Hicks v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder,
Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements
and Agee
Argued at Richmond, Virginia

KEVIN LAMONT HICKS
OPINION BY
v. Record No. 1895-99-2 CHIEF JUDGE JOHANNA L. FITZPATRICK
JULY 3, 2001
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge

Steven D. Benjamin (Betty Layne DesPortes;
Benjamin & DesPortes, P.C., on briefs), for
appellant.

Virginia B. Theisen, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.

Amicus Curiae: American Civil Liberties
Union of Virginia Foundation, Inc.
(Rebecca K. Glenberg, on brief), for
appellant.

On October 17, 2000, a panel of this Court affirmed the

trespass conviction of Kevin Lamont Hicks (appellant). See

Hicks v. Commonwealth, 33 Va. App. 561, 535 S.E.2d 678 (2000).

Appellant's petition for rehearing en banc was granted and the

mandate of the October 17, 2000 opinion was stayed. See Hicks

v. Commonwealth, 34 Va. App. 42, 537 S.E.2d 616 (2000).

Appellant contends the trial court erred in (1) denying his
motion to dismiss the prosecution on the grounds that the

barment-trespass procedure violated his First and Fourteenth

Amendment rights and (2) denying his motion to remand the case

to the general district court for trial before a different judge

of that court and require the Commonwealth's attorney to

prosecute the case. Upon rehearing en banc, we hold that the

barment-trespass procedure employed by the City of Richmond in

the instant case violates the First and Fourteenth Amendments to

the United States Constitution and, thus, we reverse and dismiss

the trial court's conviction of appellant. The mandate of the

October 17, 2000 opinion is hereby vacated.

I.

Whitcomb Court is a housing project owned by the Richmond

Redevelopment and Housing Authority (RRHA). RRHA sought to

"privatize" the streets surrounding and adjacent to the Whitcomb

Court housing project in an effort to make the community safer. 1

1
RRHA issued a brochure to the residents explaining the
goals of street privatization:

To make communities safer by removing
persons who commit unlawful acts which
destroy the peaceful enjoyment of other
residents
To ensure that children have places to play
free of drug paraphernalia and the danger of
gunshots and other criminal activity.
To provide an opportunity for residents to
develop safety initiatives in their
community, such as resident patrols, social
security number property identification,
neighborhood watch, etc.

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On June 23, 1997 the City of Richmond adopted ordinance No.

97-181-197 deeding the streets surrounding Whitcomb Court to

RRHA. The ordinance provided:

§ 1. That Carmine Street, Bethel Street,
Ambrose Street, Deforrest Street, the
2100-2300 Block of Sussex Street and the
2700-2800 Block of Magnolia Street in
Whitcomb Court . . . be and are hereby
closed to public use and travel and
abandoned as streets of the City of
Richmond.

* * * * * * *

§ 3. The City shall retain a full width
utility easement in the streets proposed to
be closed by this ordinance . . . .
§ 4. The City shall retain a full width
right of way maintenance easement in the
streets proposed to be closed by this
ordinance.
§ 5. That the aforesaid streets shall be
designated as public highways for law
enforcement purposes . . . .

The streets deeded to Whitcomb Court at issue here were those

streets surrounding and adjacent to the property owned by RRHA,

not those contained within Whitcomb Court. Prior to

"privatization," these streets were similar to all other streets

in Richmond. After the streets were deeded to RRHA, red and

white "private property, no trespass" signs were posted

throughout Whitcomb Court and every "hundred feet on each

block," informing the public that "these streets are privatized

To hold households who knowingly harbor
persons who engage in criminal activity
accountable.

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and all the property is privatized, no trespass." The signs

were "approximately 18 inches to almost 24 inches by about 12

inches." However, the streets were not gated, barricaded, or

otherwise closed or restricted only to Whitcomb Court traffic.

The streets remained open to vehicular traffic, and the

sidewalks were open to access by the public.

After the streets were deeded to RRHA, RRHA adopted a

barment-trespass procedure to prevent any "unauthorized persons"

from entering the property. On November 13, 1998 the RRHA's

Director of Housing Operations authorized

each and every sworn officer of the Richmond
Police Department to enforce the trespass
laws of the Commonwealth of Virginia . . .
[upon RRHA property known as] Whitcomb
Court. . . . [E]ach and every Richmond
Police Department officer [is authorized] to
serve notice, either orally or in writing,
to any person [found on RRHA 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.

According to a printed brochure issued by RRHA to the Whitcomb

Court residents, "unauthorized persons," who are subject to the

barment proceedings, are all non-residents who cannot

demonstrate that they are on the premises "visiting a lawfully

residing resident, or on the development conducting legitimate

business."

The police officer makes the determination whether a person

is to be barred, determines whether the person is a tenant or is

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there at the invitation of a tenant, or whether there is a

legitimate reason for being on the property. A person simply

has to fail to fit within the category of people whom RRHA has

deemed entitled to be on the streets and sidewalks adjacent to

the public housing development to be barred. Once barred, the

person who returns is a trespasser without regard to whether, on

that subsequent occasion, he or she is there on legitimate

business or at the invitation of a Whitcomb Court tenant.

