COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton, Willis, Elder, 

 Bray, Annunziata, Bumgardner, Frank, Humphreys, Clements 

 and Agee 

Argued at Richmond, Virginia 

KEVIN LAMONT HICKS 

 OPINION BY 

v. Record No. 1895-99-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 JULY 3, 2001 

COMMONWEALTH OF VIRGINIA 

UPON A REHEARING EN BANC 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Thomas N. Nance, Judge 

Steven D. Benjamin (Betty Layne DesPortes; 

Benjamin & DesPortes, P.C., on briefs), for 

appellant. 

Virginia B. Theisen, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

Amicus Curiae: American Civil Liberties 

Union of Virginia Foundation, Inc. 

(Rebecca K. Glenberg, on brief), for 

appellant. 

 On October 17, 2000, a panel of this Court affirmed the 

trespass conviction of Kevin Lamont Hicks (appellant). See 

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

Appellant's petition for rehearing en banc was granted and the 

mandate of the October 17, 2000 opinion was stayed. See Hicks 

v. Commonwealth, 34 Va. App. 42, 537 S.E.2d 616 (2000). 

Appellant contends the trial court erred in (1) denying his 
motion to dismiss the prosecution on the grounds that the 

barment-trespass procedure violated his First and Fourteenth 

Amendment rights and (2) denying his motion to remand the case 

to the general district court for trial before a different judge 

of that court and require the Commonwealth's attorney to 

prosecute the case. Upon rehearing en banc, we hold that the 

barment-trespass procedure employed by the City of Richmond in 

the instant case violates the First and Fourteenth Amendments to 

the United States Constitution and, thus, we reverse and dismiss 

the trial court's conviction of appellant. The mandate of the 

October 17, 2000 opinion is hereby vacated. 

I. 

 Whitcomb Court is a housing project owned by the Richmond 

Redevelopment and Housing Authority (RRHA). RRHA sought to 

"privatize" the streets surrounding and adjacent to the Whitcomb 

Court housing project in an effort to make the community safer.1 

 1

 RRHA issued a brochure to the residents explaining the 

goals of street privatization: 

To make communities safer by removing 

persons who commit unlawful acts which 

destroy the peaceful enjoyment of other 

residents 

To ensure that children have places to play 

free of drug paraphernalia and the danger of 

gunshots and other criminal activity. 

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To provide an opportunity for residents to 

develop safety initiatives in their 

community, such as resident patrols, social 

security number property identification, 

neighborhood watch, etc. 
On June 23, 1997 the City of Richmond adopted ordinance No. 

97-181-197 deeding the streets surrounding Whitcomb Court to 

RRHA. The ordinance provided: 

§ 1. That Carmine Street, Bethel Street, 

Ambrose Street, Deforrest Street, the 

2100-2300 Block of Sussex Street and the 

2700-2800 Block of Magnolia Street in 

Whitcomb Court . . . be and are hereby 

closed to public use and travel and 

abandoned as streets of the City of 

Richmond. 

* * * * * * * 

§ 3. The City shall retain a full width 

utility easement in the streets proposed to 

be closed by this ordinance . . . . 

§ 4. The City shall retain a full width 

right of way maintenance easement in the 

streets proposed to be closed by this 

ordinance. 

§ 5. That the aforesaid streets shall be 

designated as public highways for law 

enforcement purposes . . . . 

The streets deeded to Whitcomb Court at issue here were those 

streets surrounding and adjacent to the property owned by RRHA, 

not those contained within Whitcomb Court. Prior to 

"privatization," these streets were similar to all other streets 

in Richmond. After the streets were deeded to RRHA, red and 

white "private property, no trespass" signs were posted 

throughout Whitcomb Court and every "hundred feet on each 

block," informing the public that "these streets are privatized 

 

To hold households who knowingly harbor 

persons who engage in criminal activity 

accountable. 

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and all the property is privatized, no trespass." The signs 

were "approximately 18 inches to almost 24 inches by about 12 

inches." However, the streets were not gated, barricaded, or 

otherwise closed or restricted only to Whitcomb Court traffic. 

The streets remained open to vehicular traffic, and the 

sidewalks were open to access by the public. 

 After the streets were deeded to RRHA, RRHA adopted a 

barment-trespass procedure to prevent any "unauthorized persons" 

from entering the property. On November 13, 1998 the RRHA's 

Director of Housing Operations authorized 

each and every sworn officer of the Richmond 

Police Department to enforce the trespass 

laws of the Commonwealth of Virginia . . . 

[upon RRHA property known as] Whitcomb 

Court. . . . [E]ach and every Richmond 

Police Department officer [is authorized] to 

serve notice, either orally or in writing, 

to any person [found on RRHA 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. 

According to a printed brochure issued by RRHA to the Whitcomb 

Court residents, "unauthorized persons," who are subject to the 

barment proceedings, are all non-residents who cannot 

demonstrate that they are on the premises "visiting a lawfully 

residing resident, or on the development conducting legitimate 

business." 

 The police officer makes the determination whether a person 

is to be barred, determines whether the person is a tenant or is 

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there at the invitation of a tenant, or whether there is a 

legitimate reason for being on the property. A person simply 

has to fail to fit within the category of people whom RRHA has 

deemed entitled to be on the streets and sidewalks adjacent to 

the public housing development to be barred. Once barred, the 

person who returns is a trespasser without regard to whether, on 

that subsequent occasion, he or she is there on legitimate 

business or at the invitation of a Whitcomb Court tenant. 

