High Court Voids Chicago Loitering Law Aimed at Gangs

By LINDA GREENHOUSE, New York Times

WASHINGTON — Chicago’s anti-loitering law, which other cities looked to as a model for reclaiming the streets in gang-infested neighborhoods, was declared unconstitutional by the Supreme Court Thursday on the ground that it gave the police too much discretion to single out innocent people. The vote was 6 to 3.

The Chicago police arrested more than 42,000 people under the law during the three years it was in effect, from 1992 to 1995, when it was struck down by a state appellate court. The law made it a crime to “remain in any one place with no apparent purpose” in the presence of a suspected gang member when ordered by a police officer to move on.

In his opinion for the Court Thursday, Justice John Paul Stevens focused on the absence of adequate guidance to police officers. Under the law, he said, “it matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ball park.”

In either case, he said, as long as their purpose was “not apparent” in a police officer’s “inherently subjective” judgment, the pair were subject to arrest for refusing the officer’s order to disperse. And by the same token, Justice Stevens said, “the entire ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted.”

The opinion suggested that Chicago could repair the law’s unconstitutional vagueness by defining the prohibited behavior more precisely or by limiting the law’s scope.

Justice Sandra Day O’Connor, in a concurring opinion that Justice Stephen G. Breyer also signed, made this point more explicitly, asserting that “there remain open to Chicago reasonable alternatives to combat the very real threat posed by gang intimidation and violence.” Among the two Justices’ suggestions were requiring that loiterers have some “harmful purpose” before they can be arrested, or making a target only of gang members themselves rather than people who are simply standing nearby.

The law was challenged by the American Civil Liberties Union’s Chicago office on behalf of 66 defendants, 34 of whom were not alleged to be gang members themselves when they were arrested and prosecuted. After the Illinois Supreme Court declared the law unconstitutional, in a 1997 ruling that affirmed an earlier decision by the Illinois Appellate Court, the city brought the case to the United States Supreme Court. Thirty-one states, along with the Clinton Administration, filed briefs supporting Chicago’s appeal, Chicago v. Morales, No. 97-1121.

In Chicago, Mayor Richard M. Daley said this morning that the city would try to draft a new ordinance to overcome the Court’s objections. But Harvey Grossman, an A.C.L.U. lawyer who argued the case for the defendants, said in an interview that he doubted whether a law aimed at sweeping gang members off the streets could be both effective and constitutional. Grossman said that while a law that prohibited loitering when coupled with specific conduct, like loitering to commit prostitution or to sell drugs, would be unobjectionable, such a law would require the very proof of individualized wrongdoing that the Chicago law sought to avoid.

The Chicago City Council adopted the law in 1992 after witnesses testified at public hearings that street gangs, using loitering as a strategy to claim territory, were taking over neighborhoods and terrifying the residents. Violation of the ordinance was a misdemeanor carrying a fine of up to $500 or imprisonment of up to six months.

However measured the Court’s approach Thursday, it provoked a stinging dissent from Justice Antonin Scalia, who attacked the majority’s analytic method as well as its conclusion. Sarcastically accusing the majority of endorsing a “Fundamental Freedom to Loiter,” he said it should not be the Court’s concern whether the law covered “too much harmless conduct by innocent citizens,” because “in our democratic system, how much harmless conduct to proscribe is not a judgment to be made by the courts.”

Speaking from the bench Thursday, at times reading from a written summary of his dissent and at times extemporizing, Justice Scalia said emphatically that if he lived in a gang-infested area, “I would trade my right to loiter in the vicinity of a gang member in return for the liberation of my neighborhood in an instant.”

Justice Clarence Thomas dissented as well, in an opinion that Chief Justice William H. Rehnquist and Justice Scalia also signed. Justice Thomas and Chief Justice Rehnquist did not, however, add their names to Justice Scalia’s opinion. Whether his tone was too strong for them or whether they simply had different points to make was not clear.

Justice Thomas’s dissenting opinion emphasized the historical pedigree for the “well-established principle that the police have the duty and the power to maintain the public peace and, when necessary, to disperse groups of individuals who threaten it.”

His opinion also included some pointed language. “By invalidating Chicago’s ordinance, I fear that the Court has unnecessarily sentenced law-abiding citizens to lives of terror and misery,” Justice Thomas said, adding that the Court had the luxury of focusing on the “‘right’ of gang members and their companions” because “the people who will have to live with the consequences of today’s opinion do not live in our neighborhoods.”

Chicago defended its law on both pragmatic and analytic grounds, offering statistics to show that while the gang-related homicide rate fell by 26 percent in 1995, the last year the law was in effect, the rate climbed by 11 percent during the year following the law’s invalidation. But Justice Stevens, noting that the homicide rate then went back down the next year, by 19 percent, said it was difficult to evaluate these statistics “or to reach any firm conclusion about the ordinance’s efficacy.”

On analytic grounds, Chicago argued that there was nothing at all vague about the requirement to obey a police officer’s order to move on. Justice Thomas agreed with this argument. “There is nothing ‘vague’ about an order to disperse,” he said.

But the majority found this argument insufficient. “That the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue,” Justice Stevens said.

The majority opinion emphasized the law’s ability to put innocent people unknowingly at risk.

“Friends, relatives, teachers, counselors or even total strangers might unwittingly engage in forbidden loitering if they happen to engage in idle conversation with a gang member,” Justice Stevens said.

Further, he added, the law has the “perverse consequences” of not applying at all to the most dangerous type of gang-related loitering, that for which the purpose is apparent — to deal in drugs, for instance.

The case was argued more than six months ago, and the combined opinions, totaling 79 pages, bore the earmarks of institutional struggle. While Justice Stevens was joined by Justices Breyer, O’Connor, David H. Souter, Ruth Bader Ginsburg and Anthony M. Kennedy in speaking for the Court on the vagueness issue, that was not the case on the separate issue of how to evaluate the underlying constitutional right that was at stake.

Only Justices Souter and Ginsburg subscribed to Justice Stevens’s view that “it is apparent that an individual’s decision to remain in a public place of his choice” is an aspect of personal liberty protected by the 14th Amendment’s due process guarantee. Justice Scalia, in his dissenting opinion, aimed so much of his ire at what was only a few paragraphs of due process analysis in Justice Stevens’s opinion as to suggest that the analysis might have had a more prominent place in an earlier draft.

In any event, the majority’s stolid tone Thursday differed notably from the approach the Justices took nearly 30 years ago, when a series of decisions struck down an earlier generation of vagrancy laws that cities in the South had been applying in a racially discriminatory manner. Papachristou v. City of Jacksonville, a 1972 opinion by Justice William O. Douglas, was essentially a paean to nonconformity and to the lure of the open road as extolled by Thoreau, Walt Whitman and Vachel Lindsay. Justice Douglas spoke admiringly in his unanimous opinion of “lives of high spirits rather than hushed, suffocating silence.”

Justice Stevens, trying to hold a majority on a much different Court, cited the Papachristou opinion Thursday, but only as a “see also,” in passing.

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