author: KINNEARY, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. ONE HUNDRED TWENTY-EIGHT THOUSAND THIRTY-FIVE DOLLARS ($128,035.00) IN U.S. CURRENCY and Real Estate Known as 1325-1337 West Fifth Avenue, Columbus, Ohio and All Appurtenances and Improvements Thereon, Defendants.
    No. C-2-85-897.
    United States District Court, S.D. Ohio, E.D.
    Feb. 11, 1986.

      Barbara L. Beran, Asst. U.S. Atty., Columbus, Ohio, for plaintiff.
    William H. Bluth, Columbus, Ohio, for claimant.
   OPINION AND ORDER

KINNEARY, District Judge.

This case comes before the Court to consider the motions of claimant Jay T. Will to quash an in rem arrest warrant issued by the Clerk of Courts for his real property located at 1329-1335 West Fifth Avenue and to dismiss the complaint for forfeiture filed by the government.

This matter arises from the arrest of claimant Jay T. Will on numerous counts including unlawful possession of cocaine in violation of 21 U.S.C. § 841(a)(1). On March 1, 1985, United States Magistrate Norah McCann King determined that there was probable cause to issue a search warrant of the premises located at 1329-1335 West Fifth Avenue, Columbus, Ohio. The warrant authorized the seizure of cocaine as well as other controlled substances, including “notebooks, ledgers, and business records, an office safe together with other fruits, instrumentalities and evidence in violation of Title 21, U.S.C. § 841(a) ,..” Upon executing the search warrant, authorities discovered and seized currency, large quantities of cocaine, drug paraphernalia, firearms, ammunition and various records. The authorities also arrested Jay T. Will at the time of the search. Thereafter, on March 28, 1985, Jay T. Will was indicted on various counts alleging violations of Title 21 of the United States Code.

On May 28, 1985, before any determination of guilt was made in the criminal case, the United States filed the current civil complaint for forfeiture of defendant Will’s currency and realty pursuant to 21 U.S.C. § 881(b) and Supplemental Rule C(2) of the Federal Rules of Civil Procedure. The Deputy Clerk of the District Court issued a warrant for the arrest of the property. There was no judicial review of the matter or determination of probable cause prior to the Clerk’s issuance of the warrant as none was required by the applicable law. The United States Marshal executed the warrant and took the realty into possession on May 29, 1985. The government only permitted Will access to the property after Will agreed to forfeit all gross receipts and pay all costs associated with the property. Jay T. Will subsequently filed a claim for the above property and moved to quash the arrest warrant and dismiss the government’s complaint.

The Attorney General instituted the current forfeiture proceeding under 21 U.S.C. § 881(b) which authorizes the forfeiture of property used or intended to be used in the illegal manufacture, distribution or sale of drugs. 21 U.S.C. § 881(b) states, in pertinent part:

Any property subject to civil or criminal forfeiture to the United States under this subchapter may be seized by the Attorney General upon process issued pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims by any district court of the United States having jurisdication over the property, except that seizure without such process may be made when—
(1) seizure is incident to an arrest or a search under a search warrant ...;
(2) the property subject to seizure has been the subject of a prior judgment in favor of the United States in a criminal injunction or forfeiture proceeding under this subchapter;
(3) the Attorney General has probable cause to believe that the property is directly or indirectly dangerous to health or safety;
(4) the Attorney General has probable cause to believe that the property is subject to civil or criminal forfeiture under this subchapter.

The above statutory section permits the Attorney General to commence civil forfeiture proceedings in one of two ways. First, he may initiate the forfeiture proceeding by following the Supplemental Rule for Certain Admiralty and Maritime Claims. These rules require the Attorney General to file a verified complaint containing specific information with the Clerk of Court. The Clerk may then proceed to issue an in rem arrest warrant. Alternatively, the Attorney General may seize the property without a warrant pursuant to one of the four options listed in 21 U.S.C. § 881(b). In the instant case, the Attorney General proceeded by filing a verified complaint and seizing the property pursuant to an arrest warrant issued by the Clerk of Courts.

Will moves to quash the arrest warrant. He also moves to dismiss the government’s complaint on grounds that it fails to state a claim for which relief can be granted and that the procedures employed in seizing his real property violated his Fourth Amendment constitutional rights.

