Commonwealth v. Hicks

Present: All the Justices

COMMONWEALTH OF VIRGINIA
OPINION BY JUSTICE LEROY R. HASSELL, SR.
v. Record No. 011728 June 7, 2002

KEVIN LAMONT HICKS

FROM THE COURT OF APPEALS OF VIRGINIA

The narrow issue that we consider in this appeal is

whether a redevelopment and housing authority's trespass

policy is overly broad and thereby violates the First and

Fourteenth Amendments to the Constitution of the United

States.

I.

Kevin Lamont Hicks was charged with trespass in violation

of Code § 18.2-119 and three violations of the conditions of

suspended sentences imposed upon him for prior trespass

convictions. He was tried and convicted in the City of

Richmond General District Court.

Hicks appealed the convictions to the Circuit Court of

the City of Richmond, and he filed a motion to dismiss the

charges against him on the basis that a redevelopment and

housing authority's trespass policy contravened the First and

Fourteenth Amendments to the Constitution of the United

States. The circuit court denied the motion. At the

conclusion of a bench trial, Hicks was convicted of trespass
and sentenced to 12 months in jail, which was suspended. The

circuit court also revoked Hicks' prior suspended sentences.

Hicks 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 redevelopment and housing

authority's trespass policy contravened the First and

Fourteenth Amendments to the Constitution of the United

States. Hicks v. Commonwealth, 36 Va. App. 49, 52, 548 S.E.2d

249, 251 (2001). The Commonwealth appeals.

II.

The Richmond Redevelopment and Housing Authority (Housing

Authority) is a political subdivision of the Commonwealth of

Virginia. The Housing Authority owns and operates a housing

development in the City of Richmond for low income residents

known as Whitcomb Court. The City of Richmond owned the

streets located within Whitcomb Court.

In an effort to eradicate illegal drug activity in

Whitcomb Court, which was described as an "open-air drug

market," the Housing Authority sought to deny access to its

property to persons who did not have legitimate reasons to

visit the housing development. The majority of persons who

2
had been arrested for drug crimes at the Whitcomb Court

housing development were individuals who did not reside there.

The Richmond City Council enacted an ordinance that

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

the City of Richmond," streets in Whitcomb Court because those

streets were "no longer needed for the public convenience."

The City conveyed the streets by a recorded deed to the

Housing Authority.

The deed required that the Housing Authority "make

provisions to give the appearance that the closed streets,

particularly at the entrances, are no longer public streets

and that they are in fact private streets." The Housing

Authority's employees affixed red and white signs to each

apartment building in Whitcomb Court. The signs are also

located "every 100 feet" along the streets in Whitcomb Court

and are "approximately 18 inches to almost 24 inches by about

12 inches" in size. The signs state:

"NO TRESPASSING

"PRIVATE PROPERTY

"YOU ARE NOW ENTERING
PRIVATE PROPERTY AND
STREETS OWNED
BY RRHA.

"UNAUTHORIZED PERSONS
WILL BE SUBJECT TO
ARREST AND PROSECUTION.

3
 "UNAUTHORIZED
VEHICLES WILL BE TOWED
AT OWNERS EXPENSE."

The Housing Authority, in its capacity as owner of the

private streets, 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."

As a part of the Housing Authority's unwritten policies,

Gloria S. Rogers, the Housing Authority's housing manager for

Whitcomb Court, was required to determine whether a person can

demonstrate a legitimate business or social purpose to use the

Housing Authority's property. Pursuant to these policies,

individuals who sought access to the Housing Authority's

property, including the streets, needed to obtain Rogers'

permission for such access. Rogers stated that if a person

desired to disseminate materials or participate in an activity

on the property, that person must obtain her authorization.

Sometimes, she referred such request to a "community council"

which met with "the Board and the residents." She also

4
testified that if an individual submitted a request to

distribute flyers and the request was not "routine," she

referred that request to the Housing Authority's director of

housing operations for resolution. The Housing Authority,

however, has not promulgated any written policies or

procedures that govern decisions regarding who may distribute

materials or participate in activities on the Housing

Authority's property.

Pursuant to the Housing Authority's unwritten policies,

an individual who is not authorized to use the Housing

Authority's property and does so is warned by the Richmond

Police Department. The Housing Authority forwards a letter to

that individual informing him that he may not lawfully return

to the property.

