Hicks v. Com.

• Decision Date: 03 July 2001
• Docket Number: Record No. 1895-99-2.
• Citation: 548 S.E.2d 249,36 Va. App. 49
• Parties: Kevin Lamont HICKS v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

548 S.E.2d 249

36 Va. App. 49

Kevin Lamont HICKS v. COMMONWEALTH of Virginia.

Record No. 1895-99-2.

Court of Appeals of Virginia, Richmond.

July 3, 2001.

Steven D. Benjamin (Betty Layne Des-Portes; Benjamin & DesPortes, P.C., on briefs), Richmond, for appellant.

Virginia B. Theisen, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Amicus Curiae: American Civil Liberties Union of Virginia Foundation, Inc. (Rebecca K. Glenberg, on brief), for appellant.

Present: FITZPATRICK, C.J., and BENTON, WILLIS, ELDER, BRAY, ANNUNZIATA, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS and AGEE, JJ.

FITZPATRICK, Chief Judge.

On October 17, 2000, a panel of this Court affirmed the trespass conviction of Kevin Lamont Hicks (appellant). See Hicks v. Commonwealth, 33 Va.App. 561, 535 S.E.2d 678 (2000). Appellant's petition for rehearing en banc was granted and the mandate of the October 17, 2000 opinion was stayed. See Hicks v. Commonwealth, 34 Va.App. 42, 537 S.E.2d 616 (2000). Appellant contends the trial court erred in (1) denying his motion to dismiss the prosecution on the grounds that the barment-trespass procedure violated his First and Fourteenth Amendment rights and (2) denying his motion to remand the case to the general district court for trial before a different judge of that court and require the Commonwealth's attorney to prosecute the case. Upon rehearing en banc, we hold that the barment-trespass procedure employed by the City of Richmond in the instant case violates the First and Fourteenth Amendments to the United States Constitution and, thus, we reverse and dismiss the trial court's conviction of appellant. The mandate of the October 17, 2000 opinion is hereby vacated.

I.

Whitcomb Court is a housing project owned by the Richmond Redevelopment and Housing Authority (RRHA). RRHA sought to "privatize" the streets surrounding and adjacent to the Whitcomb Court housing project in an effort to make the community safer.¹ On June 23, 1997 the City of Richmond adopted ordinance No. 97-181-197 deeding the streets surrounding Whitcomb Court to RRHA. The ordinance provided:

§ 1. That Carmine Street, Bethel Street, Ambrose Street, Deforrest Street, the 2100-2300 Block of Sussex Street and the 2700-2800 Block of Magnolia Street in Whitcomb Court ... be and are hereby closed to public use and travel and abandoned as streets of the City of Richmond.

* * *

§ 3. The City shall retain a full width utility easement in the streets proposed to be closed by this ordinance ....

§ 4. The City shall retain a full width right of way maintenance easement in the streets proposed to be closed by this ordinance.

§ 5. That the, aforesaid streets shall be designated as public highways for law enforcement purposes ....

The streets deeded to Whitcomb Court at issue here were those streets surrounding and adjacent to the property owned by RRHA, not those contained within Whitcomb Court. Prior to "privatization," these streets were similar to all other streets in Richmond. After the streets were deeded to RRHA, red and white "private property, no trespass" signs were posted throughout Whitcomb Court and every "hundred feet on each block," informing the public that "these streets are privatized and all the property is privatized, no trespass." The signs were "approximately 18 inches to almost 24 inches by about 12 inches." However, the streets were not gated, barricaded, or otherwise closed or restricted only to Whitcomb Court traffic. The streets remained open to vehicular traffic, and the sidewalks were open to access by the public.

After the streets were deeded to RRHA, RRHA adopted a barment-trespass procedure to prevent any "unauthorized persons" from entering `the property. On November 13, 1998 the RRHA's Director of Housing Operations authorized each and every sworn officer of the Richmond Police Department to enforce the trespass laws of the Commonwealth of Virginia... [upon RRHA property known as] Whitcomb Court . . . [E]ach and every Richmond Police Department officer [is authorized] to serve notice, either orally or in writing, to any person [found on RRHA property] when such person is not a resident, employee, or such person cannot demonstrate a legitimate business or social purpose for being on the premises.

According to a printed brochure issued by RRHA to the Whitcomb Court residents, "unauthorized persons," who are subject to the barment proceedings, are all non-residents who cannot demonstrate that they are on the premises "visiting a lawfully residing resident, or on the development conducting legitimate business."

