Commonwealth v. Hicks

Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and
Lemons, JJ., and Compton, S.J.

COMMONWEALTH OF VIRGINIA

OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR.
April 23, 2004
v. Record No. 011728

KEVIN LAMONT HICKS

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

I.

In this proceeding, which has been remanded to this Court

from the Supreme Court of the United States, we consider

whether a redevelopment and housing authority's trespass

policy is void for vagueness under the Fourteenth Amendment to

the United States Constitution and whether that policy

violates a defendant's right of intimate association

guaranteed by the Fourteenth Amendment.

II.

In Commonwealth v. Hicks, 264 Va. 48, 58, 563 S.E.2d 674,

680 (2002)1, we held that a trespass policy implemented by the

1
Hicks was charged with trespass in violation of Code
§ 18.2-119, and he was convicted in the City of Richmond
General District Court. He appealed the convictions to the
Circuit Court of the City of Richmond where he was convicted.
He appealed the judgment to the Court of Appeals. A panel of
the Court of Appeals affirmed the judgment, Hicks v.
Commonwealth, 33 Va. App. 561, 535 S.E.2d 678 (2000), but the
Court of Appeals, en banc, disagreed with the panel and
vacated Hicks' conviction because the Housing Authority's
trespass policy contravened the First and Fourteenth
Richmond Redevelopment and Housing Authority (Housing

Authority) was overly broad and, therefore, violated the First

and Fourteenth Amendments to the United States Constitution.

The United States Supreme Court disagreed with our holding and

concluded that the challenged policy was not overly broad in

violation of the First Amendment. Virginia v. Hicks, 539 U.S.

113, ___, 123 S.Ct. 2191, 2199 (2003). The Supreme Court

remanded the case to this Court so that we could consider

whether Hicks may challenge his conviction on other bases,

assuming that those claims had been properly preserved. This

Court entered an order directing Hicks and the Commonwealth to

identify issues that had been asserted in the circuit court

that the litigants thought had been preserved for this Court's

consideration. Subsequently, this Court entered an order

directing the litigants to address the following questions:

"1. Whether the Housing Authority's trespass

policy violates appellee's right of association in

violation of the First Amendment?

"2. Whether the Housing Authority's trespass

policy is unconstitutionally vague on its face or as

applied to appellee?

Amendments to the Constitution of the United States. Hicks v.
Commonwealth, 36 Va. App. 49, 52, 548 S.E.2d 249, 251 (2001).

2
 "3. Whether the Housing Authority's trespass

policy violates appellee's [rights to] freedom of

intimate association in contravention of the

Fourteenth Amendment?"

The litigants agree, in view of the Supreme Court's

holding that the Housing Authority's trespass policy did not

affect Hicks' First Amendment right to expressive association,

that this Court need not consider the first question stated

above. Therefore, we limit our consideration to the remaining

questions set forth in this Court's order.

III.

The Housing Authority is a political subdivision of the

Commonwealth of Virginia. The Housing Authority owns and

operates several housing developments in the City of Richmond

for low-income residents, including a housing development

known as Whitcomb Court.

In an effort to eradicate illegal drug activity in its

housing developments, including Whitcomb Court which was

described as an "open-air drug market," the Housing Authority

decided to deny access to its property to persons who did not

have legitimate reasons to visit the housing developments.

The majority of persons who had been arrested for drug crimes

at the Whitcomb Court housing development were people who did

not reside there.

3
 The Richmond City Council enacted an ordinance that

"closed to public use and travel and abandoned as streets of

the City of Richmond," streets and sidewalks in Whitcomb Court

because the streets and sidewalks were "no longer needed for

the public convenience." The City conveyed the streets and

sidewalks by recorded deed to the Housing Authority.

