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.
High Court Voids Chicago Loitering Law Aimed at Gangs
By LINDA GREENHOUSE
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