Legality of privatized streets debated

Some lawyers advise cities, such as Columbia, to be cautious about following a Virginia city’s law.
Sunday, February 8, 2004 | 12:00 a.m. CST; updated 8:09 p.m. CDT, Monday, July 21, 2008

When the Columbia Housing Authority discussed privatizing several public streets to fight crime, local officials were confident about the legality of such an approach because of a ruling by the U.S. Supreme Court involving a similar policy in Richmond, Va.

But an attorney involved in the Virginia case, as well as other experts, are cautioning communities such as Columbia because legal questions remain about privatizing streets in public housing areas.

The Columbia Housing Authority hasn’t closed the door on asking the city of Columbia for ownership of several streets in public housing areas. The agency first discussed the possibility last year, and a board member said the issue could be revisited as early as this spring.

Police view privatization of streets as another tool to keep a lid on drug dealing and other criminal behavior, but the idea has met with resistance from some tenants.

Privatizing streets would make it easier for the housing authority and police to ban about 700 individuals who are on a current no-trespassing list. Those on the list can be arrested if they set foot on public housing property, which includes the housing units themselves and the yards surrounding them. Privatizing streets would extend the reach of the policy to streets and sidewalks.

In Richmond, Kevin Lamont Hicks argued that his First Amendment right of free expression was violated after he was arrested for trespassing for the third time on a sidewalk in front of the public housing project, where the mother of his two children live.

Hicks’ case reached the U.S. Supreme Court. It rejected Hicks’ arguments, but sent other issues back to the Virginia Supreme Court for review.

The arguments for the remaining issues will be presented to the Virginia Supreme Court in March, and a decision is expected to be delivered in April. The issues under review include the vagueness of the law, Hicks’ freedom of association and the right of a housing authority to own public streets.

“I will get rid of it,” said Steven Benjamin, Hicks’ attorney. “This is unconstitutional.”

The Richmond policy was put on hold for five years during the court battle, but was reinstated in November.

Valena Dickson, a spokeswoman for the Richmond housing authority, said the decision to reinstate the policy is on solid legal grounds despite the pending court review.

“We feel that everything is appropriate,” Dickson said. “Everything is in order, and that’s why we moved ahead with the no-trespassing policy.”

Benjamin said he is surprised that Columbia housing officials are considering a similar policy before the entire case is resolved.

“I’m fearful that communities are going to rush to embrace unconstitutional trespass policies and, as a consequence, arrest and incarcerate hundreds of young men who were doing nothing more than enjoying their freedom,” Benjamin said.

Tim Murtaugh, a spokesman for the Virginia Office of the Attorney General, said the U.S. Supreme Court made it clear in its decision that the policy is constitutional. Murtaugh added that his office encourages other communities to follow the steps of Richmond and draft their own no-trespass policies.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in California, said the Supreme Court decision should be taken as a “yellow light” and cities shouldn’t rush to pursue such a policy.

Scheidegger supports the privatization of streets as well as no-trespass policies as useful tools in combating crime in public housing communities. He added, however, that housing agencies that adopt such policies would certainly encounter legal hurdles and challenges.

Officials with the Columbia Housing Authority say they have no immediate plans to pursue the privatization of city streets, but they haven’t ruled it out. Some of the streets the authority has mentioned are Elleta Boulevard, Trinity Place, Lincoln and Unity drives and portions of LaSalle Place and Allen Street.

“It’s something premature,” said Genie Rogers, vice-chair of the housing board. “It’s not of critical importance.”

Rogers added that she’s sure it will be brought up later, however, possibly this spring.

In October, a month after the housing board discussed the issue, public housing residents presented commissioners with 308 signatures demanding a public hearing. In November, in an unofficial referendum organized by Grass Roots Organizing, tenants overwhelmingly voted against privatization of streets.

An article published this winter in the Harvard Civil Rights-Civil Liberties Law Review was critical of no-trespassing policies in public housing.

“No-trespass policies too often are designed and enforced in ways that impede or deny the right of tenants to invite guests, friends and family members into their homes,” attorney Elena Goldstein wrote. “Given free rein to stop any nonresident at any time in order to ascertain whether she is listed in the no-trespass log, police may make pretextual stops or engage in racial profiling.”

Contacted by telephone, Goldstein declined to elaborate, citing her job as a federal court clerk in New York.

Dearl Logan, safety officer for the Columbia Housing Authority, is the keeper of the agency’s no-trespass list. He said an updated no-trespass log is given to Columbia police every month. Police arrest an average of three or four people every month for trespassing on housing authority property, he said.

Crime has decreased in the public housing community and surrounding areas in recent years, police say, but remains a problem.

Logan said that privatizing streets would be “an effective tool to keep problems out,” and help bring peace of mind to people living in public housing.

Marvin McCrary, West District commander for the Columbia Police Department, agreed with Logan and said that such a policy would help officers who patrol public housing areas. “

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