Present: Hassell, C.J., Lacy, Keenan, Koontz, Kinser, and 

Lemons, JJ., and Compton, S.J. 

COMMONWEALTH OF VIRGINIA 

 OPINION BY CHIEF JUSTICE LEROY R. HASSELL, SR. 

 April 23, 2004 

v. Record No. 011728 

KEVIN LAMONT HICKS 

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES 

I. 

 In this proceeding, which has been remanded to this Court 

from the Supreme Court of the United States, we consider 

whether a redevelopment and housing authority's trespass 

policy is void for vagueness under the Fourteenth Amendment to 

the United States Constitution and whether that policy 

violates a defendant's right of intimate association 

guaranteed by the Fourteenth Amendment. 

II. 

 In Commonwealth v. Hicks, 264 Va. 48, 58, 563 S.E.2d 674, 

680 (2002)1

, we held that a trespass policy implemented by the 

 1

 Hicks was charged with trespass in violation of Code 

§ 18.2-119, and he was convicted in the City of Richmond 

General District Court. He appealed the convictions to the 

Circuit Court of the City of Richmond where he was convicted. 

He appealed the judgment to the Court of Appeals. A panel of 

the Court of Appeals affirmed the judgment, Hicks v. 

Commonwealth, 33 Va. App. 561, 535 S.E.2d 678 (2000), but the 

Court of Appeals, en banc, disagreed with the panel and 

vacated Hicks' conviction because the Housing Authority's 

trespass policy contravened the First and Fourteenth 
2

Richmond Redevelopment and Housing Authority (Housing 

Authority) was overly broad and, therefore, violated the First 

and Fourteenth Amendments to the United States Constitution. 

The United States Supreme Court disagreed with our holding and 

concluded that the challenged policy was not overly broad in 

violation of the First Amendment. Virginia v. Hicks, 539 U.S. 

113, ___, 123 S.Ct. 2191, 2199 (2003). The Supreme Court 

remanded the case to this Court so that we could consider 

whether Hicks may challenge his conviction on other bases, 

assuming that those claims had been properly preserved. This 

Court entered an order directing Hicks and the Commonwealth to 

identify issues that had been asserted in the circuit court 

that the litigants thought had been preserved for this Court's 

consideration. Subsequently, this Court entered an order 

directing the litigants to address the following questions: 

 "1. Whether the Housing Authority's trespass 

policy violates appellee's right of association in 

violation of the First Amendment? 

 "2. Whether the Housing Authority's trespass 

policy is unconstitutionally vague on its face or as 

applied to appellee? 

 

Amendments to the Constitution of the United States. Hicks v. 

Commonwealth, 36 Va. App. 49, 52, 548 S.E.2d 249, 251 (2001). 
3

 "3. Whether the Housing Authority's trespass 

policy violates appellee's [rights to] freedom of 

intimate association in contravention of the 

Fourteenth Amendment?" 

 The litigants agree, in view of the Supreme Court's 

holding that the Housing Authority's trespass policy did not 

affect Hicks' First Amendment right to expressive association, 

that this Court need not consider the first question stated 

above. Therefore, we limit our consideration to the remaining 

questions set forth in this Court's order. 

III. 

 The Housing Authority is a political subdivision of the 

Commonwealth of Virginia. The Housing Authority owns and 

operates several housing developments in the City of Richmond 

for low-income residents, including a housing development 

known as Whitcomb Court. 

 In an effort to eradicate illegal drug activity in its 

housing developments, including Whitcomb Court which was 

described as an "open-air drug market," the Housing Authority 

decided to deny access to its property to persons who did not 

have legitimate reasons to visit the housing developments. 

The majority of persons who had been arrested for drug crimes 

at the Whitcomb Court housing development were people who did 

not reside there. 
4

 The Richmond City Council enacted an ordinance that 

"closed to public use and travel and abandoned as streets of 

the City of Richmond," streets and sidewalks in Whitcomb Court 

because the streets and sidewalks were "no longer needed for 

the public convenience." The City conveyed the streets and 

sidewalks by recorded deed to the Housing Authority. 