After reviewing the record, the Court finds that Will’s motion to dismiss the government’s complaint is frivolous and it is, therefore, DENIED. The government’s complaint seeks forfeiture of the West Fifth Avenue premises under § 881(b) because of its use in illegal drug dealings. The record reveals that there was probable cause to issue a warrant for the search of the West Fifth Avenue premises. Moreover, defendant Will pled guilty to violations of Title 21 which occurred at the West Fifth Avenue location. Thus, it is clear that Will’s premises is subject to forfeiture under the provisions of § 881(b). Although the Court finds that the government’s complaint should not be dismissed, the Court nonetheless has significant reservations regarding the constitutionality of the procedures used and authorized by the statute to seize Will’s property.

Will argues that seizure of his real property pursuant to a Clerk’s warrant issued under Rule C violates the Fourth Amendment’s proscriptions against issuing a warrant without probable cause. Will directs the Court’s attention to a recent district court decision in Application of Kingsley, 614 F.Supp. 219, 223 (D.Mass.1985). Kingsley involved the seizure of the bank accounts and residence of an unindicted individual under investigation by the Drug Enforcement Administration for potential violations of the federal narcotics laws. The seizure was carried out pursuant to § 881(b). The court found that the procedures authorized by the statute for seizing property pursuant to a Clerk’s warrant to be violative of the Fourth Amendment. More specifically, the court held that in § 881 cases, it is necessary for:

“... a magistrate or other detached judicial officer to review the clerk’s warrant prior to its issuance to insure it satisfies the Fourth Amendment’s requirements of probable cause and particularity.”

Id. at 223.

In considering the claim that seizure of real property pursuant to a Clerk’s warrant violates the Fourth Amendment, the Court first notes that the Fourth Amendment applies to the forfeiture provisions of 21 U.S.C. § 881(b) because of the statute’s punitive, quasi-judicial nature. One Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 696, 85 S.Ct. 1246, 1248, 14 L.Ed.2d 170 (1965); U.S. v. Spetz, 721 F.2d 1457, 1469-70 (9th Cir.1983); U.S. v. Hershenow, 680 F.2d 847, 851 (1st Cir.1982). Thus, the statute must comply with the various procedural requirements imposed by the Fourth Amendment. After reviewing the statute and relevant case law, the Court believes that the procedure authorized by § 881(b) for issuance of a Clerk’s warrant runs afoul of minimal Fourth Amendment procedural requirements in several respects.

The Fourth Amendment states, in pertinent part:

The rights of the people to be secure ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ...

The Court first notes that in a long line of cases beginning with Johnson v. U.S., 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 the Supreme Court has consistently held that the Warrants Clause of the Fourth Amendment requires that a neutral and detached judicial officer determine whether probable cause exists prior to the issuance of a warrant. Jones v. U.S., 362 U.S. 257, 270-71, 80 S.Ct. 725, 735-36, 4 L.Ed.2d 697 (1960); United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965); Spinelli v. U.S., 393 U.S. 410, 415, 89 S.Ct. 584, 588, 21 L.Ed.2d 637 (1969). However, § 881(b) authorizes the issuance of a warrant by the Clerk of Court solely on the basis of filing of a verified complaint by the Attorney General. The statute imposes no requirement of a determination by a qualified judicial officer of whether there is probable cause for the belief that a connection exists between the property to be seized for forfeiture and the criminal activity covered by Title 21. Without such a determination of probable cause, the Court finds that the procedure authorized by § 881(b) violates the Warrants Clause of the Fourth Amendment. Thus, this Court joins with the district court in Kingsley in concluding that the Fourth Amendment requires a determination of probable cause prior to the issuance of an in rem arrest warrant. Consequently, the warrant issued by the Clerk for the seizure of the Fifth Avenue premises is invalid.