The Housing Authority, in its capacity as owner of the

private streets and sidewalks, authorized

"each and every Richmond Police Department officer
to serve notice, either orally or in writing, to any
person who is found on Richmond Redevelopment and
Housing Authority property when such person is not a
resident, employee, or such person cannot
demonstrate a legitimate business or social purpose
for being on the premises. Such notice shall forbid
the person from returning to the property. Finally,
Richmond Redevelopment and Housing Authority
authorizes Richmond Police Department officers to
arrest any person for trespassing after such person,
having been duly notified, either stays upon or
returns to Richmond Redevelopment and Housing
Authority property."

Defendant, Kevin Lamont Hicks, was convicted in the City

of Richmond General District Court for trespass upon the

Housing Authority's property on December 12, 1997. The

general district court sentenced Hicks on February 10, 1998.

Gloria S. Rogers, a manager for the Housing Authority,

gave Hicks a letter dated April 14, 1998. The letter states

in part:

"This letter serves to inform you that
effective immediately you are not welcome on

4
Richmond Redevelopment and Housing Authority's
Whitcomb Court or any Richmond Redevelopment and
Housing Authority property. This letter is an
official notice informing you that you are not to
trespass on [the Housing Authority's] property. If
you are seen or caught on the premises, you will be
subject to arrest by the police.

"A copy of this notice is on file and another
copy will be provided to the Richmond Police
Department for [its] record.

"Virginia Code, Section 18.2-119
"Trespass After Having Been Forbidden to
do So

"If any person without authority of law
goes upon or remains upon the lands, buildings,
or premises of another, or any part, portion or
area thereof, after having been forbidden to do
so, either orally or in writing by the owner,
lessee, custodian, or other person lawfully in
charge thereof, or after having forbidden to do
so by a sign or signs posted . . . on such
lands, buildings, premises or portion of area
thereof at a place or places where it may be
reasonably seen . . . he and/or she shall be
guilty of a Class I Misdemeanor.

"Thank you for your cooperation.

"Sincerely,
"[Signed Gloria S. Rogers]
"Housing Manager

"[Whitcomb]
"Development

"I, the undersigned, acknowledge receipt of
this notice.

"[Signed Kevin Hicks] [4-14-98]
"Signature Date received

"[Signed Alfonzo Joyner] [4-14-98]
"Witnessing Officer Date"

5
 Even though Hicks signed and received the letter dated

April 14, 1998 informing him that he could not appear on the

Housing Authority's property, he re-entered the property and

was arrested for trespass by the Richmond Police Department on

April 20, 1998. He appeared in the City of Richmond General

District Court on June 26, 1998, and he was convicted of

trespass in violation of Code § 18.2-119.

On January 20, 1999, Richmond Police officer, James

Laino, was driving his police cruiser in the Whitcomb Court

housing development. He observed Hicks, whom he had known

from previous encounters. Laino had been present when Hicks

was arrested for a prior trespass offense on the Housing

Authority's property.

Officer Laino stopped his "police car and started to

speak with Mr. Hicks. [Laino] said, 'I know you're not

supposed to be out here.' " Hicks responded that he was "just

getting pampers for his baby." Laino issued a summons to

Hicks for trespassing. During Hicks' bench trial in the

circuit court, Officer Laino testified that the buildings at

the Whitcomb Court housing development where the defendant was

arrested for trespass contained "red and white" signs that

stated that the streets in Whitcomb Court "are privatized and

all the property is privatized, no trespass."

6
 Gloria Rogers gave the following testimony during the

trial:

"Q: All right. Please tell the Court, has
[Hicks] come and have you banned him from the
[Housing Authority's] property?
"A: Yes.
"Q: All right. Please tell the Court how that
came about.
"A: It came about in two respects. Number one
− . . . .
"Number one, when the police see a person in
the development and they say that they live
someplace, they confirm with the office. And Kevin
Hicks, they quite often saw him in the development
and he gave them an address and I would pull the
file and confirm he didn't live there.
"Secondly, because of the domestic violence in
the development.

. . . .

"THE COURT: . . . Ma'am, have you told him to
stay off the property before?
"THE WITNESS: Yes.
"THE COURT: How many times?
"THE WITNESS: I talked to Kevin Hicks in
person twice."

