Crews v. City of Chester

• Decision Date: 25 January 2012
• Citation: 35 A.3d 1267
• Parties: Lawrence CREWS, by his mother and natural guardian, Lynette Crews, and Lynette Crews, in her own right, Appellants v. CITY OF CHESTER and Officer John Kuryan.
• Court: Pennsylvania Commonwealth Court

35 A.3d 1267

Lawrence CREWS, by his mother and natural guardian, Lynette Crews, and Lynette Crews, in her own right, Appellants

v.CITY OF CHESTER and Officer John Kuryan.

Commonwealth Court of Pennsylvania.

Argued Oct. 18, 2011.Decided Jan. 25, 2012.

Jon Auritt, Media, for appellants.

Mark A. Raith, Media, for appellee City of Chester.

BEFORE: PELLEGRINI, Judge ¹, and McCULLOUGH, Judge, and FRIEDMAN, Senior Judge.OPINION BY Senior Judge FRIEDMAN.

Lawrence Crews (Crews) and his mother, Lynette Crews (together, Plaintiffs), appeal from the October 21, 2010, orders of the Court of Common Pleas of Delaware County (trial court), denying their motion for summary judgment, dismissing their complaint against the City of Chester (City) with prejudice, and entering summary judgment in the City's favor. We affirm in part and reverse in part.

On the evening of August 29, 2001, then-fifteen-year-old Crews was standing at the corner of Tenth and Potter Streets in the City talking with three other males. When police approached the area on bicycles, someone yelled “5–0,” and Crews and the other individuals dispersed and ran. Officer John Kuryan apprehended Crews and charged him with loitering in a high drug activity area in violation of City Ordinance Number 7–1990 (Ordinance),² which states:

771.01 POSTING HIGH DRUG ACTIVITY AREA.

(a) The Mayor is hereby empowered to designate any area in the City in which twenty-five (25) arrests have been made in a six (6) month period relating to drugs, as a “High Drug Activity Area”.

(b) The Mayor may order the posting of signs in such an area giving warnings to travelers, thereon, that such an area is a “High Drug Activity Area”.

(Ord. 7–1990 § 1, 2. Passed 8–15–90.)

711.02 VIOLATION.

It shall be unlawful for any person/persons who has been observed either standing, sitting or otherwise loitering for over thirty minutes in a high drug activity area and after questioning by police, could not give a lawful and reasonable explanation for his presence there, to remain or return after being requested to leave by a police officer.

(Ord. 7–1990 § 3. Passed 8–15–90.)

711.99 PENALTY.

Any person who violates any provision of this article shall be fined not more than six hundred dollars ($600.00) and, in default of payment thereof, shall be imprisoned not more than ninety days.

(Ord. 7–1990 § 4. Passed 8–15–90.)

Crews was arrested, handcuffed, and transported to the police station, where he was held in police custody for approximately one hour until his mother arrived.

At a summary hearing in November 2001, a district justice dismissed Crews' citation because both the prosecutor and Officer Kuryan failed to appear. ³

On June 23, 2003, Plaintiffs filed a complaint against the City and Officer Kuryan ⁴ in connection with Crews' August 2001 arrest. In their complaint, Plaintiffs challenged the Ordinance's constitutionality and sought declaratory and injunctive relief, as well as damages for personal injuries and emotional distress suffered by Crews. Plaintiffs also sought damages for medical and legal expenses incurred by Crews' mother. The City filed an answer and new matter. Following brief discovery, both Plaintiffs and the City filed motions for summary judgment. The trial court initially dismissed the complaint on the ground that Plaintiffs lacked standing to pursue their claims. Plaintiffs timely appealed.

On appeal, this court held that Plaintiffs had standing to challenge the Ordinance because:

[a]lthough the citation was dismissed, such does not change the fact that Crews was adversely affected by the Ordinance, in that he was taken into custody and issued a citation for violation of the Ordinance and retained counsel to defend the subsequently dismissed citation.

Crews v. City of Chester, 983 A.2d 829, 833 (Pa.Cmwlth.2009). However, we concluded that a remand was necessary for the trial court to make factual determinations, if needed, with regard to Plaintiffs' constitutional claims. Id. Therefore, we reversed and remanded for further proceedings.

