On Appeal From the United States District Court for the Middle District of Pennsylvania, D.C. Civil No. 88-1100.
Becker, Cowen and Rosenn, Circuit Judges
In 1988, the city of York, Pennsylvania enacted an ordinance outlawing "cruising," which consists of driving repeatedly around a loop of certain major public roads through the heart of the city, an apparently popular activity among local youth. Plaintiffs Lutz and Weber brought suit in the district court for the Middle District of Pennsylvania seeking declaratory and injunctive relief on the grounds that the ordinance violates their right to travel and is overbroad.*fn1 The district court rejected these challenges, held that the ordinance was a valid traffic regulation, and dismissed the action.
The appeal implicates an important and largely unexplained area of constitutional jurisprudence -- whether there exists an unenumerated constitutional right of intrastate travel. We conclude that such a right exists, and grows out of substantive due process. In setting a standard of review to evaluate restrictions that significantly impinge on that right, we apply intermediate scrutiny, as suggested by analogy to the time, place and manner doctrine so firmly entrenched in the jurisprudence of free speech. Concluding that the York ordinance constitutes, in essence, a reasonable time, place and manner restriction on localized intrastate movement, we reject the plaintiffs' right to travel challenge. Also, because the overbreadth doctrine does not apply outside of the First Amendment context, we reject plaintiffs' overbreadth challenge as well. Therefore, although our reasoning differs from that of the district court, we will affirm.
I. THE ORDINANCE AND ITS JUSTIFICATIONS
The York ordinance prohibits cruising in a designated area of the city. "Cruising" or "unnecessary repetitive driving" is defined as
driving a motor vehicle on a street past a traffic control point, as designated by the York City Police Department, more than twice in any two (2) hour period, between the hours of 7:00 p.m. and 3:30 a.m. The passing of a designated control point a third time under the aforesaid conditions shall constitute unnecessary repetitive driving and therefore a violation of this Ordinance.
York, Pa., Ordinance No. 6, § 3(a) (Apr. 19, 1988). "Traffic control points" are "clearly identified reference [points]" designated by the police, which may be placed only along certain blocks of Philadelphia and Market Streets, two major thoroughfares in downtown York. See id. §§ 3(b), 3(c).*fn2 Whenever a violation occurs, exactly one person is deemed to be cruising -- the car's owner, if present, or otherwise the driver. See id. § 4. Violators, if convicted, are fined $50. See id. § 7. Municipal and commercial vehicles are excluded from the ordinance, see id. § 5, which also contains a standard severability clause, see id. § 8.
The ordinance was passed in response to the following legislative findings:
It is hereby found that with consistency, on certain days and times, a threat to the public health, safety and welfare arises from the congestion created by repetitive unnecessary driving of motor vehicles on main thoroughfares within the City of York. The purpose of this Ordinance is to reduce the dangerous traffic congestion, as well as the excessive noise and pollution resulting from such unnecessary repetitive driving, and to insure sufficient access for emergency vehicles to and through the designated city thoroughfares now hampered by this repetitive driving of motor vehicles. Id. § 2.
Several York officials defended the ordinance in testimony before the district court. Thomas Gross, a York police officer assigned to coordinate traffic safety, recited findings of a study indicating that traffic in the affected area, measured in terms of cars passing per unit time, is almost as high from 9 p.m. to 11 p.m. on a Friday night as it is during the afternoon rush hour.*fn3 Gross testified further, from personal observation, that congestion during cruising hours was even worse than congestion during rush hour: during rush hour, traffic was "heavy, but [flowed] smoothly," while traffic during cruising hours was often at "virtually a complete standstill, for minutes at a time." App. at 37, 39.
Keith Ressler, the night shift supervisor of the York Police Department, testified that because of cruising, traffic often became bumper-to-bumper for several blocks. As a result, it could take as long as 20 minutes to travel two blocks in the affected areas. He further testified that emergency vehicles were unable to respond quickly to calls during cruising hours, and that sometimes police cars had been forced to drive on the sidewalk to circumvent the congestion. Echoing Gross's testimony, Ressler stated that the traffic problem was worse during cruising hours than during rush hour: during rush hour, "traffic flows smoother [sic]" because motorists "are going somewhere"; during cruising hours, by contrast, "[traffic] on the loop flows erratically and sometimes not at all" because "[cars] will remain stopped in lanes of traffic so the occupants of one car can talk to the occupants of another car even though there is a green light." Id. at 50-52.
George Kroll, the York fire chief and ambulance administrator, testified that two of York's fire stations were located within the loop frequented by the cruisers. He stated that traffic in front of the central fire station on Market Street was often at "a total standstill" during cruising hours, making it impossible for the fire engines to exit the station. Kroll emphasized that "seconds, not even minutes" can be critical in controlling fires and saving lives. Id. at 56-58.
The plaintiffs did not seriously contest the magnitude of the congestion problem described by the city officials. Lutz himself admitted that traffic late on a weekend night could be "bumper-to-bumper," so that it might take 20 minutes to travel three blocks on Market Street within the cruising area. Id. at 18-20.