 Hicks was convicted of trespassing on the property of 

Whitcomb Court on February 10, 1998 and June 26, 1998, 

respectively, and of damaging property in Whitcomb Court on 

April 27, 1998.2 On April 14, 1998, Mrs. Gloria Rogers, the 

housing manager at Whitcomb Court, served a written notice on 

Hicks advising him that he was banned from the Whitcomb Court 

property. He was "not to trespass on RRHA property," and if he 

was "seen or caught on the premises, [he would] be subject to 

arrest by the police." Hicks' mother, his baby, and his baby's 

mother live at Whitcomb Court. After receiving the notice, 

Hicks twice returned to Whitcomb Court to speak with Mrs. Rogers 

to seek permission to come back on the property. His requests 

were denied. On January 20, 1999, Officer James Laino (Laino) 

observed Hicks walking westbound in the 2300 block of Bethel 

Street, one of the "privatized" streets adjacent to Whitcomb 

 

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2

 Appellant's barment from Whitcomb Court is not related to 

his damaging property at Whitcomb Court. 
Court. Laino knew that Hicks was barred from the property. 

Hicks explained to Laino that he was on the property "bringing 

pampers to his baby." During the conversation, a female came 

out and approached Laino and Hicks. Hicks indicated he was 

visiting her. Laino issued Hicks a summons for trespassing. 

 Hicks was tried in the general district court without the 

presence of a Commonwealth's attorney. The district court judge 

conducted the questioning of Hicks. Hicks objected to this 

procedure. The judge struck Hicks' testimony at the end of the 

trial and convicted him. Hicks noted an appeal to the circuit 

court. 

 Prior to trial in the circuit court, Hicks filed a motion 

requesting a remand to the general district court for a new 

trial and an order requiring a Commonwealth's attorney to be 

present and to represent the Commonwealth at this new general 

district court trial. The circuit court denied the motion on 

the ground that it lacked authority to remand the trial. Hicks 

also moved to dismiss the charge of trespass on the ground that 

the RRHA's trespass policy violated the First and Fourteenth 

Amendments to the United States Constitution. The circuit court 

denied his motion to dismiss and found Hicks guilty of trespass. 

II. CONSTITUTIONALITY OF RICHMOND ORDINANCE 

 Appellant argues that Richmond City Ordinance No. 

97-181-197 and the RRHA barment-trespass procedure violate the 

First and Fourteenth Amendments of the United States 

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Constitution.3 Thus, we must determine whether the First and 

Fourteenth Amendments are violated by the trespass statute as 

enforced under authority granted by RRHA to Richmond City police 

officers to bar people on the streets surrounding and adjacent 

to Whitcomb Court and who do not fit within a narrowly defined 

group of people. The critical issue is whether the "privatized" 

streets and sidewalks are public and as such are a "traditional 

public forum," or whether they are "private" and, thereby, a 

"nonpublic forum." If they are "traditional public forum," then 

the barment-trespass procedure must satisfy the strict scrutiny 

requirement that the procedure be narrowly tailored to serve a 

compelling state interest. See Daniel v. City of Tampa, 38 F.3d 

546 (11th Cir. 1994). 

A. "PUBLIC FORUM" 

 The constitutionality of government regulation of First 

Amendment rights is analyzed under a public fora analysis. See 

Warren v. Fairfax County, 196 F.3d 186, 190 (4th Cir. 1999). 

 3

 The Commonwealth argues that appellant is barred from 

contesting the validity of the barment-trespass procedure 

because he did not present a defense to his presence on RRHA 

property or challenge his original barment notice or the 

barment-trespass procedure itself prior to being charged with 

trespass on January 20, 1999. Therefore the Commonwealth argues 

that he is improperly collaterally attacking his conviction. We 

disagree. Prior to his trial for this trespass charge, 

appellant challenged the barment-trespass procedure as 

unconstitutional. At trial, appellant's defense to the trespass 

charge was that the barment-trespass procedure violated his 

constitutional rights and, thus, he could not be guilty of 

trespass because he had a constitutional right to be walking on 

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The public forum analysis was created to 

recognize that the government must be able 

to limit the use of its property to the 

intended purpose for which the property was 

created and to limit access to those 

rightfully conducting business there. 

Toward that end, the Court has identified at 

least three types of fora for First 

Amendment purposes, each subject to a 

different regime of constitutional scrutiny: 

the traditional public forum, the designated 

public forum, and the nonpublic forum. The 

Court distinguishes between these fora based 

upon the physical characteristics of the 

property, including its location, the 

objective use and purposes of the property 

and government intent and policy with 

respect to the property, which may be 

evidenced by its historic and traditional 

treatment. 

Id. at 190-91 (internal citations omitted). Public streets and 

sidewalks are repeatedly referred to as the archetype of a 

traditional public forum because they "are among those areas of 

public property that traditionally have been held open to the 

public for expressive activities and are clearly within those 

areas of public property that may be considered, generally 

without further inquiry, to be public forum property." United 

States v. Grace, 461 U.S. 171, 179 (1983). 

Wherever the title of streets and parks may 

rest, they have immemorially been held in 

trust for the use of the public and, time 

out of mind, have been used for purposes of 

assembly, communicating thoughts between 

citizens, and discussing public questions. 

Such use of the streets and public places 

has, from ancient times, been a part of the 

privileges, immunities, rights, and 

 

 - 8 - 

Bethel Street. Thus, we find that appellant timely raised the 

issue of the validity of the barment-trespass procedure. 
liberties of citizens. The privilege of a 

citizen of the United States to use the 

streets and parks for communication of views 

on national questions may be regulated in 

the interest of all; it is not absolute, but 

relative, and must be exercised in 

subordination to the general comfort and 

convenience, and in consonance with peace 

and good order; but it must not, in the 

guise of regulation, be abridged or denied. 

Hague v. Committee for Industrial Organization, 307 U.S. 496, 

515-16 (1939). 

