Amicus Curiae Brief — Chicago v. Morales

Supreme Court, U.S.

FILED

(1) MAR g 1998

7

No. 97-1121 | OFFICE OF THE CLERK

In the Supreme Court of the United States

October Term, 1997

CITY OF CHICAGO,

Petitioner,

Vv.

JESUS MORALES, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the Supreme Court of Illinois

BRIEF OF THE UNITED STATES CONFERENCE OF

MAYORS, THE NATIONAL LEAGUE OF CITIES,

THE NATIONAL ASSOCIATION OF COUNTIES,

THE INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, THE

INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION and THE INTERNATIONAL

ASSOCIATION OF CHIEFS OF POLICE AS AMICI

CURIAE IN SUPPORT OF PETITIONER

Michele L. Odorizzi

Counsel of Record

Jeffrey W. Sarles

Steffen N. Johnson

Mayer, Brown & Platt

190 South LaSalle Street

Chicago, Illinois 60603

(312) 782-0600

Counsel for Amici Curiae

ah \ y

TABLE OF CONTENTS

Page

INTEREST OF THE AMICICURIAE ................ |

SUMMARY OF ARGUMENT ..................006- 2

REPUETEE 620 dns éennkuneasreasbweshe dhctms exe 4

I The Chicago Ordinance Is An Appropriate

Response To Gang Warfare ................... 4

A. Urban Gang Violence Has Reached

Epidemic Proportions .................. 4

B. The Gangs Use Street Intimidation

As A Military Tactic................... 7

c. Prophylactic Measures, Such As The

Chicago Ordinance, Are Vital Tools. ..... 10

Il. The Illinois Supreme Court’s Interpretation Of

Papachristou Conflicts With Numerous Cases

Upholding The Validity Of Loitering Ordinances . 12

Il. The Illinois Supreme Court Erred In Concluding

That The Ordinance Unreasonably Intrudes Upon

Constitutional Protected Activity .............. 16

CRIPGLAME nc cesvesevcesteneveboesscesavesge 19

-ji-

TABLE OF AUTHORITIES

Cases: Page

American Civil Liberties Union v. City of Alexandria,

747 F. Supp. 324 (E.D. Va. 1990) ............. 16

Bell v. State,

313 S.E.2d 678 (Ga. 1984) ... 0... cece ces ecees 14

City of Akron v. Holley,

557 N.E.2d 861 (Ohio Mun. Ct. 1989) .......... 16

City of Bellevue v. Miller,

536 P.2d 603 (Wash. 1975) ...........600005. 14

City of Milwaukee v. Nelson,

439 N.W.2d 562 (Wis. 1989) ...........45. 13,14

City of Portland v. White,

495 P.2d 778 (Or. Ct. App. 1972) .........045. 14

City of Seattle v. Drew,

RS COPED, BOE) cc cccccccccccccese 14

City of Tacoma vy. Luvene,

RC MNIIE BOUED occcoccscccsecess 16

Coates v. City of Cincinnati,

Es nag aveeeteoddenseseant 12

Davis v. State,

1998 WL 57720 (Ala. Feb. 13, 1998)........... 15

EL. v. State,

619 So. 2d 252 (Fla. 1993) .. 2.2... cc cence wenee 16

Nn Ee ee ee -

Johnson v. Carson,

569 F. Supp. 974 (M.D. Fla. 1983)............. 16

Kovacs v. Cooper,

IED «nk. 4 cnc tudes covuwweee 18

Minnesota v. Dickerson,

Rs whe vn ence y ces cuueeauade 15

Papachristou v. City of Jacksonville,

a 2, 13, 14, 16

People ex rel. Gallo v. Acuna,

929 P.2d 596 (Cal.), cert. denied,

i Ras one ce cohen tis passim

People v. Berck,

i Ot. ME ns cc ccoenseennee 14

Powell v. Stone,

og hf Le BE rere 14

Salt Lake City v. Savage,

ee PU BOTED 6c vbevccdecctocees 14

State v. Ecker,