 The Housing Authority, in its capacity as owner of the 

private streets and sidewalks, authorized 

"each and every Richmond Police Department officer 

to serve notice, either orally or in writing, to any 

person who is found on Richmond Redevelopment and 

Housing Authority property when such person is not a 

resident, employee, or such person cannot 

demonstrate a legitimate business or social purpose 

for being on the premises. Such notice shall forbid 

the person from returning to the property. Finally, 

Richmond Redevelopment and Housing Authority 

authorizes Richmond Police Department officers to 

arrest any person for trespassing after such person, 

having been duly notified, either stays upon or 

returns to Richmond Redevelopment and Housing 

Authority property." 

 Defendant, Kevin Lamont Hicks, was convicted in the City 

of Richmond General District Court for trespass upon the 

Housing Authority's property on December 12, 1997. The 

general district court sentenced Hicks on February 10, 1998. 

Gloria S. Rogers, a manager for the Housing Authority, 

gave Hicks a letter dated April 14, 1998. The letter states 

in part: 

 "This letter serves to inform you that 

effective immediately you are not welcome on 
5

Richmond Redevelopment and Housing Authority's 

Whitcomb Court or any Richmond Redevelopment and 

Housing Authority property. This letter is an 

official notice informing you that you are not to 

trespass on [the Housing Authority's] property. If 

you are seen or caught on the premises, you will be 

subject to arrest by the police. 

 "A copy of this notice is on file and another 

copy will be provided to the Richmond Police 

Department for [its] record. 

 "Virginia Code, Section 18.2-119 

"Trespass After Having Been Forbidden to 

do So 

"If any person without authority of law 

goes upon or remains upon the lands, buildings, 

or premises of another, or any part, portion or 

area thereof, after having been forbidden to do 

so, either orally or in writing by the owner, 

lessee, custodian, or other person lawfully in 

charge thereof, or after having forbidden to do 

so by a sign or signs posted . . . on such 

lands, buildings, premises or portion of area 

thereof at a place or places where it may be 

reasonably seen . . . he and/or she shall be 

guilty of a Class I Misdemeanor. 

"Thank you for your cooperation. 

"Sincerely, 

"[Signed Gloria S. Rogers] 

"Housing Manager 

"[Whitcomb] 

"Development 

"I, the undersigned, acknowledge receipt of 

this notice. 

"[Signed Kevin Hicks] [4-14-98] 

"Signature Date received 

"[Signed Alfonzo Joyner] [4-14-98] 

"Witnessing Officer Date" 
6

 Even though Hicks signed and received the letter dated 

April 14, 1998 informing him that he could not appear on the 

Housing Authority's property, he re-entered the property and 

was arrested for trespass by the Richmond Police Department on 

April 20, 1998. He appeared in the City of Richmond General 

District Court on June 26, 1998, and he was convicted of 

trespass in violation of Code § 18.2-119. 

 On January 20, 1999, Richmond Police officer, James 

Laino, was driving his police cruiser in the Whitcomb Court 

housing development. He observed Hicks, whom he had known 

from previous encounters. Laino had been present when Hicks 

was arrested for a prior trespass offense on the Housing 

Authority's property. 

 Officer Laino stopped his "police car and started to 

speak with Mr. Hicks. [Laino] said, 'I know you're not 

supposed to be out here.' " Hicks responded that he was "just 

getting pampers for his baby." Laino issued a summons to 

Hicks for trespassing. During Hicks' bench trial in the 

circuit court, Officer Laino testified that the buildings at 

the Whitcomb Court housing development where the defendant was 

arrested for trespass contained "red and white" signs that 

stated that the streets in Whitcomb Court "are privatized and 

all the property is privatized, no trespass." 
7

 Gloria Rogers gave the following testimony during the 

trial: 

 "Q: All right. Please tell the Court, has 

[Hicks] come and have you banned him from the 

[Housing Authority's] property? 

 "A: Yes. 

 "Q: All right. Please tell the Court how that 

came about. 

 "A: It came about in two respects. Number one 

− . . . . 

 "Number one, when the police see a person in 

the development and they say that they live 

someplace, they confirm with the office. And Kevin 

Hicks, they quite often saw him in the development 

and he gave them an address and I would pull the 

file and confirm he didn't live there. 

 "Secondly, because of the domestic violence in 

the development. 

. . . . 

 "THE COURT: . . . Ma'am, have you told him to 

stay off the property before? 

 "THE WITNESS: Yes. 

 "THE COURT: How many times? 

 "THE WITNESS: I talked to Kevin Hicks in 

person twice." 