Hicks was convicted of trespassing on the property of

Whitcomb Court on February 10, 1998 and June 26, 1998,

respectively, and of damaging property in Whitcomb Court on

April 27, 1998. 2 On April 14, 1998, Mrs. Gloria Rogers, the

housing manager at Whitcomb Court, served a written notice on

Hicks advising him that he was banned from the Whitcomb Court

property. He was "not to trespass on RRHA property," and if he

was "seen or caught on the premises, [he would] be subject to

arrest by the police." Hicks' mother, his baby, and his baby's

mother live at Whitcomb Court. After receiving the notice,

Hicks twice returned to Whitcomb Court to speak with Mrs. Rogers

to seek permission to come back on the property. His requests

were denied. On January 20, 1999, Officer James Laino (Laino)

observed Hicks walking westbound in the 2300 block of Bethel

Street, one of the "privatized" streets adjacent to Whitcomb

2
Appellant's barment from Whitcomb Court is not related to
his damaging property at Whitcomb Court.

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Court. Laino knew that Hicks was barred from the property.

Hicks explained to Laino that he was on the property "bringing

pampers to his baby." During the conversation, a female came

out and approached Laino and Hicks. Hicks indicated he was

visiting her. Laino issued Hicks a summons for trespassing.

Hicks was tried in the general district court without the

presence of a Commonwealth's attorney. The district court judge

conducted the questioning of Hicks. Hicks objected to this

procedure. The judge struck Hicks' testimony at the end of the

trial and convicted him. Hicks noted an appeal to the circuit

court.

Prior to trial in the circuit court, Hicks filed a motion

requesting a remand to the general district court for a new

trial and an order requiring a Commonwealth's attorney to be

present and to represent the Commonwealth at this new general

district court trial. The circuit court denied the motion on

the ground that it lacked authority to remand the trial. Hicks

also moved to dismiss the charge of trespass on the ground that

the RRHA's trespass policy violated the First and Fourteenth

Amendments to the United States Constitution. The circuit court

denied his motion to dismiss and found Hicks guilty of trespass.

II. CONSTITUTIONALITY OF RICHMOND ORDINANCE

Appellant argues that Richmond City Ordinance No.

97-181-197 and the RRHA barment-trespass procedure violate the

First and Fourteenth Amendments of the United States

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Constitution. 3 Thus, we must determine whether the First and

Fourteenth Amendments are violated by the trespass statute as

enforced under authority granted by RRHA to Richmond City police

officers to bar people on the streets surrounding and adjacent

to Whitcomb Court and who do not fit within a narrowly defined

group of people. The critical issue is whether the "privatized"

streets and sidewalks are public and as such are a "traditional

public forum," or whether they are "private" and, thereby, a

"nonpublic forum." If they are "traditional public forum," then

the barment-trespass procedure must satisfy the strict scrutiny

requirement that the procedure be narrowly tailored to serve a

compelling state interest. See Daniel v. City of Tampa, 38 F.3d

546 (11th Cir. 1994).

A. "PUBLIC FORUM"

The constitutionality of government regulation of First

Amendment rights is analyzed under a public fora analysis. See

Warren v. Fairfax County, 196 F.3d 186, 190 (4th Cir. 1999).

3
The Commonwealth argues that appellant is barred from
contesting the validity of the barment-trespass procedure
because he did not present a defense to his presence on RRHA
property or challenge his original barment notice or the
barment-trespass procedure itself prior to being charged with
trespass on January 20, 1999. Therefore the Commonwealth argues
that he is improperly collaterally attacking his conviction. We
disagree. Prior to his trial for this trespass charge,
appellant challenged the barment-trespass procedure as
unconstitutional. At trial, appellant's defense to the trespass
charge was that the barment-trespass procedure violated his
constitutional rights and, thus, he could not be guilty of
trespass because he had a constitutional right to be walking on

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 The public forum analysis was created to
recognize that the government must be able
to limit the use of its property to the
intended purpose for which the property was
created and to limit access to those
rightfully conducting business there.
Toward that end, the Court has identified at
least three types of fora for First
Amendment purposes, each subject to a
different regime of constitutional scrutiny:
the traditional public forum, the designated
public forum, and the nonpublic forum. The
Court distinguishes between these fora based
upon the physical characteristics of the
property, including its location, the
objective use and purposes of the property
and government intent and policy with
respect to the property, which may be
evidenced by its historic and traditional
treatment.

Id. at 190-91 (internal citations omitted). Public streets and

sidewalks are repeatedly referred to as the archetype of a

traditional public forum because they "are among those areas of

public property that traditionally have been held open to the

public for expressive activities and are clearly within those

areas of public property that may be considered, generally

without further inquiry, to be public forum property." United

States v. Grace, 461 U.S. 171, 179 (1983).

Wherever the title of streets and parks may
rest, they have immemorially been held in
trust for the use of the public and, time
out of mind, have been used for purposes of
assembly, communicating thoughts between
citizens, and discussing public questions.
Such use of the streets and public places
has, from ancient times, been a part of the
privileges, immunities, rights, and

Bethel Street. Thus, we find that appellant timely raised the
issue of the validity of the barment-trespass procedure.

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 liberties of citizens. The privilege of a
citizen of the United States to use the
streets and parks for communication of views
on national questions may be regulated in
the interest of all; it is not absolute, but
relative, and must be exercised in
subordination to the general comfort and
convenience, and in consonance with peace
and good order; but it must not, in the
guise of regulation, be abridged or denied.

Hague v. Committee for Industrial Organization, 307 U.S. 496,

515-16 (1939).