The Circuit Court of the City of Richmond convicted Hicks

of trespass in violation of Code § 18.2-119. This conviction

is the subject of this remand from the Supreme Court.

IV.

A.

Hicks argues that the Housing Authority's trespass policy

is unconstitutionally vague in violation of the Fourteenth

7
Amendment to the United States Constitution.2 He asserts that

the Housing Authority's trespass policy grants its employees

and police officers "sweeping powers to define as criminal the

innocent conduct of using streets and sidewalks near public

housing." Continuing, Hicks claims that the Housing

Authority's trespass policy is similar to an anti-loitering

ordinance that the Supreme Court of the United States held was

invalid in Chicago v. Morales, 527 U.S. 41 (1999).

Responding, the Commonwealth asserts that Hicks may not

challenge whether the trespass policy is unconstitutionally

vague because his conduct was clearly proscribed by that

policy, and the ordinance that the Supreme Court invalidated

in Morales is fundamentally different from the Housing

Authority's trespass policy.

The Supreme Court, in Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489 (1982), stated the

following principles which are pertinent to our resolution of

this proceeding:

"In a facial challenge to the overbreadth and
vagueness of a law, a court's first task is to
determine whether the enactment reaches a
substantial amount of constitutionally protected
conduct. If it does not, then the overbreadth
challenge must fail. The court should then examine

2
Hicks also argues that the Housing Authority's trespass
policy violates Article 1, Section 8 of the Constitution of
Virginia. Hicks did not make this argument in the circuit
court and, therefore, we will not consider it.

8
 the facial vagueness challenge and, assuming the
enactment implicates no constitutionally protected
conduct, should uphold the challenge only if the
enactment is impermissibly vague in all of its
applications. A plaintiff who engages in some
conduct that is clearly proscribed cannot complain
of the vagueness of the law as applied to the
conduct of others. A court should therefore examine
the complainant's conduct before analyzing other
hypothetical applications of the law."

Id. at 494-95 (emphasis added). Additionally, the Supreme

Court stated in Parker v. Levy, 417 U.S. 733, 756 (1974),

that: "One to whose conduct a statute clearly applies may not

successfully challenge it for vagueness." Accord Gibson v.

Mayor of Wilmington, 355 F.3d 215, 225 (3d Cir. 2004); Fuller

v. Decatur Public School Board of Education School District

61, 251 F.3d 662, 667 (7th Cir. 2001); Joel v. Orlando, 232

F.3d 1353, 1359-60 (11th Cir. 2000); United States v. Tidwell,

191 F.3d 976, 979 (9th Cir. 1999); United States v. Hill, 167

F.3d 1055, 1063-64 (6th Cir. 1999); Woodis v. Westark

Community College, 160 F.3d 435, 438-39 (8th Cir. 1998);

United States v. Corrow, 119 F.3d 796, 803 (10th Cir. 1997);

Love v. Butler, 952 F.2d 10, 14 (1st Cir. 1991); Hastings v.

Judicial Conference of the United States, 829 F.2d 91, 107

(D.C. Cir. 1987); Hill v. City of Houston, 789 F.2d 1103, 1127

(5th Cir. 1986), aff’d, 482 U.S. 451 (1987); Gallaher v. City

of Huntington, 759 F.2d 1155, 1160 (4th Cir. 1985).

9
 It is clear that Hicks, who was engaged in conduct

prohibited by the Housing Authority's trespass policy, may not

complain that the policy is purportedly vague. Hicks was

arrested and convicted for violation of Code § 18.2-119, which

states in relevant part:

"If any person without authority of law goes
upon or remains upon the lands, buildings or
premises of another, or any portion or area thereof,
after having been forbidden to do so, either orally
or in writing, by the owner, lessee, custodian or
other person lawfully in charge thereof, or after
having been forbidden to do so by a sign or signs
posted by such persons . . . he shall be guilty of a
Class 1 misdemeanor."