 "Ownership [of streets and sidewalks] does not always mean 

absolute dominion." Marsh v. Alabama, 326 U.S. 501, 506 (1946) 

(holding that privately owned streets and sidewalks in a company 

owned town which are built and operated primarily to benefit the 

public are traditional public forums that are protected by First 

Amendment constitutional guarantees). In Grace, 461 U.S. 171, 

the United States Supreme Court addressed the ability of the 

government to redefine certain public sidewalks in front of the 

United States Supreme Court Building as a non-public forum. 

There was no separation, fence or any other indication to 

persons entering the sidewalks that served as the perimeter of 

the Court grounds that they entered a non-public forum. "The 

sidewalks comprising the outer boundaries of the Court grounds 

are indistinguishable from any other sidewalks in Washington 

D.C., and . . . [there is] no reason why they should be treated 

any differently." Id. at 179. The Court held that: 

"Congress[, no more than a suburban 

township,] may not by its own ipse dixit

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destroy the 'public forum' status of streets 

and parks which have historically been 

public forums. . . ." The inclusion of the 

public sidewalks within the scope of § 13k's 

prohibition, however, results in the 

destruction of public forum status that is 

at least presumptively impermissible. 

Traditional public forum property occupies a 

special position in terms of First Amendment 

protection and will not lose its 

historically recognized character for the 

reason that it abuts government property 

that has been dedicated to a use other than 

as a forum for public expression. Nor may 

the government transform the character of 

the property by the expedient of including 

it within the statutory definition of what 

might be considered a non-public forum 

parcel of property. 

Id. at 180 (quoting U.S. Postal Service v. Greenburgh Civic 

Ass'ns, 453 U.S. 114, 133 (1981) (quotation altered to reflect 

original wording). 

 As in Grace, the streets surrounding Whitcomb Court deeded 

to RRHA were not separated in any manner from the other streets 

and sidewalks in the area. The sole indication to the public 

that they have entered a "private" street are "red and white 

signs . . . approximately 18 inches to almost 24 inches by about 

12 inches . . . spaced about every hundred feet on each block" 

and on each building indicating that "these streets are 

privatized and all the property is privatized, no trespass." 

There is no indication to the public until after they enter onto 

the "privatized" streets that the streets are any different from 

the rest of the streets in the city and are now private 

property. Some of the "privatized" streets are "private" for 

 - 10 - 
only a couple of blocks and are public on both ends of the 

"privatized" blocks. Thus, although the street signs declare 

the streets "private" and for the exclusive use of residents and 

those persons there on legitimate business, the streets and 

sidewalks continue to serve the same functions and are equally 

accessible to the public as before the City of Richmond passed 

the ordinance "privatizing" the streets. 

 Once a person has entered a "privatized" street he or she 

is subject to the barment-trespass procedure. A trespasser who 

receives a warning is informed that he or she is "not to 

trespass upon RRHA property" or "Whitcomb Court." However, the 

warning does not inform the person that the streets and 

sidewalks surrounding the complex are a part of RRHA property. 

 Because the streets appear no different from other streets 

in Richmond and serve the same function they did prior to 

"privatization," "we can discern no reason why they should be 

treated any differently" from any other street or sidewalk. 

Grace, 461 U.S. at 179. The City of Richmond is not permitted 

to transform the public streets and sidewalks in Whitcomb Court 

into private, non-public property simply by passing an ordinance 

declaring them closed, conveying them to another governmental 

entity, the RRHA, and placing signs along the streets. See 

Marsh, 326 U.S. 501; Grace, 461 U.S. 171. Thus, the streets and 

sidewalks surrounding Whitcomb Court did not lose their public 

forum status when the City of Richmond deeded them to the RRHA 

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and put some signs on the street indicating they were now 

private property. Hence, the barment-trespass procedure must 

satisfy the rigors of strict scrutiny to pass constitutional 

muster. 

 The Commonwealth argues that our prior decisions in Collins 

v. Commonwealth, 30 Va. App. 443, 517 S.E.2d 277 (1999), and 

Holland v. Commonwealth, 28 Va. App. 67, 502 S.E.2d 145 (1998), 

allow housing authorities to restrict access to their property 

and designate police officers to serve barment notices and 

arrest persons trespassing on housing authority property. We 

have previously approved a process by which police officers may 

be designated as agents of a housing authority to serve barment 

notices on persons trespassing on housing authority property, 

see Collins, 30 Va. App. at 449, 517 S.E.2d at 280; Holland, 28 

Va. App. at 70-76, 502 S.E.2d at 146-49. However, what 

distinguishes this case from those is that Hicks was found 

guilty of trespass for having gone upon Bethel Street and the 

adjacent sidewalk, whereas in both Holland and Collins, the 

defendants were on the non-public grounds and in the buildings 

of the housing authority. 

 The Commonwealth also contends that we should follow the 

Eleventh Circuit's decision in Daniel, 38 F.3d 546. The Daniel

court authorized a housing authority to enforce a no trespassing 

policy identical to the one at issue in the instant case. 

However, unlike the instant case, in Daniel, "the City-owned 

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streets and sidewalks surrounding and intersecting with the 

Housing Authority property [were] open to the public" and Daniel 

had "unlimited access to the City-owned streets and sidewalks 

adjacent to the housing complex." Id. at 548 n.3 & 550; see 

also Walker v. Georgetown Hous. Auth., 677 N.E.2d 1125, 1128 

(Mass. 1997) (calling into question the reasoning of the Daniel

court and the applicability of the ruling to streets and 

sidewalks that were kept "open to the public"). Thus, in 

Daniel, the no trespassing policy was limited to the non-public 

forum consisting of the housing authority's buildings and 

grounds and did not include the adjacent streets and sidewalks 

as the RRHA policy does in the instant case. Bethel Street is a 

public street that was built and maintained with public funds to 

provide access by the public to that part of Richmond. As with 

all public streets and thoroughfares, historically and 

traditionally public streets have served as a locale for the 

free exchange and dissemination of ideas and have served as an 

area where citizens can freely and lawfully congregate or move 

about and exchange discourse. 