On January 20, 1999, Richmond police officer James J.

Laino, who was driving a police car on Bethel Street, observed

Hicks, who was walking on a sidewalk on that street. Bethel

Street is one of the streets that the City conveyed to the

Housing Authority and that street is located entirely within

Whitcomb Court.

Laino, who had known Hicks for about four years,

approached him. Laino knew that Hicks had been notified that

he was barred from the Housing Authority's property. Laino

5
informed Hicks that he was "not supposed to be out here," and

Laino issued a summons to Hicks for trespass.

Rogers had also spoken with Hicks on two prior occasions

and told him that he could not appear on the Housing

Authority's property. Hicks had been arrested on two prior

occasions for trespass on the Housing Authority's property.

On April 14, 1998, Hicks signed a letter that was hand

delivered to him by Rogers. The letter, which the parties

describe as a barment notice, states in part:

"This letter serves to inform you that
effective immediately you are not welcome on
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 RRHA property. If you are seen or
caught on the premises, you will be subject to
arrest by the police."

III.

A.

The Commonwealth argues that Hicks is not entitled to

challenge the constitutional validity of the Housing

Authority's practices or policies in the criminal prosecution

for trespass. The Commonwealth contends that Hicks instead

was required to challenge the barment notice he received from

the Housing Authority or the Housing Authority's policies and

practices, presumably in a separate proceeding. We disagree.

6
 In this case, Hicks has asserted a constitutional

challenge to a conviction. Hicks pled in a written pretrial

motion that the Housing Authority's trespass procedures and

policy violated the First Amendment. At trial, Hicks argued

that the Housing Authority's trespass procedures and policy

were unconstitutional.

Contrary to the Commonwealth's assertions, Hicks was not

required to file a civil proceeding to challenge the Housing

Authority's trespass policies and practices. Rather, this

defendant was entitled to challenge the validity of his

conviction on the basis that the Housing Authority's practices

and procedures contravened his constitutional rights. We

observe that in other contexts, we have permitted defendants

to assert constitutional challenges to convictions in criminal

prosecutions, see, e.g., Remington v. Commonwealth, 262 Va.

333, 344-45, 551 S.E.2d 620, 628 (2001); McCain v.

Commonwealth, 261 Va. 483, 489-90, 545 S.E.2d 541, 544-45

(2001); Lenz v. Commonwealth, 261 Va. 451, 460-62, 544 S.E.2d

299, 304-05 (2001); Burns v. Commonwealth, 261 Va. 307, 321-

23, 541 S.E.2d 872, 882-83 (2001); Pitt v. Commonwealth, 260

Va. 692, 695-96, 539 S.E.2d 77, 78-79 (2000). We also note

that the Supreme Court has permitted criminal defendants to

assert constitutional challenges to various ordinances in

7
criminal prosecutions. See, e.g., Lovell v. City of Griffin,

303 U.S. 444, 452 (1938).

B.

Hicks argued in the Court of Appeals, and he argues here,

that the Housing Authority's trespass procedures are overly

broad and, therefore, violate fundamental constitutional

rights to freedom of speech guaranteed by the First Amendment

to the Constitution of the United States. Responding, the

Commonwealth contends that the Housing Authority's trespass

policy is not overly broad. The Commonwealth also asserts

that a defendant who raises a facial constitutional challenge

must demonstrate a substantial risk that the application of

the challenged policy will result in suppression of protected

speech.

The First Amendment states in part that "Congress shall

make no law . . . abridging the freedom of speech." The

Supreme Court has stated that this "freedom is among the

fundamental personal rights and liberties which are protected

by the Fourteenth Amendment from invasion by state action; and

municipal ordinances adopted under state authority constitute

state action." Staub v. City of Baxley, 355 U.S. 313, 321

(1958); accord Palko v. Connecticut, 302 U.S. 319, 324-25

(1937), overruled on other grounds, Benton v. Maryland, 395

8
U.S. 784, 794 (1969); Stromberg v. California, 283 U.S. 359,

368 (1931); Gitlow v. New York, 268 U.S. 652, 666 (1925).

