Patricia Johnson Michael Au France v. City of Cincinnati

The City of Cincinnati appeals the decision of the district court declaring the City's drug-exclusion ordinance, Cincinnati Municipal Code § 755, unconstitutional on its face, and unconstitutional as applied to plaintiffs Patricia Johnson and Michael Au France, and awarding plaintiffs attorney fees. For the reasons set forth below, we AFFIRM the judgment of the district court.

On August 7, 1996, the City enacted the Ordinance to enhance the quality of life and protect the health, safety, and welfare of persons in neighborhoods with a "significantly higher incidence of conduct associated with drug abuse than other areas of the City." Cincinnati, Ohio, Ordinance No. 229-1996, § 1(A), (D) (Aug. 7, 1996). To advance this goal, the Ordinance excludes an individual for up to ninety days from the "public streets, sidewalks, and other public ways" in all drug-exclusion zones if the individual is arrested or taken into custody within any drug-exclusion zone for one of several enumerated drug offenses.1 Cincinnati Municipal Code § 755-5. The Ordinance extends this exclusion for a year if the individual is convicted. Id. The Ordinance defines drug-exclusion zones as "areas where the number of arrests for... drug-abuse related crimes for the twelve (12) month period preceding the original designation is significantly higher than that for other similarly situated/sized areas of the city." Id. § 755-1.

Excluded persons who violate the Ordinance are subject to prosecution for criminal trespass, a fourth-degree misdemeanor. Id. The City's chief of police, however, must grant a variance to any person who proves that he or she (1) resided in the drug-exclusion zone prior to receiving the exclusion notice, or (2) was employed by, or owned, a business located in a drug-exclusion zone prior to receiving the exclusion notice. Id. § 755-11(2)(b). Provided they have written regulations prohibiting "drug abuse-related activities by their clients and which have entered into a written agreement with the police division concerning the applicability of those rules," social service agencies may also grant variances "for reasons relating to the health, welfare, or well-being of the person excluded, or for drug abuse-related counseling services." Id. Variances must be in writing and the individual must keep the variance with him or her at all times within a drug exclusion zone. Id. § 755-11(2)(c). The variance becomes void if the holder violates its terms or is subsequently arrested for a drug offense. Id. § 755-11(2)(c), (d)(4).

The Ordinance provides an appeal mechanism whereby an excluded individual may file a written request for a hearing within five days of receiving an exclusion notice. Id. §§ 755-11; 755-13(a). On appeal, the City must prove, by a preponderance of the evidence, that the excluded individual committed a specified drug offense in a drug-exclusion zone. Id. § 755-11(1)(c). The City can sustain or vacate the exclusion notice being challenged, and that determination "is a quasi-judicial decision and is final subject only to appeal to a court of competent jurisdiction." Id. § 755-13(C)(c), (D).

In September 1998, the City Council designated Over the Rhine — a mixed residential/commercial neighborhood located immediately north of the City's downtown business district — a drug exclusion zone. The City's designation of Over the Rhine followed a police report examining City-wide drug arrests from June 1996 to May 1997. The report, which was subsequently incorporated into the Ordinance's factual findings, detailed that 18.7% of City drug arrests occurred in Over the Rhine. According to the report, reducing the number of drug offenses in Over the Rhine was extremely difficult because many arrested individuals returned to the neighborhood immediately upon release. Citing Portland, Oregon's 38% crime reduction in certain neighborhoods following the establishment of a drug exclusion ordinance, the police report characterized a drug-exclusion ordinance as an additional tool to reduce crime and improve the quality of life in Over the Rhine.

In 1998, the City amended the Ordinance to provide that the ninety-day exclusion period terminates upon acquittal, dismissal of charges, or failure to prosecute.

Johnson was arrested on March 18, 1998, for a marijuana trafficking offense in Over the Rhine. At the time of her arrest, she variously lived with Katrina Chambers and Frank Johnson, two of her adult children. Marquisa Harmon, Johnson's other adult daughter, resided in Over the Rhine. Johnson did not reside with Harmon, but she helped care for Harmon's five minor children and regularly took two of the children, Tania and Jaquanna, to school.

As a result of her arrest, Johnson received an exclusion notice prohibiting her from entering Over the Rhine from March 24, 1998, until June 22, 1998. Because she was not a bona fide resident of, or employed in, Over the Rhine, Johnson did not qualify for a variance, and she did not appeal her exclusion notice.