 The fact that legal title to the streets is transferred 

from a municipal government to a government agency which owns 

and operates a public housing development does not change the 

public nature and character of the streets and sidewalks which 

provide access to the public to this part of the City. See

Marsh, 326 U.S. 501. The City cannot transform the public 

 - 13 - 
streets surrounding Whitcomb Court into non-public streets by 

declaring them closed by ordinance and conveying them to another 

governmental entity when they continue to serve the same public 

purpose as before. 

B. "STRICT SCRUTINY" 

 Therefore, the City of Richmond's and RRHA's attempt to 

control access to and movement upon the streets and sidewalks of 

the city is "subject to strict scrutiny; [it] must be narrowly 

tailored to serve [the] compelling state interest" of providing 

safe housing to the development's residents. Daniel, 38 F.3d at 

549. The stated goal of the RRHA barment-trespass procedure is 

to ensure a safe environment free from criminal activity for the 

residents of Whitcomb Court. We agree that the City of Richmond 

has a compelling interest in protecting its citizens and 

preventing criminal activity. However, it may not, in its 

endeavor to control crime, pass and enforce a regulation so 

broad in scope that it unduly restricts or criminalizes innocent 

constitutionally protected behavior. 

 The barment-trespass procedure used in this case inhibits a 

person's constitutionally protected "'right to remove from one 

place to another according to inclination'" and the person's 

right to "remain in a public place of his choice." Chicago v. 

Morales, 527 U.S. 41, 53, 54 (1999) (quoting Williams v. Fears, 

179 U.S. 270, 274 (1900)). In Morales, the United States 

Supreme Court held that a city ordinance designed to reduce 

 - 14 - 
crime by criminalizing "loitering" violates the Constitution. 

The Court stated that "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'" and the 

ordinance "broadly covers a significant amount" of activity that 

is constitutionally protected. Id. at 53-54 (internal citations 

ommitted). The City of Richmond and RRHA barment-trespass 

procedure also prevents a person from standing upon the streets 

surrounding Whitcomb Court without a "legitimate reason." Thus, 

it implicates the same concerns addressed in Morales. 

 The barment-trespass procedure is not limited so as to 

encompass only those persons whose conduct the City and RRHA 

were seeking to curtail. The procedure is so broad that 

citizens who merely drive or walk upon one of the "privatized" 

streets fall within the defined group of people not authorized 

by the barment procedure to be upon the streets and sidewalks 

and, thus, may be deemed guilty of criminal conduct. A citizen 

need not commit a crime, intend to commit a crime or infringe 

upon the privacy of the residents of Whitcomb Court to be in 

violation of the barment-trespass statute and ordinance. The 

Commonwealth presented no evidence that appellant did anything 

other than exercise his constitutionally protected right to walk 

upon the streets and sidewalks of the City of Richmond. 

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Perhaps, had Bethel Street been gated, barricaded, or physically 

restricted to traffic where the public was not free to travel, 

as with gated communities, the street could be considered 

non-public and not a "traditional public forum." But the City 

can no more "close" the streets in Whitcomb Court and leave them 

open to the public, thereby purporting to make them a 

"non-public forum," than it could declare "closed" all streets 

in Richmond's troubled neighborhoods and residential areas, 

thereby denying access to all citizens except the residents and 

their invitees and others specifically approved. Neighborhood 

streets, such as those in Whitcomb Court, are public streets, 

paid for and maintained with public funds, for the use and 

benefit of the public. 

 While a public entity can restrict the use of public 

property or buildings to those who are using the property for 

its intended "non-public" purpose, such as an office building, 

it cannot restrict public property that is considered a 

"traditional public forum," such as a street or sidewalk, that 

is being used in a lawful way and for a lawful purpose that is 

constitutionally protected. See United States v. Kokinda, 497 

U.S. 720, 727 (1990) (holding that sidewalk in front of a post 

office "constructed solely to provide for the passage of 

individuals engaged in postal business" is a non-public forum). 

Here, in effect, the City and RRHA, by converting the streets 

and sidewalks to private property, attempted to confer upon RRHA 

 - 16 - 
the same rights as a private property owner who may restrict 

everyone from coming upon the private property owner's property 

except the owner's tenants and the tenants' invitees, regardless 

of whether the invitees had done anything unlawful. However, 

the United States Supreme Court has held that even a private 

entity which owns the entire town cannot close the streets to 

deny the public their constitutional rights. See Marsh, 326 

U.S. at 506. Therefore, the barment-trespass procedure at issue 

here is not narrowly tailored to encompass only those activities 

the RRHA sought to exclude from their property. 

III. CONCLUSION 

 Thus, we hold that Richmond's barment-trespass procedure, 

when strictly scrutinized, is not narrowly tailored to serve the 

government's compelling interest, the standard that must be met 

when the government attempts to regulate activity in a 

"traditional public forum."4 The RRHA's privatization effort 

unconstitutionally infringes upon a citizen's First and 

Fourteenth Amendment rights to lawfully be present in a public 

place. Accordingly, we hold that city ordinance No. 91-181-197 

as enforced through the barment-trespass procedure is 

 4

 In his petition for appeal, appellant also requested this 

Court to set aside the order revoking his suspended sentences on 

his two prior convictions for trespassing at Whitcomb Court and 

his prior conviction for damaging property at Whitcomb Court. 

