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High court refuses to review Cincinnati's anti-trespass law

By The Associated Press

04.29.02

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WASHINGTON — The Supreme Court refused today to enter a constitutional debate over the policy of banishing drug dealers or other criminals from neighborhoods with severe drug and crime problems.

The court did not comment in rejecting an appeal from authorities in Cincinnati. The city tried to ban drug criminals from the crime- and drug-plagued Over-the-Rhine neighborhood, but the policy was declared unconstitutional in state and federal courts.

The issue may return to the high court soon, however. Challenges to "drug-free zones" are still working their way through lower courts.

Cincinnati's 1996 law drew figurative lines around drug-infested neighborhoods. People arrested or convicted on drug charges could be banned from the outlined neighborhood for a year or more, or face arrest if they were caught in their old haunts.

The city claims the policy targeted repeat criminals and helped cut down on drug crime. Cincinnati stopped enforcing the law after a federal court declared it unconstitutional in 2000. The Cincinnati Enquirer reported on Jan. 21, 2000, that U.S. District Judge Susan J. Dlott found the ban violated Patricia Johnson's freedom of association and subjected Michael Au France to double jeopardy as a second punishment for the same offense.

The newspaper also reported that Dlott said the 1996 ordinance violated the right to travel and “classifies conduct that clearly ought to be legal as criminal trespass.” The city has appealed Dlott's ruling to the 6th U.S. Circuit Court of Appeals, which is based in Cincinnati.

Last year, the state's highest court issued a similar ruling in a similar case.

The Ohio Supreme Court found that banishing someone violated a constitutionally protected right to travel. The court also said banishment amounts to double punishment, since it imposed an additional restriction on a convict beyond his regular sentence or fine.

"A person subject to the exclusion ordinance may not enter a drug-exclusion zone to speak with counsel, to visit family, to attend church, to receive emergency medical care, to go to a grocery store, or just stand on a street corner and look at a blue sky," Ohio Chief Justice Thomas Moyer wrote.

The case that traveled through the state courts involved George Burnett, convicted of possessing drug paraphernalia in 1998. Burnett was banished from Over-the-Rhine for 90 days after his arrest, and for a year following his conviction. He was arrested for trespassing in the exclusion zone a few months after his conviction.

"Temporary exclusion from a neighborhood is not a punitive criminal-type physical incarceration," city lawyers wrote in asking the Supreme Court to hear the case, Ohio v. Burnett.

Cincinnati's law was based on one in Portland, Oregon. A state court upheld the Portland ban.

"Drug crime is rampant in the Over-the-Rhine neighborhood of Cincinnati, recidivism contributes to that rampant drug crime, and a comparable exclusion zone ordinance in Portland, Oregon was very successful," Cincinnati's lawyers wrote.

Over-the-Rhine is a poor, mostly black neighborhood near Cincinnati's downtown business district. The neighborhood erupted in three nights of rioting last year after a white police officer fatally shot an unarmed black man. Dozens of people were injured and more than 800 were arrested.

Related

2001-2002 Supreme Court term coverage
Analysis and other coverage of the 2001-2002 U.S. Supreme Court term.  11.01.01

ACLU challenges Cincinnati trespass law
'The city is trying to sweep supposedly undesirable people off the streets, and it doesn't matter whether they are innocent or guilty of the alleged actions,' says counsel for group.  06.23.98

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