The policy must meet the standards of substantive due process.
Tn the case of Anthony v. State, No. 06-05-00133-CR. (Tex.App. 6th Dist. 2006), plaintiff Lamar Anthony, Jr. was convicted of criminal trespass in a city park. The City of Henderson, Texas, had an unwritten policy delegating the authority and discretion to its police officers to ban persons from public parks.
Facts of the Case
After receiving information that a suspect wanted on felony drug charges, was "in a vehicle that was inside Yates Park," several members of the Henderson Police Department were dispatched to that location. Apparently, at about the same time, Anthony rode with his cousin, Chris Hill, to Yates Park where they intended to play basketball. Officer Amber Tyson detained Hill's vehicle in the parking lot of the park.
Police Sergeant Bryan Pool testified that when he arrived at the scene, Anthony was engaged in a conversation with Tyson and was "being a little loud" and did not appear to be willing to cooperate. Pool testified he turned toward Anthony and explained to him, "This is a city park. I am a representative of the city. Therefore, I have a right to say who comes in this park and who doesn't come in this park."
Pool further testified that, because of his past experience with Anthony, he did not believe Anthony respected authority or understood what he had just said, so he told him more bluntly to leave the park and not to come back, or he'd take Anthony to jail.
Pool testified that, when a person receives what the city describes as a "criminal trespass warning," there is no set time limit for that warning to expire, and it is effective "from now on." Approximately 10 to 15 minutes after Anthony's initial confrontation with Pool, the police department received an anonymous call that the drug suspect was possibly in a truck that was in Yates Park. Police officers were again dispatched to the park.
When Pool arrived in response to the second call, he observed Anthony standing in the entrance to the parking lot of Yates Park. Making good on his earlier promise, Pool then arrested Anthony for failing to heed Pool's earlier directive that Anthony stay out of the park and not come back.
It was the city's unwritten policy to delegate authority to individual officers to issue "criminal trespass" warnings, banning individuals from the park. The city had no written criteria to guide police officers in exercising their authority to issue such warnings. Accordingly, it was left to the discretion of the individual police officer to determine who was banned from a park on a case by case basis.
Anthony was charged with criminal trespass, a misdemeanor offense. After the jury found Anthony guilty, the trial court assessed punishment at 10 days' confinement in the county jail. Anthony appealed.
Due Process Violation?
On appeal, Anthony contended that "the trespass policy of Henderson, on its face, violates the Due Process Clause of the United States Constitution." As cited by the appeals court, the Due Process Clause of the United States Constitution provides that a state shall not "deprive any person of life, liberty or property, without due process of law." Further, the appeals court noted that the statute or regulation is presumed to be constitutional. Accordingly, "a party challenging a statute on the basis that the statute violates the Due Process Clause of the Fourteenth Amendment bears the burden of demonstrating the scheme's unconstitutionality."
In addressing Anthony's due process challenge to the city's trespass policy, the appeals court would first consider "whether Anthony had a protected liberty or property interest in Yates Park," i.e. substantive due process. Secondly, the court would consider whether the unwritten policy violated procedural due process.
Substantive Due Process
As described by the court, a "substantive due-process analysis" would consider the following: "(1) whether the plaintiff had a protected liberty interest, and (2) if the government deprived him or her of that interest capriciously and arbitrarily. …