Secondly, although not raised in either parties’ briefs, the Court questions the constitutionality of the provision of § 881(b) which authorizes the Clerk of Court to issue a warrant. As stated above, the Fourth Amendment requires that a warrant issue only after a determination of probable cause by a neutral and detached judicial officer. The Court is aware of the Supreme Court’s decision in Shadmck v. City of Tampa, 407 U.S. 345, 350, 92 S.Ct. 2119, 2122, 32 L.Ed.2d 783 (1972) that a municipal court clerk qualifies as a neutral and detached judicial officer for purposes of issuing warrants for violations of municipal ordinances. However, it is not clear to the Court that a Deputy Clerk of Court possesses the requisite competence and resources to make a probable cause determination that real property may be seized for forfeiture under § 881(b). Absent a showing of such capacity, the Court believes that the Fourth Amendment requires the Attorney General to secure an in rem arrest warrant from a magistrate or district court judge.

Finally, the Court notes that the Fourth Amendment prohibits a judicial officer from issuing a warrant on the basis of conclusory allegations. Rather, sufficient information must be presented to the judicial officer to allow him or her to determine that probable cause exists. Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). However, the statute in question provides for the issuance of a warrant upon filing of a verified complaint by the government. Clearly, more information is required for issuing a warrant than is typically contained in a well pled complaint. Thus, the procedure authorized by § 881(b) is suspect in general. More importantly, in the present case, issuance of the warrant was clearly violative of the Fourth Amendment since the government’s complaint did not contain sufficient information to enable a judicial officer to determine probable cause. Accordingly, the Court finds that the warrant issued in this case based solely on the government’s complaint was invalid. Id. at 239, 103 S.Ct. at 2332; Nathanson v. U.S., 290 U.S. 41, 46-47, 54 S.Ct. 11, 12-13, 78 L.Ed. 159 (1933).

The government argues that notwithstanding the fact that it followed the procedures for seizing the property through use of a Clerk’s warrant, it could have bypassed this method and seized the property under one or more of the four exceptions enumerated in § 881(b). More specifically, the government argues that it could have seized the property incident to the search warrant issued on March 1, 1985 or arrest of Jay T. Will under § 881(b)(1). Alternatively, the government maintains that the Attorney General had probable cause to believe that the property had been used in violation of Title 21 and, therefore, the property could have been seized for forfeiture under § 881(b)(4).

The Court finds no merit to the government’s first argument that seizure of the property was valid under § 881(b)(1). This subsection authorizes seizure of property “incident to an arrest or search under a search warrant.” § 881(b)(1). The Court believes that this section only authorizes those seizures of property which are closely connected in time and space to the execution of a search warrant or arrest of an individual. Thus, this section authorizes the forfeiture of Will’s money which was seized at the time of the execution of the search warrant. The Court does not believe, however, that this section authorizes the seizure of real property, as in this case, several months after a search of the premises conducted pursuant to a valid search warrant. Such a seizure cannot be fairly characterized as “incidental” to a search warrant or arrest. Accordingly, the Court finds that § 881(b) does not apply in this case and may not be relied upon by the government as authority for seizing Will’s real property.

In the alternative, the government maintains that the Attorney General had probable cause to believe that Will’s property had been used or associated with illegal drug dealings and, therefore, it could be seized pursuant to § 881(b)(4). The Court does not doubt that the Attorney General had a good faith belief that probable cause existed to seize the property under § 881(b). However, this is not sufficient to effect a seizure under the Fourth Amendment. As the Supreme Court stated in Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925):

Belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable, cause.

Id. at 33, 46 S.Ct. at 6; Accord Coolidge v. New Hampshire, 403 U.S. 443, 451, 91 S.Ct. 2022, 2030, 29 L.Ed.2d 564 (1971). This same notion was articulated by the Supreme Court in Jones v. United States, 357 U.S. 493, 497-98, 78 S.Ct. 1253, 1256, 2 L.Ed.2d 1514 when it held that the rights against unlawful search and seizure are to be protected even if the same result might have been achieved in a lawful way. Thus, it is irrelevant whether the Attorney General had probable cause to seize the business; he must still obtain a warrant. This rule applies unless the Attorney General can show that the warrantless seizure of Will’s real property was effected under some exception to the Warrants Clause. Thus, the critical issue before the Court is whether this case represents an exception to the Warrants Clause of the Fourth Amendment which would permit the Attorney to seize real property without first securing a warrant.

