Opposition Brief — Chicago v. Morales

F Supreme Court, U.S.

FILED

MAR 9 1998

No. 97-1121 | QFEICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1997

CITY OF CHICAGO,

Petitioner.

Vv.

JESUS MORALES, et al.,

Respondents.

Petition for a Writ of Certiorari to the

Supreme Court of Illinois

BRIEF IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

RITA A. FRY

Cook County Public Defender

Eileen T. Pahl *

Assistant Public Defender

200 West Adams Street

4th Ploor

Chicago, Illinois 60606

(312) 609-2040

Attorneys for Respondent

* Counsel of Record

QUESTIONS PRESENTED

l. Whether an ordinance which criminalizes "remaining in

one place with no apparent purpose" in association with a person

believed by a police officer to be a gangmember is void for

vagueness by failing to place a reasonable person on notice of

what conduct to avoid and/or by encouraging arbitrary and

discriminatory enforcement?

2. Whether an ordinance which arbitrarily and

unreasonably criminalizes “remaining in one place with no

apparent purpose" in association with a person believed by a

police officer to be a gangmember violates substantive due

process guarantees?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED. te, Je et lan Ri th oe at Lap Se ee Ga ace wey eae ee ae

ee cer PS oe Ge we A Mg eo dk See eels iii

Pa Mr «6 6 6 6 6 4:8 6 0 se 6 ee eo «a eal

CONSTITUTIONAL PROVISIONS INVOLVED .......4.4+6e6-e4-e424.42

gE Oe a are ae ree tt ee ee

Remus Som Genie SS PETETION . 1 ws tc sc tc twee tt te eG

CONCLUS ION . . . . . * . . . . . . . . . . . . . . . . . . * . 1 8

44 a

TABLE OF AUTHORITIES

Tll. Const. art I, section2..... ‘a a a ee”

California v. Freeman, 488 U.S. 1311,

-Ct. 854, 102 L.Ed.2d 957 (1989). ......

City of Dallas v. Stanglin, 490 U.S. 19,

1 S.Ct. 1 , 4 -E . d 1 (1989). . 7 . . . . .

Dawson v. Delaware 503 U.S. 159, 112 S.Ct. 1093,

L.E . ( 992). >. _ . . . . - . . > . . . .

In Re qgsn ip: 397 U.S. 358, 90 S.Ct. 1068,

lee . 8 (1970) >. 7 . . . . >. . . > . . > . .

Jackson yv. Virginia, 443 U.S. 307, 99 S.Ct. 2781,

L.E . ( 9) . . . . . tis . . . . . . . .

Papachristou v. City of Jacksonville, 405 U.S. 156,

ie Se , L.E . ( ) > . > > > . > >

People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090,

929 P.2d 596, 60 Cal. Rptr. 2d 277, cert. denied

117 S.Ct. 2513 (1997) > . . . >. . > . . . > > > > .

People v. Nash, 173 I11.2d 423,

N.E. 6 (1996) . 7 >. . > > >. . . > >. . . >.

ROllins v. Ellwood, 141 111.24 244,

565 N.E.2a 1302 (1990) _ > > >. - . > . * > — >. * .

Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889,

0 L.E . ( 68) > . . . . . . . > . . . . . .

Terry v. Ohio, 392 U.S. 1,

88 S.Ct. 1868, 20 L.Ed.2d 889 [eneen 6. 6a & ole ee

444

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

No. 97-1121

CITY OF CHICAGO,

Petitioner,

v.

JESUS MORALES, et al.,

Respondents.

Petition for a Writ of Certiorari to the

Supreme Court of Illinois

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Respondents, Jesus Morales et al., respectfully request

that this Court deny the City of Chicago's Petition for a Writ

of Certiorari to review the judgment of the Supreme Court of

Illinois in these cases.

JURISDICTION

This Court does not have jurisdiction over the questions

presented in the City's Petition with respect to the

respondents, together or individually, because the decision of

the Illinois Supreme Court rested on adequate and independent

state grounds.

CONSTITUTIONAL PROVISIONS INVOLVED

In addition to the provisions listed in the City's

Pet.cion, these cases involve Article I, section 2 of the

I Janois Constitution.

