High Court to Consider No-Trespass Policies in Public Housing

WASHINGTON -- The Supreme Court agreed Friday to decide whether cities can close off streets and sidewalks in public housing complexes and arrest loiterers and trespassers who have been warned to stay out.

A case from Richmond, Va., will test the constitutionality of an aggressive new policy that seeks to rid the areas around public housing of drug dealers and gangs.

Lawyers told the court that at least half a dozen cities have recently adopted so-called trespass-after-warning policies.

Signs posted on the streets in the housing complex warn that the area is private and that “unauthorized persons are subject to arrest.” After one warning, police in Richmond may arrest violators for trespassing.

Last year, the Supreme Court upheld the federal government’s strict “one strike and you’re out” policy for public housing tenants. Under this rule, residents can be evicted if they are, or any person living with them is, caught with illegal drugs.

Chief Justice William H. Rehnquist said this policy is a reasonable way to ensure public housing that is “decent, safe and free from illegal drugs.”

The new case, to be heard in April, focuses on nonresidents. It pits the traditional rights to free speech and free access on the sidewalks against the need for safety and security in public housing.

Richmond’s public housing areas saw a wave of murders and drug crimes that prompted the no-trespassing policy.

Last year, however, the Virginia state courts struck down the trespass policy as a 1st Amendment violation. The judges cited a series of Supreme Court rulings that said police cannot be given unlimited authority to arrest people on the sidewalks.

Four years ago, the high court struck down a Chicago ordinance that allowed police to arrest suspected gang members who gathered in parks or on street corners. In a 6-3 decision, the court said the government cannot brand groups of people as criminal suspects and authorize their arrest unless they have done something wrong.

The Virginia judges cited the Chicago decision in throwing out the Richmond no-trespassing policy.

In their appeal, the Virginia state lawyers argue that public housing areas differ fundamentally from ordinary streets and sidewalks. The government acts as a private “landlord” in public housing complexes, and, therefore, can suspend the normal rules for free speech and free access, they say.

Beyond that, the man whose arrest touched off the legal battle, Kevin Hicks, was walking outside a drug-ridden public housing building, they say. He had been arrested before, and he was not passing out leaflets or doing anything that is classically protected as free speech under the 1st Amendment.

Hicks told the police officer who arrested him that he was delivering diapers to his child’s mother, who lived in the public housing. The officer said he saw no sign of diapers.

Hicks was convicted of trespassing and given a year in jail. But the judge suspended his sentence. And when lawyers for the American Civil Liberties Union appealed on his behalf, the state court struck down the no-trespassing policy.

In urging the Supreme Court to take up the case, Virginia vs. Hicks (02-0371), Virginia Atty. Gen. Jerry Kilgore argued that even if Hicks was telling the truth, delivering diapers “is not expression and does not implicate a fundamental right” protected by the Constitution.

He said the justices should make clear city and state officials have broad power to control the areas around public housing complexes and to “protect tenants from the reign of terror perpetrated by drug dealers.”