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The five-minute drive from downtown Richmond, Va., to the Whitcomb Court public housing project reveals a stretch of land more reminiscent of a decaying rural town than of a modern urban center. On the approach from Interstate 95, there are no liquor stores or check cashing markets. No commercial businesses at all. Instead, there are train tracks, a paper recycling mill, patches of woods, and an abandoned juvenile detention center. Several blocks are lined by boarded-up houses, where, on a recent afternoon, clusters of men and women huddled on cracked steps and porches. Whitcomb Court sits on top of a small hill on this eastern edge of the Virginia capital, roughly eight square blocks of two-story brick apartment buildings, its 446 units home to some of the city’s poorest and least represented in local or state politics. Many are unemployed and uneducated. All live in a place that routinely appears in the crime reports of the local newspaper. And for the past five years, they have lived under a social and legal experiment now being tested in the highest court in the country. This week, the residents of Whitcomb Court will be at the center of a national debate on the scope of the First Amendment and the government’s powers when it comes to regulating behavior on land it owns. On April 30, the U.S. Supreme Court is scheduled to hear oral arguments in Commonwealth of Virginia v. Hicks — a test of the constitutionality of Whitcomb Court’s trespass policy. Since 1997, the streets and sidewalks within the development have been considered private property by the city and the Richmond Redevelopment and Housing Authority. Any nonresident who does not have approval to be on the premises can be stopped, questioned, and arrested. Richmond officials say the policy is necessary to keep its residents safe by stamping out drug dealing and violence that have plagued its projects. Criminal defense lawyers claim police have used the policy to harass, intimidate, and humiliate residents and nonresidents alike. The case is being closely watched. The American Civil Liberties Union, the National Association of Criminal Defense Lawyers, the Jehovah’s Witnesses, and various state tenant associations have filed amicus briefs arguing that the policy violates rights to free speech, free association, and due process. Meanwhile, the Bush administration, 15 state governments, and the National League of Cities filed briefs arguing there is no evidence the policy interferes with anyone’s constitutional rights and that public safety concerns sometimes outweigh access to those rights. “In my community, areas most affected by drugs and violence, the concern for constitutional rights is less than in other communities,” says Richmond City Councilman Sa’ad El-Amin, whose district includes Whitcomb Court. Many of his constituents would trade away some of their rights in exchange for safety, he says. “People are so stressed out today because of crime that there’s a willingness to try almost anything.” El-Amin can’t count Desha Jones as one of those people. Jones, 25, a mother with two young girls, lives at Whitcomb Court. She says she was stopped by police once while coming back from the store. They asked for her identification to verify that she lived in the housing project. They also made her empty her pockets, Jones says. “It’s embarrassing,” Jones says, adding that other tenants began gathering around to see what was happening. “They make you feel like everyone’s a criminal, and they shouldn’t.” Throughout the second half of the 1980s and into the last decade, the city of Richmond gained a reputation as having among the highest murder rates in the nation. Officials claimed the violence was tied to drug-related activity in and around the city’s public housing projects. Beginning in 1990, Richmond housing authority officials were trying new approaches to dampen the violence. More police were hired, and the city instituted procedures to evict tenants caught dealing drugs. The housing authority in 1990 also implemented a trespassing policy at Gilpin Court — Richmond’s oldest and largest public housing development. That trespassing policy — prohibiting nonresidents from loitering on the property — was later extended to all 16 of the city’s housing projects. The policy, however, was not directed at the sidewalks and streets that ran through the properties. According to city officials, open air drug markets still flourished within the projects, and drive-by shootings and other violence remained. Richard Gentry, head of the Richmond Redevelopment and Housing Authority from 1990 to 1998, says his agency found that much of the trouble was coming from people who did not live in the projects. In 1996, Whitcomb Court manager Gloria Rogers proposed that the streets within her housing project be privatized, according to the housing authority’s amicus brief. The idea was that the city would deed the public streets and sidewalks over to the housing authority. It would then expand the project’s trespassing policy to include those areas. Under Virginia law, trespassing is a misdemeanor that carries up to a year in prison and a $2,500 fine. A year later, several streets and sidewalks running through Whitcomb Court and two other projects were turned over to the housing authority. Signs were put up along the streets: “No Trespassing. You Are Now Entering Private Property and Streets Owned By RRHA. Unauthorized Persons Will Be Subject To Arrest And Prosecution.” Rogers had the authority to decide which nonresidents were welcome and which would be banned from the property. Those who were banned, according to authority officials, were given written notice not to return. The Richmond Police Department was called upon to enforce the trespassing rule. “What we tried to do is to identify specific areas where we knew drug dealing was going on and have greater control as