 The Circuit Court of the City of Richmond convicted Hicks 

of trespass in violation of Code § 18.2-119. This conviction 

is the subject of this remand from the Supreme Court. 

IV. 

A. 

 Hicks argues that the Housing Authority's trespass policy 

is unconstitutionally vague in violation of the Fourteenth 
8

Amendment to the United States Constitution.2 He asserts that 

the Housing Authority's trespass policy grants its employees 

and police officers "sweeping powers to define as criminal the 

innocent conduct of using streets and sidewalks near public 

housing." Continuing, Hicks claims that the Housing 

Authority's trespass policy is similar to an anti-loitering 

ordinance that the Supreme Court of the United States held was 

invalid in Chicago v. Morales, 527 U.S. 41 (1999). 

Responding, the Commonwealth asserts that Hicks may not 

challenge whether the trespass policy is unconstitutionally 

vague because his conduct was clearly proscribed by that 

policy, and the ordinance that the Supreme Court invalidated 

in Morales is fundamentally different from the Housing 

Authority's trespass policy. 

 The Supreme Court, in Hoffman Estates v. Flipside, 

Hoffman Estates, Inc., 455 U.S. 489 (1982), stated the 

following principles which are pertinent to our resolution of 

this proceeding: 

 "In a facial challenge to the overbreadth and 

vagueness of a law, a court's first task is to 

determine whether the enactment reaches a 

substantial amount of constitutionally protected 

conduct. If it does not, then the overbreadth 

challenge must fail. The court should then examine 

 2

 Hicks also argues that the Housing Authority's trespass 

policy violates Article 1, Section 8 of the Constitution of 

Virginia. Hicks did not make this argument in the circuit 

court and, therefore, we will not consider it. 
9

the facial vagueness challenge and, assuming the 

enactment implicates no constitutionally protected 

conduct, should uphold the challenge only if the 

enactment is impermissibly vague in all of its 

applications. A plaintiff who engages in some 

conduct that is clearly proscribed cannot complain 

of the vagueness of the law as applied to the 

conduct of others. A court should therefore examine 

the complainant's conduct before analyzing other 

hypothetical applications of the law." 

Id. at 494-95 (emphasis added). Additionally, the Supreme 

Court stated in Parker v. Levy, 417 U.S. 733, 756 (1974), 

that: "One to whose conduct a statute clearly applies may not 

successfully challenge it for vagueness." Accord Gibson v. 

Mayor of Wilmington, 355 F.3d 215, 225 (3d Cir. 2004); Fuller 

v. Decatur Public School Board of Education School District 

61, 251 F.3d 662, 667 (7th Cir. 2001); Joel v. Orlando, 232 

F.3d 1353, 1359-60 (11th Cir. 2000); United States v. Tidwell, 

191 F.3d 976, 979 (9th Cir. 1999); United States v. Hill, 167 

F.3d 1055, 1063-64 (6th Cir. 1999); Woodis v. Westark 

Community College, 160 F.3d 435, 438-39 (8th Cir. 1998); 

United States v. Corrow, 119 F.3d 796, 803 (10th Cir. 1997); 

Love v. Butler, 952 F.2d 10, 14 (1st Cir. 1991); Hastings v. 

Judicial Conference of the United States, 829 F.2d 91, 107 

(D.C. Cir. 1987); Hill v. City of Houston, 789 F.2d 1103, 1127 

(5th Cir. 1986), aff’d, 482 U.S. 451 (1987); Gallaher v. City 

of Huntington, 759 F.2d 1155, 1160 (4th Cir. 1985). 
10

 It is clear that Hicks, who was engaged in conduct 

prohibited by the Housing Authority's trespass policy, may not 

complain that the policy is purportedly vague. Hicks was 

arrested and convicted for violation of Code § 18.2-119, which 

states in relevant part: 

 "If any person without authority of law goes 

upon or remains upon the lands, buildings or 

premises of another, or any portion or area thereof, 

after having been forbidden to do so, either orally 

or in writing, by the owner, lessee, custodian or 

other person lawfully in charge thereof, or after 

having been forbidden to do so by a sign or signs 

posted by such persons . . . he shall be guilty of a 

Class 1 misdemeanor." 