"Ownership [of streets and sidewalks] does not always mean

absolute dominion." Marsh v. Alabama, 326 U.S. 501, 506 (1946)

(holding that privately owned streets and sidewalks in a company

owned town which are built and operated primarily to benefit the

public are traditional public forums that are protected by First

Amendment constitutional guarantees). In Grace, 461 U.S. 171,

the United States Supreme Court addressed the ability of the

government to redefine certain public sidewalks in front of the

United States Supreme Court Building as a non-public forum.

There was no separation, fence or any other indication to

persons entering the sidewalks that served as the perimeter of

the Court grounds that they entered a non-public forum. "The

sidewalks comprising the outer boundaries of the Court grounds

are indistinguishable from any other sidewalks in Washington

D.C., and . . . [there is] no reason why they should be treated

any differently." Id. at 179. The Court held that:

"Congress[, no more than a suburban
township,] may not by its own ipse dixit

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 destroy the 'public forum' status of streets
and parks which have historically been
public forums. . . ." The inclusion of the
public sidewalks within the scope of § 13k's
prohibition, however, results in the
destruction of public forum status that is
at least presumptively impermissible.
Traditional public forum property occupies a
special position in terms of First Amendment
protection and will not lose its
historically recognized character for the
reason that it abuts government property
that has been dedicated to a use other than
as a forum for public expression. Nor may
the government transform the character of
the property by the expedient of including
it within the statutory definition of what
might be considered a non-public forum
parcel of property.

Id. at 180 (quoting U.S. Postal Service v. Greenburgh Civic

Ass'ns, 453 U.S. 114, 133 (1981) (quotation altered to reflect

original wording).

As in Grace, the streets surrounding Whitcomb Court deeded

to RRHA were not separated in any manner from the other streets

and sidewalks in the area. The sole indication to the public

that they have entered a "private" street are "red and white

signs . . . approximately 18 inches to almost 24 inches by about

12 inches . . . spaced about every hundred feet on each block"

and on each building indicating that "these streets are

privatized and all the property is privatized, no trespass."

There is no indication to the public until after they enter onto

the "privatized" streets that the streets are any different from

the rest of the streets in the city and are now private

property. Some of the "privatized" streets are "private" for

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only a couple of blocks and are public on both ends of the

"privatized" blocks. Thus, although the street signs declare

the streets "private" and for the exclusive use of residents and

those persons there on legitimate business, the streets and

sidewalks continue to serve the same functions and are equally

accessible to the public as before the City of Richmond passed

the ordinance "privatizing" the streets.

Once a person has entered a "privatized" street he or she

is subject to the barment-trespass procedure. A trespasser who

receives a warning is informed that he or she is "not to

trespass upon RRHA property" or "Whitcomb Court." However, the

warning does not inform the person that the streets and

sidewalks surrounding the complex are a part of RRHA property.

Because the streets appear no different from other streets

in Richmond and serve the same function they did prior to

"privatization," "we can discern no reason why they should be

treated any differently" from any other street or sidewalk.

Grace, 461 U.S. at 179. The City of Richmond is not permitted

to transform the public streets and sidewalks in Whitcomb Court

into private, non-public property simply by passing an ordinance

declaring them closed, conveying them to another governmental

entity, the RRHA, and placing signs along the streets. See

Marsh, 326 U.S. 501; Grace, 461 U.S. 171. Thus, the streets and

sidewalks surrounding Whitcomb Court did not lose their public

forum status when the City of Richmond deeded them to the RRHA

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and put some signs on the street indicating they were now

private property. Hence, the barment-trespass procedure must

satisfy the rigors of strict scrutiny to pass constitutional

muster.

The Commonwealth argues that our prior decisions in Collins

v. Commonwealth, 30 Va. App. 443, 517 S.E.2d 277 (1999), and

Holland v. Commonwealth, 28 Va. App. 67, 502 S.E.2d 145 (1998),

allow housing authorities to restrict access to their property

and designate police officers to serve barment notices and

arrest persons trespassing on housing authority property. We

have previously approved a process by which police officers may

be designated as agents of a housing authority to serve barment

notices on persons trespassing on housing authority property,

see Collins, 30 Va. App. at 449, 517 S.E.2d at 280; Holland, 28

Va. App. at 70-76, 502 S.E.2d at 146-49. However, what

distinguishes this case from those is that Hicks was found

guilty of trespass for having gone upon Bethel Street and the

adjacent sidewalk, whereas in both Holland and Collins, the

defendants were on the non-public grounds and in the buildings

of the housing authority.

The Commonwealth also contends that we should follow the

Eleventh Circuit's decision in Daniel, 38 F.3d 546. The Daniel

court authorized a housing authority to enforce a no trespassing

policy identical to the one at issue in the instant case.

However, unlike the instant case, in Daniel, "the City-owned

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streets and sidewalks surrounding and intersecting with the

Housing Authority property [were] open to the public" and Daniel

had "unlimited access to the City-owned streets and sidewalks

adjacent to the housing complex." Id. at 548 n.3 & 550; see

also Walker v. Georgetown Hous. Auth., 677 N.E.2d 1125, 1128

(Mass. 1997) (calling into question the reasoning of the Daniel

court and the applicability of the ruling to streets and

sidewalks that were kept "open to the public"). Thus, in

Daniel, the no trespassing policy was limited to the non-public

forum consisting of the housing authority's buildings and

grounds and did not include the adjacent streets and sidewalks

as the RRHA policy does in the instant case. Bethel Street is a

public street that was built and maintained with public funds to

provide access by the public to that part of Richmond. As with

all public streets and thoroughfares, historically and

traditionally public streets have served as a locale for the

free exchange and dissemination of ideas and have served as an

area where citizens can freely and lawfully congregate or move

about and exchange discourse.

