Northern Virginia Chapter, ACLU v. Alexandria

• Decision Date: 27 September 1990
• Docket Number: Civ. A. No. 90-0722-A.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: NORTHERN VIRGINIA CHAPTER, AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs, v. CITY OF ALEXANDRIA, Defendant.

747 F. Supp. 324

NORTHERN VIRGINIA CHAPTER, AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs, v. CITY OF ALEXANDRIA, Defendant.

Civ. A. No. 90-0722-A.

United States District Court, E.D. Virginia, Alexandria Division.

September 27, 1990.

Victor M. Glasberg, Alexandria, Va., for plaintiffs.

Philip G. Sunderland, Oliver A. Pollard, III, Office of City Atty., Alexandria, Va., for defendant.

MEMORANDUM OPINION

HILTON, District Judge.

This matter came before the court on cross-motions for summary judgment. The case presents a constitutional challenge to a City of Alexandria ordinance that proscribes loitering for the purpose of engaging in unlawful drug transactions. Plaintiffs allege that first, the ordinance is unconstitutionally overbroad and burdens the right of assembly and association under the first amendment; second, the ordinance creates an unconstitutional presumption of unlawful purpose in violation of the due process clause of the fourteenth amendment; and, third, the ordinance's "opportunity to explain" provision gives officers unbridled discretion and violates the right to remain silent under the fifth amendment. The court finds there are no material facts in dispute and the case can be decided on the summary judgment motions.

On April 24, 1990, the City Council of Alexandria, Virginia passed Ordinance No. 3450, making it a class 1 misdemeanor to loiter within a public place for the purpose of engaging in unlawful drug-related transactions. On June 26, 1990, the Alexandria City Council amended the ordinance by adopting Ordinance No. 3471. Ordinance No. 3471 supersedes the original ordinance and is presently in effect. The plaintiffs, three community groups and fifteen Alexandria residents, filed this action seeking declarative and injunctive relief against enforcement of the ordinance.

The nationwide drug epidemic has prompted cities and counties across the country to enact legislation aimed at curtailing the sale and use of illicit drugs. The Alexandria loitering ordinance reflects the City's efforts to combat drug trafficking on the streets of Alexandria. The ordinance provides:

(a) It shall be unlawful for any person to loiter in a public place for the purpose of engaging in the sale, gift, distribution, possession or purchase of a controlled substance prohibited by section 18.2-248, 18.2-248.1 or 18.2-250 of the Code of Virginia (1950), as amended. Circumstances manifesting such purpose on the part of a person shall include: (1) the person is in the same general location for at least 15 minutes; (2) while in the same general location and in a public place, the person has two or more face-to-face contacts with other individuals; and (3) each of such contacts (a) is with one or more different individuals, (b) lasts no more than two minutes, (c) involves actions or movements by the person consistent with an exchange of money or other small objects, (d) involves actions or movements by the person consistent with an effort to conceal an object appearing to be or to have been exchanged, and (e) terminates shortly after the completion of the same apparent exchange. For purposes of this subsection, "same general location" shall mean an area defined as a circle with a radius of 750 feet and a center being the place where a person is first observed by a law enforcement officer.

(b) No person shall be arrested or convicted for a violation of this section unless each of the circumstances identified in subsection (a) is present.

(c) No person shall be arrested for a violation of this section unless the arresting officer first provides the person an opportunity to explain the conduct in question.

(d) For purposes of this section, the term "public place" means any street, sidewalk, alley, park, bridge, driveway, parking lot or other public property open to the general public.

(e) Any person convicted of violating this section shall be guilty of a class 1 misdemeanor.

Alexandria City Ordinance No. 3471, Sec. 13-1-24.1.

The gravamen of plaintiff's complaint is that the Alexandria ordinance sweeps protected innocuous conduct under the rubric of its prohibition against illegal drug-related activities.¹ Plaintiffs assert that they have engaged in an array of innocent conduct such as campaign and election work, drug counseling, community events, and socializing that would constitute an unlawful purpose under the express terms of section (a) of the ordinance. Plaintiffs thus allege that the ordinance is unconstitutionally overbroad and burdens their first amendment rights of expression, association, and assembly.²

The Supreme Court has upheld pre-enforcement challenges to criminal statutes that infringe on first amendment rights. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1972). The risk of chilling protected expression favors pre-enforcement review rather than requiring an individual to await prosecution as the sole means of vindication of rights. Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1120, 14 L.Ed.2d 22 (1965).