The Supreme Court has held that in the context of a First

Amendment challenge, a litigant may challenge government

action granting government officials standardless discretion

even if that government action as applied to the litigant is

constitutionally permissible. For example, the Supreme Court

stated in Los Angeles Police Department v. United Reporting

Publishing Corp., 528 U.S. 32, 38 (1999):

"The traditional rule is that 'a person to whom
a statute may constitutionally be applied may not
challenge that statute 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, 767 (1982) (citing Broadrick
v. Oklahoma, 413 U.S. 601, 610 (1973)).
"Prototypical exceptions to this traditional
rule are First Amendment challenges to statutes
based on First Amendment overbreadth. 'At least
when statutes regulate or proscribe speech . . . the
transcendent value to all society of
constitutionally protected expression is deemed to
justify allowing "attacks on overly broad statutes
with no requirement that the person making the
attack demonstrate that his own conduct could not be
regulated by a statute drawn with the requisite
narrow specificity." ' Gooding v. Wilson, 405 U.S.
518, 520-521 (1972) (quoting Dombrowski v. Pfister,
380 U.S. 479, 486 (1965)). 'This is deemed
necessary because persons whose expression is
constitutionally protected may well refrain from
exercising their right for fear of criminal
sanctions provided by a statute susceptible of
application to protected expression.' Gooding v.
Wilson, [405 U.S.] at 520-521. See also Thornhill
v. Alabama, 310 U.S. 88 (1940)."

9
The Supreme Court has also pointed out that the overbreadth

doctrine is "strong medicine" and this doctrine should be

employed "sparingly and only as a last resort." Broadrick,

413 U.S. at 613.

The Supreme Court has consistently and repeatedly

invalidated government policies that facially vested officials

with broad and unfettered discretion to regulate speech. See,

e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153

(1969) (invalidating ordinance requiring marchers to seek

permission from mayor); Kunz v. New York, 340 U.S. 290, 293-94

(1951) (invalidating ordinance prohibiting public worship

without a permit from police commissioner); Saia v. New York,

334 U.S. 558, 559-61 (1948) (invalidating ordinance that

required operators of sound trucks to obtain permission from

police chief).

The Supreme Court stated in City of Lakewood v. Plain

Dealer Publishing Co., 486 U.S. 750, 763-64 (1988):

"[A] law or policy permitting communication in a
certain manner for some but not for others raises
the specter of content and viewpoint censorship.
This danger is at its zenith when the determination
of who may speak and who may not is left to the
unbridled discretion of a government official. [W]e
have often and uniformly held that such statutes or
policies impose censorship on the public or the
press, and hence are unconstitutional, because
without standards governing the exercise of
discretion, a government official may decide who may
speak and who may not based upon the content of the
speech or viewpoint of the speaker. E.g., Cox v.

10
 Louisiana, 379 U.S. [536], 557 [(1965)]; Staub, 355
U.S. at 322. Therefore, even if the government may
constitutionally impose content-neutral prohibitions
on a particular manner of speech, it may not
condition that speech on obtaining a license or
permit from a government official in that official's
boundless discretion. It bears repeating that '[i]n
the area of freedom of expression it is well
established that one has standing to challenge a
statute on the ground that it delegates overly broad
licensing discretion to an administrative office,
whether . . . his conduct could be proscribed by a
properly drawn statute, and whether . . . he applied
for a license.' Freedman [v. Maryland], 380 U.S.
[51], 56 [(1965)]."

In Lakewood, the Supreme Court applied these principles

and invalidated a city ordinance that permitted a mayor to

grant or deny a permit to a publisher who desired to place a

news rack on a sidewalk. The ordinance placed no limits on

the mayor's discretion to grant or deny the requested permit.

The Supreme Court stated that this lack of limitations upon an

official's discretion "renders the guarantee against

censorship little more than a high sounding ideal." 486 U.S.

at 769-70.

In Staub, supra, the Supreme Court invalidated an

ordinance that permitted a mayor and a city council to grant

or deny a permit to a labor union allowing it to solicit

members based upon the "effects upon the general welfare of

citizens of the City of Baxley." The Court stated:

"These criteria are without semblance of definitive
standards or other controlling guides governing the
action of the Mayor and Council in granting or

11
 withholding a permit. Cf. Niemotko v. Maryland,
340 U.S. 268, 271-273 [(1951)]. It is thus plain
that they act in this respect in their uncontrolled
discretion.
"It is settled by a long line of recent
decisions of this Court that an ordinance which,
like this one, makes the peaceful enjoyment of
freedoms which the Constitution guarantees
contingent upon the uncontrolled will of an official
– as by requiring a permit or license which may be
granted or withheld in the discretion of such
official – is an unconstitutional censorship or
prior restraint upon the enjoyment of those
freedoms."