After an Ohio grand jury took no action on the marijuana trafficking charge against Johnson, the case against her was terminated on March 27, 1998. Because the Ordinance had not yet been amended to provide for immediate termination of the exclusion, Johnson remained banned from Over the Rhine. Thus, when Johnson was found within Over the Rhine on April 8, 1998, the City charged her with criminal trespass. This charge was dismissed on February 8, 1999.

Au France, a homeless man, was first arrested in Over the Rhine for possession of drug paraphernalia in October 1996. He was convicted of this offense on November 11, 1996. He was subsequently arrested and convicted for multiple Ordinance violations and additional drug-related crimes in the neighborhood. As a result of these arrests, convictions, and related exclusions, Au France claims he was prohibited from entering Over the Rhine for four years and spent over four hundred days in jail.

Au France regularly sought food, clothing, and shelter from social service organizations located in Over the Rhine. Moreover, Au France's attorney's office is located in Over the Rhine. Au France applied for a variance on November 17, 1998. The City denied his application, citing his criminal record and lack of a permanent residence in Over the Rhine.

Johnson initially filed suit on June 19, 1998, and both Johnson and Au France filed an amended complaint on December 18, 1998. The plaintiffs alleged that the Ordinance (1) unconstitutionally infringes on their rights to freedom of speech and freedom of association; (2) infringes on their right to freedom of movement in intrastate travel in violation of the Fourteenth Amendment's Due Process and Equal Protection Clauses; (3) violates the Eighth Amendment's prohibition against cruel and unusual punishment; and (4) violates the Fifth Amendment's Double Jeopardy Clause. Plaintiffs sought a declaration that the Ordinance is unconstitutional on its face and as applied to them, a permanent injunction prohibiting the City from enforcing the Ordinance, compensatory damages, and reasonable attorney fees and costs.

The district court held that the Ordinance was unconstitutional both as applied and on its face, because it (1) violated the plaintiffs' right to freedom of association; (2) violated the right of excluded persons to freedom of movement in the form of their right to intrastate travel; and, (3) violated Au France's right to be free from double jeopardy. The district court enjoined enforcement of the Ordinance and awarded plaintiffs $38,500 in fees.

Subsequent to the district court's decision, the Ohio Supreme Court declared that the post-conviction portion of the Ordinance violated both the United States Constitution and the State of Ohio Constitution. State v. Burnett, 93 Ohio St.3d 419, 755 N.E.2d 857, 865-868 (2001), cert. denied, ___ U.S. ___, 122 S.Ct. 1790, 152 L.Ed.2d 649 (2002). According to all but one Justice of the Ohio Supreme Court, the Ordinance impermissibly infringed on a convicted individual's due process right to intrastate travel, specifically, the right to "travel locally through public spaces and roadways" of the state. Id. at 865. The Burnett court also ruled that the Ordinance impermissibly exceeded the local authority granted to the City by Section 3, Article XVIII of the Ohio Constitution. Id. at 868.

In light of the Ohio Supreme Court's recent decision in Burnett, we must first address whether an "actual controversy still exists between the parties." WJW-TV, Inc. v. City of Cleveland, 878 F.2d 906, 909 (6th Cir.1989) (per curiam) (citations omitted); see also CDI Info. Servs., Inc. v. Reno, 278 F.3d 616, 618 (6th Cir.2002) (noting this court's obligation to police its own jurisdiction). We recognized in WJW-TV, Inc. that an intervening state supreme court decision on a particular issue may render an appeal to this court on the same issue moot. Id. at 910; see generally 15 Moore's Federal Practice § 101.96 (3d ed.1997). That the state court resolved the WJW-TV issue on state and municipal law grounds did not affect our conclusion. Id. (citing Detroit Fire Fighters Ass'n, Local No. 344, I.A.F.F. v. Dixon, 572 F.2d 557, 559 (6th Cir.1978) (per curiam)).

While the Burnett court limited its constitutional analysis to the Ordinance's post-conviction exclusion, Burnett, 755 N.E.2d at 860 n. 3, its state law holding appears to invalidate the entire Ordinance. Id. at 868 ("The ordinance, therefore, is invalid under section 3, Article XVIII of the Ohio Constitution."). Thus, Burnett could moot the present appeal. In this case, however, the parties still have an actual case or controversy with respect to the district court's award of attorney fees. See United Ass'n of Journeymen v. Bechtel Constr. Co., 128 F.3d 1318, 1322 (9th Cir.1997); Washington Hosp. Ctr. v. Collier, 947 F.2d 1498, 1502 (D.C.Cir.1991). The plaintiffs are entitled to this award only if the Ordinance violated their federal rights; thus, we must evaluate their claim regarding the constitutionality of the Ordinance. 42 U.S.C. § 1988; Berger v. City of Mayfield Heights, 265 F.3d 399, 405-06 (6th Cir. 2001).