The fact that legal title to the streets is transferred

from a municipal government to a government agency which owns

and operates a public housing development does not change the

public nature and character of the streets and sidewalks which

provide access to the public to this part of the City. See

Marsh, 326 U.S. 501. The City cannot transform the public

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streets surrounding Whitcomb Court into non-public streets by

declaring them closed by ordinance and conveying them to another

governmental entity when they continue to serve the same public

purpose as before.

B. "STRICT SCRUTINY"

Therefore, the City of Richmond's and RRHA's attempt to

control access to and movement upon the streets and sidewalks of

the city is "subject to strict scrutiny; [it] must be narrowly

tailored to serve [the] compelling state interest" of providing

safe housing to the development's residents. Daniel, 38 F.3d at

549. The stated goal of the RRHA barment-trespass procedure is

to ensure a safe environment free from criminal activity for the

residents of Whitcomb Court. We agree that the City of Richmond

has a compelling interest in protecting its citizens and

preventing criminal activity. However, it may not, in its

endeavor to control crime, pass and enforce a regulation so

broad in scope that it unduly restricts or criminalizes innocent

constitutionally protected behavior.

The barment-trespass procedure used in this case inhibits a

person's constitutionally protected "'right to remove from one

place to another according to inclination'" and the person's

right to "remain in a public place of his choice." Chicago v.

Morales, 527 U.S. 41, 53, 54 (1999) (quoting Williams v. Fears,

179 U.S. 270, 274 (1900)). In Morales, the United States

Supreme Court held that a city ordinance designed to reduce

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crime by criminalizing "loitering" violates the Constitution.

The Court stated that "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'" and the

ordinance "broadly covers a significant amount" of activity that

is constitutionally protected. Id. at 53-54 (internal citations

ommitted). The City of Richmond and RRHA barment-trespass

procedure also prevents a person from standing upon the streets

surrounding Whitcomb Court without a "legitimate reason." Thus,

it implicates the same concerns addressed in Morales.

The barment-trespass procedure is not limited so as to

encompass only those persons whose conduct the City and RRHA

were seeking to curtail. The procedure is so broad that

citizens who merely drive or walk upon one of the "privatized"

streets fall within the defined group of people not authorized

by the barment procedure to be upon the streets and sidewalks

and, thus, may be deemed guilty of criminal conduct. A citizen

need not commit a crime, intend to commit a crime or infringe

upon the privacy of the residents of Whitcomb Court to be in

violation of the barment-trespass statute and ordinance. The

Commonwealth presented no evidence that appellant did anything

other than exercise his constitutionally protected right to walk

upon the streets and sidewalks of the City of Richmond.

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Perhaps, had Bethel Street been gated, barricaded, or physically

restricted to traffic where the public was not free to travel,

as with gated communities, the street could be considered

non-public and not a "traditional public forum." But the City

can no more "close" the streets in Whitcomb Court and leave them

open to the public, thereby purporting to make them a

"non-public forum," than it could declare "closed" all streets

in Richmond's troubled neighborhoods and residential areas,

thereby denying access to all citizens except the residents and

their invitees and others specifically approved. Neighborhood

streets, such as those in Whitcomb Court, are public streets,

paid for and maintained with public funds, for the use and

benefit of the public.

While a public entity can restrict the use of public

property or buildings to those who are using the property for

its intended "non-public" purpose, such as an office building,

it cannot restrict public property that is considered a

"traditional public forum," such as a street or sidewalk, that

is being used in a lawful way and for a lawful purpose that is

constitutionally protected. See United States v. Kokinda, 497

U.S. 720, 727 (1990) (holding that sidewalk in front of a post

office "constructed solely to provide for the passage of

individuals engaged in postal business" is a non-public forum).

Here, in effect, the City and RRHA, by converting the streets

and sidewalks to private property, attempted to confer upon RRHA

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the same rights as a private property owner who may restrict

everyone from coming upon the private property owner's property

except the owner's tenants and the tenants' invitees, regardless

of whether the invitees had done anything unlawful. However,

the United States Supreme Court has held that even a private

entity which owns the entire town cannot close the streets to

deny the public their constitutional rights. See Marsh, 326

U.S. at 506. Therefore, the barment-trespass procedure at issue

here is not narrowly tailored to encompass only those activities

the RRHA sought to exclude from their property.

III. CONCLUSION

Thus, we hold that Richmond's barment-trespass procedure,

when strictly scrutinized, is not narrowly tailored to serve the

government's compelling interest, the standard that must be met

when the government attempts to regulate activity in a

"traditional public forum." 4 The RRHA's privatization effort

unconstitutionally infringes upon a citizen's First and

Fourteenth Amendment rights to lawfully be present in a public

place. Accordingly, we hold that city ordinance No. 91-181-197

as enforced through the barment-trespass procedure is

4
In his petition for appeal, appellant also requested this
Court to set aside the order revoking his suspended sentences on
his two prior convictions for trespassing at Whitcomb Court and
his prior conviction for damaging property at Whitcomb Court.
However, appellant did not pursue this on brief or in oral
argument. Therefore, we remand this case to the circuit court to
reconsider the revocation of his suspended sentences in light of
our holding in this opinion.