Prior to the conviction that is involved in this proceeding,

Hicks had been convicted of two other charges of criminal

trespass on the Housing Authority's property in violation of

Code § 18.2-119. Hicks had also received a hand-delivered

letter, which he signed and acknowledged, that directed him

not to return to the Housing Authority's property. That

letter also informed Hicks that if he returned to the Housing

Authority's property, he would be prosecuted for trespass.

Hicks cannot now complain that the Housing Authority's

trespass policy is somehow vague. Certainly, as to him, the

Housing Authority's trespass policy could not have been any

clearer.

The Supreme Court's decision in Morales does not support

Hicks' contention that he may assert that the Housing

10
Authority's trespass policy is facially unconstitutionally

vague. The Supreme Court's decision in Morales simply has no

application to this case.

The facts in Morales are as follows. The Chicago City

Council enacted an ordinance that prohibited "criminal street

gang members" from "loitering" with one another or with other

persons in any public place. The ordinance created a criminal

offense punishable by a fine not to exceed $500, imprisonment

for not more than six months, and a requirement that anyone

convicted of violating the ordinance perform a maximum of 120

hours of community service. Commission of the crime involved

four elements: a police officer must reasonably believe that

at least one of two or more persons present in a public place

is a criminal street gang member; the persons must be

"loitering" which was defined as "remaining in any one place

with no apparent purpose"; "the officer must then order 'all'

the persons to disperse and remove themselves 'from the

area'"; and the "person must disobey the officer's order."

The ordinance defined "public place" as "the public way and

any other location open to the public, whether publicly or

privately owned." 527 U.S. at 45-47.

The Supreme Court recognized that

"the freedom to loiter for innocent purposes is part
of the 'liberty' protected by the Due Process Clause
of the Fourteenth Amendment. We have expressly

11
 identified this 'right to remove from one place to
another according to inclination' as 'an attribute
of personal liberty' protected by the
Constitution. . . . Indeed, it is apparent that an
individual's decision to remain in a public place of
his choice is as much a part of his liberty as the
freedom of movement inside frontiers that is 'a part
of our heritage,' . . . or the right to move 'to
whatsoever place one's own inclination may direct'
identified in Blackstone's Commentaries. 1 W.
Blackstone, Commentaries on the Laws of England 130
(1765)."

527 U.S. at 53-54 (citations omitted).

In Morales, the Supreme Court permitted the defendants to

assert a facial challenge based upon vagueness to the

ordinance:

"For it is clear that the vagueness of this
enactment makes a facial challenge appropriate.
This is not an ordinance that 'simply regulates
business behavior and contains a scienter
requirement.' See Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). It
is a criminal law that contains no mens rea
requirement, see Colautti v. Franklin, 439 U.S. 379,
395 (1979), and infringes on constitutionally
protected rights . . . . When vagueness permeates
the text of such a law, it is subject to facial
attack."

Id. at 55.

Unlike the ordinance that was implicated in Morales,

Hicks was convicted of violation of a criminal trespass

statute, Code § 18.2-119, which has an intent requirement

because the Commonwealth was required to prove that Hicks

committed an act of intentional trespass. See Reed v.

Commonwealth, 6 Va. App. 65, 70-71, 366 S.E.2d 274, 278

12
(1988). Also, unlike the ordinance in Morales, the Housing

Authority's trespass policy is not a penal ordinance. The

Housing Authority's policy is intended to regulate the

behavior of people who appear on private property owned by the

Housing Authority, which provides safe and affordable housing

for low- and moderate-income individuals. The Housing

Authority's trespass policy is not a penal ordinance and,

indeed, one could be arrested and convicted for trespass on

the Housing Authority's privately-owned property even if the

trespass policy did not exist. And, unlike the ordinance in

Morales that affected persons on public property, the Housing

Authority's trespass policy only applies to persons who commit

acts of intentional criminal trespass upon the Housing

Authority's privately-owned real property.

B.