STATEMENT OF THE CASE

The City's Petition describes the enactment of its gang

loitering ordinance but omits any discussion of the records of

the individuals who were convicted and sentenced for violation

of that ordinance.

Jesus Morales

At a bench trial, Officer Ray Frano testified that he saw

approximately six young male Hispanics standing at the street

corner by 1100 West Belmont "(t)alking to citizens on the

Street." (Morales, R. 6). That Chicago neighborhood was

predominately Caucasian. (Morales, R. 12-13). Officer Frano

approached the Hispanic teenagers on the corner with the stated

reason: “(b)ecause we wanted to know if they lived in the

neighborhood or from the neighborhood.” (Morales, R. 7). He

told the group of Hispanic teenagers that he would arrest them

if they did not leave. (Morales, R. 8, 10-11). Officer Frano

left the scene. (Morales, R. 11). When he returned later, he

arrested Jesus Morales and another person at the corner for gang

loitering. (Morales, R. 11). According to Officer Frano, he

believed Morales was a gang member because Morales wore blue and

black clothing. (Morales, R. 9-10, 12).

Jesus Morales testified that he was pausing at the

intersection while walking on crutches home from a nearby

hospital. (Morales, R. 17-18, 19-21). After Morales told

Officer Frano that he had no outstanding warrants, Officer Frano

arrested him for gang loitering. (Morales, R. 18-19). Morales

himself was not a gangmember although he knew that the other

person present on the corner was a Gangster Disciple. (Morales,

R. 19).

The trial court found Morales guilty of gang loitering and

sentenced him to 1 day in the Cook County Jail. (Morales, R.

23, 24).

Gregorio Gutierrez

Officer Matthew Craig testified at a bench trial that he

observed Gregorio Gutierrez Standing at the corner of Broadway

and Winona Streets in Chicago with two other men “doing

absolutely nothing.” (Gutierrez, R. 8-9, 12). Officer Craig

and his partner immediately told them to break up and leave the

area. (Gutierrez, R. 12, 18-19). Officer Craig and his partner

drove off around the block. (Gutierrez, R. 12, 19). When they

returned, they saw Gutierrez standing at the same corner and

arrested him for gang loitering. (Gutierrez, R. 12, 13, 18).

According to Officer Craig, Gutierrez had told him on previous

occasions that he belonged to the Latin Kings. (Gutierrez, R.

11-12).

Gregorio Gutierrez testified that he had left his home with

his brother and was walking towards a nearby El stop to go to

their mother's place of employment. (Gutierrez, R. 24-25, 28).

Along the way, they stopped to purchase a sandwich and soda from

a store. (Gutierrez, R. 24-25, 28). Officer Craig and his

partner drove up to them at the corner and arrested them without

ever telling them to leave. (Gutierrez, R. 26-27, 29). When

Gutierrez asked why he was being arrested, "they told us they

don't like us." (Gutierrez, R. 27, 29).

Gutierrez never told Officer Craig that he was a member of

the Latin Kings. (Gutierrez, R. 29). Gutierrez was no longer a

member of the Latin Kings and had not been a member on June 3,

1993. (Gutierrez, R. 30). No one else with him at the corner

was a member of the Latin Kings. (Gutierrez, R. 30).

The trial court found Gutierrez guilty and sentenced him to

27 days in the Cook County Jail. (Gutierrez, R. 32, 37).

Daniel Washington

At a bench trial, Officer Estrella testified that on March

13, 1994, at 7:45 p.m. at 2942 West Fulton in Chicago about 150

feet from a store, he drove up to “several youths out there

yelling and screaming at passing cars and stuff like that. Just

being loud on the street." (Washington, R. 9-10, 17, 19).

Officer Estrella observed the youths for a minute or two before

approaching them. (Washington, R. 18). Daniel Washington was

in the group of youths. (Washington, R. 10). A couple of the

youths admitted that they were Vice Lords but Officer Estrella

could not recall which ones. (Washington, R. 11, 16-17).

Officer Estrella told them to disperse for the stated reason

that “they were running too deep, meaning too many of them out

there.” (Washington, R. 11).