On remand, the trial court denied Plaintiffs' summary judgment motion, granted the City's summary judgment motion, and dismissed Plaintiffs' complaint with prejudice. In its opinion, the trial court concluded that: (1) Crews' First Amendment rights were not violated; (2) the Ordinance is neither vague nor overbroad; (3) Plaintiffs were not entitled to damages for Crews' injuries because the City has sovereign immunity; (4) Plaintiffs' emotional distress claim was unsupported by the evidence; (5) Crews' civil rights were not violated under 42 U.S.C. § 1983; and (6) Plaintiffs were not entitled to recover legal or medical expenses. Plaintiffs timely appealed from that decision.⁵

1. Overbreadth⁶

Plaintiffs first argue that the Ordinance is unconstitutionally overbroad because it criminalizes “standing, sitting or otherwise loitering” in a designated high drug activity area for more than thirty minutes, which is lawful conduct. We disagree.

A municipal ordinance is overbroad if, by its reach, it punishes constitutionally protected conduct as well as illegal conduct. Commonwealth v. Asamoah, 809 A.2d 943, 946 (Pa.Super.2002). An anti-loitering ordinance may be deemed overbroad “if the impermissible applications of the [ordinance] are substantial when judged in relation to [its] plainly legitimate sweep.” Id. In a facial overbreadth challenge, our first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct; if not, the overbreadth challenge must fail. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).

Contrary to Plaintiffs' assertion, the Ordinance here does not punish a person merely for loitering in a designated high drug area for more than thirty minutes. Rather, it allows the person to offer a lawful and reasonable explanation for his or her presence in such an area if requested by a police officer. Only if the person cannot provide a lawful explanation will he or she be asked to leave and potentially face criminal sanctions. As the trial court explained:

In order to restrain the sale of illegal drugs in that area[,] [the City] has enacted an ordinance which at worst may cause some inconvenience to persons found loitering there. If, upon request, they can give a lawful and reasonable explanation for their presence in that area, they can remain. If not, they are not arrested but simply asked to leave. This court does not believe that the ordinance has a sufficiently substantial impact on conduct protected by the First Amendment to render it unconstitutional.

...

... The [C]ity has a duty to control and protect its citizens from illegal drug trafficking and that is the purpose of this ordinance.

(Trial Ct. Op., 12/10/10, at 3–4.) ⁷

We agree with the trial court that any impermissible application of the Ordinance is insubstantial when judged in relation to the Ordinance's legitimate purpose of controlling illegal drug trafficking. Therefore, the Ordinance is not facially overbroad.

2. Vagueness

Next, Plaintiffs assert that the Ordinance is unconstitutionally vague. A municipal ordinance is void for vagueness if it fails to give a person of ordinary intelligence fair notice of what conduct is prohibited. Asamoah, 809 A.2d at 946. A criminal ordinance “must define the ... offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Id.

Plaintiffs claim that there was no sign identifying the corner of Tenth and Potter Streets as a high drug activity area, so Crews had no notice of the ordinance or his potential violation. However, the issue of fair notice “has been determined by the United States Supreme Court as being limited to whether it can be ascertained from the ordinance what conduct constitutes a violation of that ordinance, not whether the plaintiff knew that the [o]rdinance existed.” Waters v. McGuriman, 656 F.Supp. 923, 927 (E.D.Pa.1987) ( citing Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939)) (emphasis added). Here, the language of the ordinance states that failure to obey a police dispersal order is a violation for which criminal sanctions may be imposed. Plaintiffs have offered no evidence to support a conclusion that a person of reasonable intelligence could not understand, by reading the terms of the Ordinance, what conduct constitutes a violation.

Next, Plaintiffs claim that the Ordinance is vague because it invites arbitrary and discriminatory enforcement. According to Plaintiffs, there is no way of knowing what criteria a police officer will use to determine whether a person's explanation for his or her presence is “lawful and reasonable.” The ordinance also does not specify what a person must do to comply with a police dispersal order. We agree with these contentions.

In Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), the United States Supreme Court recognized that the more important aspect of the vagueness doctrine is not actual notice, but the requirement that the legislature establish minimal guidelines for enforcement of the enactment. For example, the California statute at issue in Kolender required persons who loitered or wandered on the public streets to provide “credible and reliable” identification when requested by a police officer. The Supreme Court held that the statute was unconstitutionally vague because it failed to clarify what was contemplated by the requirement of “credible and reliable” identification and, thus, afforded too much discretion to police.

It is clear that the full discretion accorded to the police to determine whether the suspect has provided a “credible and reliable” identification necessarily “entrust[s] lawmaking ‘to the moment-to-moment judgment of the policeman on his beat.’ ”...