The police officer makes the determination whether a person is to be barred, determines whether the person is a tenant or is there at the invitation of a tenant, or whether there is a legitimate reason for being on the property. A person simply has to fail to fit within the category of people whom RRHA has deemed entitled to be on the streets and sidewalks adjacent to the public housing development to be barred. Once barred, the person who returns is a trespasser without regard to whether, on that subsequent occasion, he or she is there on legitimate business or at the invitation of a Whitcomb Court tenant.

Hicks was convicted of trespassing on the property of Whitcomb Court on February 10, 1998 and June 26, 1998, respectively, and of damaging property in Whitcomb Court on April 27, 1998.² On April 14, 1998, Mrs. Gloria Rogers, the housing manager at Whitcomb Court, served a written notice on Hicks advising him that he was banned from the Whitcomb Court property. He was "not to trespass on RRHA property," and if he was "seen or caught on the premises, [he would] be subject to arrest by the police." Hicks' mother, his baby, and his baby's mother live at Whitcomb Court. After receiving the notice, Hicks twice returned to Whitcomb Court to speak with Mrs. Rogers to seek permission to come back on the property. His requests were denied. On January 20, 1999, Officer James Laino (Laino) observed Hicks walking westbound in the 2300 block of Bethel Street, one of the "privatized" streets adjacent to Whitcomb Court. Laino knew that Hicks was barred from the property. Hicks explained to Laino that he was on the property "bringing pampers to his baby." During the conversation, a female came out and approached Laino and Hicks. Hicks indicated he was visiting her. Laino issued Hicks a summons for trespassing.

Hicks was tried in the general district court without the presence of a Commonwealth's attorney. The district court judge conducted the questioning of Hicks. Hicks objected to this procedure. The judge struck Hicks' testimony at the end of the trial and convicted him. Hicks noted an appeal to the circuit court.

Prior to trial in the circuit court, Hicks filed a motion requesting a remand to the general district court for a new trial and an order requiring a Commonwealth's attorney to be present and to represent the Commonwealth at this new general district court trial. The circuit court denied the motion on the ground that it lacked authority to remand the trial. Hicks also moved to dismiss the charge of trespass on the ground that the RRHA's trespass policy violated the First and Fourteenth Amendments to the United States Constitution. The circuit court denied his motion to dismiss and found Hicks guilty of trespass.

II. CONSTITUTIONALITY OF RICHMOND ORDINANCE

Appellant argues that Richmond City Ordinance No. 97-181-197 and the RRHA barment-trespass procedure violate the First and Fourteenth Amendments of the United States Constitution.³ Thus, we must determine whether the First and Fourteenth Amendments are violated by the trespass statute as enforced under authority granted by RRHA to Richmond City police officers to bar people on the streets surrounding and adjacent to Whitcomb Court and who do not fit within a narrowly defined group of people. The critical issue is whether the "privatized" streets and sidewalks are public and as such are a "traditional public forum," or whether they are "private" and, thereby, a "nonpublic forum." If they are "traditional public forum," then the barment-trespass procedure must satisfy the strict scrutiny requirement that the procedure be narrowly tailored to serve a compelling state interest. See Daniel v. City of Tampa, 38 F.3d 546 (11th Cir.1994).

A. "PUBLIC FORUM"

The constitutionality of government regulation of First Amendment rights is analyzed under a public fora analysis. See Warren v. Fairfax County, 196 F.3d 186, 190 (4th Cir.1999).

The public forum analysis was created to recognize that the government must be able to limit the use of its property to the intended purpose for which the property was created and to limit access to those rightfully conducting business there. Toward that end, the Court has identified at least three types of fora for First Amendment purposes, each subject to a different regime of constitutional scrutiny: the traditional public forum, the designated public forum, and the nonpublic forum. The Court distinguishes between these fora based upon the physical characteristics of the property, including its location, the objective use and purposes of the property and government intent and policy with respect to the property, which may be evidenced by its historic and traditional treatment. Id. at 190-91 (internal citations omitted). Public streets and sidewalks are repeatedly referred to as. the archetype of a traditional public forum because they "are among those areas of public property that traditionally have been held open to the public for expressive activities and are clearly within those areas of public property that may be considered, generally without further inquiry, to be public forum property." United States v. Grace, 461 U.S. 171, 179, 103 S.Ct. 1702, 1708, 75 L.Ed.2d 736 (1983).

Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the

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