Hicks argues that the Housing Authority's trespass policy

violates his right to freedom of intimate association with his

family guaranteed by the Fourteenth Amendment to the United

States Constitution. Continuing, Hicks states that he "was

permanently prohibited from visiting his mother and his

children in their homes [in Whitcomb Court] simply because a

government official decided, without providing [him] any

procedural protections or even an explanation, that [he] did

not have a 'legitimate purpose' to be on the streets and

13
sidewalks near the Whitcomb Court housing project." Hicks

says that this governmental intrusion violates his

constitutional right of association with his family members.

We disagree.

The Fourteenth Amendment states in relevant part: "No

State shall . . . deprive any person of life, liberty, or

property, without due process of law." U.S. Const. amend.

XIV, § 1. The right to create and maintain certain intimate

or private relationships is guaranteed under the substantive

due process component of the Fourteenth Amendment of the

United States Constitution. The Supreme Court has stated:

"The Court has long recognized that, because the
Bill of Rights is designed to secure individual
liberty, it must afford the formation and
preservation of certain kinds of highly personal
relationships a substantial measure of sanctuary
from unjustified interference by the State. E.g.,
Pierce v. Society of Sisters, 268 U.S. 510, 534-535
(1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
Without precisely identifying every consideration
that may underlie this type of constitutional
protection, we have noted that certain kinds of
personal bonds have played a critical role in the
culture and traditions of the Nation by cultivating
and transmitting shared ideals and beliefs; they
thereby foster diversity and act as critical buffers
between the individual and the power of the State.
See, e.g., Zablocki v. Redhail, 434 U.S. 374, 383-
386 (1978); Moore v. East Cleveland, 431 U.S. 494,
503-504 (1977) (plurality opinion). . . . Moreover,
the constitutional shelter afforded such
relationships reflects the realization that
individuals draw much of their emotional enrichment
from close ties with others. Protecting these
relationships from unwarranted state interference
therefore safeguards the ability independently to

14
 define one's identity that is central to any concept
of liberty. . . .
"The personal affiliations that exemplify these
considerations, and that therefore suggest some
relevant limitations on the relationships that might
be entitled to this sort of constitutional
protection, are those that attend the creation and
sustenance of a family − marriage . . . ; the raising
and education of children . . . ; and cohabitation
with one's relatives."

Roberts v. United States Jaycees, 468 U.S. 609, 618-19 (1984)

(citations omitted). The Supreme Court has also stated that:

"Choices about marriage, family life, and the
upbringing of children are among associational
rights this Court has ranked as 'of basic importance
in our society,' Boddie [v. Connecticut], 401 U.S.
[371] at 376 [(1971)], rights sheltered by the
Fourteenth Amendment against the State's unwarranted
usurpation, disregard, or disrespect."

M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996); accord Meyer v.

Nebraska, 262 U.S. 390, 399-400 (1923); Moore v. City of East

Cleveland, 431 U.S. 494, 499 (1977).

We conclude, based upon the facts in the record before

this Court that Hicks, who purportedly was delivering diapers

to the mother of his child at a specific location, has not

established the existence of an intimate relationship between

Hicks and his child or Hicks and his mother. The record

simply does not support such conclusion. However, assuming

the existence of an intimate relationship, we hold that this

right of intimate association is not without limitations.

Certainly, Hicks does not have the constitutional right to

15
visit either his mother or his child at the Housing

Authority's private property where he has been barred because

of his prior criminal conduct. Hicks' alleged right of

intimate association does not permit him to commit intentional

acts of criminal trespass upon property owned by the Housing

Authority.

We also note that the Housing Authority's trespass policy

does not impair any rights of intimate association that Hicks

may have with his mother or his child. Hicks remains free to

exercise whatever rights of intimate association he may

possess with his mother and his child; he simply may not do so

on property owned by the Housing Authority. The Housing

Authority's trespass policy does not prevent Hicks from

developing and nurturing those relationships. Rather, the

Housing Authority's policy, when enforced in conjunction with

Virginia's criminal trespass statutes, bars trespassers from

entering the Housing Authority's property.

VI.

Accordingly, we will reverse the judgment of the Court of

Appeals, and we will enter a final judgment affirming the

conviction of trespass entered by the circuit court.

Reversed and final judgment.

16