Officer Estrella took off for an hour or hour and a

half. (Washington, R. 11, 18). When he returned, he saw the

same youths at the corner, went immediately up to them and told

them to disperse. (Washington, R. 11, 18). Officer Estrella

left for another unspecified length of time and arrested

Washington and the other youths when he returned, telling them

“they didn't want to listen so we're taking them in for gang

loitering." (Washington, R. 12, 18-19). According to Officer

Estrella, Washington admitted subsequent to his arrest that he

belonged to the Vice Lords. (Washington, R. 16).

Barbara Ann Williams Washington, Daniel's mother, testified

that her son was not a member of any gang. (Washington, R. 27).

Daniel Washington testified that he went to the unfamiliar

neighborhood of Sacramento and Fullerton with a friend.

(Washington, R. 28, 31). While his friend stopped to talk to

some people Daniel did not know, Daniel went into a nearby

store. (Washington, R. 29, 31-32). When he came out 15 or 20

minutes later, he was arrested. (Washington, R. 29-30, 32). No

one asked, and Daniel did not tell anyone that he was in the

Vice Lords. (Washington, R. 31).

The trial court found Daniel Washington guilty and

sentenced him to 20 days in the Cook County Jail. (Washington,

R. 35-36).

Jose Renteria Sandy Garvin

At a bench trial, Officer Pena testified that Jose The parties stipulated at a bench trial to the

Renteria's name appeared on a gang card file on the Satan following testimony of Officer “ran:

Disciples maintained by the Chicago Police Department. rivets Bon Foggy EP. ow wy she pnt Stead

(Renteria, R. Al3). The card was not produced at trial. ne Mg tmway Bari fe Beh ren Mi the vicinity of

. '

(Renteria, R. Al4). Officer Pena identified members of the The officer approached the individual based on his

Satan Disciples by the area they hung out, by the hand signals te gpg re - ian Wieee aetates cement ce”

they flashed and by the colors they wore although she stated Nae neties see based on self-ednisaion —— se oe

by tattoos that were on each of their bodies.

that “they don't always wear them." (Renteria, R. A26-29). Based on this reasonable belief, Officer Fran ordered Mr.

On July 9, 1994 at 11:30 p.m., Officer Pena went in ey A aR. E ete cae Garvin failed

plainclothes to 1600 West Ohio in Chicago. (Renteria, R. (Garvin, R. 9). Based on this stipulation, the court found

Al4-Al5). She saw Jose Renteria with two members of the Satan Garvin guilty of gang loitering and sentenced him to 2 days in

Disciples “hanging out” on the corner. (Renteria, R. Al6-Al7). the Cook County Department of Corrections. (Garvin, R. 10).

Officer Pena had ordered them to leave 15 or 20 minutes before.

(Renteria, R. Al8, A22-A23, A24-A25). According to Officer Raul Jimenz, Jr

pT MEP. it FRE EY

The Complaint alleged that on February 15, 1993 at 1324 WwW.

—— we °° oe ene eee own

Pena, she considered her order to leave to apply to anywhere in

the general vicinity of the corner although she had only 18th Place, Chicago, Illinois, Raul Jimenz, Jr. "knowingly

specifically told them to leave the corner itself. (Renteria, remained at a known designated location for criminal street

R. A22-A23, A25). When ordered to leave, they had walked away. activity, after being informed by a police officer to disperse

(Renteria, R. A22). She arrested Jose Renteria but no one else from this area. Further, the above, is a known member of a

for gang loitering without again warning him to leave. criminal street gang, to wit: ‘Ambrose.'" (Jimenz, CLR. 2).

(Renteria, R. Al8, A20, A23). At a bench trial, the parties stipulated to the facts in

The trial court found Renteria guilty and sentenced him to the complaint. (Jimenz, R. 3-4). The court found Jimenz guilty

one day in the Cook County Jail. (Renteria, R. A35-A38). of gang loitering and sentenced him to six months of supervision

and 7 days of community service. (Jimenz, R. 4-5).

