Court Reviews Anti-Gang Law
Chicago Ordinance Pits Safety Concerns vs. Constitutional Rights

ABCNEWS.com
Dec. 9 — The Supreme Court today reviewed a Chicago anti-loitering law designed to curb gang activity that raises First Amendment issues of freedom of assembly and association.

Luis Gutierrez was arrested in October and charged under Chicago's controversial anti-loitering ordinance. (AP Photo)

     A majority of justices voiced doubts about reinstating the city of Chicago’s Gang Congregation Ordinance, which was used to arrest more than 42,000 people during the three years it was in effect.
     It was ruled unconstitutional by Illinois courts in 1995.
     “There is a concern here for arbitrariness of the police,” said Justice Sandra Day O’Connor.
     The anti-loitering ordinance is supported by local neighborhood organizations, the National League of Cities and the U.S. Conference of Mayors, the National Governors’ Association, 31 states and the Clinton administration.
     But Justice David H. Souter said in court today that he had “difficulty” with what he called the ordinance’s “silent assumption” that “some purposes are worthy and some are not.”
     “The question that is bothering some of us,” said Souter, “is on what basis [people told to move on] can come to the conclusion that the police officer has the predicate [legal authority] to issue the order.”
     Justices Ruth Bader Ginsburg, Anthony M. Kennedy and Stephen G. Breyer also expressed concerns over the law’s broad interpretation.

‘Inherently Vague and Overbroad’

Year Overall Homicides Gang-Related Homicides *1993 854 223 1994 931 284 1995 828 210 **1996 793 225 *First year ordinance was in effect **First year after ordinance was ruled unconstitutional (Chicago Police)

The ordinance required police to order any group of people standing around “with no apparent purpose” to move along if an officer believed at least one of them belonged to a street gang. Those who refused to obey could be arrested.
     “Street gangs rely on their ability to terrorize the community,” city lawyer Lawrence Rosenthal told the court. “Gang crime has been rising, and more people are getting shot.”
     But lawyer Harvey Grossman, representing 66 people arrested under the ordinance, called the disputed law “inherently vague and overbroad” and therefore unconstitutional.
     Groups opposing the legislation include the NAACP and other civil rights groups, the National Law Center on Homelessness and Poverty and the National Black Police Association.
     Only Justice Antonin Scalia and Chief Justice William H. Rehnquist seemed sympathetic to the city’s argument that the ordinance is a valid attempt to deal with “the enormous evils associated with gang loitering.”

Targeting Gang Violence
According to police, many of Chicago’s gang members — estimated at more than 10,000 — sell drugs from their street-corner hangouts. Last year, gang violence resulted in 182 of the city’s 759 homicides.
     The Illinois Supreme Court struck down the ordinance last year, saying it restricted personal liberty while not distinguishing between innocent and harmful conduct.
     In 1972, the nation’s highest court struck down a Jacksonville, Fla., ordinance that prohibited “persons wandering or strolling around from place to place without any lawful purpose or object.”
     That same year, the Supreme Court upheld an ordinance that allows the arrest of someone who disobeys a police officer’s order, but that case involved a man who had gathered with others to interfere in a police investigation of a traffic incident and police told him why he should leave.
     The court is expected to decide the Chicago case, Chicago vs. Jesus Morales 97-1121, by July.

The Associated Press contributed to this report.

Chicago vs. Morales

1992 The City of Chicago conducts extensive hearings on the problems of street crime, particularly crime caused by gang members.

1992 On June 17, city officials adopt the City of Chicago's Gang Congregation Ordinance, commonly called the "gang loitering" ordinance. The law reads in part: "Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this order."

1992 On Aug. 8, the Chicago Police Department issues General Order No. 92-4, which sets forth standards for police to use in identifying street gangs and in determining whether an individual is a member of a criminal street gang.

1993 In June, James Youkhana and 14 individuals are charged with violating the anti-gang ordinance. The individuals later petition a municipal court to dismiss the charges, arguing that the ordinance is unconstitutional and violates their rights under the First, Fourth and Fourteenth Amendments of the U.S. Constitution. The municipal court grants the motion and dismisses the charges.

1995 On Dec. 18, an Illinois appellate court for the first time rules in City of Chicago vs. Youkhana that the gang loitering ordinance is unconstitutional. The court determines the ordinance "violates the freedoms of association, assembly and expression secured by the first amendment and article I, section 5 of the Illinois Constitution" and "infringes upon First Amendment freedoms in several obvious ways."

1997 On Oct. 17, the Illinois Supreme Court hears several consolidated appeals involving over 70 defendants, including lead defendant Jesus Morales and James Youkhana. The Illinois Supreme Court in City of Chicago vs. Morales also rules the law unconstitutional, though it decides the issue on due-process, rather than First Amendment, grounds.

1998 On Jan. 5, the city of Chicago appeals to the U.S. Supreme Court. (Chicago vs. Morales, 97-1121).

1998 On April 20, the U.S. Supreme Court agrees to hear the case.

Source: First Amendment Center