Johnson v. City of Cincinnati

• Decision Date: 20 January 2000
• Docket Number: No. C-1-98-441.,C-1-98-441.
• Citation: 119 F.Supp.2d 735
• Parties: Patricia JOHNSON, et al., Plaintiffs, v. CITY OF CINCINNATI, Defendant.
• Court: U.S. District Court — Southern District of Ohio

119 F.Supp.2d 735

Patricia JOHNSON, et al., Plaintiffs, v. CITY OF CINCINNATI, Defendant.

No. C-1-98-441.

United States District Court, S.D. Ohio, Western Division.

January 20, 2000.

Scott T Greenwood, Greenwood & Associates, Cincinnati, OH, Bernard F Wong, Cincinnati, OH, Robert Hugh Gutzwiller, Clodfelter & Gutzwiller, Cincinnati, OH, Joan M Englund, Cleveland, OH, for Patricia Johnson.

Bernard F Wong, Cincinnati, OH, for Michael Au France.

Richard Ganulin, Assistant City Solicitor — 1, Cincinnati, OH, for City of Cincinnati.

ORDER

DLOTT, District Judge.

This matter is before the Court on Plaintiffs' Motion for Summary Judgment (doc. 14), Plaintiff's Motion for Preliminary Injunction (doc. 15), and Defendant's Motion for Summary Judgment (doc. 17). Plaintiffs Patricia Johnson and Michael Au France filed this suit against Defendant City of Cincinnati challenging the constitutionality of Cincinnati's "drug exclusion zone" ordinance, Chapter 755 of the Cincinnati Municipal Code ("C.M.C."). The parties have agreed to submit the Motion for Preliminary Injunction and the Motions for Summary Judgment on the briefs. Upon consideration of the facts and the law, Plaintiff's Motion for Summary Judgment (doc. 14) is hereby GRANTED and Defendant's Motion for Summary Judgment (doc. 17) is hereby DENIED. Consequently, Plaintiff's Motion for Preliminary Injunction (doc. 15) is DENIED AS MOOT.

I. BACKGROUND

A. Chapter 755 of the Cincinnati Municipal Code

Chapter 755 of the C.M.C., the drug exclusion zone ordinance, went into effect in September 1996 and was modified in part in July 1999. In enacting the ordinance, City Council made express findings that certain areas of the city, including the neighborhood known as Over the Rhine, have "significantly higher incidence of conduct associated with drug abuse activity than other areas of the City." City of Cincinnati Ordinance No. 229 at ¶ 1(A). The Council also found that "[m]any persons arrested in Cincinnati for drug abuse frequently return to the same location or general vicinity of their arrest because the area has proven to be a lucrative place for drug-abuse activity." Id. at ¶ 1(B). The Council then found that Cincinnati "has a substantial and compelling interest in restoring the quality of life and protecting the health, safety, and welfare of citizens using the public ways in such areas." Id. at ¶ 1(D). Finally, the Council found that Cincinnati's interest was so great "it justifies excluding those who engage in illegal drug abuse or illegal drug abuse-type criminal activity." Id. at ¶ 1(F).

The ordinance bans persons from all drug exclusion zones who are arrested or taken into custody within any designated drug exclusion zone "for drug abuse or any drug abuse-related activities," including nine specified criminal statutes of the Ohio Revised Code. C.M.C. § 755-5.¹ Persons arrested are subject to exclusion for a period of ninety days following the arrest and for a period of one year following subsequent convictions for the drug-abuse related crime. Id. The July 1999 amendment clarifies that the ninety day civil exclusion terminates "upon the dismissal of the charges, acquittal of the person excluded, or the failure to prosecute." Id. as amended. Persons who have been excluded and who are then found within a drug exclusion zone are subject to immediate arrest for criminal trespass under Ohio Revised Code § 2911.21, a fourth degree misdemeanor. Id.

The Cincinnati City Council is authorized to designate drug exclusion zones, defined as areas "where the number of arrests for crimes listed in § 755-5 and other drug-abuse related crimes for the 12 month period preceding the original designation is significantly higher than that for other similarly situated/sized areas of the city." C.M.C. § 755-1. To date, the only designated drug exclusion zone is the neighborhood of Over the Rhine. Over the Rhine is located immediately north of the Cincinnati downtown business district and the area includes Hamilton County office buildings, professional offices — including the office of Bernard Wong, counsel for the Plaintiffs — commercial businesses, and personal residences.

