The Ohio Supreme Court has declared a Cincinnati law excluding certain persons from one of that city’s neighborhood based solely on their arrest for a drug related offence. In a six-to-one decision written by Chief Justice Thomas Moyer, the Court held that Chapter 755 of the Cincinnati Municipal Code violated the right to intrastate travel under the United States Constitution, a novel and far reaching holding. The Court also declared the law invalid under the Ohio Constitution, because it allowed the city to impose what in effect is a criminal sentence not authorized under state law.
The American Civil Liberties Union of Ohio Foundation, which succeeded in getting the law declared unconstitutional in an earlier federal case – now on appeal – had filed a Friend of the Court Brief in the Ohio Supreme Court action, a case entitled State v. Burnett.
Under the ordinance in question, police could order citizens arrested on certain drug charges out of the
Over-the-Rhine neighborhood for up to ninety days based solely on the fact of their arrest. Those actually convicted of drug offences could be banished from the neighborhood for a year. Significantly, these “exclusions” were not a part of any court sentence, and in the case of the ninety day exclusions did not even require a court conviction. Rather, they were simply orders to private citizens, imposed at will by the police, without the involvement of a judge.
Writing for the Court, Chief Justice Thomas Moyer was sharply critical of an ordinance that barred people from their own neighborhood, forbidding them from being there for even the most legitimate of reasons: “A person subject to the exclusion ordinance may not enter a drug-exclusion zone to speak with counsel, visit family, attend church, receive emergency medical care, go to the grocery store or just stand on a street corner and look at a blue sky,” Moyer wrote.
The ACLU, which succeeded in having the same ordinance declared unconstitutional in federal district court in January 2000, hailed the decision as affirming basic American principals. “The right to travel, the right to associate with friends and neighbors, the right to be free from arbitrary police punishment, all of these are basic American freedoms,” said Raymond Vasvari, Legal Director of the Ohio ACLU. “The Cincinnati ordinance denied every one of these rights. Today a second court has joined in condemning that ordinance as unconstitutional”