However, appellant did not pursue this on brief or in oral 

argument. Therefore, we remand this case to the circuit court to 

reconsider the revocation of his suspended sentences in light of 

our holding in this opinion. 

 - 17 - 
unconstitutional and we reverse and dismiss appellant's 

conviction.5

 Reversed and dismissed in part,

reversed and remanded in part.

 

 - 18 - 

5

 Because we reverse on the failure of the City of Richmond 

to establish the constitutionality of the barment-trespass 

procedure, we do not address appellant's arguments regarding 

errors in the general district court proceedings or whether the 

barment-trespass procedure violated the procedural due process 

requirements of the Fourteenth Amendment. 
Humphreys, J., with whom Willis, Bray, Bumgardner and Agee, 

 JJ., join, dissenting. 

I. Constitutional Issues

 I must respectfully dissent from the majority opinion, 

which holds that the Richmond Redevelopment and Housing 

Authority's (RRHA) barment proceeding and trespass policy 

violate the First and Fourteenth Amendments of the United States 

Constitution. 

 First, I do not agree that Hicks properly raised his 

objections to RRHA's barment procedures. Hicks concedes that 

the RRHA provided him with a barment notice on April 14, 1998. 

This barment notice was issued to Hicks pursuant to a valid 

ordinance adopted by the City of Richmond, both requiring and 

authorizing RRHA to take any necessary steps to "give the 

appearance that the closed streets . . . are no longer public 

streets and that they are in fact private streets." The notice, 

which Hicks signed in acknowledgment of its receipt, 

specifically prohibited Hicks from entering onto RRHA premises 

for any reason. 

 Subsequently, on at least one occasion, Hicks approached 

the housing manager for the Whitcomb Court property, Gloria 

Rogers, to request that he be able to visit his mother, a 

resident of that property. Rogers denied his request and again 

informed him that he was barred from entering the property 

pursuant to the barment notice. However, other than speaking to 

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Rogers, Hicks took no steps to appeal his barment through 

official channels of the Authority or the courts. Instead, he 

ignored the barment and was arrested and convicted for 

trespassing, as well as for damaging property in Whitcomb Court, 

prior to his arrest for the incident of January 20, 1999. In 

addition, for this prior trespass conviction, Hicks received a 

suspended sentence on the court-ordered condition that he keep 

the peace and be of good behavior for three years. However, 

Hicks continued to ignore the barment notice, as well as the 

court order, and trespassed again on January 20, 1999. Now, for 

the first time, in connection with his conviction for the 

January 20, 1999 trespass, Hicks argues that the barment 

violated his constitutional rights under the First and 

Fourteenth Amendments. 

 Hicks' arguments in this regard represent an untimely and 

improper collateral attack on his barment status. We have held, 

in the context of an habitual offender adjudication, that where 

a defendant has knowledge of an underlying order, never appeals 

the order, and subsequently violates the order, he cannot attack 

the underlying order in the new proceeding. See Morgan v. 

Commonwealth, 28 Va. App. 645, 507 S.E.2d 665 (1998). We based 

our decision in Morgan on Mays v. Harris, 523 F.2d 1258 (4th 

Cir. 1975), wherein the Fourth Circuit Court of Appeals held 

that an habitual offender who failed to appeal the underlying 

conviction, could not, with impunity, choose to ignore the 

 - 20 - 
adjudication and resulting injunction "for, . . . 'in the fair 

administration of justice, no man can be judge in his own 

case.'" Id. at 1259 (quoting Walker v. Birmingham, 388 U.S. 

307, 321 (1967) (holding that a party can be held in contempt of 

court for violating an injunction, even if the injunction was 

invalid under the Federal Constitution)). 

 I believe the principle advanced in Walker, Mays and Morgan

is equally applicable to this case. Here, Hicks was barred from 

the property pursuant to authority granted RRHA by ordinance 

which, in turn, provided an administrative procedure for 

contesting such barment. Hicks had knowledge of his barment 

from the property, he had been previously convicted of 

trespassing on the property prior to his trial for the 

trespassing incident of January 20, 1999, and in conjunction 

with that conviction, he had been ordered by the court to 

maintain good behavior for three years. Despite the opportunity 

presented by the prior court proceedings, as well as the 

availability of an administrative appellate procedure, Hicks 

raised no objection to the propriety of the barment until his 

trial for the January 20, 1999 incident. Pursuant to the 

principles set forth in the above-cited cases, I do not believe 

Hicks should be allowed to have bypassed "orderly judicial 

review of [the barment and his prior trespassing convictions] 

before disobeying [them]." Walker, 388 U.S. at 320. 

 - 21 - 
 I would also reject Hicks' challenges to the 

constitutionality of RRHA's policy. "In assessing the 

constitutionality of a statute or ordinance, courts must presume 

that the legislative action is valid. Consequently, the burden 

is on the challenger to demonstrate the constitutional defect." 

Coleman v. City of Richmond, 5 Va. App. 459, 462, 364 S.E.2d 

239, 241 (1988). I would hold that Hicks failed to meet this 

burden. 

Hicks essentially argues, on brief and orally, that because 

the streets of Whitcomb Court were once public streets and 

sidewalks owned by the City of Richmond, any statute restricting 

his presence thereon is unconstitutionally overbroad or vague. 

Hicks further alleges that because the policy is overbroad and 

vague, it impinges upon his First Amendment guarantees of free 

speech and implied guarantee of free association, as well as his 

Fourteenth Amendment due process protections. 

 "[G]enerally, a litigant may challenge the 

constitutionality of a law only as it applies to him or her." 