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unconstitutional and we reverse and dismiss appellant's

conviction. 5

Reversed and dismissed in part,
reversed and remanded in part.

5
Because we reverse on the failure of the City of Richmond
to establish the constitutionality of the barment-trespass
procedure, we do not address appellant's arguments regarding
errors in the general district court proceedings or whether the
barment-trespass procedure violated the procedural due process
requirements of the Fourteenth Amendment.

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Humphreys, J., with whom Willis, Bray, Bumgardner and Agee,
JJ., join, dissenting.

I. Constitutional Issues

I must respectfully dissent from the majority opinion,

which holds that the Richmond Redevelopment and Housing

Authority's (RRHA) barment proceeding and trespass policy

violate the First and Fourteenth Amendments of the United States

Constitution.

First, I do not agree that Hicks properly raised his

objections to RRHA's barment procedures. Hicks concedes that

the RRHA provided him with a barment notice on April 14, 1998.

This barment notice was issued to Hicks pursuant to a valid

ordinance adopted by the City of Richmond, both requiring and

authorizing RRHA to take any necessary steps to "give the

appearance that the closed streets . . . are no longer public

streets and that they are in fact private streets." The notice,

which Hicks signed in acknowledgment of its receipt,

specifically prohibited Hicks from entering onto RRHA premises

for any reason.

Subsequently, on at least one occasion, Hicks approached

the housing manager for the Whitcomb Court property, Gloria

Rogers, to request that he be able to visit his mother, a

resident of that property. Rogers denied his request and again

informed him that he was barred from entering the property

pursuant to the barment notice. However, other than speaking to

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Rogers, Hicks took no steps to appeal his barment through

official channels of the Authority or the courts. Instead, he

ignored the barment and was arrested and convicted for

trespassing, as well as for damaging property in Whitcomb Court,

prior to his arrest for the incident of January 20, 1999. In

addition, for this prior trespass conviction, Hicks received a

suspended sentence on the court-ordered condition that he keep

the peace and be of good behavior for three years. However,

Hicks continued to ignore the barment notice, as well as the

court order, and trespassed again on January 20, 1999. Now, for

the first time, in connection with his conviction for the

January 20, 1999 trespass, Hicks argues that the barment

violated his constitutional rights under the First and

Fourteenth Amendments.

Hicks' arguments in this regard represent an untimely and

improper collateral attack on his barment status. We have held,

in the context of an habitual offender adjudication, that where

a defendant has knowledge of an underlying order, never appeals

the order, and subsequently violates the order, he cannot attack

the underlying order in the new proceeding. See Morgan v.

Commonwealth, 28 Va. App. 645, 507 S.E.2d 665 (1998). We based

our decision in Morgan on Mays v. Harris, 523 F.2d 1258 (4th

Cir. 1975), wherein the Fourth Circuit Court of Appeals held

that an habitual offender who failed to appeal the underlying

conviction, could not, with impunity, choose to ignore the

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adjudication and resulting injunction "for, . . . 'in the fair

administration of justice, no man can be judge in his own

case.'" Id. at 1259 (quoting Walker v. Birmingham, 388 U.S.

307, 321 (1967) (holding that a party can be held in contempt of

court for violating an injunction, even if the injunction was

invalid under the Federal Constitution)).

I believe the principle advanced in Walker, Mays and Morgan

is equally applicable to this case. Here, Hicks was barred from

the property pursuant to authority granted RRHA by ordinance

which, in turn, provided an administrative procedure for

contesting such barment. Hicks had knowledge of his barment

from the property, he had been previously convicted of

trespassing on the property prior to his trial for the

trespassing incident of January 20, 1999, and in conjunction

with that conviction, he had been ordered by the court to

maintain good behavior for three years. Despite the opportunity

presented by the prior court proceedings, as well as the

availability of an administrative appellate procedure, Hicks

raised no objection to the propriety of the barment until his

trial for the January 20, 1999 incident. Pursuant to the

principles set forth in the above-cited cases, I do not believe

Hicks should be allowed to have bypassed "orderly judicial

review of [the barment and his prior trespassing convictions]

before disobeying [them]." Walker, 388 U.S. at 320.

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 I would also reject Hicks' challenges to the

constitutionality of RRHA's policy. "In assessing the

constitutionality of a statute or ordinance, courts must presume

that the legislative action is valid. Consequently, the burden

is on the challenger to demonstrate the constitutional defect."

Coleman v. City of Richmond, 5 Va. App. 459, 462, 364 S.E.2d

239, 241 (1988). I would hold that Hicks failed to meet this

burden.

Hicks essentially argues, on brief and orally, that because

the streets of Whitcomb Court were once public streets and

sidewalks owned by the City of Richmond, any statute restricting

his presence thereon is unconstitutionally overbroad or vague.

Hicks further alleges that because the policy is overbroad and

vague, it impinges upon his First Amendment guarantees of free

speech and implied guarantee of free association, as well as his

Fourteenth Amendment due process protections.

"[G]enerally, a litigant may challenge the

constitutionality of a law only as it applies to him or her."

