Friday, January 21, 2000
City ban on drug offenders ruled illegal
BY BEN L. KAUFMAN
The Cincinnati Enquirer
A federal judge Thursday struck down Cincinnati's law banning people from Over-the-Rhine after they've been arrested or convicted of drug offenses.
U.S. District Judge Susan J. Dlott said 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.
Further, she said, the 1996 ordinance violates the right to travel and “classifies conduct that clearly ought to be legal as criminal trespass.”
“That's terrific,” said Scott Greenwood, general counsel for the American Civil Liberties Union of Ohio, which brought the case.
As soon as someone is willing to come forward, Mr. Greenwood predicted, Thursday's decision would spell the death of a similar park exclusion ordinance for people arrested and/or convicted of sexual offenses.
The ruling turned on Judge Dlott's decision that rights at stake were fundamental and city justifications should be tested against strict constitutional scrutiny rather than whether they were simply reasonable.
Councilman Phil Heimlich, who proposed the ban, said he would ask council to appeal.
He noted that Hamilton County appellate judges had upheld the ordinance, and that an Oregon appeals court had upheld the law used as a model for Cincinnati's.
“This indicates a lot of legal support for it,” Mr. Heimlich said. “This law has been very effective in fighting drugs and prostitution in Over-the-Rhine.”
Council adopted the ban to combat repeat drug offenses in Over-the-Rhine.
With rare exceptions, the ordinance bans anyone for 90 days after an Over-the-Rhine drug arrest and a year more after an Over-the-Rhine drug conviction.
The American Civil Liberties Union (ACLU) initially challenged the law on behalf of Ms. Johnson. She was arrested March 18, 1998, and charged with trafficking in marijuana. She was barred from Over-the-Rhine on March 24.
Three days later, a Hamilton County grand jury refused to indict her and the charge was dropped, but there was no way to cancel her 90-day ban.
Ms. Johnson said she helped care for her grandchildren in Over-the-Rhine, and she was charged with criminal trespass for violating the exclusion zone April 8, 1998. That charge, too, was dismissed.
Then Mr. Au France was added to the complaint. He was convicted of a drug-related crime and excluded for a year in October 1996.
Mr. Au France is homeless and sought food, clothing and shelter from relief agencies in Over-the-Rhine. He also violated the ban to visit Bernard Wong, his attorney and lead ACLU lawyer on the case.
Mr. Au France spent more than 100 days in jail for repeatedly violating the ban.
Thursday, Mr. Wong said he was grateful for Judge Dlott's “courageous decision, which gives the people of Cincinnati back their basic human rights to travel and to be with their families free from government interference.”
Assistant City Solicitor RichardGanulin defended the ban as a constitutional extension of the city's power to detain and control a person who has been arrested.
That troubled her, Judge Dlott said, because a person who has been arrested or convicted and released has more rights than a person in jail awaiting trial or serving a sentence.
Also troubling was council usurping court powers to decide “what restrictions on personal liberty an arrestee should face upon release and what restrictions a convicted person should face upon probation or release.”
Finally, all of this must be done on a individual basis, Judge Dlott said.
Judge Dlott said the Bill of Rights grants substantial protection to freedom of association, especially from government interference in the type of “highly personalized relationship” sought by Ms. Johnson: helping raise grandchildren.
Mr. Au France lacked a family tie, the judge said, but access to his lawyer is the kind of association that deserves protection.
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