Will maintains that absent the dual prerequisites of contemporaneous probable cause and exigent circumstances, the Fourth Amendment requires the Attorney General to secure a warrant prior to seizing his property notwithstanding provisions of § 881(b)(4) to the contrary. See Kingsley, supra at 222. The government argues that this Circuit and the majority of other circuits which have considered 21 U.S.C. § 881(b)(4) have not required exigent circumstances but have upheld warrantless seizure of property by the Attorney General based upon probable cause. In support of its position, the government cites to several opinions which hold that the Attorney General may seize property as long as he has probable cause. See United States v. Steele, 727 F.2d 580, 588 (6th Cir.), cert. denied, United States v. Scarborough, 467 U.S. 1209, 104 S.Ct. 2396, 81 L.Ed.2d 353 (1984); United States v. One 1978 Mercedes Benz, 711 F.2d 1297, 1302 (5th Cir.1983); United States v. One 1977 Lincoln Mark V Coupe, 643 F.2d 154, 158 (3rd Cir.), cert. denied, 454 U.S. 818, 102 S.Ct. 97, 70 L.Ed.2d 88 (1981); United States v. Bush, 647 F.2d 357, 368 (3rd Cir.1981); United States v. Kemp, 690 F.2d 397, 401-02 (4th Cir.1982).

The Court believes that the government’s reliance on the above cases is misplaced. The Court finds the above authority, all of which involve seizure of automobiles, inapplicable to the present situation involving the seizure of commercial real property. See United States v. Certain Real Estate Property, 612 F.Supp. 1492, 1498 (S.D.Fla.1985). As has been repeatedly stated by the courts, automobiles are inherently mobile and are open to the public view. Thus, there are more exigencies which necessitate prompt seizure of an automobile and, at the same time, reduced expectations of privacy. In contrast, there are significantly fewer exigencies requiring the prompt seizure of commercial real property and, more importantly, substantially heightened individual privacy interests associated with a business. G.M. Leasing Corp. v. U.S., 429 U.S. 338, 353, 97 S.Ct. 619, 629, 50 L.Ed.2d 530 (1976); See v. City of Seattle, 387 U.S. 541, 543, 87 S.Ct. 1737, 1739, 18 L.Ed.2d 943 (1966); Go-Bart Co. v. U.S., 282 U.S. 344, 356-58, 51 S.Ct. 153, 157-58, 75 L.Ed. 374 (1931). Because of the substantial nature of these privacy interests, the Supreme Court has consistently held that any search or seizure of a business for purposes outside the nature of the business, its license or regulation of its activities, is presumptively unreasonable unless authorized by a valid search warrant. G.M. Leasing, supra, 429 U.S. at 354, 358, 97 S.Ct. at 629, 631; Camara v. Municipal Court of the City and County of San Francisco, 387 U.S. 523, 528-29, 87 S.Ct. 1727, 1730-31, 18 L.Ed.2d 930 (1967). Thus, based on this authority, the Court rejects the governments contention that the Attorney General may seize real property without procuring a warrant.

Absent exigent circumstances, the Court concludes that seizure of real property under § 881(b)(4) without a warrant constitutes an unreasonable seizure of property in violation of the commands of the Fourth Amendment. In the present case, the government has failed to establish the existence of any exigent circumstances which would justify the warrant-less seizure of the West Fifth Avenue real property. Consequently, the Court finds that seizure of Will’s real property under § 881(b)(4) was in violation of the Fourth Amendment.

Although the Court is always leary of placing additional procedural requirements upon law enforcement authorities, the Court believes that requiring the Attorney General to secure a warrant prior to seizing a home or business represents a minimal burden, particularly in light of the substantial privacy .interests infringed by the warrantless seizure of a home or business. The Court believes a determination of probable cause by a neutral and detached judicial officer will protect these privacy interests by minimizing the chance of erroneously seizing real property. Furthermore, a determination of probable cause by a qualified judicial officer will protect the interests of third persons in forfeitable property by ensuring that the seizure is proper in scope, e.g., seizing multiple units of a commercial building when only one was used in connection with a Title 21 violation. The Court notes that its concerns of over-reaching seizures under the statute are far from illusory. A recent report by the Marshals Service indicates that post-seizure investigations have revealed instances where the interests of the criminal in the seized assets was “minimal or non-existent.” 38 Cr.L. 2296 (January 15, 1986).