Id. at 463, 364 S.E.2d at 241. "The traditional rule is that a

person to whom a [policy] may be constitutionally applied may

not challenge that [policy] on the ground that it may

conceivably be applied unconstitutionally to others in

situations not before the Court." New York v. Ferber, 458 U.S.

747, 769 (1982). Yet,

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 [w]hat has come to be known as the First
Amendment overbreadth doctrine is one of the
few exceptions to this principle and must be
justified by weighty countervailing
policies. The doctrine is predicated on the
sensitive nature of protected expression
. . . [and] [i]t is for this reason that we
have allowed persons to attack overly broad
statutes even though the conduct of the
person making the attack is clearly
unprotected and could be proscribed by a law
drawn with the requisite specificity.

Id. The United States Supreme Court has also allowed a facial

attack on the grounds of vagueness even though the litigant's

own speech was unprotected. See Kolender v. Lawson, 461 U.S.

352 (1983).

Nevertheless, "where conduct and not merely speech is

involved, . . . the overbreadth of a statute must not only be

real, but substantial as well, judged in relation to the

[policy's] plainly legitimate sweep." Ferber, 458 U.S. at 770.

This distinction is ignored by the majority. "We have never

held that a [policy] should be invalid on its face merely

because it is possible to conceive of a single impermissible

application . . . ." Id. at 771. Instead, "[i]n 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."

Houston v. Hill, 482 U.S. 451, 458 (1987).

A policy will be deemed unconstitutionally overbroad if it

is "one that is designed to burden or punish activities which

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are not constitutionally protected, but the [policy] includes

within its scope activities which are protected by the First

Amendment." Parker v. Commonwealth, 24 Va. App. 681, 690, 485

S.E.2d 150, 154-55 (1997). A policy will be deemed

unconstitutionally vague if "it does not define the criminal

offense with sufficient definiteness that ordinary people can

understand what conduct is prohibited and in a manner that does

not encourage arbitrary and discriminatory enforcement."

Santillo v. Commonwealth, 30 Va. App. 470, 482, 517 S.E.2d 733,

739 (1999) (citation omitted).

It is axiomatic that in making such a determination, an

appellate court should refrain from speculation outside of the

record before it. Here, contrary to Hicks' argument, the policy

clearly does not bar individuals from freely associating with

their friends or loved ones living on RRHA property, nor does it

prohibit persons from exercising free expression. Further, the

policy does not automatically delineate every non-resident who

uses a sidewalk owned by RRHA to be a trespasser, as suggested

by the majority. Instead, it merely authorizes the Richmond

police, as agents of the RRHA, to ban persons from the property

who enter upon the property without permission from a resident

or the RRHA. Significantly, any unauthorized individuals are

not automatically arrested, but they are warned that they are

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not to enter the property in the future. 6 Further, those who

have been formally banned from the property are not without

recourse and can request, through the proper RRHA channels, to

have the ban removed.

Thus, I would consider this policy as a "paradigmatic case

of [one] whose legitimate reach dwarfs its arguably

impermissible applications." Ferber, 458 U.S. at 773. Under

these circumstances, I would find that the policy is not

"substantially overbroad" and/or vague and that "whatever

overbreadth [or vagueness] may exist should be cured through a

case-by-case analysis of the fact situations to which its

sanctions, assertedly, may not be applied." Broadrick v.

Oklahoma, 413 U.S. 601, 615-16 (1973).

The majority has found that the Whitcomb Court property is

a traditional public forum simply because the property in

question is a sidewalk adjoining a street constructed and once

owned by the City of Richmond. However, neither the evidence in

this record nor the precedents of the United States Supreme

Court compel such a finding. I agree that "[t]he Supreme Court

has adopted a forum analysis as a means of determining when the

Government's interest in limiting the use of its property to its

intended purpose outweighs the interest of those wishing to use

6
Contrary to the majority's statement otherwise, Hicks
presented no evidence suggesting that the warning does not
inform persons that the streets and sidewalks surrounding the
complex are part of RRHA property.

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the property for other purposes. Accordingly, the extent to

which the Government can control access depends on the nature of

the relevant forum." Paff v. Kaltenbach, 204 F.3d 425, 431 (3rd

Cir. 2000) (citing Cornelius v. NAACP Legal Defense &

Educational Fund, Inc., 473 U.S. 788, 800 (1985)). However,

"[w]hen the relevant public property is determined to be a

'non-public forum,' rather than an 'open forum' or a 'designated

forum,' the government has greater freedom to restrict speech."

Id.

A traditional public forum is property which has the

physical characteristics of a public thoroughfare, which has the

objective use and purpose of open public access or some other

objective use and purpose inherently compatible with expressive

conduct, and by which history and tradition has been used for

expressive conduct. See Warren v. Fairfax County, 169 F.3d 190,

198 (4th Cir. 1999) (Murnaghan, J., dissenting), adopted and

incorporated by reference by the majority in Warren v. Fairfax

County, 196 F.3d 186, 191 (4th Cir. 1999) (en banc). As the

majority also correctly points out, a sidewalk adjoining a

public street will generally fall into this category. See

Frisby v. Schultz, 478 U.S. 474, 481 (1988). However, the

sidewalk at issue here is not the "quintessential" public

sidewalk which has been "immemorially held in trust for the use

of the public," or which has been traditionally "used for public

assembly and debate, the hallmarks of a traditional public

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forum." See Frisby, 478 U.S. at 480-81; see also United States

v. Grace, 461 U.S. 171, 179-80 (1983) (instructing that it is

incorrect to assert that every "public sidewalk" is a public

forum).