The first step in a facial overbreadth challenge is to determine whether "the enactment reaches a substantial amount of constitutionally protected conduct." Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). A statute may not sweep unnecessarily broadly into the areas of protected freedoms. Zwickler v. Koota, 389 U.S. 241, 250, 88 S.Ct. 391, 396, 19 L.Ed.2d 444 (1967); NAACP v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405 (1962). An ordinance is impermissibly overbroad if it deters constitutionally protected conduct while purporting to criminalize nonprotected activities. Kolender v. Lawson, 461 U.S. 352, 358 n. 8, 103 S.Ct. 1855, 1859 n. 8, 75 L.Ed.2d 903 (1983). Legislative enactments that encompass a substantial amount of constitutionally protected activity within the parameters of criminalized conduct will be invalidated even if the statute has a legitimate application. City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398 (1987); Kolender, 461 U.S. at 358 n. 8, 103 S.Ct. at 1859 n. 8. However, a statute should not be void for overbreadth unless it is substantially overbroad "in relation to the statute's plainly legitimate sweep." Broadrick, 413 U.S. at 611-12, 93 S.Ct. at 2915.

The Supreme Court has repeatedly held that laws that chill first amendment rights by indiscriminately reaching both protected and unprotected conduct are invalid under the overbreadth doctrine. See, e.g., Button, 371 U.S. at 432-33, 83 S.Ct. at 337. In Coates v. City of Cincinnati, 402 U.S. 611, 615-16, 91 S.Ct. 1686, 1689, 29 L.Ed.2d 214 (1971), the Supreme Court held that a law that prohibited three or more persons from congregating on a street corner and engaging in annoying activities was overbroad and abridged the constitutional right of assembly. Similarly, in City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 2512, 96 L.Ed.2d 398 (1987), the Supreme Court invalidated a Houston ordinance that forbade individuals from interrupting a police officer in execution of his duties. The Hill Court held the ordinance was unconstitutionally overbroad under the first amendment in that it was "not narrowly tailored to prohibit only disorderly conduct or fighting words" and "criminalized a substantial amount of constitutionally protected speech". Id. 107 S.Ct. at 2511-12; see also Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct. 1103, 1106, 31 L.Ed.2d 408 (1971) (stating that an enactment must be "carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression").

The overbreadth doctrine has been invoked in many challenges to state and local loitering statutes. An ordinance that prohibits loitering may survive an overbreadth challenge if the enactment requires scienter or specific intent to engage in an illicit act. See State v. Evans, 73 N.C.App. 214, 326 S.E.2d 303, 307 (N.C.Ct. App.1985); City of Milwaukee v. Wilson, 96 Wis.2d 11, 291 N.W.2d 452, 457 (Wis. 1980). Numerous courts have rejected overbreadth challenges where the ordinance specifically required loitering for an unlawful purpose. See generally City of Cleveland v. Howard, 40 Ohio Misc.2d 7, 532 N.E.2d 1325, 1329 (1987); Evans, 326 S.E.2d at 307; City of South Bend v. Bowman, 434 N.E.2d 104, 107 (Ind.Ct.App. 1982); Wilson, 291 N.W.2d at 457; Akron v. Massey, 56 Ohio Misc. 22, 381 N.E.2d 1362, 1365 (Mun.Ct.1978); People v. Smith, 89 Misc.2d 754, 393 N.Y.S.2d 239, 242 (N.Y. App.Term 1977), aff'd, 44 N.Y.2d 613, 378 N.E.2d 1032, 407 N.Y.S.2d 462 (N.Y.1978).

The loitering ordinances that have been upheld by various courts contain common characteristics. The majority of ordinances proscribe loitering with an unlawful purpose and thereafter set forth circumstances that "may" be considered in determining whether such purpose is manifested. See generally Howard, 532 N.E.2d at 1326; Jones, 434 N.E.2d at 105; Wilson, 291 N.W.2d at 455; Massey, 381 N.E.2d at 1364; Lambert v. City of Atlanta, 242 Ga. 645, 250 S.E.2d 456, 457 (Ga.1978). Other ordinances merely require loitering with an unlawful purpose and do not describe the circumstances constituting illicit intent. See generally People v. Smith, 44 N.Y.2d 613, 378 N.E.2d 1032, 1035, 407 N.Y.S.2d 462, 465 (N.Y.1978); People v. Pagnotta, 25 N.Y.2d 333, 253 N.E.2d 202, 204, 305 N.Y.S.2d 484, 486 (N.Y.1969). A further type of ordinance requires loitering with an unlawful purpose and thereafter sets forth circumstances that may be considered but specifically requires that the circumstances be performed for the stated unlawful purpose. See Ford v. United States, 498 A.2d 1135, 1137 (D.C.1985). None of the ordinances upheld resemble the Alexandria loitering ordinance which requires loitering for the purpose of engaging in unlawful drug-related activities and thereafter...