Daniel v. City of Tampa, Fla., 92-838-Civ-T-17A.

• Citation: 843 F. Supp. 1445
• Decision Date: 17 December 1993
• Docket Number: No. 92-838-Civ-T-17A.,92-838-Civ-T-17A.
• Parties: Anthony Mark DANIEL v. CITY OF TAMPA, FLORIDA, and Audley Evans, Executive Director, Tampa Housing Authority, in his official capacity.
• Court: U.S. District Court — Middle District of Florida

843 F. Supp. 1445

Anthony Mark DANIEL v. CITY OF TAMPA, FLORIDA, and Audley Evans, Executive Director, Tampa Housing Authority, in his official capacity.

No. 92-838-Civ-T-17A.

United States District Court, M.D. Florida, Tampa Division.

December 17, 1993.

Matthew P. Farmer, Farmer & Fitzgerald, Tampa, FL, for plaintiff.

Richard C. McCrea, Jr., Zinober & McCrea, P.A., Kirby Collin Rainsberger, Peter Michael Walsh, City Attorney's Office, David Alan Dee, Stull & Barber, P.A., Martin Lee Garcia, Hill, Ward & Henderson, P.A., Ricardo L. Gilmore, Morrison, Gilmore & Clark, Tampa, FL, for defendants.

MEMORANDUM

MORTON, Senior District Judge, Sitting by Assignment.

I. Introduction

Anthony Mark Daniel filed this lawsuit alleging violations of his First Amendment right of freedom of expression and Fourteenth Amendment due process right of freedom from arrest and prosecution under an unconstitutionally vague enforcement scheme. His First Amendment claim brings up the issue of overbreadth.

II. Facts

The Tampa Housing Authority owns property administered by a board of directors to provide low income housing. There are two such public housing complexes; College Hill and Ponce de Leon. Access to this property is restricted to lawful residents, invited guests, and those on official business. Any non-resident group or individual wishing to solicit, picket, demonstrate, or engage in any other concerted activity on Housing Authority property must first obtain permission from the board of directors.

Florida Statute 810.09 states, in pertinent part:

(1) Whoever, without being authorized, licensed, or invited, willfully enters upon or remains in any property other than a structure or conveyance as to which notice against entering or remaining is given, either by actual communication to the offender or by posting, fencing, or cultivation as described in § 810.011, commits the offense of trespass on property other than a structure or conveyance.

This statute is enforced through the use of a list of individuals who have been issued a warning for trespassing on Housing Authority property. No one remains on this list more than twelve months after the last warning, but anyone on the list who trespasses again is subject to arrest.

The purpose of this enforcement scheme (as it applies to the Housing Authority) is to deter drug transactions. The Housing Authority properties have a history of drug problems. College Hill, for instance, accounts for a rate of narcotics arrests five times higher than the rest of the city. Of these, more than 79% are committed by non-residents. Of the rest, more than half are illegitimate residents who squat in vacant Housing Authority apartments, drug addicts who leave behind their used syringes and other filth. Overall, nearly 90% of those arrested on Housing Authority property are non-residents or squatters.

The Tampa Police Department has established the X-Ray Squad to provide safety in the public housing complexes and improve community relations between the police and Housing Authority residents. Officers on the X-Ray Squad are trained in the enforcement of the Florida trespass-after-warning statute. They know that they cannot warn or arrest individuals who are (1) invited guests of Housing Authority property, (2) authorized to be on Housing Authority property, or (3) present on the city-owned streets, rights of way, sidewalks, or curbs which intersect or adjoin the public housing complexes.

Three times during the last two years, Daniel has been arrested for trespass after warning on Housing Authority property. At each arrest, Daniel had left the city-owned property and was standing either on the porch of an apartment complex or on the grounds next to an apartment complex. The first of these charges occurred on 25 January 1991. Daniel and some others were engaged in a Gulf War protest on city-owned property adjacent to one of the housing complexes. When a police officer saw Daniel enter Housing Authority property and tape a sign to one of the buildings, he prepared a criminal report affidavit without placing Daniel under arrest. Daniel was later convicted of this charge. The second charge followed Daniel's trespass onto the porch of one of the apartments but later was dismissed. The third arrest occurred on 29 November 1991, when Daniel entered Housing Authority property and began handing out leaflets. Although given the opportunity to leave, he refused and was placed under arrest. This charge also was dismissed.

During this two-year period, Daniel has picketed, leafleted, and demonstrated without incident on city-owned property, sometimes immediately adjoining the public housing complexes. There is no evidence that the Tampa Police Department has any policy or practice of making arrests based upon the content of anyone's speech. In fact, the TPD has an express policy requiring all police officers to be "diligent in protecting all citizens in the lawful exercise of their civil rights" and no one below the staff level has the authority to modify this policy.

II. Conclusions of Law

The court is not entirely persuaded that the enforcement of the trespass statute constitutes a time, place, and manner restriction subject to forum analysis. After all, no one here has alleged that Daniel's physical presence upon the property (which is all the statute prevents) is in itself expressive conduct within any conception of the First Amendment. But to the extent that Daniel's claim might be so construed, the court holds that the Housing Authority property is neither a traditional public forum nor a designated public forum. "The Government's ownership of property does not automatically open that property to the public." United States v. Kokinda, 497 U.S. 720, 725, 110 S.Ct. 3115, 3119, 111 L.Ed.2d 571 (1990). Furthermore, the property does not become a public forum just because the public is allowed access. United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75...