## Facts

- Cincinnati enacted Municipal Code § 755 (1996) creating “drug-exclusion zones” designated by comparatively high drug-arrest levels.
- A person arrested or taken into custody in a zone for listed drug offenses could be excluded for up to 90 days from public streets, sidewalks, and other public ways in all such zones.
- Upon conviction, exclusion could extend up to one year.
- Entering a zone while excluded was enforced through criminal trespass (a misdemeanor).
- The ordinance provided limited variances, including mandatory variances for certain residents or employees and additional variances through specified agencies.
- Patricia Johnson was arrested for a qualifying drug offense and received an exclusion order; although not a resident, she regularly traveled into a zone to help care for grandchildren living there, and the order barred her from using public ways to do so.
- Johnson and Michael Au France challenged the ordinance facially and as applied in federal court; the district court invalidated the ordinance and granted relief, and the City appealed.

## Issues

1. Whether substantive due process protects a liberty interest in local, intracity movement through public streets and sidewalks.
2. Whether excluding people from broad geographic areas of public ways based on arrest or conviction for certain drug offenses is constitutionally overbroad or insufficiently tailored to the City’s anti-drug objectives.
3. Whether the ordinance’s variance procedures adequately mitigate the burden on protected liberty interests.

## Decision

- The Sixth Circuit affirmed the judgment invalidating the ordinance on its face and as applied.
- The court held that the Constitution protects a substantive due process right to travel locally through public spaces and roadways.
- The court concluded the ordinance imposed a sweeping ban from public ways across multiple zones, triggered by arrest (and extended by conviction), backed by criminal penalties, and burdened lawful activities.
- The court found the ordinance insufficiently tailored to the City’s legitimate interest in combating drug activity and not cured by the variance scheme.

## Legal Principles

- Substantive due process protects freedom of local movement through public streets, sidewalks, and similar public ways.
- Government may pursue crime-control objectives, but broad restrictions on presence in public ways must be adequately tailored to avoid prohibiting substantial amounts of lawful conduct.
- An exclusion policy that criminalizes mere presence in large public areas for extended periods, based on arrest or conviction status, can violate substantive due process when its scope and operation are excessively broad.
- Administrative variance procedures do not necessarily remedy a facially overinclusive restriction, particularly where access for ordinary and constitutionally significant purposes is not reliably ensured.

## Conclusion

The Sixth Circuit held that Cincinnati’s drug-exclusion ordinance unconstitutionally restricted a substantive due process liberty interest in intracity travel by broadly barring individuals, based on arrest or conviction, from public streets and sidewalks across designated zones and enforcing that ban through criminal trespass penalties.


Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002)