A Chester, Pa., ordinance making it illegal to loiter in a “high drug activity area” is too vague, a split panel of the Commonwealth Court has ruled, in addition to deciding the city had applied the law in a manner violating a teen’s Fourth Amendment rights.

The 2-1 panel, however, declined to endorse the theory of Lawrence Crews, now in his 20s, that the ordinance was overbroad. Crews, along with his mother, had sought damages alleging the city violated his civil rights. But the court decided he had abandoned that claim because he only named the officer who had charged him — who was dismissed from the case — in that part of the complaint.

The panel reversed the decision of the Delaware County Common Pleas Court on the vagueness and Fourth Amendment claims and affirmed it on the overbreadth and damages claims. The trial court had granted summary judgment to the city and dismissed Crews’ case with prejudice.

While the ordinance was not vague for failing to give fair notice — a “person of reasonable intelligence” could in fact read the law and know what constituted a violation, the court decided — the law did, however, lend to arbitrary and discriminatory enforcement, the panel said. Specifically, the ordinance did not define “lawful and reasonable explanation,” which was apparently how a person could avoid charges if confronted by police. It also did not specify how a person could comply with a “police dispersal order,” as the ordinance stated it was unlawful to “remain or return” to one of the high-drug zones after being approached by the police.

The court found instruction in a U.S. Supreme Court decision in which the high court said the more important aspect of the vagueness doctrine was the requirement of establishing minimal enforcement guidelines, not actual notice.

Senior Judge Rochelle S. Friedman, writing for the majority in Crews v. City of Chester , said the ordinance “‘affords too much discretion to the police and too little notice to citizens who wish to use the public streets,’” borrowing language from a 1999 Pennsylvania Superior Court decision.

In 2001, Crews and three other men fled from their perch on a Chester street corner after police drove by on bicycles, Friedman said. According to Friedman, someone yelled “’5-0,’” triggering the men to take off.

Officer John Kuryan apprehended Crews, who was eventually arrested and taken into custody until his mother, Lynette Crews, came to pick him up, Friedman said.

Lynette Crews is listed in the lawsuit as Lawrence Crews’ mother and as a plaintiff in her own right. Lawrence Crews and his mother filed a complaint seeking declaratory and injunctive relief, in addition to damages for Lawrence Crews’ personal injuries and emotional distress and legal fees incurred by Lynette Crews.

Lawrence Crews, who was not convicted of any criminal charges, also argued the city violated his Fourth Amendment right to be free from unreasonable seizures because he was arrested without probable cause.

The panel agreed, noting that the record showed the city had applied its ordinance to make “fleeing” from a high drug activity area, without anything else, a crime.

“An ordinance that allows a police officer to arrest citizens based on nothing more than a mere suspicion of criminal activity cannot withstand Fourth Amendment scrutiny,” Friedman said.

Judge Dan Pellegrini, who was elected president judge of the Commonwealth Court after the case was assigned to Friedman, joined her in the majority.

While the majority held the ordinance was not overbroad because it allows a person to offer an explanation for his or her presence in the high-drug area, Judge Patricia A. McCullough wrote a concurring and dissenting opinion to note she would have reversed the lower court on that issue as well.

McCullough noted the state Supreme Court has described a statute as unconstitutionally overbroad when it “‘reaches a substantial amount of protected conduct’” while infringing on a person’s right to be free from a suspicion-less probe.

“I cannot agree that the ability to offer a ‘lawful and reasonable explanation’ overcomes the overbroad nature of this ordinance,” she said. “Indeed, the majority later concludes that this very same language is unconstitutionally vague because it offers no guidance as to what constitutes a ‘lawful and reasonable explanation.’”

Although the decision marked a win, at least in part, for Lawrence and Lynette Crews, the lawyer representing the plaintiffs said he was not happy with the decision.

He said the court should have included in its order language that would require the city of Chester to enjoin the ordinance. Media, Pa., attorney Jon Auritt said the decision also did little in the way of relief for his client, adding that the third count of his complaint — the one against Kuryan — was not the only one to request damages.

“In count 1 and count 2 there are damages issues spelling out allegations against the city,” Auritt said. “I hate to imagine this, but it would seem [the court] bypassed counts 1 and 2 in my complaint for damages.”

He said McCullough was correct in her analysis that the statute was overbroad, adding that it amounted to a First Amendment violation against his client and those charged under it.

For instance, he said, the ordinance did not specify when it was acceptable to come back to the high-drug area after one has left.

“If you’re seen outside your home [and you live in a high-drug area], you have to move to Philadelphia, I guess,” Auritt said. “Because if you come back, that’s a violation.”

Mark A. Raith of Media firm Holsten & Associates represented the city and did not return a call requesting comment.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.

(Copies of the 19-page opinion in Crews v. City of Chester , PICS No. 12-0197, are available from Pennsylvania Law Weekly . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)