Tuesday, June 10, 2003

City loses exclusion zone fight

U.S. Supreme Court won't hear appeal

By Robert Anglen
The Cincinnati Enquirer

A plan to kick convicted drug dealers out of Cincinnati neighborhoods that began seven years ago ended Monday at the U.S. Supreme Court. The high court refused to hear a case on the so-called "drug exclusion zone," which a federal appeals court called unconstitutional and an "extreme measure."

Undeterred, city officials are now pushing local judges to enforce the exclusion zones in a different way - by making it a condition of probation.

"My sense of it was this case was dead for some time. The problem was that it was a blanket policy," Councilman David Pepper said. "But we can use probation as a tool to accomplish the same thing."

The city - in a unanimous motion last year - asked District Court judges to use probation to ban convicted drug offenders from going into the neighborhoods where they were arrested.

"Some judges have been OK with it, some haven't. The numbers aren't as high as I'd like, but it is a tool," said Pepper, who introduced the probation plan. "This is something that was first suggested to me by police officers who knew (the exclusion zone) was in trouble."

Bernard Wong, a private attorney who sued the city over the exclusion zones, called them "Draconian and totalitarian."

"That's what we have: Government officials who forget about the rights of the people and care more about getting votes," he said. "The physical embodiment of freedom is the right to move."

The zone was created in 1996 when City Council approved it in hopes of slowing the drug trade in Over-the-Rhine. But the law quickly came under attack by civil libertarians and was ruled unconstitutional by two lower courts.

The law was challenged by Patricia Johnson and Michael Au France, who claimed the exclusion zone violated their rights.

Johnson was charged with a marijuana trafficking offense. Although a grand jury did not indict her on the charge, she received an exclusion notice barring her from the neighborhood for three months because she did not live or work there.

"Patricia Johnson could not see or take care of her grandchildren," said Wong, who worked pro bono on the case for the American Civil Liberties Union. "That's how bad the law was."

Au France, a homeless man arrested on multiple drug charges, said the exclusion zone barred him from meeting with his lawyer, who had an office in the neighborhood.

In a writ filed with the U.S. Supreme Court, city lawyers argued that the law did not violate civil rights and was not a form of double jeopardy by penalizing a convict twice for the same crime. The city claimed that freedom of movement is not a fundamental right.

City lawyers, who learned about the Supreme Court's decision Monday from the Enquirer, would not comment on the issue.

Councilman Pat DeWine called the high court's decision unfortunate.

"We need all the tools we can get at our disposal," he said.

In Over-the-Rhine on Monday, business owners and residents were mostly unaware of the exclusion zone.

"I don't think it would have affected us up here," said Bob Deardorff, general manager of D. Davis Furniture on Main Street. "Sometimes I wonder what politicians are thinking about. I've been working this corner for 34 years and I can tell you that I never see the same face twice."

E-mail ranglen@enquirer.com

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