355 U.S. at 322. And, in Schneider v. State, 308 U.S. 147,

163-64 (1939), the Supreme Court invalidated a city ordinance

that banned "communication of any views or the advocacy of any

cause from door to door" without a written permit from the

chief of police. The Court held that the ordinance was a

restraint upon First Amendment rights and stated that the

ordinance "strikes at the very heart of the constitutional

guarantees." Id. at 164.

We also observe that in Lovell, supra, the Supreme Court

invalidated a city ordinance that prohibited the distribution

of circulars, handbooks, advertising, or literature of any

kind without first obtaining written permission from the city

manager of the City of Griffin. Alma Lovell, who was

convicted for violation of this criminal ordinance and

sentenced to imprisonment, asserted that the ordinance was

facially invalid. The Court observed:

12
 "We think that the ordinance is invalid on its
face. Whatever the motive which induced its
adoption, its character is such that it strikes at
the very foundation of the freedom of the press by
subjecting it to license and censorship. The
struggle for the freedom of the press was primarily
directed against the power of the licensor. It was
against that power that John Milton directed his
assault by his 'Appeal for the Liberty of Unlicensed
Printing.' And the liberty of the press became
initially a right to publish 'without a license what
formerly could be published only with one.' While
this freedom from previous restraint upon
publication cannot be regarded as exhausting the
guaranty of liberty, the prevention of that
restraint was a leading purpose in the adoption of
the constitutional provision. . . . Legislation of
the type of the ordinance in question would restore
the system of license and censorship in its baldest
form."

303 U.S. at 451-52 (footnote omitted).

Applying the principles established by the Supreme Court,

we hold that the Housing Authority's trespass policy is

invalid because it is overly broad and it infringes upon First

Amendment protections. Even though the Housing Authority's

trespass policy, which is written in part and unwritten in

part, is designed to punish activities that are not protected

by the First Amendment, the policy also prohibits speech and

conduct that are clearly protected by the First Amendment.

Also, we note that Hicks is entitled to assert a facial

constitutional challenge to the Housing Authority's trespass

policy even though a portion of that policy is unwritten. To

hold otherwise would permit the government to violate a

13
citizen's First Amendment protections by simply refusing to

memorialize unconstitutional policies in a written document.

We observe that the United States Supreme Court and the

various United States Courts of Appeals have permitted

litigants to assert First Amendment facial challenges to

unwritten government policies. See Niemotko v. Maryland, 340

U.S. at 271-73 (unwritten practice of issuance of licenses to

use a public park for meetings); Wells v. City & County of

Denver, 257 F.3d 1132, 1150-51 (10th Cir.); cert. denied, ___

U.S. ___, 122 S.Ct. 469 (2001) (unwritten policy that banned

unattended holiday displays); Lebron v. AMTRAK, 69 F.3d 650,

659, amended by 89 F.3d 39, 39 (2d Cir. 1995) (unwritten

policy that banned political advertisements); Tipton v.

University of Hawaii, 15 F.3d 922, 927-28 (9th Cir. 1994)

(unwritten policy "as manifested in the University's

application of its written policy"); Sentinel Communications

Co. v. Watts, 936 F.2d 1189, 1197-99 (11th Cir. 1991)

(unwritten scheme for regulating the placement of newspaper

racks).

Rogers, the Housing Authority's housing manager for

Whitcomb Court, testified that the Housing Authority has not

implemented written procedures or guidelines concerning the

enforcement of the trespass policy. The Housing Authority has

not implemented any guidelines that delineate how an

14
individual may obtain permission to use the property. Even

though "authorized" persons may use the Housing Authority's

property, Rogers, in the exercise of her unfettered

discretion, is the government official who determines whether

an individual is authorized.

