OLD DEBATE, NEW RELEVANCE

Supreme Court To Address Free Speech In Housing Suit

RICHMOND -- As Kevin Hicks sees them, the tree-shaded streets and sidewalks
of the Whitcomb Court public housing development are urban thoroughfares
like any other, and he should be free to travel them as he pleases.

But city officials see Whitcomb Court differently: as an out-of-control
open-air drug market. Six years ago, to protect public housing residents
from drug-related crime, the City Council declared the streets and
sidewalks in Whitcomb Court and other developments the private property of
the housing authority. In turn, the housing authority put up "no
trespassing" signs and empowered police to arrest any nonresident who could
not demonstrate a "legitimate business or social purpose" for being there.

In January 1999, police arrested Hicks in the 2300 block of Bethel Street,
a notorious crack and heroin hub at the center of Whitcomb Court. Hicks
protested that he was delivering disposable diapers to one of his children.
But the arresting officer knew him as a repeat violator of the policy who
had been warned in writing to keep out. Hicks was charged with trespassing
and served a year in jail.

Now, however, Hicks's case has reached the U.S. Supreme Court, making
Whitcomb Court the latest setting for a debate over the trade-off between
individual liberty and public safety. Oral arguments in the case, Virginia
v. Hicks, No. 02-371, will be heard Wednesday.

Though that trade-off has taken on renewed relevance in the Bush
administration's war on terrorism, the Hicks case is a reminder that the
country has been confronting the issue for years during the long, grinding
war on drugs.

The Hicks case shows that while for many middle-class Americans, the
liberty vs. security debate is -- or was, until Sept. 11, 2001 -- largely
an abstract one, it has long been woven into the fabric of daily existence
for residents of poor, minority communities.

About 98 percent of Richmond's public housing residents are African
American, officials said. Thus, both the intended beneficiaries and the
alleged victims of the new policy, including Hicks, are black. So, too, are
many of the local officials who created and implemented the policy -- and
their critics.

Both sides in the debate say they represent the interests of the city's
poorest and most vulnerable residents. Both sides say they want to make
them feel free.

"The whole concept behind this is to really try to make the community
safer," said Tyrone P. Curtis, executive director of the Richmond
Redevelopment and Housing Authority (RRHA), which serves about 12,000
public housing residents. "It is not intended to infringe on rights . . .
but when you hear about a situation where kids are sleeping in their
bathtubs to avoid bullets flying through the windows, you have to take
extraordinary means to address those issues within the law." Only those
with a history of criminal conduct have anything to fear, Curtis said.

"There is a clear constitutional violation of creating a suspect
classification of African American males," said Sa'ad El-Amin, a Richmond
City Council member whose district includes Whitcomb Court, and who has
opposed the policy. "They are using too broad a brush to achieve a laudable
end." El-Amin and other critics say the policy gives people no clear
instructions as to who is authorized to enter.

Last year, the Virginia Supreme Court struck down the policy, ruling 5 to 2
that it was so broadly written that it could be used to prevent legal
activities, such as leafleting or picketing, simply because a housing
manager or police officer objected. Though the policy is "intended to
punish activities that are not protected by the First Amendment," Justice
Leroy R. Hassell Sr. wrote, "the policy also prohibits speech and conduct
that are clearly protected by the First Amendment."

In its appeal to the Supreme Court, Virginia argues that Hicks should not
have been allowed to sue based on a free-speech argument in the first
place, because he was not engaging in any "expressive" activity when he was
arrested.

The state also maintains that, in enforcing its no-trespassing policy, the
housing authority was acting not as a government agency, but as a landlord,
and should enjoy more latitude to protect its property and tenants.

"There is no constitutional right to be present on the sidewalks or streets
within Whitcomb Court," Virginia's brief to the U.S. Supreme Court argues.

On the streets of Whitcomb Court, it becomes clear that this court battle
has its roots in a long-running cat-and-mouse game between police and young
men on the 441-unit complex's idiosyncratic terrain.

Tucked into a pocket of low-lying property bounded on two sides by
Interstate 64, and connected to the rest of the city by a single narrow
street, Whitcomb Court -- with its park, boys and girls club and elementary
school -- has a self-contained feel.

The development is a checkerboard of lawns, patios and squat, red-brick
apartment buildings, laced by laundry lines and narrow private sidewalks
known as "cuts," and crosshatched by five short streets -- three that run
east-west and two that run north-south.