While it is true that the City of Richmond cannot transform

public streets and sidewalks into private, non-public property

simply by passing an ordinance declaring them private or closed

property, this is but one factor to consider in determining the

nature of the sidewalks at issue. See Marsh v. Alabama, 326

U.S. 501 (1946); see also United States v. Kokinda, 497 U.S.

720, 727 (1990). Moreover, contrary to the majority's

conclusion, "[t]he mere physical characteristics of the property

cannot dictate forum analysis." Kokinda, 497 U.S. at 727.

Instead, we must also consider the location and purpose of the

sidewalk, in order to determine its character as public or

private. See id. at 728-29.

I agree with the majority that a "critical issue" is also

whether the privatized streets continue in their previous

character as a traditional public forum. However, contrary to

the majority, I would find that neither the purpose, the

treatment, nor the physical characteristics of the Whitcomb

Court sidewalks support the majority's conclusion that they fall

within the parameters of a traditional public forum.

First, the Whitcomb Court property, including its streets

and sidewalks, has been deeded from the City to the RRHA.

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Although ignored by the majority, a condition for the closure of

the streets by the City required RRHA to "make provisions to

give the appearance that the closed streets, particularly at the

entrances, [were] no longer public streets and that they [were]

in fact, private streets." In order to meet this requirement,

although the streets and sidewalks of the development were not

physically barricaded, RRHA posted red and white signs,

"approximately 18 inches to almost 24 inches by about 12 inches"

in size, on each side of the buildings, as well as on the

streets of the property, on each block, about every 100 feet.

These signs clearly indicated that the street and sidewalks had

been privatized and that trespassing was prohibited. 7 The record

further indicates that RRHA held meetings with residents and

provided pamphlets explaining the privatization. The pamphlet

encouraged residents to explain the privatization to their

neighbors and guests in order to facilitate the change.

Finally, for at least a year prior to Hicks' present arrest,

RRHA and the Richmond police treated the property as private

property by determining whether visitors were authorized and by

banning unauthorized persons from the property.

In concluding that "[t]here is no indication to the public

until after they enter onto the 'privatized' streets that [they]

7
Officer Llaino testified to the size, number and location
of the signs and that the substance of the message on the signs
was that "all the property had been privatized and that
trespass[ing was] prohibited." This evidence was uncontradicted.

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are any different from the rest of the streets in the city," the

majority both improperly assumes a fact-finding function outside

the record in this case and improperly shifts the burden of

proof concerning the character of the forum away from Hicks. A

review of the character of the "privatized" streets and

sidewalks, restricted to the record of the trial court, reveals

that other than exceptions for school buses, delivery trucks,

city service vehicles and law enforcement, there is absolutely

no evidence that the streets and/or sidewalks of the Whitcomb

Court property remained open to a public flow of traffic, as the

majority suggests. Furthermore, even though sidewalks "may be

open to the public, [that] fact alone does not establish that

such areas must be treated as traditional public fora under the

First Amendment." Kokinda, 497 U.S. at 729.

Thus, given the clear intent by the City of Richmond to

remove the streets of Whitcomb Court from the category of

thoroughfares available for use by the general public and given

the notice to the residents and the public at large in the form

of repeated and obvious signage that the streets and sidewalks

were no longer "public" in character, I would hold that the

restrictions imposed by RRHA must be analyzed under the test for

non-public property: they must be reasonable and "not an effort

to suppress expression merely because public officials oppose

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the speaker's view." Id. at 730 (citing Perry Education Assn.

v. Perry Local Educators' Assn., 460 U.S. 37, 46 (1983)).

There is no dispute here that the stated purpose for RRHA's

trespassing enforcement effort, which was to "provide a safe

environment for citizens in a place often used to sell drugs,"

is reasonable and legitimate. In fact, we have previously

upheld the delegation of authority by a public housing complex

to police officers to bar unauthorized individuals from the

property for the purpose of preventing crime, protecting

property and preserving the peace. See Holland v. Commonwealth,

28 Va. App. 67, 502 S.E.2d 145 (1998).

Moreover, as stated above, the record is clear that a

person is not considered "unauthorized" until he or she has

entered the property without the permission of either a resident

or an RRHA official. Even then, and notwithstanding numerous

and obvious signs that acquaint anyone able to read that the

character of the property is private and not public, unless the

individual is engaged in some type of criminal activity, that

individual is not formally barred from the property until after

he or she has been warned not to enter the property without

permission. Once an individual is barred from the property, a

procedure is available to request removal of the barment.

Further, Hicks produced no evidence that either RRHA or the

Richmond police have ever banned any form of expression based on

its content.

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 Based on this record, I would find that any potential

interference with an individual's right of expression and/or

intimate association with residents of Whitcomb Court, or to

"loiter" on the property, which, although publicly owned, in my

judgment constitutes a "non-public forum" for First Amendment

purposes, is reasonable, limited and justified to achieve the

legitimate purpose of protecting these residents from crime.

Therefore, I would hold that Hicks' conduct at the time of his

arrest - namely, knowingly trespassing on private property - was

not constitutionally protected.