Given the above discussion, it is clear that Will’s property was seized in violation of the Fourth Amendment’s proscriptions against unreasonable search and seizures and issuing warrants without probable cause. Whereas Will has moved to quash the in rem arrest warrant and the Court has concluded that the warrant was issued in violation of the Fourth Amendment, the Court finds that Will’s motion is meritorious and it is, therefore, GRANTED. However, as the government points out, its complaint is still pending before the Court. The government further argues that there is sufficient evidence before the Court to conclude that there is probable cause to seize the West Fifth Avenue premises. The Court agrees. The record before the Court clearly indicates that transactions involving cocaine were conducted at the West Fifth premises. See United States v. Jay T. Will, supra at pp. 5-8. Thus, the Court concludes that there is probable cause to seize the West Fifth premises for forfeiture pursuant to § 881. Accordingly, the Court DIRECTS the Clerk of Court to reissue the in rem arrest warrant for the West Fifth Avenue premises. The Court notes that the consequence of this Opinion and Order is that the government will be able to retain possession of the West Fifth Avenue premises. However, the Agreement executed between Jay T. Will and the government on May 29, 1985 concerning the allocations of costs and profits associated with the premises is VOID as it represents the fruit of an illegal seizure. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

WHEREUPON, upon consideration and being duly advised, the Court finds that claimant Will’s motion to dismiss the complaint is without merit and it is, therefore DENIED. The Court further finds that Will’s motion to quash is meritorious and it is, therefore, GRANTED. However, whereas the record indicates that there is probable cause to seize Will’s premises pursuant to 21 U.S.C. § 881, the Court hereby DIRECTS the Clerk of Court to reissue an in rem arrest warrant for the West Fifth Avenue premises herein described.

IT IS SO ORDERED.

      . On July 3, 1985, the District Court in the criminal case of United States v. Will, CR-2-85-40 slip op. at 8 (July 9, 1985) found that there was probable cause to issue the March 1, 1985 search warrant of the West Fifth Avenue premises.

      . On July 15, 1985, claimant Will pled guilty to the offense of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a).

      . The complaint in this case states the following:
      7. On or about March 1, 1985, said defendant realty was used or intended to be used to commit or to facilitate the commission of a violation of Title 21 of the United States Code punishable by more than one year’s imprisonment.
      8. Defendant realty is located within this judicial district and division.
      9. The owner of record of defendant realty is Karateco, which was formerly a general partnership ... but which is currently a name under which Jay T. Will does business.

      . The Court acknowledges that there may be some exigent circumstances which merit a warrantless seizure of real property but it believes these circumstances are limited to situations involving an imminent physical threat to the property. The Court does not believe that potential or threatened legal conveyances are grounds for effecting a warrantless seizure of real property since the government possesses a sufficient legal arsenal to prevent such transfer, i.e., it may file a notice of lis pendens or may seek injunctive relief from the Court to prevent a conveyance.


source: Caselaw Access Project

author: H. FRANKLIN WATERS, Chief Judge.

license: Public Domain

text:
    Dr. Dow PURSLEY, Dr. Doty Murphy, Rev. Mark Brooks and Rev. Paul Sagan, Plaintiffs, v. CITY OF FAYETTEVILLE, ARKANSAS; Paul Noland, Individually and as Mayor; Ron Bumpass, Jeremy Hess, Marilyn Johnson, Ernest Lancaster, William Martin and Marion Orton, All Individually and in their Official Capacities as Members of the Board of Directors of the City of Fayetteville, Arkansas, Defendants.
    Civ. No. 85-5174.
    United States District Court, W.D. Arkansas, Fayetteville Division.
    Feb. 11, 1986.

      David E. Morris, Hall, Wright & Morris, Fayetteville, Ark., for plaintiffs.
    James N. McCord, City Atty., Fayetteville, Ark., for defendants.
   MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

On October 16, 1985, plaintiffs filed this action seeking a declaration that Fayetteville, Arkansas, City Ordinance No. 3125 is unconstitutional, and for an injunction forbidding its enforcement. The ordinance states in relevant part:

It shall be unlawful for any person or persons to engage in demonstrations of any type or to picket before or about the residence or dwelling place of any individual.
Any person convicted of violating this section shall be punished by a fine of not more than $500 or by imprisonment of not more than six (6) months, or by both such fine and imprisonment.