Id. at 463, 364 S.E.2d at 241. "The traditional rule is that a 

person to whom a [policy] may be constitutionally applied may 

not challenge that [policy] on the ground that it may 

conceivably be applied unconstitutionally to others in 

situations not before the Court." New York v. Ferber, 458 U.S. 

747, 769 (1982). Yet, 

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[w]hat has come to be known as the First 

Amendment overbreadth doctrine is one of the 

few exceptions to this principle and must be 

justified by weighty countervailing 

policies. The doctrine is predicated on the 

sensitive nature of protected expression 

. . . [and] [i]t is for this reason that we 

have allowed persons to attack overly broad 

statutes even though the conduct of the 

person making the attack is clearly 

unprotected and could be proscribed by a law 

drawn with the requisite specificity. 

Id. The United States Supreme Court has also allowed a facial 

attack on the grounds of vagueness even though the litigant's 

own speech was unprotected. See Kolender v. Lawson, 461 U.S. 

352 (1983). 

 Nevertheless, "where conduct and not merely speech is 

involved, . . . the overbreadth of a statute must not only be 

real, but substantial as well, judged in relation to the 

[policy's] plainly legitimate sweep." Ferber, 458 U.S. at 770. 

This distinction is ignored by the majority. "We have never 

held that a [policy] should be invalid on its face merely 

because it is possible to conceive of a single impermissible 

application . . . ." Id. at 771. Instead, "[i]n 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." 

Houston v. Hill, 482 U.S. 451, 458 (1987). 

A policy will be deemed unconstitutionally overbroad if it 

is "one that is designed to burden or punish activities which 

 - 23 - 
are not constitutionally protected, but the [policy] includes 

within its scope activities which are protected by the First 

Amendment." Parker v. Commonwealth, 24 Va. App. 681, 690, 485 

S.E.2d 150, 154-55 (1997). A policy will be deemed 

unconstitutionally vague if "it does not define the criminal 

offense with sufficient definiteness that ordinary people can 

understand what conduct is prohibited and in a manner that does 

not encourage arbitrary and discriminatory enforcement." 

Santillo v. Commonwealth, 30 Va. App. 470, 482, 517 S.E.2d 733, 

739 (1999) (citation omitted). 

 It is axiomatic that in making such a determination, an 

appellate court should refrain from speculation outside of the 

record before it. Here, contrary to Hicks' argument, the policy 

clearly does not bar individuals from freely associating with 

their friends or loved ones living on RRHA property, nor does it 

prohibit persons from exercising free expression. Further, the 

policy does not automatically delineate every non-resident who 

uses a sidewalk owned by RRHA to be a trespasser, as suggested 

by the majority. Instead, it merely authorizes the Richmond 

police, as agents of the RRHA, to ban persons from the property 

who enter upon the property without permission from a resident 

or the RRHA. Significantly, any unauthorized individuals are 

not automatically arrested, but they are warned that they are 

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not to enter the property in the future.6 Further, those who 

have been formally banned from the property are not without 

recourse and can request, through the proper RRHA channels, to 

have the ban removed. 

 Thus, I would consider this policy as a "paradigmatic case 

of [one] whose legitimate reach dwarfs its arguably 

impermissible applications." Ferber, 458 U.S. at 773. Under 

these circumstances, I would find that the policy is not 

"substantially overbroad" and/or vague and that "whatever 

overbreadth [or vagueness] may exist should be cured through a 

case-by-case analysis of the fact situations to which its 

sanctions, assertedly, may not be applied." Broadrick v. 

Oklahoma, 413 U.S. 601, 615-16 (1973). 

 The majority has found that the Whitcomb Court property is 

a traditional public forum simply because the property in 

question is a sidewalk adjoining a street constructed and once 

owned by the City of Richmond. However, neither the evidence in 

this record nor the precedents of the United States Supreme 

Court compel such a finding. I agree that "[t]he Supreme Court 

has adopted a forum analysis as a means of determining when the 

Government's interest in limiting the use of its property to its 

intended purpose outweighs the interest of those wishing to use 

 

 - 25 - 

6

 Contrary to the majority's statement otherwise, Hicks 

presented no evidence suggesting that the warning does not 

inform persons that the streets and sidewalks surrounding the 

complex are part of RRHA property. 
the property for other purposes. Accordingly, the extent to 

which the Government can control access depends on the nature of 

the relevant forum." Paff v. Kaltenbach, 204 F.3d 425, 431 (3rd

Cir. 2000) (citing Cornelius v. NAACP Legal Defense & 

Educational Fund, Inc., 473 U.S. 788, 800 (1985)). However, 

"[w]hen the relevant public property is determined to be a 

'non-public forum,' rather than an 'open forum' or a 'designated 

forum,' the government has greater freedom to restrict speech." 

Id.

 A traditional public forum is property which has the 

physical characteristics of a public thoroughfare, which has the 

objective use and purpose of open public access or some other 

objective use and purpose inherently compatible with expressive 

conduct, and by which history and tradition has been used for 

expressive conduct. See Warren v. Fairfax County, 169 F.3d 190, 

198 (4th Cir. 1999) (Murnaghan, J., dissenting), adopted and 

incorporated by reference by the majority in Warren v. Fairfax 

County, 196 F.3d 186, 191 (4th Cir. 1999) (en banc). As the 

majority also correctly points out, a sidewalk adjoining a 

public street will generally fall into this category. See

Frisby v. Schultz, 478 U.S. 474, 481 (1988). However, the 

sidewalk at issue here is not the "quintessential" public 

sidewalk which has been "immemorially held in trust for the use 

of the public," or which has been traditionally "used for public 

assembly and debate, the hallmarks of a traditional public 

 - 26 - 
forum." See Frisby, 478 U.S. at 480-81; see also United States 

v. Grace, 461 U.S. 171, 179-80 (1983) (instructing that it is 

incorrect to assert that every "public sidewalk" is a public 

forum). 