Initially, only Lutz challenged the ordinance. Claiming that it violated his right to travel and was overbroad, he moved for a preliminary injunction to prevent its enforcement. Following a hearing, the district court denied the preliminary injunction. The district court reasoned that Lutz was unlikely to prevail on the merits of his right to travel claim: because the freedom to cruise throughout downtown York rose "only" to the level of a "liberty interest" (as opposed to a "fundamental right"), the statute would be upheld because it was "rationally related to a legitimate governmental objective." See Lutz v. City of York, 692 F. Supp. 457, 459-61 (M.D.Pa. 1988).*fn4 The district court rejected the overbreadth claim on the ground that the ordinance does not significantly infringe upon First Amendment activity. See id. at 461. Lutz then amended his complaint to add Weber as a second plaintiff, and the plaintiffs again sought a preliminary injunction. The district court applied the same reasoning to Weber's claims as it had to Lutz's. See Dist.Ct.Op. at 1-3 (Feb. 22, 1989). Instead of simply denying a preliminary injunction, however, the district court dismissed the action.*fn5 This appeal followed.
III. THE RIGHT TO TRAVEL CLAIM
A. Is a Protected Right Implicated?
Plaintiffs argue that the cruising ordinance infringes upon their right to travel, which the modern Supreme Court recognized as fundamental in United States v. Guest, 383 U.S. 745, 16 L. Ed. 2d 239, 86 S. Ct. 1170 (1966). The leading modern travel case, however, is Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969). Shapiro struck down on equal protection grounds a minimum durational residency requirement imposed as a condition of eligibility for welfare benefits. The Court noted that the relevant statute on its face treated some residents (new arrivals from other states) less well than other (long-time) residents solely on the basis of their having exercised the right to travel from one state to another. See id. at 627. Because that right is fundamental, the Court reasoned, "any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling government interest, is unconstitutional." Id. at 634 (emphasis in original). On the facts of the case before it, the Court held that none of the state's asserted justifications for its minimum durational residency requirement survived the strict scrutiny test. See id. at 633-37.
Since Shapiro, virtually all of the Court's right to travel cases have involved closely analogous situations. Thus, under reasoning essentially the same as Shapiro's, the Court has struck down minimum durational residency requirements imposed as conditions of eligibility to vote, see Dunn v. Blumstein, 405 U.S. 330, 31 L. Ed. 2d 274, 92 S. Ct. 995 (1972), and to receive free nonemergency medical care, see Memorial Hospital v. Maricopa County, 415 U.S. 250, 39 L. Ed. 2d 306, 94 S. Ct. 1076 (1974). However, discerning state interests of greater significance than those asserted in Shapiro, Dunn, or Maricopa County, the Court in Sosna v. Iowa, 419 U.S. 393, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1974), upheld a minimum durational residency requirement as a condition of eligibility to be granted an in-state divorce.*fn6
More recent cases involve similar statutes, but different reasoning. Thus, in Zobel v. Williams, 457 U.S. 55, 72 L. Ed. 2d 672, 102 S. Ct. 2309 (1982), the Court reviewed a state statute distributing certain income to its citizens on the basis of the duration of each citizen's in-state residency. The Court struck down the statute under rational basis review, expressly reserving the question "whether any enhanced scrutiny is called for" because the statute burdened fundamental rights. See id. at 61. And in Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 90 L. Ed. 2d 899, 106 S. Ct. 2317 (1986), Justice Brennan's reassertion of the Shapiro strict scrutiny test garnered only a plurality. The fifth and sixth votes for striking down the statute under consideration, which provided benefits for certain veterans only if they had been residents of New York when they entered the service, relied on the rational basis approach employed in Zobel.*fn7
The prevalence in the modern right to travel case law of challenges to statutes facially discriminating against recent interstate immigrants has two consequences that complicate the decision at hand. First, such cases presented the Supreme Court with no opportunity squarely to consider the question whether the right to travel includes the right to travel intrastate -- a major threshold issue in this case. Dicta from the recent travel cases is largely unhelpful on this score. For example, in Guest, the Court at different points referred to both "the constitutional right to travel from one State to another" and the "freedom to travel throughout the United States." 383 U.S. at 757, 758. Similarly, Shapiro referred to both "the right to travel interstate" and the right "to travel throughout the . . . land." 394 U.S. at 629, 630. Dunn quoted the Guest formulation regarding "'freedom to travel throughout the United States,'" and characterized that freedom as "[including]" the right to travel interstate, 405 U.S. at 338, but the Soto-Lopez plurality spoke of "the constitutional right to travel, or, more precisely, the right of free interstate migration," 476 U.S. at 902. Maricopa County strongly suggested that whether the right to travel extends to intrastate travel remained an open question at least as of 1974, see 415 U.S. at 255-56 ("Even were we to draw a distinction between interstate and intrastate travel, a question we do not now consider. . . ."), and the Court has said nothing conclusive on the matter since then.*fn8
Second, the Supreme Court has viewed the paradigm of facial discrimination against recent interstate immigrants as straightforward enough that it has dispensed with analysis of the appropriate textual basis in the Constitution for the unenumerated right to travel. Either the Court sees the distinction as so completely arbitrary that it strikes down the provision under a threshold rational basis review (as in Zobel), or it finds the right to travel obviously ...