REASONS FOR DENYING THE PETITION

This Court should not entertain the City of Chicago's

Petition for a Writ of Certiorari. Reversal would not change

the outcome for the litigants here. The Illinois Supreme

Court's opinion was based on the separate and independent ground

of the Illinois Constitution, state caselaw and a determination

that the evidence presented at the trials of respondents who

were convicted did not prove that the police officers adhered to

the ordinance and its accompanying general order. In addition,

the Illinois Appellate Court found the City's gang loitering

ordinance to be unconstitutional on at least three other grounds

not reached by the Illinois Supreme Court.

Nor is review warranted by the importance of the questions

presented. The decision of the Illinois Supreme Court holding

the City's gang loitering ordinance to be vague and in violation

of substantive due process was focused on the specific language

before it. As such, that decision neither stands in conflict

with other jurisdictions nor has an impact beyond the litigants

in the Illinois courts. In any event, the Illinois Supreme

Court correctly determined that an ordinance which criminalized

“remaining in one place with no apparent purpose” in association

with a person whom a police officer believed to be a gang member

was void for vagueness and violated rights of substantive due

process.

l. This Court should not grant review because the

decision of the Illinois Supreme Court rested on adequate and

independent state grounds. The opinion cites the Illinois

Constitution in support of the finding that the Ordinance

violates due process. Petition Appendix at p. 6a, citing Ill.

Const. art I, section 2. The Illinois Constitution has been

interpreted to stand separate and independent from the federal

guarantee of due process. See e.g. Rollins v. Elwood, 141

I1l.2d 244, 275, 565 N.E.2d 1302 (1990). The Illinois Supreme

Court also placed heavy reliance on People v. Nash, 173 I11.2d

423, 431, 672 N.E.2d 1166 (1996), which expressly invoked only

state law in support of its holdings. Petition Appendix at pp.

lla-l2a.

Moreover, the Illinois Supreme Court found that "a thorough

examination of the record reveals that police officers have not

followed the guidelines of the general order in a uniform

manner." Petition Appendix at p. l6éa, n. 1 (specifically

discussing the evidence presented at the trial of respondent

Jesus Morales). See e.g. California v. Freeman, 488 U.S. 1311,

109 S.Ct. 854, 102 L.Ed.2d 957 (1989) (decision that defendant's

conduct was not within statutory definition of crime furnished

adequate and independent state ground for reversing

conviction). As in Freeman, were this Court to review these

cases and hold that the Illinois Supreme Court misinterpreted

federal law, on remand the Illinois Supreme Court would

nevertheless reach the same result based on the state law

grounds that the City failed to prove that the police followed

the ordinance and its accompanying general order.

Review of the questions presented in the City's Petition

would also be a futile gesture here because the Illinois

Appellate Court found the City's ordinance to be

unconstitutional on at least three additional grounds not

reached by the Illinois Supreme Court. Petition Appendix at p.

2la. Clearing only the two hurdles of vague language and

Substantive due process cannot remove those other obstacles to

reinstating this flawed ordinance.

2. In any event, contrary to the City's assertions in its

Petition, there is no relevant conflict here because the instant

Ordinance is not similar to the laws addressed by the City.

The Illinois Supreme Court properly ruled that an ordinance

which criminalized “remaining in one place with no apparent

purpose" was void for vagueness. The City's Petition points to

other cases purportedly in conflict with this decision.

Petition at p. 14. However, none of the cited regulations

penalized loitering “with no apparent purpose." Instead, as the

Illinois Supreme Court recognized, ordinances which have been

upheld by other courts have all included a requirement of some

overt act or criminal intent. Petition Appendix at pp.

10a-lla. Those containing language similar to the City's

ordinance have been struck down. Petition Appendix at pp.

l0a-lla.

10

Similarly, the City's contention that lower courts are in

irreconcilable disagreement about the scope of the vagueness

doctrine in general and Papachristou in particular ignores the

nature of a void-for-vagueness challenge. Petition at pp.

14-18, citing Papachristou v. City of Jacksonville, 405 U.S.

156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). In determining

whether a statute is vague, a court must analyze the precise

words of that particular statute. See e.g. Petition Appendix at

pp. 6a-7a. It is hardly remarkable that courts have come to

different conclusions about various loitering laws when such

laws are rarely drafted with uniform language.