The overall effect is aesthetically pleasing, but for police officers
trying to catch fleet-footed young drug suspects, the cuts and shrubs of
Whitcomb Court were as challenging as a Middle Eastern casbah.

In its efforts to make this environment more secure, Curtis said the
housing authority considered installing gates to control the flow of
outsiders into the community, but discarded the idea because it feared the
gates would be vandalized. The "privatization" of the streets and sidewalks
was a creative alternative, he said.

Before the streets and sidewalks were transferred from the city to the
housing authority, police could arrest people for trespassing only if they
were standing on the lawns or porches. Suspects would simply step into the
street, and as long as the police did not see them commit a crime, there
was nothing they could do.

"They called it 'jumping the curb,' " said Hal Hazelton, safety and
security manager for RRHA.

Both violent and property crime in public housing declined about 25 percent
while the policy was in effect, according to the housing authority.

But Hicks's attorney, Steven D. Benjamin, says the new policy made Whitcomb
Court a "Constitution-free zone," and those who live or visit there
"second-class citizens."

"They have shifted the burden to the citizen to prove he is not involved in
criminal activity," Benjamin said. Any reduction in crime during the
policy, Benjamin said, was attributable to the same social forces that
caused crime to decline across the country.

Benjamin argues in his brief that, whether or not sidewalks and streets are
called housing authority property, the Supreme Court has traditionally
considered them to be "public fora," which the government cannot shut down
unless absolutely necessary to achieve a compelling objective.

Hicks himself may have been engaged in a form of expression, in that his
visit to his children was a show of fatherly love, Benjamin argues. The
no-trespassing policy interferes with relations between fathers and the
almost entirely female-headed households of Whitcomb Court, he said.
Housing officials note that Hicks had a conviction for smashing a window at
Whitcomb Court. Benjamin said he had no information about that; Hicks
declined to be interviewed.

At Whitcomb Court, several people said that they or people they know have
experienced abusive conduct by police, and that the no-trespassing policy
had barely dented crime.

"It's just to harass young black men," said Charlette Nichols, 40, who
works as an assistant manager at a clothing store. "They think everyone on
the corner sells drugs."

A member of the Whitcomb tenant council, who declined to give her name,
said police had arrested her son-in-law for trespassing even after she told
them he was visiting her. He was eventually acquitted, she added.

Gloria Rogers, who managed Whitcomb Court for the housing authority at the
time of Hicks's arrest, acknowledged some "resentment" but said residents'
views of the policy depend on how it affects them directly.

"If the crime is in front of your door and it's your children who are at
risk, you're for it. If your family is caught up in illegal activity, or
got arrested because of the policy, you don't feel too good about it,"
Rogers said.

Some residents of other projects said the no-trespassing policy was one of
the few rays of hope they had seen amid the violence of recent years.

"When they were enforcing the policy, things were a little bit brighter for
the community," said Marilyn Olds, 53, president of the tenant council at
the Creighton Court development. "People felt a sense of freedom that they
could come out of their houses and not be intimidated by the criminal element."

"I look at the policy as a way we can take back our community," said Janice
McMillan, president of the tenant council at the Maymont-Randolph development.

The U.S. Supreme Court has heard similar cases in recent years.

Last year, the court ruled unanimously that public housing authorities
could evict tenants because of drug use by friends and family even if the
tenants were unaware of it.

But in 1999, the court, by a vote of 6 to 3, struck down a Chicago
ordinance that permitted police to arrest people for loitering if they
appeared to be gang members.

This time, the underlying issue of freedom may hinge on a question of legal
procedure.

The court appears to have taken the case to address the issue of who should
have standing to challenge a law on free-speech grounds.

Usually, you can only sue over a constitutional violation that you have
personally suffered. But the court has permitted some exceptions when the
complaint is that a law aimed at controlling one kind of conduct
unjustifiably punishes free speech as well.

But the precise contours of that "overbreadth" exception are unclear, and
Virginia says this case shows the need to limit it.

Meanwhile, at Whitcomb Court, the cat-and-mouse game goes on. The housing
authority has erected new black wrought-iron fences along the cuts, which
are eye-pleasing -- but also harder for fleeing drug suspects to hop.

And near the entrance to the park, a red-and-white no-trespassing sign has
been spray-painted black and dented with what appear to be repeated blows
from a small hammer.