Lastly, we note that the City's assurance that it no longer enforces the Ordinance, see Burnett, 755 N.E.2d at 860, does not render the present appeal moot. "[A] defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice." Deja Vu of Nashville, Inc. v. Met. Gov't of Nashville, 274 F.3d 377, 387 (6th Cir.2001) (quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.E.2d 152 (1982)).

We review a district court's grant of summary judgment de novo. Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir.2001). Summary judgment should be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

"Where a particular Amendment `provides an explicit textual source of constitutional protection' against a particular sort of government behavior, `that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims.'" Albright v. Oliver, 510 U.S. 266, 273, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.E.2d 443 (1989)); see also Montgomery v. Carter Cy., 226 F.3d 758, 769 (6th Cir.2000); Cf. United States v. Lanier, 520 U.S. 259, 272 n. 7, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (cautioning that not "all constitutional claims relating to physically abusive government conduct must arise under either the Fourth or Eighth Amendments"). Seeking to ground this dispute in an Amendment other than the Fourteenth Amendment, the City argues that the Fourth Amendment provides the exclusive analytical framework to assess the constitutionality of the Ordinance. According to the City, post-arrest or post-conviction exclusion from Over the Rhine's sidewalks, public walkways, and streets, constitutes, at most, a partial seizure to be evaluated under the rubric of Fourth Amendment reasonableness. We disagree.

Generally, the Fourth Amendment applies to "pretrial deprivations of liberty." Albright, 510 U.S. at 274, 114 S.Ct. 807. The Fourth Amendment plainly applies to investigatory stops and formal arrests, but does not apply post-conviction. See Graham, 490 U.S. at 395 n. 10, 109 S.Ct. 1865; Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); see also Phelps v. Coy, 286 F.3d 295, 299 (6th Cir.2002) ("Which amendment applies depends on the status of the plaintiff at the time of the incident, whether free citizen, convicted prisoner, or something in between."). Thus, there is simply no reasonable basis for the City's assertion that the Fourth Amendment provides the exclusive analytical framework to evaluate the post-conviction provision of the Ordinance.

Determining whether the Fourth Amendment provides the appropriate framework for evaluating the post-arrest provision of the Ordinance is a more difficult question. Beyond its general statement in Albright, the Supreme Court has not yet pinpointed the exact point along the pretrial continuum where the Fourth Amendment's protection gives way to the protection of another Amendment. Graham, 490 U.S. at 395 n. 10, 109 S.Ct. 1865 (acknowledging that the Court has not yet "resolved the question whether the Fourth Amendment continues to provide individuals with protection against the deliberate use of excessive force beyond the point at which arrest ends and pretrial detention begins"). And our sister circuits have reached different answers to this question. Compare Reed v. City of Chicago, 77 F.3d 1049, 1052 n. 3 (7th Cir.1996) with Murphy v. Lynn, 118 F.3d 938, 946 (2d Cir.1997).

Concurring in Albright, Justice Ginsburg stated that a defendant who is released before trial "is scarcely at liberty." 510 U.S. at 279, 114 S.Ct. 807 (Ginsburg, J., concurring) According to Justice Ginsburg, such a defendant "remains apprehended, arrested in his movements, indeed `seized' for trial, so long as he is bound to appear in court and answer the state's charges." Id.; see also id. at 307, 114 S.Ct. 807 (Stevens, J., dissenting) (noting his agreement with Justice Ginsburg's view that "the initial seizure of petitioner continued until his discharge."); id. at 290, 114 S.Ct. 807 (Souter, J., concurring) (noting that movement is restrained when "seizure occurs or bond terms are imposed"); Gerstein, 420 U.S. at 114, 95 S.Ct. 854 ("Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty."); Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 301, 104 S.Ct. 1805, 80 L.Ed.2d 311 (1984) (stating, in habeas corpus context, that one released on his or her own recognizance remains in official custody because he is "subject[ed] ... to restraints not shared by the public generally" such as "an obligation to appear for trial ... on the scheduled day and also at any subsequent time to which the case may be continued," and a "require[ment] that he not depart" from the jurisdiction "without leave" of the court) (internal quotation marks omitted). Justice Ginsburg explained:

The purpose of an arrest at common law, in both criminal and civil cases, was "only to compel an appearance in court," and "that purpose is equally answered, whether the sheriff detains [the suspect's] person, or takes sufficient security for his appearance called bail." (citations omitted). The common law thus seems to have regarded the difference between pretrial incarceration and other ways to secure a defendant's court attendance as a distinction between methods of retaining control over a defendant's person, not one between seizure and its opposite.

Id. But see Riley v. Dorton, 115 F.3d 1159, 1163 (4th Cir.1997) (en banc) (rejecting "continuing seizure" doctrine); Reed, 77 F.3d at 1052 n. 3 (same).

In a series of malicious prosecution cases, some of our sister circuits — relying primarily on Justice Ginsburg's Albright concurrence — have ruled that certain pretrial detention conditions implicate the Fourth Amendment's prohibition on unreasonable seizures. For example, the Second Circuit held that a judicial order prohibiting the defendant from leaving the state, combined with a directive to attend court appointments, constituted a seizure. Murphy, 118 F.3d at 946. Characterizing it as a "close question," the Third Circuit similarly ruled that pretrial interstate travel restrictions and mandatory court attendance constituted a seizure. Gallo v. City of Philadelphia, 161 F.3d 217, 222 (3d Cir.1998); see also Evans v. Ball, 168 F.3d 856, 861 (5th Cir.1999) (ruling that a "summons to appear in court, coupled with the requirements that [the defendant] obtain permission before leaving the state, report regularly to pretrial services, sign a personal recognizance bond, and provide federal officers with financial and identifying information, diminished [the defendant's] liberty enough to render him seized"); cf. Nieves v. McSweeney, 241 F.3d 46, 56-57 (1st Cir.2001) (holding that defendant's obligation to appear in court did not constitute a seizure); Britton v. Maloney, 196 F.3d 24, 29-30 (1st Cir.1999) (ruling that issuance of a summons did not constitute a seizure).

We have held that a Fourth Amendment seizure "continues throughout the time the person remains in the custody of the arresting officers," McDowell v. Rogers, 863 F.2d 1302, 1306 (6th Cir.1988), but we have not yet addressed whether the seizure could continue past this point. And, while we have held that the issuance of a traffic ticket did not, standing alone, constitute a seizure, DePiero v. City of Macedonia, 180 F.3d 770, 789 (6th Cir.1999), we have not yet explicitly addressed the "continuing seizure" doctrine advanced by Justice Ginsburg. See Fox v. Van Oosterum, 176 F.3d 342, 351 & n. 7 (6th Cir.1999); cf. Phelps, 286 F.3d at 300 (interpreting McDowell as endorsing the "continuing seizure" doctrine). We need not resolve this question in the present case because, even assuming the validity of the "continuing seizure" doctrine, we do not believe that the Fourth Amendment provides the appropriate framework to analyze the Ordinance.

To be sure, application of the Ordinance's post-arrest provision resembles a seizure in that it is a show of government authority and a restraint on a freedom of movement. See United States v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.E.2d 497 (1980) ("We adhere to the view that a person is `seized' only when, by means of physical force or a show of authority, his freedom of movement is restrained."). But in each of the cases addressed by our sister circuits, the government not only curtailed the suspect's right to interstate travel, it also imposed additional restrictions designed to compel an ultimate court appearance, such as obligations to post bond, attend court hearings, and contact pretrial services. Evans, 168 F.3d at 861; Gallo, 161 F.3d at 222; Murphy, 118 F.3d at 946. In contrast, (1) the Ordinance imposes solely travel restrictions; (2) the ninety day exclusion is not bounded by an eventual court appearance; and, (3) the stated purpose of these restrictions is to combat drug crime in Over the Rhine. Thus, we conclude that the Fourth Amendment's prohibition against unreasonable seizures does not provide the appropriate analytical framework for evaluating the constitutionality of such restrictions. Therefore, we turn to the more general protections of due process. See Phelps, 286 F.3d at 300 ("[I]f plaintiff is not in a situation where his rights are governed by the particular provision of the Fourth or Eight Amendment, the more generally applicable provisions of the due process clause still provides the individual some protection against physical abuse by officials.").