The Fayetteville City Council passed this ordinance on September 17, 1985. For some time, opponents of legalized abortion had been picketing the residence of William F. Harrison, M.D., a physician who performs elective abortions as part of his medical practice. Individuals have also picketed the Fayetteville Women’s Clinic on North College Avenue, the main commercial artery of the city, where Dr. Harrison maintains his office. The Fayetteville ordinance does not purport to regulate conduct in front of commercial locations such as Dr. Harrison's office.

Neighbors of Dr. Harrison initiated complaints about demonstrations in the neighborhood and directed them to the City Prosecutor. He consulted state law, Ark.Stat.Ann. § 41-2967 (Repl.1977), and declined to bring a prosecution under it. The statute in question prohibited picketing in front of residences, but created exceptions for labor disputes. The prosecutor felt that the statute was unconstitutional under Carey v. Brown, 447 U.S. 455, 100 S.Ct. 2286, 65 L.Ed.2d 283 (1980), which held that a similar Illinois statute created an invalid content-based abridgement of First Amendment rights. The prosecutor thereafter drafted a proposed ordinance for the city, deleting the labor dispute exception found offensive in Carey, and submitted it to the City Council, acknowledging that its submission was prompted by the activities in front of the Harrison home, but closing with the suggestion that any Fayetteville citizen thrust into the public light might enjoy its protections.

The city answered the plaintiffs’ complaint and filed a separate motion for summary judgment. After determining from the parties, pursuant to local Rule No. 28, that no material facts are disputed, and that the issue sought to be resolved by declaratory judgment did indeed involve only questions of law, the court determined that the case was eligible for summary judgment.

Plaintiffs advance a number of objections against Ordinance No. 3125. They protest that it is unconstitutionally vague, that it abridges their rights to freedom of religion, and that it violates rights granted to them by the assembly and speech clauses of the First Amendment. In addition, they argue that the ordinance is invalid under state law, because it imposes penalties different from and in addition to those originally proposed under the state statute deemed unconstitutional under Carey v. Brown, supra.

The court has little difficulty determining that the ordinance survives a challenge for vagueness. In no case cited to the court, where state laws prohibited demonstrations or picketing at residences, Carey v. Brown, id., or on public grounds, United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983), has it ever been suggested that words such as “picketing” are incapable of being understood by persons of average intelligence. Nor does the ordinance, in the opinion of the court, abridge plaintiffs’ free exercise of religion. That laws may prohibit behavior without impermissibly affecting belief is a principle too long settled in the law to require extensive citation. United States v. Pence, 410 F.2d 557 (8th Cir.1969).

Plaintiffs advance a closer case when they suggest that the city violates the First Amendment by banning residential picketing entirely. Indeed, their position receives support from a recent decision invalidating a similar ordinance on constitutional grounds. Schultz v. Frisby, 619 F.Supp. 792 (E.D.Wis.1985). The City of Fayetteville rests its position on dicta in Carey v. Brown, 447 U.S. at 470-71, 100 S.Ct. at 2295-96, which suggests that residential picketing may properly be subject to reasonable time, place and manner restrictions. The court did not squarely address the issue whether it might be permissible totally to ban picketing, etc., in residential areas. Instead, it held that once such a policy is in place, the state could not create an exception so as to allow picketing a residence involved in a labor dispute. The holding of Carey v. Brown, supra, denounced content discrimination in laws regulating speech and assembly. It did not purport to settle the question raised by this case: whether demonstrations in front of a person’s home might be prohibited entirely.

The central question presented by this ordinance is whether the street or sidewalk in front of a residence is the kind of “public place” triggering First Amendment protections for those who would use such locales to advance their views. The court believes that this question cannot be answered mechanically, but must be addressed functionally. As United States v. Grace, supra, makes clear: “Publicly owned or operated property does not become a ‘public forum' simply because members of the public are permitted to come and go at will.” Id. 461 U.S. at 177, 103 S.Ct. at 1707. Adderly v. Florida, 385 U.S. 39, 47, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966), also recognized that “[t]he State, no less than the private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.” The foregoing statements invite a functional analysis of this problem, and Perry Education Ass’n v. Perry Local Educators Ass’n, 460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983), draws the guidelines along which the case must be decided where it declares that “In places which by long tradition ... have been devoted to assembly and debate, the rights of the State to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks ... In these quintessential public forums, the government may not prohibit all communicative activity ... The State may enforce regulations of the time, place and manner of expression which are content neutral, narrowly tailored ... [l]eaving open ample alternative channels of communication.” Id. at 45, 103 S.Ct. at 955 (emphasis added).

