Taking Back the Community
Chicago’s Anti-Gang Loitering Law Up for Supreme Court Review
December 11, 1998

Grass-roots advocates believe Chicago's anti-gang loitering law is a controversial approach to ending gang violence. (John Zich/AP Photo)

By Rebecca Leung
ABCNEWS.com
An anti-loitering law targeted at street gangs in Chicago is pitting individual freedoms against community safety — raising First Amendment concerns about the right to stand in public.

Police say gang-related homicides in Chicago neighborhoods dropped 26 percent in 1995 after enforcement of the law. (Magellan Geographix/ ABCNEWS.com)

    The Supreme Court on Wednesday reviewed a Chicago anti-gang ordinance that was used to arrest more than 42,000 people during the three years it was in effect.
     Police say gang-related homicides dropped 26 percent in 1995 after enforcement of the law.
     However, grass-roots advocates believe this law is a controversial approach to ending gang violence.
     “It’s a double-edged sword,” says Freddy Calixto, executive director of BUILD Inc., a gang violence prevention program located in Chicago’s West Town community.
     “We’re working with young people who believe they’re being harassed by law enforcement, but we’re also dealing with parents who are tired of their kids being killed. We don’t want a police state, but we are looking for help.”

Constitutionally Vague?
Under the ordinance, it is illegal for suspected gang members and their followers to be found loitering in any public place.
     Offenders refusing to disperse faced a fine as high as $500 and up to six months in jail.
     The law has been challenged as unconstitutionally vague, and a violation of First Amendment rights of association and assembly.
     It was ruled unconstitutional by Illinois courts in 1995, but states with similar laws are now carefully watching this case.
     “Anti-gang laws are proliferating around the country, and this case will establish boundaries for what can and can’t be done in responding to gangs,” says David Cole, law professor at Georgetown University and staff attorney with the Center for Constitutional Rights.
     “We need to impose clear guidelines for police action, because these kinds of laws tend to be enforced against minority youth, reinforcing a sense that there is a double standard in our system.”

‘Tremendous Security’
Individual rights of association and assembly may be important, but community needs have to be addressed as well, argue proponents of the law.
     “This was meant to be a protection for all people, and there was no intention to deprive any people of their rights,” said Alderman William Banks, principal sponsor of the ordinance.
     “There was a tremendous security in our communities when this was being enforced.”
     But others believe the law will create more problems for local youth.
     “There’s a benefit to having a safer neighborhood, but if it’s enforced, more kids are going to get picked up even if they’re not doing anything at all,” says Coco Calixto, a former gang member and BUILD gang remediation counselor.

Community Needs First

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 statute, while questioned by some as an unlawful effort to battle gang activity, has been welcomed by some neighborhood residents.
     “This case presents a law enforcement technique that is representative of a modern type of policing strategy, a new, innovative way to prevent more serious crimes,” says Tracey L. Meares, law professor at the University of Chicago who filed an amicus brief on behalf of 20 local community groups.
     “Whenever gang members are in the neighborhood, even if they’re just hanging around, they intimidate the neighborhood, and scare other kids — that’s an invitation to violence,” adds Gabe Gonzalez, executive director of the Northwest Neighborhood Federation, which pushed for passage of the law.
     But Warren Friedman, founder and executive director of the Chicago Alliance for Neighborhood Safety, believes the ordinance places too much power in the hands of the police.
     “What it does is anti-community policing, delegating everything to the police and leaving the community out,” says Friedman.
     “If you make the community passive and if you pit one group against another — adults against young people, blacks against white—it will divide the neighborhood and remove the strongest crime force, the neighbors.”
     The case is Chicago v. Jesus Morales 97-1121.

Chicago v. 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 August 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 December 18, an Illinois appellate court for the first time rules in City of Chicago v. 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 October 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 v. Morales also rules the law unconstitutional, though it decides the issue on due-process, rather than First Amendment, grounds.

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

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

Source: First Amendment Center