 While it is true that the City of Richmond cannot transform 

public streets and sidewalks into private, non-public property 

simply by passing an ordinance declaring them private or closed 

property, this is but one factor to consider in determining the 

nature of the sidewalks at issue. See Marsh v. Alabama, 326 

U.S. 501 (1946); see also United States v. Kokinda, 497 U.S. 

720, 727 (1990). Moreover, contrary to the majority's 

conclusion, "[t]he mere physical characteristics of the property 

cannot dictate forum analysis." Kokinda, 497 U.S. at 727. 

Instead, we must also consider the location and purpose of the 

sidewalk, in order to determine its character as public or 

private. See id. at 728-29. 

 I agree with the majority that a "critical issue" is also 

whether the privatized streets continue in their previous 

character as a traditional public forum. However, contrary to 

the majority, I would find that neither the purpose, the 

treatment, nor the physical characteristics of the Whitcomb 

Court sidewalks support the majority's conclusion that they fall 

within the parameters of a traditional public forum. 

 First, the Whitcomb Court property, including its streets 

and sidewalks, has been deeded from the City to the RRHA. 

 - 27 - 
Although ignored by the majority, a condition for the closure of 

the streets by the City required RRHA to "make provisions to 

give the appearance that the closed streets, particularly at the 

entrances, [were] no longer public streets and that they [were] 

in fact, private streets." In order to meet this requirement, 

although the streets and sidewalks of the development were not 

physically barricaded, RRHA posted red and white signs, 

"approximately 18 inches to almost 24 inches by about 12 inches" 

in size, on each side of the buildings, as well as on the 

streets of the property, on each block, about every 100 feet. 

These signs clearly indicated that the street and sidewalks had 

been privatized and that trespassing was prohibited.7 The record 

further indicates that RRHA held meetings with residents and 

provided pamphlets explaining the privatization. The pamphlet 

encouraged residents to explain the privatization to their 

neighbors and guests in order to facilitate the change. 

Finally, for at least a year prior to Hicks' present arrest, 

RRHA and the Richmond police treated the property as private 

property by determining whether visitors were authorized and by 

banning unauthorized persons from the property. 

In concluding that "[t]here is no indication to the public 

until after they enter onto the 'privatized' streets that [they] 

 7

 Officer Llaino testified to the size, number and location 

of the signs and that the substance of the message on the signs 

was that "all the property had been privatized and that

trespass[ing was] prohibited." This evidence was uncontradicted. 

 - 28 - 
are any different from the rest of the streets in the city," the 

majority both improperly assumes a fact-finding function outside 

the record in this case and improperly shifts the burden of 

proof concerning the character of the forum away from Hicks. A 

review of the character of the "privatized" streets and 

sidewalks, restricted to the record of the trial court, reveals 

that other than exceptions for school buses, delivery trucks, 

city service vehicles and law enforcement, there is absolutely 

no evidence that the streets and/or sidewalks of the Whitcomb 

Court property remained open to a public flow of traffic, as the 

majority suggests. Furthermore, even though sidewalks "may be 

open to the public, [that] fact alone does not establish that 

such areas must be treated as traditional public fora under the 

First Amendment." Kokinda, 497 U.S. at 729. 

Thus, given the clear intent by the City of Richmond to 

remove the streets of Whitcomb Court from the category of 

thoroughfares available for use by the general public and given 

the notice to the residents and the public at large in the form 

of repeated and obvious signage that the streets and sidewalks 

were no longer "public" in character, I would hold that the 

restrictions imposed by RRHA must be analyzed under the test for 

non-public property: they must be reasonable and "not an effort 

to suppress expression merely because public officials oppose 

 

 - 29 - 
the speaker's view." Id. at 730 (citing Perry Education Assn. 

v. Perry Local Educators' Assn., 460 U.S. 37, 46 (1983)). 

 There is no dispute here that the stated purpose for RRHA's 

trespassing enforcement effort, which was to "provide a safe 

environment for citizens in a place often used to sell drugs," 

is reasonable and legitimate. In fact, we have previously 

upheld the delegation of authority by a public housing complex 

to police officers to bar unauthorized individuals from the 

property for the purpose of preventing crime, protecting 

property and preserving the peace. See Holland v. Commonwealth, 

28 Va. App. 67, 502 S.E.2d 145 (1998). 

 Moreover, as stated above, the record is clear that a 

person is not considered "unauthorized" until he or she has 

entered the property without the permission of either a resident 

or an RRHA official. Even then, and notwithstanding numerous 

and obvious signs that acquaint anyone able to read that the 

character of the property is private and not public, unless the 

individual is engaged in some type of criminal activity, that 

individual is not formally barred from the property until after 

he or she has been warned not to enter the property without 

permission. Once an individual is barred from the property, a 

procedure is available to request removal of the barment. 

Further, Hicks produced no evidence that either RRHA or the 

Richmond police have ever banned any form of expression based on 

its content. 

 - 30 - 
 Based on this record, I would find that any potential 

interference with an individual's right of expression and/or 

intimate association with residents of Whitcomb Court, or to 

"loiter" on the property, which, although publicly owned, in my 

judgment constitutes a "non-public forum" for First Amendment 

purposes, is reasonable, limited and justified to achieve the 

legitimate purpose of protecting these residents from crime. 

Therefore, I would hold that Hicks' conduct at the time of his 

arrest - namely, knowingly trespassing on private property - was 

not constitutionally protected. 