Rogers also has unfettered discretion to determine who

can distribute literature at the Whitcomb Court housing

development and, pursuant to the Housing Authority's unwritten

trespass policy, a non-resident of Whitcomb Court can only

distribute such literature if that non-resident obtains

authorization from Rogers. Rogers testified that she will

permit non-residents to distribute material only if she is

"used to seeing" the material. Rogers testified as follows:

"Question: If an organization wanted to use
the privatized street or sidewalk in a housing
community in order to hold some sort of
demonstration, in order to walk back and forth with
signs in support of some sort of political position,
would they be permitted on the property if they were
nonresidents?

"Answer: They could get permission first. And
I would say, again, I need it in writing to see the
nature or whatever. They need permission first to
be on the property.

"Question: Are you in a position – does your
position enable you to tell people – to give people
permission to come on and picket or demonstrate on
housing community property?

"Answer: I'm not sure what you're asking. To
picket? I've had people to call to pass out flyers,

15
 and asked to have church services. And these are
things I'm used to.
"As far as picketing and stuff, I never had
that so I'm not familiar with it.

"Question: Let's talk about what you're used
to.

"Answer: Okay.

"Question: With situations such as those,
people wanting to pass out flyers for example, or
hold church related meetings, do they have to come
to you for permission?

"Answer: Yes.

"Question: Then do you give permission?

"Answer: Depending on the circumstances,
sometimes it's granted, yes.

"Question: Sometimes you do and sometimes you
don't?

"Answer: Correct."

Based upon the record before this Court, Rogers has the

unfettered discretion to determine not only who has a right to

speak on the Housing Authority's property, but she may

prohibit speech that she finds personally distasteful or

offensive even though such speech may be protected by the

First Amendment. She may even prohibit speech that is

political or religious in nature. However, a citizen's First

Amendment rights cannot be predicated upon the unfettered

discretion of a government official.

16
 We recognize that the Court of Appeals decided this case

on the basis that the Housing Authority's private streets

constitute a public forum and that the Housing Authority's

efforts to regulate speech in that forum contravene the First

Amendment. In view of our limited holding, we need not

resolve this issue and, thus, we will vacate that portion of

the judgment of the Court of Appeals, and we will reserve

consideration of this issue for another day. Also, we need

not, and we do not, express any views regarding the litigants'

remaining contentions.

IV.

We will affirm the judgment of the Court of Appeals on

the narrow basis that the Housing Authority's trespass policy

is overly broad and that Hicks may assert this issue in this

criminal prosecution.

Affirmed in part,
vacated in part,
and final judgment.

JUSTICE KINSER, with whom JUSTICE LEMONS joins, concurring in
part and dissenting in part.

Today, the majority holds that the trespass policy of the

Richmond Redevelopment and Housing Authority (the Authority)

is “overly broad and . . . infringes upon First Amendment

protections” because the Authority’s housing manager,

according to the majority, has “unfettered discretion” to

17
determine whether an individual is authorized to be on the

Authority’s property. The majority reaches this issue by

allowing the defendant to make a facial challenge to the

Authority’s trespass policy. I do not believe that such a

challenge is permissible in this case.

A facial challenge to a statute, or in this case, to the

trespass policy, can proceed under two different doctrines.

“First, the overbreadth doctrine permits the facial

invalidation of laws that inhibit the exercise of First

Amendment rights if the impermissible applications of the law

are substantial when ‘judged in relation to the statute’s

plainly legitimate sweep.’ ” City of Chicago v. Morales, 527

U.S. 41, 52 (1999) (quoting Broadrick v. Oklahoma, 413 U.S.

601, 615 (1973)). Under the second doctrine, even if a

statute is not overbroad (i.e., it “does not reach a

substantial amount of constitutionally protected conduct”),

“it may be impermissibly vague because it fails to establish

standards for the police and public that are sufficient to

guard against the arbitrary deprivation of liberty

interests.” Id. (citing Kolender v. Lawson, 461 U.S. 352, 358

(1983)).

The majority utilizes the overbreadth doctrine to find

the trespass policy unconstitutional on its face. Explaining

the defendant’s standing, the majority states that, “in the

18
context of a First Amendment challenge, a litigant may

challenge government action granting government officials

standardless discretion even if that government action as

applied to the litigant is constitutionally permissible.” The

majority intertwines its examination of the standing issue and

its substantive analysis of the trespass policy, and in doing

so, uses its view that the trespass policy grants unfettered

discretion to the housing manager to decide who can come onto

the Authority’s property to support its conclusion that the

defendant has standing to make a facial challenge. In other

words, the majority does not separate the question of standing

from its substantive First Amendment ruling.