Persons arrested for the drug-abuse related activities are to be served with an exclusion notice detailing the areas designated as drug exclusion zones and explaining the person's right to appeal his or her exclusion. C.M.C. § 755-9. Excluded persons have a right to appeal the exclusion in writing to the city's safety director within five days of receiving the exclusion notice. C.M.C. § 755-11(1)(a). The safety director or his/her designee hears the appeals. Id. The city has the burden to show by a preponderance of the evidence that the excluded person violated one of the crimes enumerated in § 755-5. C.M.C. § 755-11(1)(c). Prior to the hearing, the safety director or the designate must inform the excluded person of, among other things, the general nature of the hearing, the type of evidence to be used and the procedure for objections, that a record will be kept, and whether the city will be represented by an attorney. C.M.C. § 755-13(E). Excluded persons may be represented by counsel at the appeal, witnesses may testify, parties have the right to cross-examine witnesses and present rebuttal evidence, and irrelevant evidence is excluded. C.M.C. § 755-13(F) & (G).

Excluded persons have the right to apply for a variance from the chief of police, or his/her designee, for "reasons related to the health, welfare, or well-being of the person excluded, or for drug abuse-related counseling services." C.M.C. § 755-11(2)(b). Social service agencies providing services within the drug exclusion zone can also issue variances if they have rules prohibiting drug-abuse and they have entered into a written agreement with the police department. Id. Excluded persons can also apply to the chief of police, but not to social service agencies, for variances if the persons are bona fide residents of the drug exclusion zones, or if the persons are bona fide owners or employees of places of lawful employment in the drug exclusion zones. Id.² Persons who are transient occupants of hotels or motels are not bona fide residents for purposes of qualifying for variances. Id.

B. The Plaintiffs

Plaintiff Patricia Johnson was arrested for marijuana trafficking on March 18, 1998 in Over the Rhine. As a result, she was excluded from Over the Rhine from March 24, 1998 to June 22, 1998. She did not appeal her exclusion within five days of her drug arrest. The case against Plaintiff Johnson was terminated on March 27, 1998 after the grand jury ignored the charge against her. Johnson's exclusion occurred prior to the amended version of Chapter 755, and thus, there was no provision for terminating her exclusion from Over the Rhine after the charges were dropped. On April 8, 1998 Plaintiff Johnson was arrested for criminal trespass for being present in Over the Rhine. The City of Cincinnati later dismissed the charges against Plaintiff for the criminal trespass in violation of Chapter 755. It was not until July 1999 that Chapter 755 was amended to terminate a civil exclusion "upon the dismissal of the charges, acquittal of the person excluded, or the failure to prosecute."

Plaintiff Johnson was not a bona fide resident of Over the Rhine, nor a business owner or employee of an Over the Rhine business at the time of her drug-abuse activity arrest. She did not qualify, therefore, for a variance. Plaintiff Johnson did have family members, including her daughter, Marquisa Harmon, and grandchildren, living in Over the Rhine at the time of her initial arrest and during her civil exclusion. Plaintiff Johnson averred that she assisted Harmon in taking care of Harmon's children. It was criminal trespass for Plaintiff Johnson to assist her daughter or her grandchildren in their Over the Rhine home during the period of her exclusion.

Plaintiff Michael Au France was first arrested in Over the Rhine for a drug-related crime, convicted, and consequently excluded from Over the Rhine in October 1996. He was subsequently arrested multiple times for criminal trespass in violation of Chapter 755 and for additional drug abuse-related crimes in Over the Rhine from late 1996 through the present. It is estimated he has spent over 100 days in jail for his Chapter 755 trespass arrests.

Plaintiff Au France is homeless, but he has regularly sought food, clothing, and shelter from relief agencies, including Gospel Mission, located in Over the Rhine. As a homeless person, Plaintiff does not qualify as a bona fide resident of Over the Rhine under Chapter 755. Plaintiff Au France applied for a variance from Chapter 755 in November 1998, but his application was denied. Au France averred that he was told by the police that his variance was denied because he had too many arrests. As noted above, Plaintiffs' counsel, Bernard Wong, works in Over the Rhine. Until the parties stipulated to the Court on September 2, 1999 that the City would not cite Plaintiff Au France for violations of Chapter 755 pending the Court's ruling on the Motion for Preliminary Injunction, Plaintiff's exclusion made it criminal trespass for him to visit his attorney.

C. Procedural History

On June 19, 1998, Plaintiff Johnson filed the instant action against Defendant City of Cincinnati alleging that her exclusion from Over the Rhine pursuant to Chapter 755 violated her civil rights including her First Amendment rights of association and freedom of speech, her Fourteenth Amendment rights of due process and equal protection, freedom of movement, and her right to travel. Plaintiff Johnson sought damages and an injunction permanently enjoining enforcement of Chapter 755. Plaintiffs filed an Amended Complaint on December 18, 1998 adding Au France as a Plaintiff and alleging that the enactment and enforcement of Chapter 755 deprived Au France of his rights to be free from cruel and unusual punishment and...