II. Motion to Remand

Because I would hold that RRHA's barment proceeding and 

trespass policy with respect to Hicks do not violate the First 

and Fourteenth Amendments, I would address the remaining 

assignment of error. 

Hicks argues that he was entitled to have his case remanded 

to the general district court for a new trial before another 

judge because the judge of that court who presided over the 

initial trial improperly assumed the role of a prosecutor by 

"cross-examining" him. 

The Supreme Court of Virginia has long held that there is 

no inherent damage to a fair trial when a judge asks questions 

of a witness. 

[A] trial judge [may] ask questions of a 

witness either on his examination in chief 

or on cross-examination. The practice is 

 - 31 - 
common and perfectly permissible. Indeed, 

there are times when it is his duty to do 

so. He is not to sit there and see a 

failure of justice on account of omissions 

to prove facts plainly within the knowledge 

of a witness, but the character of his 

questions should not be such as to disclose 

bias on his part, or to discredit the 

truthfulness of the witness. "For the 

purpose of eliciting evidence which has not 

otherwise been brought out, it is proper for 

the judge to put the questions to a witness 

either on his examination in chief or on his 

cross-examination, and where anything 

material has been omitted, it is sometimes 

his duty to examine a witness." 

Mazer v. Commonwealth, 142 Va. 649, 655, 128 S.E. 514, 516 

(1925) (citations omitted). 

 In addition, we have held that "the trial court, in the 

exercise of its sound discretion, may permit jurors to submit 

written questions to be asked of a witness." Williams v. 

Commonwealth, 24 Va. App. 577, 582, 484 S.E.2d 153, 155 (1997). 

We also noted in Williams that "[t]he function of a jury is to 

assure a fair and equitable resolution of all factual issues. 

The jury serves as the final arbiter of the facts, 'charged with 

weighing the evidence, judging the credibility of the witnesses, 

and reaching a verdict' in the case." Id. at 582, 484 S.E.2d at 

155. This function belongs no less to the court when serving as 

the fact finder. We need not determine here whether the general 

district court judge's questions demonstrated an inappropriate 

bias or prejudice because the court granted Hicks' motion to 

strike the questions as well as his answers. 

 - 32 - 
In addition, the remedy provided to any defendant in a 

criminal case who perceives error on the part of a trial court 

is to exercise the right to appeal the matter to a higher 

tribunal. In the context of misdemeanors tried in the district 

courts, the General Assembly has established a right to a trial 

de novo in the circuit court.8 A de novo hearing means a trial 

anew. On appeal, a conviction in the district court is 

annulled, and a new trial is held in the circuit court. See

Ledbetter v. Commonwealth, 18 Va. App. 805, 447 S.E.2d 250 

(1994). 

While it would clearly be preferable and in its interest 

for the Commonwealth to be represented by counsel in every case 

in which it is a party, the General Assembly has declined to 

mandate such representation. Code § 15.2-1627(B) recites the 

duties of Commonwealth's Attorneys and their assistants.9 This 

statute only requires Commonwealth's Attorneys to prosecute 

 8

 Code § 16.1-136 provides in pertinent part: "Any appeal 

taken under the provisions of this chapter shall be heard de 

novo in the appellate court and shall be tried without formal 

pleadings in writing; and, . . . the accused shall be entitled 

to trial by a jury in the same manner as if he had been indicted 

for the offense in the circuit court." 

9

 Code § 15.2-1627(B) provides in pertinent part: "The 

attorney for the Commonwealth . . . shall have the duties and 

powers imposed upon him by general law, including the duty of 

prosecuting all warrants, indictments or informations charging a 

felony, and he may in his discretion, prosecute Class 1, 2 and 3 

misdemeanors, or any other violation, the conviction of which 

carries a penalty of confinement in jail, or a fine of $500 or 

more, or both . . . ." 

 - 33 - 
felonies and provides that a prosecutor "may in his discretion, 

prosecute Class 1, 2 and 3 misdemeanors." Thus, the General 

Assembly decided as a matter of policy to place the discretion 

for the representation of the Commonwealth in misdemeanor cases 

in the hands of the executive branch rather than the judicial 

branch of government. 

Hicks relies on the decision of the Supreme Court of the 

United States in Ward v. Village of Monroeville, 409 U.S. 57 

(1972), as authority for his argument that a trial de novo does 

not cure errors committed in a lower court. I find his reliance 

on Ward is misplaced. In Ward, the Supreme Court addressed a 

systemic problem of bias inherent in the infrastructure of local 

mayors' courts. There, mayors of villages sat as judges in the 

courts, and a major portion of village income was derived from 

the collection of these fines. In finding that such a scheme 

violates the due process rights of criminal defendants in the 

mayors' courts, Justice Brennan noted that the constitutional 

infirmity was grounded in the separation of powers doctrine. 

Although "the mere union of the 

executive power and the judicial power in 

him cannot be said to violate due process of 

law," the test is whether the mayor's 

situation is one "which would offer a 

possible temptation to the average man as a 

judge to forget the burden of proof required 

to convict the defendant, or which might 

lead him not to hold the balance nice, clear 

and true between the State and the accused." 

Plainly that "possible temptation" may also 

exist when the mayor's executive 

responsibilities for village finances may 

 - 34 - 
make him partisan to maintain the high level 

of contribution from the mayor's court. 

Id. at 60 (citations omitted). 

Hicks does not allege, nor do I find, such systemic bias in 

the procedural structure of the district courts in the 

Commonwealth. Thus, assuming without deciding that the 

questions propounded by the general district court judge 

constituted error, I would hold that the trial de novo in the 

circuit court provided an adequate remedy. 

 For all of these reasons, I dissent and would affirm the 

judgment of the trial court.

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