To support this finding of unfettered discretion and thus

standing, the majority relies upon a line of cases involving

prior restraints upon the exercise of First Amendment rights.

Each of the cases cited by the majority addressed a statute

requiring a license or permit to engage in First Amendment

activity. See, e.g., City of Lakewood v. Plain Dealer

Publishing Co., 486 U.S. 750, 769 (1988) (invalidating

ordinance requiring publishers to obtain permit from mayor for

placing newsracks on sidewalk); Shuttlesworth v. City of

Birmingham, 394 U.S. 147, 153 (1969) (invalidating ordinance

requiring marchers to seek permission from city commission);

Staub v. City of Baxley, 355 U.S. 313, 321 (1958)

19
(invalidating ordinance requiring labor unions to seek permit

from mayor and city council for solicitation of members); Kunz

v. New York, 340 U.S. 290, 293-94 (1951) (invalidating

ordinance prohibiting public worship without permit from

police commissioner); Saia v. New York, 334 U.S. 558, 560-61

(1948) (invalidating ordinance that required operators of

loud-speakers and amplifiers to obtain permission from police

chief); Schneider v. State, 308 U.S. 147, 162-64 (1939)

(invalidating ordinance that banned distribution of literature

without written permit from chief of police); Lovell v. City

of Griffin, 303 U.S. 444, 450-51 (1938) (invalidating

ordinance prohibiting distribution of literature without first

obtaining written permission from city manager).

Because the Authority’s trespass policy does not directly

regulate activity protected by the First Amendment, but

instead limits access to government property, I conclude that

these cases are not persuasive authority to justify the

defendant’s facial challenge to the trespass policy. In using

these cases, the majority also assumes that the trespass

policy regulates pure speech instead of conduct. This

approach allows a facial challenge in this case without

directly addressing the admonition of the Supreme Court of the

United States that “overbreadth scrutiny has been limited with

20
respect to conduct-related regulation.” New York v. Ferber,

458 U.S. 747, 766 (1982) (citing Broadrick, 413 U.S. 601).

“The traditional rule is that a person to whom a [policy]

may constitutionally be applied may not challenge that

[policy] on the ground that it may conceivably be applied

unconstitutionally to others in situations not before the

Court.” Id. at 767 (citing Broadrick, 413 U.S. at 610). One

exception to this principle is in the arena of First Amendment

overbreadth. Id. at 768. However, “[b]ecause of the wide-

reaching effects of striking down a statute[, or trespass

policy as in this case,] on its face at the request of one

whose own conduct may be punished despite the First

Amendment,” the First Amendment overbreadth doctrine has been

recognized as “strong medicine” and is employed “with

hesitation, and then ‘only as a last resort.’ ” Id. at 769

(quoting Broadrick, 413 U.S. at 613). As explained in

Broadrick:

facial overbreadth adjudication is an exception to [the]
traditional rules of practice and . . . its function, a
limited one at the outset, attenuates as the otherwise
unprotected behavior that it forbids the State to
sanction moves from ‘pure speech’ toward conduct and that
conduct – even if expressive – falls within the scope of
otherwise valid criminal laws that reflect legitimate
state interests in maintaining comprehensive controls
over harmful, constitutionally unprotected conduct.

413 U.S. at 615. Thus, the Court has held that “where conduct

and not merely speech is involved, . . . the overbreadth of a

21
statute must not only be real, but substantial as well, judged

in relation to the statute’s plainly legitimate sweep.”

Ferber, 458 U.S. at 770 (quotation marks omitted).

The Authority’s trespass policy is found in the

“Authorization” given to the Richmond Police Department to

enforce the trespass laws of the Commonwealth of Virginia upon

the Authority’s public housing property. An individual may be

banned from the Authority’s property if that individual “is

not a resident, employee, or such person cannot demonstrate a

legitimate business or social purpose for being on the

premises.” After receiving either written or oral notice that

he or she cannot return to the Authority’s property, that

person may then be arrested for trespass if he or she “either

stays upon or returns” to the Authority’s property.

