the Court has struck down minimum durational residency requirements imposed as conditions of eligibility to vote, see Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), and to receive free nonemergency medical care, see Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974). However, discerning state interests of greater significance than those asserted in Shapiro, Dunn, or Maricopa County, the Court in Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), upheld a minimum durational residency requirement as a condition of eligibility to be granted an in-state divorce. 6

    More recent cases involve similar statutes, but different reasoning. Thus, in Zobel v. Williams, 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672...

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