The United States Court of Appeals for the Sixth Circuit today refused to save a Cincinnati drug law that had been declared unconstitutional by a lower federal court. The decision, which becomes binding federal law in Ohio, Kentucky, Michigan and Tennessee, was based on a strongly worded recognition of the right to family autonomy and the right to travel.
The decision, Johnson v. Cincinnati, marks the first time the Sixth Circuit has recognized a constitutional right to freely travel within the city and state where one lives.
The Cincinnati ordinance at issue was passed in August 1996. It allowed police to ban those arrested of drug offences from Cincinnati’s Over the Rhine neighborhood for up to ninety days without a conviction or any form of judicial review. Those actually convicted could be banned for up to a year.
Those banished faced criminal trespass charges if they returned to the neighborhood.
The ACLU of Ohio challenged the ordinance in federal lawsuit filed in June 1998, on behalf of a homeless man who relied on neighborhood charities for food and shelter, and a grandmother, cut off by the ordinance from babysitting her grandchildren, who was arrested for but never charged with marijuana use.
In January 2000, U.S. District Judge Susan Dlott in Cincinnati held that the ordinance imposed a criminal penalty without judicial oversight, violated the right to travel, and impermissibly burdened constitutionally protected relationships like the right to see family and associates. In a related case decided in October 2001, the Ohio Supreme Court also declared the law unconstitutional under both state and federal law.
The decision today is a major victory for civil liberties, according to Scott Greenwood, General Counsel of the Ohio ACLU. “It means that the city cannot simply banish people from their own homes without trial, on nothing more than the word of a policeman.” Legal Director Raymond Vasvari agreed, adding “this marks one of the first times a federal court has recognized a constitutional right to travel about one’s own home town without police permission. It is a great step forward for a simple but essential freedom.”
The city may seek further review from the entire Sixth Circuit or the Supreme Court, but neither one of those hearings is guaranteed.