II. Motion to Remand

Because I would hold that RRHA's barment proceeding and

trespass policy with respect to Hicks do not violate the First

and Fourteenth Amendments, I would address the remaining

assignment of error.

Hicks argues that he was entitled to have his case remanded

to the general district court for a new trial before another

judge because the judge of that court who presided over the

initial trial improperly assumed the role of a prosecutor by

"cross-examining" him.

The Supreme Court of Virginia has long held that there is

no inherent damage to a fair trial when a judge asks questions

of a witness.

[A] trial judge [may] ask questions of a
witness either on his examination in chief
or on cross-examination. The practice is

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 common and perfectly permissible. Indeed,
there are times when it is his duty to do
so. He is not to sit there and see a
failure of justice on account of omissions
to prove facts plainly within the knowledge
of a witness, but the character of his
questions should not be such as to disclose
bias on his part, or to discredit the
truthfulness of the witness. "For the
purpose of eliciting evidence which has not
otherwise been brought out, it is proper for
the judge to put the questions to a witness
either on his examination in chief or on his
cross-examination, and where anything
material has been omitted, it is sometimes
his duty to examine a witness."

Mazer v. Commonwealth, 142 Va. 649, 655, 128 S.E. 514, 516

(1925) (citations omitted).

In addition, we have held that "the trial court, in the

exercise of its sound discretion, may permit jurors to submit

written questions to be asked of a witness." Williams v.

Commonwealth, 24 Va. App. 577, 582, 484 S.E.2d 153, 155 (1997).

We also noted in Williams that "[t]he function of a jury is to

assure a fair and equitable resolution of all factual issues.

The jury serves as the final arbiter of the facts, 'charged with

weighing the evidence, judging the credibility of the witnesses,

and reaching a verdict' in the case." Id. at 582, 484 S.E.2d at

155. This function belongs no less to the court when serving as

the fact finder. We need not determine here whether the general

district court judge's questions demonstrated an inappropriate

bias or prejudice because the court granted Hicks' motion to

strike the questions as well as his answers.

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 In addition, the remedy provided to any defendant in a

criminal case who perceives error on the part of a trial court

is to exercise the right to appeal the matter to a higher

tribunal. In the context of misdemeanors tried in the district

courts, the General Assembly has established a right to a trial

de novo in the circuit court. 8 A de novo hearing means a trial

anew. On appeal, a conviction in the district court is

annulled, and a new trial is held in the circuit court. See

Ledbetter v. Commonwealth, 18 Va. App. 805, 447 S.E.2d 250

(1994).

While it would clearly be preferable and in its interest

for the Commonwealth to be represented by counsel in every case

in which it is a party, the General Assembly has declined to

mandate such representation. Code § 15.2-1627(B) recites the

duties of Commonwealth's Attorneys and their assistants. 9 This

statute only requires Commonwealth's Attorneys to prosecute

8
Code § 16.1-136 provides in pertinent part: "Any appeal
taken under the provisions of this chapter shall be heard de
novo in the appellate court and shall be tried without formal
pleadings in writing; and, . . . the accused shall be entitled
to trial by a jury in the same manner as if he had been indicted
for the offense in the circuit court."
9
Code § 15.2-1627(B) provides in pertinent part: "The
attorney for the Commonwealth . . . shall have the duties and
powers imposed upon him by general law, including the duty of
prosecuting all warrants, indictments or informations charging a
felony, and he may in his discretion, prosecute Class 1, 2 and 3
misdemeanors, or any other violation, the conviction of which
carries a penalty of confinement in jail, or a fine of $500 or
more, or both . . . ."

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felonies and provides that a prosecutor "may in his discretion,

prosecute Class 1, 2 and 3 misdemeanors." Thus, the General

Assembly decided as a matter of policy to place the discretion

for the representation of the Commonwealth in misdemeanor cases

in the hands of the executive branch rather than the judicial

branch of government.

Hicks relies on the decision of the Supreme Court of the

United States in Ward v. Village of Monroeville, 409 U.S. 57

(1972), as authority for his argument that a trial de novo does

not cure errors committed in a lower court. I find his reliance

on Ward is misplaced. In Ward, the Supreme Court addressed a

systemic problem of bias inherent in the infrastructure of local

mayors' courts. There, mayors of villages sat as judges in the

courts, and a major portion of village income was derived from

the collection of these fines. In finding that such a scheme

violates the due process rights of criminal defendants in the

mayors' courts, Justice Brennan noted that the constitutional

infirmity was grounded in the separation of powers doctrine.

Although "the mere union of the
executive power and the judicial power in
him cannot be said to violate due process of
law," the test is whether the mayor's
situation is one "which would offer a
possible temptation to the average man as a
judge to forget the burden of proof required
to convict the defendant, or which might
lead him not to hold the balance nice, clear
and true between the State and the accused."
Plainly that "possible temptation" may also
exist when the mayor's executive
responsibilities for village finances may

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 make him partisan to maintain the high level
of contribution from the mayor's court.

Id. at 60 (citations omitted).

Hicks does not allege, nor do I find, such systemic bias in

the procedural structure of the district courts in the

Commonwealth. Thus, assuming without deciding that the

questions propounded by the general district court judge

constituted error, I would hold that the trial de novo in the

circuit court provided an adequate remedy.

For all of these reasons, I dissent and would affirm the

judgment of the trial court.

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