In addition to the purported split of authority over

loitering laws, the City alleges the existence of other

unrelated conflicts over such laws as the Model Penal Code,

cruising ordinances, and prohibitions against sleeping in

public. Petition at pp. 16-17. However, the City does not

explain how resolution of any of those purported conflicts would

lead to a reversal of the Illinois Supreme Court's decision

about the instant ordinance. Similarly, while the City

complains about the uncertain scope of Papachristou with respect

to other regulations, it does not advance any argument that the

Illinois Supreme Court misapplied Papachristou's holding to the

ordinance at issue here.

Finally, the City claims that the decision of the Illinois

Supreme Court about substantive due process is in conflict with

the decision of the California Supreme Court in People ex rel.

Gallo v. Acuna, 14 Cal. 4th 1090, 929 P.2d 596, 60 Cal. Rptr. 2d

11

ES

277, cert. denied 117 §.Ct. 2513 (1997). Acuna is clearly

distinguishable because it involved not a criminal law but an

injunction entered against a small group of specified

individuals. Here, in contrast, the City enacted a general

Criminal law which it enforced against 45,000 people. Petition

at p. 9. The Illinois Supreme Court further distinguished

Acuna on the basis that the language of the injunction there

required actual knowledge of gangmembership instead of the

"reasorable belief of a police officer" languace in the City's

Ordinance. Petition Appendix at p. 12a. Likewise, there is no

conflict with City of Dallas v. Stanglin, 490 U.S. 19, 109 S.Ct.

1581, 104 L.Ed.2d 1 (1989), which upheld a dancehall regulation

under the exercise of parens patriae powers. Petition at p. 19.

Accordingly, there is no meaningful conflict here which

would warrant this Court's review.

3. Nor is there any basis for the City's contention that

“under the approach taken in the decision below, it is decidedly

unlikely that any loitering ordinance could survive

constitutional attack." Petition at p. 10.

The Illinois Supreme Court's decision about the precise

language of this particular ordinance does not doom all

regulation of loitering. The opinion itself points out that

“when the term ‘loitering’ is joined with a second specific

element to form the prohibited conduct defined by a criminal

loitering statute, courts have uniformly found that the law

sufficiently informs persons as to the forbidden conduct, and

12

ee

he

tt A

thus, is not vague." Petition Appendix at p. lla. The Illinois

Supreme Court noted that statutes combining loitering with

another overt act or criminal intent furnished examples of

sufficiently specific second elements. Petition Appendix at p.

10a.

Consequently, if the City wishes to reap the supposed

benefits of the “Broken Windows" theory of law enforcement or to

avoid potential civil liability under Section 1983, it may

simply amend its loitering ordinance to any one of the myriad

formulations which have been upheld in other jurisdictions.

4. The decision of the Illinois Supreme Court was correct

on the merits and in no way amounts to “serious misapplication

of vagueness doctrine." Petition at p. 10.

The City argues that an order from a police officer tells

suspects “precisely what they must do - move along - to avoid

arrest." Petition at p. 12. But the ordinance here provides no

guidance for avoiding a police order to disperse in the first

place. Instead, as the Illinois Supreme Court held, the

decision whether certain persons are loitering in the presence

of a gangmember is left to the standardless discretion of a

police officer. Petition Appendix at pp. l3a-l5a. The City's

Petition focuses on the notice prong of the vagueness doctrine

and fails to acknowledge that the Illinois Supreme Court also

found that the Ordinance as written - and as applied to

respondents who were convicted - encouraged arbitrary and

discriminatory enforcement. Petition Appendix at pp. l4a-17a.

13

The City's Petition exhibits a fundamental misunderstanding

of criminal law when it argues that an officer's reasonable

belief that a loiterer is a gangmember saves its ordinance from

vagueness because “all criminal statutes are enforced based on

the arresting officer's belief that reasonable suspicion or

probable cause exists." Petition at p. 13. However, other

criminal statutes including loitering laws do not elevate an

officer's reasonable suspicion or probable cause into an element

of the offense as the City's ordinance purports to do. The

Ordinance here allows for a person to be convicted - not merely

stopped or arrested - based solely on a reasonable belief rather

than proof beyond a reasonable doubt that the loitering is done

in association with a gangmember. See e.g. In Re Winship, 397

U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (essential

elements of criminal offense must be proven beyond a reasonable

doubt); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979).