311 So. 2d 106 (Pie. 1975) .. ccc cccwcccccces 14

State v. Starks,

186 N.W.2d 245 (Wis. 1971) .............05.. 14

State v. VJW,

680 P.2d 1068 (Wash. Ct. App. 1984) .......... 16

Terry v. Ohio,

en Se DEED e'v'aciva < tient icnud tad 14-15

-iv-

United States ex rel. Newsome v. Malcolm,

492 F.2d 1166 (2d Cir. 1974),

Poy Er

United States v. Sokolow,

ED vs ovécnedetdewetastecaaan

Wyche v. State,

619 So. 2d 231 (Fla. 1993) .. 0.2... cece ec euens

Braun, Shepherds for a Flock in the Cross-Fire,

LA. Tignes, Sam. 16, 199S on ccc cseccececes

James B. Burns, U.S. Attorney, Anti-Violent

Crime Initiative Fact Sheet Northern

SG I INO bok Geass ete ccccecses

California Council on Criminal Justice, State Task

Force on Gangs and Drugs, Final Report (1989) ...

Public Enemy Number One (1995) .............

Herbert C. Covey et al., Juvenile Gangs (1992) ..........

Craig & Boyd, Police order crackdown after

drive-by killings, Ft. Worth Star-Telegram,

A ree erry ARS eee ere

G. David Curry & Scott H. Decker,

What's in a Name?: A Gang by any Other

Name isn't Quite the Same, 31 Val. U. L.

PRUe Fle GENED bck dduveccdeeustacéesn cettant

-V-

Gammon, Suspected Gang Member Held in

Fatal Shooting of 13-Year-Old, L.A. Times,

SR 6 chdascksoandteweWus 6eee ctccce 4

Gang Killings Exceed 40% of L.A. Slayings,

es § 8S 10

Orlando Sentinel, June 18,1997 .............. 11

Game in Town, in The Gang Intervention

SS ee 7

Alfredo Gonzalez et al., Introduction to

Gang Violence Prevention (1990) .............. 6

Grandziel, Gang Shootings Riddle the

Peace Amid Local Rivals, Chi. Trib.,

Re ME AP pe rt a 10

Andrew Hacker, Two Nations: Black and White,

Separate, Hostile, and Unequal (1992) .......... 8

C. Ronald Huff, Denial, Overreaction, and

Misidentification, in Gangs in America 310

(C. Ronald Huff ed., 1990) ................... 10

Martin S. Jankowski, /slands in the Street:

Gangs and American Urban Society

ih oan tek made kaos ecere ot 15

Johnson, Crime: New Frontier, Chi. Sun-Times,

tt a ns at he, Pubes bdeeUS ce bec eccecs x

Dan M. Kahan, Social Influence, Social Meaning,

and Deterrence, 83 Va. L. Rev. 349 (1997) ....... a)

-vi-

Lisa A. Kainec, Comment, Curbing Gang

Related Violence in America, 43 Case W. Res.

SRE GED cc ccscconasebescecetbions 12

Randall Kennedy, The State, Criminal Law,

and Racial Discrimination, 107 Harv. L. Rev.

DE 4% 006060 s avibeehaleh cbesaetne

Malcolm W. Klein, The American Street Gang (1995) ....

Christo Lassiter, The Stop and Frisk of

Criminal Street Gang Members, 14 Nat’! Black

LES ME sco n.s cu Sb@Okks cb-soatiesa¥s <+.

Man Demanding Gang Affiliation ShootsTeen

Standing on Street, Chi. Trib., Feb. 17,1998 ......

Martinez, Parents paid to walk line between

gangs and school, Chi. Trib., Jan. 21,1998 ......

David Matza, Delinquency and Drift (1990) ...........

Walter B. Miller, Why the United States Has

Failed to Solve Its Youth Gang Problem,

in Gangs in America 263

(C. Ronald Huff ed., 1990) ...........000eee:

Mills & Bunuel, Not yet ]3—and a murder

suspect, Chi. Trib., Feb. 4, 1998 .............55.