The court does not believe that streets and sidewalks in residential sections of a modern city are traditional loci for assembly and debate, i.e., “quintessential public forums.” Residential developers create additions to cities by platting properties conformably with governmental planning and zoning rules. Certain parts are dedicated to the public, not for the purpose of assembly and debate, but for means of ingress and egress. Zoning rules, street plans, and subdivision regulations, as well as additional restrictive covenants and bills of assurances arrived at privately, contemplate a diminished level of activity in residential areas. To this end, streets there are narrower, setbacks are required to prevent overbuilding on lots, and even very limited kinds of commercial activity are prohibited.

When one speaks of a forum, even in the attenuated modern sense of that word, the court takes this to refer to that part of a city into which the public collects for commercial activity, a part which has traditionally become a place for assembly and debate. In simpler times, these areas were fairly certain and definable: town squares, courthouse grounds and commons, as well the market stalls and shops nearby. Such cases as Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), speak in passing of “the business area of a municipality” as being “so historically associated with the exercise of the First Amendment that access to them for purposes of exercising such rights cannot be denied absolutely.” Id. at 559, 92 S.Ct. at 2224.

Today, the focus of public activity in a city is more diffuse. It is easier by far to determine areas which by design and usage are not devoted to public assembly and debate, a quintessential example of which would be the area in front of an individual’s home. The rules by which new neighborhoods are developed, and older ones maintained, show that cities are sensitive to the need to create areas of refuge where one might enjoy “a very basic right to be free from sights, sounds, and tangible matter [one] does not want.” Rowan v. United States Post Office Dept., 397 U.S. 728, 736, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736 (1970) (semble).

The mechanical reading of Perry which this court declines to adopt, i.e., one which deems all streets and sidewalks to be public forum grounds for purposes of the First Amendment, leads to anomalous results: a city might forbid demonstrations on the grounds of public buildings, even though the sidewalks upon which protesters would be permitted to congregate were so far from the locus of activity they wished to protest as to dilute substantially the expressive message they wish to convey. On the other hand, picketing a residence removed only 30 feet from a sidewalk would be allowed, despite the fact that the residence is wholly unconnected with any activity the protestants might denounce.

Common sense tells us that a residential area ought not to be considered a public forum. Societal values of privacy are vouchsafed to the home and curtilage. The preservation of this interest is deemed to be a compelling one for the state. In this connection, whatever burdens Ordinance No. 3125 places on these plaintiffs are lightened by the fact that they have, and use, alternative channels of communication, viz., picketing the office of Dr. Harrison, located on what undoubtedly is the busiest street in Fayetteville. If the picketers’ objective is to get their message to the public, they could do no better than to picket on the main Fayetteville thoroughfare over which literally thousands of travelers pass each day. If, on the other hand, their objective is to disturb and harass Dr. Harrison and his neighbors by picketing in what is normally a quiet, residential neighborhood not frequented by the general public, their objective is not constitutionally protected.

Finally the plaintiffs contend that the Fayetteville ordinance is invalid as a matter of state law, because it allows the city to imprison individuals for violation of an ordinance, and because the maximum fine allowable under the penalty provision of the ordinance exceeds that which is allowed by a similar state statute prohibiting residential picketing. The court hesitates to issue declarations concerning the proper interpretation of state laws, feeling that these matters are best left to the state courts, particularly in close cases like this one. For two reasons, however, the court has determined to exercise its discretion in this area.

First, the plaintiffs have petitioned the court to give them some guidance, and a refusal of the court to address the question whether it is legal for the city to punish parties who trespass its ordinance would “place the hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of foregoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding.” Steffel v. Thompson, 415 U.S. 452, 462, 94 S.Ct. 1209, 1217, 89 L.Ed.2d 505 (1974). The court is not convinced that in this case the choice is quite as Homeric as the Supreme Court would indicate, but it does appreciate the dilemma of the parties, and realizes that if some declaration concerning the propriety of the penalties is not made, the parties would be hardly better off than they were before applying to this court.