Moreover, the City misapplies the notion of probable cause

by divorcing it from the requirement of criminal activity. It

is black letter law that reasonable suspicion for a Terry stop

or probable cause for arrest must stem from particularized and

objective facts indicating that a suspect has committed or is

about to commit a crime. See e.g. Terry v. Ohio, 392 U.S. 1, 88

S.Ct. 1868, 20 L.Ed.2d 889 (1968). Here, the Ordinance requires

only that a police officer have a reasonable belief about a

person's association with a gang, which cannot by itself

constitute criminal activity. See e.g. Dawson v. Delaware, 503

14

U.S. 159, 112 S.Ct. 1093, 117 L.Ed.2d 309 (1992). "Probable

cause” with respect to identity or association is not

constitutionally sufficient probable cause that a person is

involved in criminal activity. See e.g. Sibron v. New York, 392

U.S. 40, 88 S.Ct. 1889, 1902, 20 L.Ed.2d 917 (1968).

With respect to substantive due process, the City's

Petition devotes considerable space to arguing points not

reached below. Petition at pp. 18-20. In its opinion, the

Illinois Suprem-: Court expressly stated that its ruling on

substantive due process did not reach questions of the right of

expressive or intimate association. Petition Appendix at p.

19a. Instead, the Illinois Supreme Court found the City's

ordinance to be unconstitutional under lesser scrutiny because

it arbitrarily intruded on personal liberties including the

general rights to travel and to associate with others. Petition

Appendix at 18a.

Without citation of any authority, the City hypothesizes

that “loitering is the antithesis of travel" and that its

ordinance does not unreasonably burden that right so long as

citizens “keep on walking.” Petition at p. 20. One does not

have to look further than the facts in the record about the

City's enforcement of this provision for a demonstration of the

ordinance's inherent arbitrariness and unreasonableness.

Respondent Jesus Morales was convicted of gang loitering after

he paused while walking home from the hospital on crutches.

(Morales, R. 17-18, 19-21). Notably, despite its protestations

about the right of association, the City also prosecuted and

15

convicted Respondent Gregorio Gutierrez for his loitering in

association with his own brother. (Gutierrez, R. 24-25, 28);

Petition at pp. 18-19.

Pointing to the history and tradition of loitering laws,

the City argues that there is no constitutional basis for

invalidating prophylactic laws enacted after legislative

cost/benefit balancing. Petition at p. 20-21. The City also

expresses its desire to dispense with the requirement of proof

of criminal activity beyond a reasonable doubt. Petition at Pp.

24. However, as numerous courts have recognized, loitering laws

have an equally long history of abuse. Petition Appendix at Pp.

8a. Labelling a criminal statute as a “prophylaxis” cannot

evade the attendant constitutional requirements including proof

beyond a reasonable doubt and language that clear enough to

define prohibited conduct and confine the exercise of

discretion. Petition at pp. 20-21.

Because the decision of the Illinois Supreme Court

addressing the particular structure and language of this

ordinance was correct in finding it to be wanting on grounds of

void-for-vagueness and arbitrariness, no further review is

necessary.

In short, the City's Petition has advanced no grounds to

warrant review. The Illinois Supreme Court's decision rested on

adequate and independent state grounds and the Illinois

Appellate Court found the Ordinance to be unconstitutional for

at least three additional flaws. There is no conflict in the

16

lower courts relevant to the particular language of this

ordinance. The demise of this ill-drafted ordinance will have

no impact beyond the litigants as the means of appropriate

regulation of loitering is well-established in other case law.

Pinally, the decision itself is correct on the merits.

17

CONCLUSION

The Petition for a Writ of Certiorari should be denied.

Respectfully submitted,

RITA A. FRY

Cook County Public Defender

BY: te yy AlY

Eileen T. Pahl *

Assistant Public Defender

200 West Adams Street

4th Floor

Chicago, Illinois 60606

(312) 609-2040

Attorney for Respondents

March 9, 1998 * Counsel of Record

18