By its terms, this policy is directed at conduct, namely

trespassing, and not pure speech. Cf. Cox v. Louisiana, 379

U.S. 559, 581 (1965) (Black, J., concurring in part and

dissenting in part) (“Standing, patrolling, or marching back

and forth on streets is conduct, not speech, and as conduct

can be regulated or prohibited.”); Local 391 v. City of Rocky

Mount, 672 F.2d 376, 379 (4th Cir. 1982) (picketing is a

hybrid of speech and conduct). The policy is not aimed at

censoring particular groups or viewpoints, or prohibiting

individuals from distributing leaflets on the property. Nor

22
is it intended to prevent individuals from associating with

friends or family who live in Whitcomb Court. Instead, it

seeks to regulate the criminal act of trespassing that

violates Code § 18.2-119. In other words, the policy’s

legitimate sweep prohibits trespassing, an activity that is

not protected by the First Amendment.

Because the trespass policy regulates conduct and not

pure speech, I conclude that it must be “substantially

overbroad” before it can be attacked through a facial

challenge, and that whatever overbreadth may exist in the

policy does not meet the threshold of “substantial

overbreadth.” “The concept of ‘substantial overbreadth’ is

not readily reduced to an exact definition[, but] . . . the

mere fact that one can conceive of some impermissible

applications of a statute is not sufficient to render it

susceptible to an overbreadth challenge.” Members of City

Council v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984).

Instead, this is “the paradigmatic case of a [policy] whose

legitimate reach dwarfs its arguably impermissible

applications.” Ferber, 458 U.S. at 773. “[W]hatever

overbreadth may exist should be cured through case-by-case

analysis of the fact situations to which its sanctions,

assertedly, may not be applied.” Broadrick, 413 U.S. at 615-

16. Thus, I find that the defendant does not have standing to

23
assert a facial challenge to the Authority’s trespass policy

under the “overbreadth doctrine.”

Nor do I believe that the defendant can make a facial

challenge to the trespass policy under the “vagueness”

doctrine. “A [defendant] 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.” Village of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495

(1982); accord Parker v. Levy, 417 U.S. 733, 756 (1974); but

see Morales, 527 U.S. at 55. The defendant’s conduct when he

was arrested for trespass clearly violated both the trespass

policy and Code § 18.2-119. He had been previously banned

from Whitcomb Court and had been given written notice that he

was not to trespass on the Authority’s property.

Nevertheless, he entered upon the property on the day in

question. There can be no question that this conduct was

clearly proscribed.

Thus, I conclude that the defendant may only challenge

the trespass policy as it was applied to him. Before turning

to that issue, I am compelled to point out that, if a facial

challenge is to be allowed in this case, it should be analyzed

under the framework established by the Supreme Court for

24
deciding when an individual’s First Amendment rights have been

violated by a denial of access to government property. See

United States v. Kokinda, 497 U.S. 720, 726-27 (1990).

“[T]he [U.S. 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 the property

for other purposes.” Cornelius v. NAACP Legal Defense & Ed.

Fund, 473 U.S. 788, 800 (1985). The first inquiry in this

analysis is whether the particular activity at issue is speech

protected by the First Amendment. Id. at 797. If it is, the

nature of the forum must then be identified, “because the

extent to which the Government may limit access depends on

whether the forum is public or nonpublic.” Id. “[T]he First

Amendment does not guarantee access to property simply because

it is owned or controlled by the government.” United States

Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S.

114, 129 (1981). The final inquiry is whether the

“justifications for exclusion from the relevant forum satisfy

the requisite standard.” Cornelius, 473 U.S. at 797. The

defendant agrees that this analytical framework applies in

this case, as reflected by his statement on brief that, “[i]n

determining whether [the Authority’s trespass policy] is

25
permissible, this Court must first define the areas affected

by the regulation.”

Returning to the issue regarding the constitutionality of

the trespass policy as applied to the defendant, I find that

the only constitutional right that the defendant could have

been asserting when he entered upon the Authority’s property

for the purpose of bringing diapers to his son was his right

of association under the Fourteenth Amendment. See Board of

Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537,

544 (1987) (constitutional protection afforded to freedom of

association in two distinct areas: freedom to enter into and

maintain certain intimate or private relationships, and

freedom to associate for purpose of engaging in protected

speech or religious activities). Although the defendant

argues that his conviction for trespassing violated his First

Amendment rights of speech and association, and his Fourteenth

Amendment right of intimate association, he was not engaged in

speech or expressive association on the day in question.