Second, if the penalties are invalid, then the ordinance itself is invalid, and the court may at some time in the future be faced with grave due process questions if anyone were in fact arrested and imprisoned under it. In order to avoid as many controversies as reasonably possible, the court will attempt to settle all objections to the ordinance which the defendants have raised, even though they entail extended discussion of purely state law matters. In so passing on these questions, the court acts to avoid a proliferation of litigation, which is an object the declaratory judgment procedure seeks to obtain. Cf. Twin City Fed. Savings and Loan Ass’n v. Gelhar, 525 F.Supp. 802 (D.Minn.1981).

The plaintiffs contend that the ordinance is invalid because it prescribes a penalty of imprisonment, and because the fine authorized is one greater than that called for by the violation of a similar state statute. The recent case of Wright v. Burton, 279 Ark. 1, 648 S.W.2d 794 (1983), held ordinances of Conway, Arkansas, to be invalid because they did not impose jail sentences, whereas state laws regulating the same kind of conduct did. The difference between the Wright case, and the one at bar, is that at this moment there is no state law prohibiting residential picketing validly in place if, as both parties maintain, the state statute was invalidated by Carey v. Brown, supra. The holding of Wright v. Burton, ibid., was in relation to a state statute designed to end the frustration of state law enforcement caused by a patchwork of city ordinances whose penalties were substantially less than those demanded by the General Assembly for identical acts. By its terms, Wright v. Burton, id., does not allow and certainly does not demand that cities impose jail sentences for conduct which does not violate state policies.

In cases where the General Assembly has not enacted rules of criminal conduct, the laws of Arkansas hold that municipalities can enact their own ordinances pursuant to the police power entrusted to them. Ark.Stats.Ann. §§ 19-2408 and 2409 state that cities shall be allowed to punish violations of these ordinances by “fines, forfeitures and penalties.” These laws derived from the Acts of the 1875 General Assembly, and appear to limit a city’s power in this respect. However, in 1971 the state passed a Home Rule Act which freed Arkansas cities from the rigors of the so-called Dillon Rule which severely circumscribed* municipal power. See, Tompos v. City of Fayetteville, 280 Ark. 435, 438, 658 S.W.2d 404, 406 (1983). Under standard Home Rule analysis, the city might arguably receive the power to impose jail sentences for violations of ordinances. See McQuillen, Municipal Corporations § 17.-07 (3d ed., rev. vol.). Four years after passage of the Home Rule Act, however, the General Assembly amended Ark.Stat. Ann. § 19-2409 to place higher limits ($500) on the penalties which cities might impose for violations of their ordinances, in those cases where state laws had not already validly defined breaches of the criminal laws. The amended statute now reads, “Municipal corporations shall not have power to inflict any fine or penalty by ordinance or otherwise to a greater sum than five hundred dollars ($500) for any one (1) specified offense or violation of such law or ordinance____” (emphasis added). The ordinance, by its explicit terms, inflicts against violators a fine “of not more than $500 or by imprisonment of not more than six (6) months, or both____” (emphasis added).

The court does not believe that the General Assembly intended for cities to impose penalties of imprisonment for violation of city ordinances, unless those ordinances regulate conduct proscribed under a valid state statute, in which case the General Assembly has ordered that cities are not permitted to provide lesser penalties than those demanded by the statutes. Ark.Stat. Ann. § 19-2411.

The fines authorized by Ordinance No. 3125 are within those allowed by state law, and are not violative of the constitution. To the extent, however, that they would exceed any allowances under state law, they might be reduced under the authority of Ark.Stat.Ann. § 19-2409. Inasmuch as the penalties are severable, the ordinance, though invalid in part, is valid for purposes of defining the offense and authorizing a fine for its violation.

For the reasons stated, therefore, defendants’ motion for summary judgment will be granted in part and denied in part, with a separate order to be filed contemporaneously herewith showing that Fayetteville Ordinance No. 3125 is valid to the extent that it constitutionally prohibits residential picketing, and levies fines for violations, but unlawful to the extent that it seeks to impose penalties of imprisonment therefor.