Prior to the conviction that is involved in this proceeding, 

Hicks had been convicted of two other charges of criminal 

trespass on the Housing Authority's property in violation of 

Code § 18.2-119. Hicks had also received a hand-delivered 

letter, which he signed and acknowledged, that directed him 

not to return to the Housing Authority's property. That 

letter also informed Hicks that if he returned to the Housing 

Authority's property, he would be prosecuted for trespass. 

Hicks cannot now complain that the Housing Authority's 

trespass policy is somehow vague. Certainly, as to him, the 

Housing Authority's trespass policy could not have been any 

clearer. 

 The Supreme Court's decision in Morales does not support 

Hicks' contention that he may assert that the Housing 
11

Authority's trespass policy is facially unconstitutionally 

vague. The Supreme Court's decision in Morales simply has no 

application to this case. 

 The facts in Morales are as follows. The Chicago City 

Council enacted an ordinance that prohibited "criminal street 

gang members" from "loitering" with one another or with other 

persons in any public place. The ordinance created a criminal 

offense punishable by a fine not to exceed $500, imprisonment 

for not more than six months, and a requirement that anyone 

convicted of violating the ordinance perform a maximum of 120 

hours of community service. Commission of the crime involved 

four elements: a police officer must reasonably believe that 

at least one of two or more persons present in a public place 

is a criminal street gang member; the persons must be 

"loitering" which was defined as "remaining in any one place 

with no apparent purpose"; "the officer must then order 'all' 

the persons to disperse and remove themselves 'from the 

area'"; and the "person must disobey the officer's order." 

The ordinance defined "public place" as "the public way and 

any other location open to the public, whether publicly or 

privately owned." 527 U.S. at 45-47. 

 The Supreme Court recognized that 

"the freedom to loiter for innocent purposes is part 

of the 'liberty' protected by the Due Process Clause 

of the Fourteenth Amendment. We have expressly 
12

identified this 'right to remove from one place to 

another according to inclination' as 'an attribute 

of personal liberty' protected by the 

Constitution. . . . Indeed, it is apparent that an 

individual's decision to remain in a public place of 

his choice is as much a part of his liberty as the 

freedom of movement inside frontiers that is 'a part 

of our heritage,' . . . or the right to move 'to 

whatsoever place one's own inclination may direct' 

identified in Blackstone's Commentaries. 1 W. 

Blackstone, Commentaries on the Laws of England 130 

(1765)." 

527 U.S. at 53-54 (citations omitted). 

 In Morales, the Supreme Court permitted the defendants to 

assert a facial challenge based upon vagueness to the 

ordinance: 

"For it is clear that the vagueness of this 

enactment makes a facial challenge appropriate. 

This is not an ordinance that 'simply regulates 

business behavior and contains a scienter 

requirement.' See Hoffman Estates v. Flipside, 

Hoffman Estates, Inc., 455 U.S. 489, 499 (1982). It 

is a criminal law that contains no mens rea

requirement, see Colautti v. Franklin, 439 U.S. 379, 

395 (1979), and infringes on constitutionally 

protected rights . . . . When vagueness permeates 

the text of such a law, it is subject to facial 

attack." 

Id. at 55. 

 Unlike the ordinance that was implicated in Morales, 

Hicks was convicted of violation of a criminal trespass 

statute, Code § 18.2-119, which has an intent requirement 

because the Commonwealth was required to prove that Hicks 

committed an act of intentional trespass. See Reed v. 

Commonwealth, 6 Va. App. 65, 70-71, 366 S.E.2d 274, 278 
13

(1988). Also, unlike the ordinance in Morales, the Housing 

Authority's trespass policy is not a penal ordinance. The 

Housing Authority's policy is intended to regulate the 

behavior of people who appear on private property owned by the 

Housing Authority, which provides safe and affordable housing 

for low- and moderate-income individuals. The Housing 

Authority's trespass policy is not a penal ordinance and, 

indeed, one could be arrested and convicted for trespass on 

the Housing Authority's privately-owned property even if the 

trespass policy did not exist. And, unlike the ordinance in 

Morales that affected persons on public property, the Housing 

Authority's trespass policy only applies to persons who commit 

acts of intentional criminal trespass upon the Housing 

Authority's privately-owned real property. 

B. 