Thus, I conclude that the defendant’s claim must be analyzed

under the Fourteenth Amendment rather than the First

Amendment. See Thompson v. Ashe, 250 F.3d 399, 406-07 (6th

Cir. 2001). Consequently, it is not necessary to engage in a

forum analysis, as the Court of Appeals did. As I previously

explained, the first step in that analysis is whether the

26
particular activity at issue is speech protected by the First

Amendment. Cornelius, 473 U.S. at 797. When it is not, as in

this case, then it is not necessary to determine the nature of

the forum.

In determining whether the Authority’s trespass policy

impermissibly infringes upon the defendant’s freedom of

association under the Fourteenth Amendment, it is necessary to

decide first whether the defendant’s asserted purpose for

being on the Authority’s property, i.e., to take diapers to

his child, involved the exercise of a fundamental right. The

Supreme Court has recognized a fundamental right of privacy

that includes the freedom to enter into and maintain certain

intimate relationships. See, e.g., Zablocki v. Redhail, 434

U.S. 374, 383-86 (1978) (constitutional protection of

marriage); Carey v. Population Servs. Int’l, 431 U.S. 678,

684-85 (1977) (right to choose whether to bear children);

Moore v. City of East Cleveland, 431 U.S. 494, 506 (1977)

(right to cohabitate with certain family members); Pierce v.

Society of Sisters, 268 U.S. 510, 534-35 (1925) (parents’

right to send children to private school); Meyer v. Nebraska,

262 U.S. 390, 399-400 (1923) (parents’ right to have children

instructed in foreign language). However, the Court has not

characterized the provision of diapers or visitation with

family members as the exercise of fundamental rights. See

27
Thompson, 250 F.3d at 407. Therefore, the trespass policy as

applied to the defendant must be judged under the rational

basis test. See Vacco v. Quill, 521 U.S. 793, 799 (1997)

(when legislation does not burden a fundamental right, it will

be upheld “so long as it bears a rational relation to some

legitimate end”). Under that standard of review, the trespass

policy need only be rationally related to a legitimate

governmental purpose, and the Court cannot “sit as a

superlegislature to judge the wisdom or desirability of

legislative policy determinations.” Heller v. Doe, 509 U.S.

312, 319 (1993) (quoting City of New Orleans v. Dukes, 427

U.S. 297, 303 (1976) (per curiam)).

I conclude that the Authority’s trespass policy passes

constitutional muster under this test. The undisputed purpose

of the policy is to create a safe, drug-free environment for

the residents of Whitcomb Court. It cannot be questioned, in

my view, that the prevention of crime in public housing is a

legitimate governmental goal. See Department of Hous. & Urban

Dev. v. Rucker, ___ U.S. ___, 122 S.Ct. 1230, 1232 (2002)

(recognizing “reign of terror” imposed by criminal activity in

public housing). The policy of banning individuals who are

not residents or employees of the Authority, or who cannot

demonstrate a legitimate business or social purpose for coming

onto the premises, is rationally related to, and advances, the

28
legitimate governmental goal of preventing crime in public

housing. Charging individuals with trespass when they enter

upon the Authority’s property after having been banned, as in

the case of the defendant, also advances that goal. It must

be remembered that the defendant is challenging his conviction

for trespass in this appeal, not his barment from the

Authority’s property.

Based on the record in this case and for the stated

reasons, I conclude that the defendant’s arrest and conviction

for trespassing did not violate his right of association

afforded under the Fourteenth Amendment. Accordingly, I would

reverse the judgment of the Court of Appeals and reinstate the

defendant’s conviction. *

Because I agree with section III(A) of the majority

opinion, I respectfully concur in part and dissent in part.

*
On brief, the defendant asserts a freedom to “loiter”
based on a statement in a portion of Morales in which three
justices joined, 527 U.S. at 53. He did not raise this
specific argument before the trial court and is, therefore,
precluded from doing so on appeal. See Rule 5:25.

29