JUSTICES BACK RRHA POLICY

Unanimously refuse to invalidate trespassing rule in city housing

The U.S. Supreme Court refused yesterday to invalidate a Richmond
Redevelopment and Housing Authority trespassing policy aimed at keeping
undesirables out of city housing projects.

Kevin Lamont Hicks, convicted three times under the policy, failed to show
that the policy violated the First Amendment, Justice Antonin Scalia wrote
for a unanimous court.

The court did not address sev-eral other challenges Hicks' attorneys raised
to his conviction and sent the case back to the Virginia Supreme Court to
decide them.

"The case is not over," said Betty Layne DesPortes, one of Hicks' attorneys.

Virginia Attorney General Jerry W. Kilgore nevertheless claimed victory.

"The U.S. Supreme Court has today made it clear that trespass policies like
the one at Whitcomb Court will not be struck down as overbroad so long as
they do not target speech," he said. "There is a fundamental difference
between a trespass policy which is applicable to everyone and a policy that
seeks to regulate constitutionally protected expression."

The Virginia Supreme Court ruled in June 2002 that the policy is overly
broad after concluding that police and project housing managers had
unfettered discretion to decide who could be arrested for trespassing.

The state court said, in essence, the policy was so broad it might affect
the First Amendment rights of others, even though Hicks could not contend
his First Amendment rights were involved.

Hicks was arrested on a Whitcomb Court sidewalk in January 1999. His mother,
children and the children's mother lived in the complex, and he told
Patrolman James Laino he was taking diapers to his child.

But Hicks had received a letter from the project's housing manager banning
him from the property, and he had been convicted of trespassing there twice
before.

The manager twice had rejected Hicks' request to be allowed to return to the
complex, and Hicks maintained he was never told why he was barred in the
first place.

Laino charged Hicks a third time, and he was convicted and sentenced to 12
months in jail, suspended. He was ordered to serve a 12-month sentence that
had been suspended for earlier trespassing and vandalism convictions.

The city had deeded the streets and sidewalks in the complexes to the
housing authority in 1997 in an effort to reduce drug-related crime in
public-housing projects. The RRHA warned that anybody caught on the streets
would be charged with trespassing unless he or she could show a legitimate
social or business purpose for visiting the property.

The Virginia Court of Appeals split 6-5 in reversing Hicks' conviction,
finding that the character and use of the streets had not changed despite
the formal change of ownership.

In deciding that the RRHA policy was too broad, the state high court said it
did not need to rule on Hicks' challenge to making the streets private.

Kilgore and the federal solicitor general's office asked the U.S. Supreme
Court to rule that a defendant such as Hicks could never claim he could not
be convicted because a law might infringe on the First Amendment rights of
others.

Scalia said the high court did not have to go that far.

He noted that the state Supreme Court based its ruling in large part on the
authority's unwritten rule that anyone who wanted to demonstrate or hand out
leaflets on RRHA property had to first get permission of a project manager.

But Hicks failed to show that such First Amendment activity is not a
"legitimate business or social purpose," Scalia said. "As far as it appears,
until one receives a barment notice, entering for a First Amendment purpose
is not a trespass."

Scalia added, "Neither the basis for the barment sanction [the prior
trespass] nor its purpose [preventing future trespasses] has anything to do
with First Amendment."

Hicks' position is analogous to the arrest of someone who attended a
political demonstration in a public park after he had been barred from the
park for vandalizing it, Scalia said. "Here, as there, it is Hicks'
nonexpressive conduct-his entry in violation of the notice-barment rule-not
his speech, for which he is punished as a trespasser."

The trespass policy remains subject to challenge under the First Amendment
in an appropriate case, Scalia said.

"Whether [Hicks] may challenge his conviction on other grounds - and whether
those claims have been properly preserved - are issues we leave open" for
the Virginia Supreme Court, he said.

Steven D. Benjamin, the attorney who argued the case for Hicks, said those
issues include his contention that the policy is unconstitutionally vague
because it does not inform the public what conduct is prohibited and because
it is subject to arbitrary enforcement.

The policy also violates the rights to family association and to move about
freely without undue attention from police, Benjamin said.

Housing authorities across the country have tried to use trespass laws to
keep nonresidents out of projects after concluding that they were largely
responsible for drug dealing and violence there.

Few have gone as far as Richmond, however, in attempting to make
historically public property private.

Tyrone P. Curtis, RRHA executive director, said the authority took that
action after police complained that nonresidents they suspected of dealing
drugs stayed on the streets and sidewalks because they knew they could not
be arrested for trespassing on public property.