Plaintiffs argue that the Ordinance violates their asserted right to freedom of movement and intrastate travel because it excludes arrested and convicted individuals from Over the Rhine for ninety days and one year, respectively.

At the outset, we must ascertain whether another panel of this court has already addressed whether the Constitution protects a right to intrastate travel. In answering this question, we address three cases that touch on the question of whether the Constitution protects a right of intrastate travel — Wardwell v. Board of Education of the City of Cincinnati, 529 F.2d 625 (6th Cir.1976), Kuhnle Brothers, Inc. v. County of Geauga, 103 F.3d 516 (6th Cir.1997), and Thompson v. Ashe, 250 F.3d 399 (6th Cir.2001). Of course, without an intervening Supreme Court case or a controlling en banc decision, such a holding would be binding on the present panel. Darrah v. City of Oak Park, 255 F.3d 301, 309-10 (6th Cir.2001); 6th Cir. R. 206(c). This rule does not, however, extend to dicta. United States v. Jenkins, 4 F.3d 1338, 1345 n. 8 (6th Cir.1993); Stockler v. Garratt, 893 F.2d 856, 859 n. 2 (6th Cir. 1990). Thus, we examine our three prior decisions to determine whether another panel has already addressed the question of whether the Constitution protects a right to intrastate travel.

In Wardwell, the plaintiff argued that the Cincinnati school board's continuing residency requirement infringed on his constitutionally protected right to travel as defined in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.E.2d 600 (1969), and Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). 529 F.2d at 627. Although those cases involved only interstate travel, plaintiff argued that they also applied to intrastate travel. Id. This court rejected plaintiff's argument, explaining that: "We find no support for plaintiff's theory that the right to intrastate travel has been afforded federal constitutional protection." After reviewing Shapiro, Dunn and Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.E.2d 306 (1974), all of which involved residency requirements, the court added that "the aspect of the right to travel with which the Court was concerned in those cases is not involved here." Id. Applying rational basis review, the court upheld the school board's continuing residency requirement. Id. at 628, 89 S.Ct. 1322.

Initially, we are satisfied that Wardwell's holding — that the Cincinnati school board's continuing residency requirement did not implicate due process protections — does not foreclose plaintiffs' intrastate travel claim. At its simplest, this case does not involve a continuing residency requirement, it involves a constitutional challenge to an ordinance that excludes certain individuals from specified high crime areas of the City of Cincinnati, and presents issues of access not raised in Wardwell.

Wardwell also stated that "Shapiro and the other right to travel cases are not applicable to intrastate travel and continuing employee residency requirements." Id. (emphasis in original). One judge of the Ohio Supreme Court read this language to reject any constitutional right to intrastate travel in this circuit. See Burnett, 755 N.E.2d at 873 (Cook, J., concurring). Upon inspection, however, this statement does not foreclose a constitutional right to intrastate travel. Rather, Wardwell's statement stands for two propositions, neither of which is implicated by the Ordinance: (1) the Supreme Court's interstate travel holdings applied only to interstate travel; and (2) the Supreme Court's interstate travel cases did not prohibit a school district's residency requirement. Thus, in Kuhnle Brothers, Inc., the panel stated that the question of whether the Constitution protects any right of intrastate travel remained an open question in this circuit. 103 F.3d at 522. ("If such liberty interests [in a fundamental constitutional right to intrastate travel] do in fact exist in this case — a question that will have to be decided on remand because it is not before us and we express no opinion on it ....").

The dissent argues that Wardwell held that the "rational-basis test applies to determine the constitutionality of a law affecting intrastate travel." But the statement that the dissent relies on does not extend this far: "On the other hand, where, as in the present case, a continuing employee residency requirement affecting at most the right of intrastate travel is involved, the `rational basis' test is the touchstone to determine its validity." Id. at 628 (emphasis in original). While this statement establishes that continuing employee residency requirements are evaluated under the rational basis test, it does not hold that the rational basis test governs every impairment of an asserted right to intrastate travel. One could infer that the Wardwell panel was suggesting that the rational basis test should govern all potential intrastate travel claims, but considered in context of the rest of the opinion, such an inference is not compulsory. Even if such an inference was the only reasonable inference, it would be dicta and would not bind this court. See Jenkins, 4 F.3d at 1345 n. 8.

Finally, in Thompson, this court addressed a challenge to a Tennessee statute prohibiting indivi