The Supreme Court announced yesterday that it will decide whether a tough Richmond anti-drug policy that bans unauthorized visitors from the streets and sidewalks in a public housing project violates the Constitution.
The court will hear the case of Kevin L. Hicks, who was convicted of trespassing in 1999 after he tried to visit his girlfriend and their child at the Whitcomb Court apartment complex despite earlier warnings from police to keep out.
Hicks, who said he intended to deliver disposable diapers to his child, appealed. He argued that the policy, which barred entrance by non-residents who have no "legitimate business or social purpose" for coming to the apartments, was so broad that it could be used to bar disfavored political leafletters or religious groups.
The Virginia Supreme Court ruled 5 to 2 in his favor, and the state appealed to the Supreme Court. In his petition, Attorney General Jerry W. Kilgore argues that Hicks has no right to challenge the policy as a threat to free expression since he was not engaged in any "expressive activity."
The court has permitted such challenges in free-speech cases as an exception to the rule that people can complain only of a law's application to their own conduct. But the precise contours of that exception are unclear, and Kilgore says this case shows the need to limit it.
In addition, Kilgore argues that government should be permitted to place greater restrictions on citizens when it acts as a landlord than in other situations.
Hicks's lawyer, Steven D. Benjamin, said there is not enough information in the case to say for sure whether Hicks or others have not been denied free speech under the Richmond policy.
The case, Virginia v. Hicks, No. 02-371, which will be argued in late April and decided by the end of June, presents the court with a new twist on an issue it has visited before -- how to balance the rights of individuals to be free from police harassment against the rights of communities to be safe from drug-related crime, in a context where the victims of police excesses and the victims of crime are likely to be black or Hispanic.
Last year, in a case cited frequently in Kilgore's petition, the court ruled unanimously that public housing authorities could evict tenants for 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 involved in gang activities.
The Richmond policy was enacted in July 1997 as part of a crackdown on open-air drug markets that had taken hold of Whitcomb and other public housing sites in the city. Hicks was convicted of a drug charge in 2001 after serving 12 months for repeatedly violating the no-trespassing policy. but now has a job, according to Benjamin.
The policy created a "gated community" at Whitcomb, minus the gates. The city council closed several streets and sidewalks around the apartment buildings and deeded them over to the Richmond Redevelopment and Housing Authority, which then erected "No Trespassing" signs. The council gave police the right to arrest any non-resident who "cannot demonstrate a legitimate business or social purpose for being on the premises."
The exception was for those who had a note from Whitcomb Court's manager, Gloria Rogers. There are no written rules to guide her decisions.