landlords,” says Gentry, now senior vice president of asset management at National Equity Fund Inc. in Chicago. “Civil libertarians will say it interferes with the right to peaceful assembly from the street and all that kind of garbage. “This was simply a tool to get criminal activity off of our property,” Gentry adds. According to crime data submitted to the Supreme Court, violent crime and property offenses dropped from an average of eight per month to six per month in Whitcomb Court after the policy was in place. The Richmond Police Department could not provide data showing arrests before and after the policy, nor could police officials say how many trespassing charges were filed. Kevin Hicks, 27, was arrested twice in 1998 for trespassing in Whitcomb Court. That same year, Hicks was convicted of damaging property at the development. At the time, Hicks did not live in Whitcomb Court, but his mother, his children, and his children’s mother did. According to the housing authority, Hicks was barred in April 1998. Hicks asked property manager Rogers on two occasions for permission to access the property. He was denied both times. In January 1999, Hicks was walking down the sidewalk in the 2300 block of Bethel Street, near the heart of Whitcomb Court, when he was spotted by a police officer who recognized him and charged him with trespassing. Hicks told the officer he was at Whitcomb Court to deliver diapers to his baby. In court papers, the government states that there is no evidence that Hicks was actually carrying diapers or that he had been invited to the area. Whether or not his client was carrying diapers, Hick’s lawyer, Steven Benjamin, says the trespass policy violated numerous individual rights. And in practice, Benjamin adds, the policy gave police the power to stop and search anyone they wanted. “The officer decides” who has legitimate business on the property, Benjamin says. “If he’s not satisfied, he can arrest you for trespass and then search you. It flips things. “It used to be that if police see people on the sidewalk that they want to question or search, they need probable cause,” adds Benjamin, a partner at Richmond’s Benjamin & DesPortes who will be arguing the case before the Supreme Court. “By calling the streets and sidewalks private, the burden is shifted to the citizen.” Alicia Zatcoff, a legal adviser with the Richmond Police Department, disagrees. Zatcoff says the policy allows police officers familiar with the area to stop people who they “don’t recognize as residents or who don’t look like they belong there.” She adds, however, that police may not search someone unless they have “reasonable suspicion” that the person may be armed and dangerous, and a person is only arrested after he or she has been given advance warning not to return. “Those persons who are already banned are the ones who could be arrested or charged with trespassing,” Zatcoff says. After a short bench trial in April 1998, Hicks was convicted. He appealed to the Circuit Court of the City of Richmond, which granted him a new trial where Benjamin argued that the housing authority could not prohibit the public from accessing the streets surrounding Whitcomb Court. The circuit judge disagreed, found Hicks guilty, and sentenced him to a year in prison. That conviction was appealed to the Virginia Court of Appeals. This time, Benjamin argued that the policy was overbroad and unclear. In a 2-1 decision, a three-judge panel rejected that claim. On rehearing en banc, the court, in a 6-5 decision handed down in July 2001, ruled that the streets and sidewalks remained public areas despite the housing authority’s contention and threw out Hicks’ conviction. At that point, the city told its police officers that they could no longer enforce the trespass policy at Whitcomb Court, according to Zatcoff. Benjamin and some residents of Whitcomb Court say police continued to stop people on the streets and sidewalks and ask for identification. The Virginia attorney general’s office appealed to the Supreme Court of Virginia. In June 2002, the 5-2 court found the Whitcomb Court trespass policy to be “overly broad” because it granted government officials the authority to determine who has a right to speak on the public sidewalks and streets. Virginia prosecutors petitioned the U.S. Supreme Court, asking for a ruling on whether Hicks could even raise a First Amendment claim when “his own offense did not involve any expressive conduct.” In addition, the government asked the Court to decide whether there is a distinction between the government’s actions as a landlord and actions taken as a sovereign entity. Benjamin and his legal team — consisting of his law partner Betty Layne DesPortes and four lawyers from the Public Citizen Litigation Group in Washington, D.C. — argue, in part, that the streets and sidewalks in Whitcomb Court cannot be considered private property because there were no physical changes made, such as a fence or gate, that would clearly tell outsiders that they are off limits. Solicitor General Theodore Olson filed an amicus brief asking the Court to reinstate the conviction on the grounds that Hicks was not engaged in any expressive conduct when he was stopped. Permitting Hicks to make a First Amendment “overbreadth” challenge would ultimately harm the government’s abilities to enforce the law, the federal government’s brief states. But Richmond City Councilman El-Amin says the outcome of Hicks is unlikely to affect the quality of life in Whitcomb Court. He says he has seen no evidence that the trespass policy has directly led to a reduction of crime and violence in the housing project. “I don’t necessarily agree with the privatization device because it is not effective,” El Amin says. “You can’t arrest away this problem because you have an inexhaustible supply of people willing to get into retail, low-profit drug dealing.”

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