 Hicks argues that the Housing Authority's trespass policy 

violates his right to freedom of intimate association with his 

family guaranteed by the Fourteenth Amendment to the United 

States Constitution. Continuing, Hicks states that he "was 

permanently prohibited from visiting his mother and his 

children in their homes [in Whitcomb Court] simply because a 

government official decided, without providing [him] any 

procedural protections or even an explanation, that [he] did 

not have a 'legitimate purpose' to be on the streets and 
14

sidewalks near the Whitcomb Court housing project." Hicks 

says that this governmental intrusion violates his 

constitutional right of association with his family members. 

We disagree. 

 The Fourteenth Amendment states in relevant part: "No 

State shall . . . deprive any person of life, liberty, or 

property, without due process of law." U.S. Const. amend. 

XIV, § 1. The right to create and maintain certain intimate 

or private relationships is guaranteed under the substantive 

due process component of the Fourteenth Amendment of the 

United States Constitution. The Supreme Court has stated: 

"The Court has long recognized that, because the 

Bill of Rights is designed to secure individual 

liberty, it must afford the formation and 

preservation of certain kinds of highly personal 

relationships a substantial measure of sanctuary 

from unjustified interference by the State. E.g., 

Pierce v. Society of Sisters, 268 U.S. 510, 534-535 

(1925); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). 

Without precisely identifying every consideration 

that may underlie this type of constitutional 

protection, we have noted that certain kinds of 

personal bonds have played a critical role in the 

culture and traditions of the Nation by cultivating 

and transmitting shared ideals and beliefs; they 

thereby foster diversity and act as critical buffers 

between the individual and the power of the State. 

See, e.g., Zablocki v. Redhail, 434 U.S. 374, 383-

386 (1978); Moore v. East Cleveland, 431 U.S. 494, 

503-504 (1977) (plurality opinion). . . . Moreover, 

the constitutional shelter afforded such 

relationships reflects the realization that 

individuals draw much of their emotional enrichment 

from close ties with others. Protecting these 

relationships from unwarranted state interference 

therefore safeguards the ability independently to 
15

define one's identity that is central to any concept 

of liberty. . . . 

 "The personal affiliations that exemplify these 

considerations, and that therefore suggest some 

relevant limitations on the relationships that might 

be entitled to this sort of constitutional 

protection, are those that attend the creation and 

sustenance of a family − marriage . . . ; the raising 

and education of children . . . ; and cohabitation 

with one's relatives." 

Roberts v. United States Jaycees, 468 U.S. 609, 618-19 (1984) 

(citations omitted). The Supreme Court has also stated that: 

"Choices about marriage, family life, and the 

upbringing of children are among associational 

rights this Court has ranked as 'of basic importance 

in our society,' Boddie [v. Connecticut], 401 U.S. 

[371] at 376 [(1971)], rights sheltered by the 

Fourteenth Amendment against the State's unwarranted 

usurpation, disregard, or disrespect." 

M.L.B. v. S.L.J., 519 U.S. 102, 116 (1996); accord Meyer v. 

Nebraska, 262 U.S. 390, 399-400 (1923); Moore v. City of East 

Cleveland, 431 U.S. 494, 499 (1977). 

 We conclude, based upon the facts in the record before 

this Court that Hicks, who purportedly was delivering diapers 

to the mother of his child at a specific location, has not 

established the existence of an intimate relationship between 

Hicks and his child or Hicks and his mother. The record 

simply does not support such conclusion. However, assuming

the existence of an intimate relationship, we hold that this 

right of intimate association is not without limitations. 

Certainly, Hicks does not have the constitutional right to 
16

visit either his mother or his child at the Housing 

Authority's private property where he has been barred because 

of his prior criminal conduct. Hicks' alleged right of 

intimate association does not permit him to commit intentional 

acts of criminal trespass upon property owned by the Housing 

Authority. 

We also note that the Housing Authority's trespass policy 

does not impair any rights of intimate association that Hicks 

may have with his mother or his child. Hicks remains free to 

exercise whatever rights of intimate association he may 

possess with his mother and his child; he simply may not do so 

on property owned by the Housing Authority. The Housing 

Authority's trespass policy does not prevent Hicks from 

developing and nurturing those relationships. Rather, the 

Housing Authority's policy, when enforced in conjunction with 

Virginia's criminal trespass statutes, bars trespassers from 

entering the Housing Authority's property. 

VI. 

 Accordingly, we will reverse the judgment of the Court of 

Appeals, and we will enter a final judgment affirming the 

conviction of trespass entered by the circuit court.

Reversed and final judgment.