Mills & Bunuel, Small Gang's Big Grip

Troubles Neighborhood—The Saints

Have Grown More Violent And More

Diverse Since Forming In The 1960s,

Cae, Faas SEs Gs ED “Wik cdaeces cdedvcccscnes

-Vii-

More cities use curfews to try to cut youth crime,

ee SN A UE webccbenddverecs coves 12

Power, Boy headed to school killed by gang

member, police say, Dallas Morning News,

REESE SE Ean Pee ae 4

Savage & Rivera, Court Upholds Injunction

Against Gangs, L.A. Times, June 28,1997 ...... 11

L. Sherman, Oceanside gang becoming active

despite injunction, police confirm, San Diego

Union-Trib., Feb. 18, 1998 .................. 12

Stanley, Child Warriors, Time, June 18,1990 ........... 6

Stanley, Los Angeles: All Ganged Up, Time,

i eee eee Dueck pea bsne 6

Steps Needed to Combat Gangs, L.A. Times,

EGS oe Losey s dats cub be does seed 10

There Are No Children Here, Economist,

ee ee thw ee ¢ 5, 6,9

Thomas, Putting Children on the Front Lines,

USEC iScbaecivéccctcecese 6

James Q. Wilson, Just Take Away Their Guns,

N.Y. Times Mag., Mar. 20, 1994 .............. ll

Zane, Judgment against Owner of Crime-Ridden

Building, S.F. Chron., Mar. 21,1995 ............ 7

INTEREST OF THE AMICI CURIAE'

The organizations filing this amicus brief all have a vital

interest in legal issues affecting the powers and responsibilities

of local governments. The United States Conference of Mayors

is the official nonpartisan organization of the more than 1,000

cities in the United States with populations of 30,000 or more.

The National League of Cities is the country’s oldest and

largest organization serving municipal government. Its direct

members include more than 1,400 cities of all sizes and 49 state

municipal organizations; its total membership includes over

17,000 municipalities. The National Association of Counties

represents over 3,000 counties, Th International City/County

Management Association is the professional association that

represents the interests of over 8,800 appointed local govern-

ment managers.

The International Municipal Lawyers Association

(“IMLA”) is a nonprofit, nonpartisan organization consisting of

cver 1,400 local governments and their attorneys. Member

governments operate IMLA through their chief legal officers.

The International Association of Chiefs of Police, Inc. is the

largest organization of police executives and managers in the

world, consisting of more than 15,000 members from 72

nations.

The parties have consented to the filing of this brief. Copies

of the letters of consent have been filed with the Clerk of the Court.

This brief was not authored in whole or in part by counsel for a party,

and no person or entity, other than the amici curiae, their members,

and their counsel made a monetary contribution to the preparation

and submission of this brief.

.

SUMMARY OF ARGUMENT

Chicago’s gang-loitering ordinance is a narrowly

tailored response to the very serious problem of gang intimida-

tion on city streets. As demonstrated in Part I below, urban

gang violence has reached epidemic proportions as gangs have

gained a stranglehold on many inner-city neighborhoods. Law-

abiding citizens have become prisoners in their own homes,

afraid to venture out because of the gang members who loiter

in the streets outside their doors. Chicago’s gang-loitering

ordinance was designed to give police a weapon to break the

gangs’ stranglehold, by allowing officers to order groups of

gang members congregating for no apparent purpose to disperse

and to arrest those who refuse to “move on.”

Purporting to apply this Court’s decision in

Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), the

Illinois Supreme Court struck down the ordinance on grounds

that would make it impossible for local governments to enforce

almost any loitering ordinance. First, the court below found the

very concept of “loitering” to be too vague to provide a

predicate for the imposition of criminal penalties—even though

in this case, the ordinance permitted a person loitering in the

company of gang members to be arrested only ix he or she

refused a police order to “move on.” Then, the court went even

further, suggesting that a valid gang loitering ordinance could

never be constructed, no matter how precise its wording,

because it would inevitably infringe on a perceived constitu-

tional right to loiter.

This Court should grant the City’s Petition in order to

remedy the confusion apparent in the lower courts concerning

the proper reach of this Court’s decision in Papachristou. As

demonstrated in Part Il below, the Illinois Supreme Court’s

conclusion that Chicago’s gang-loitering ordinance is unconsti-

.“

tutionally vague conflicts with numerous cases upholding

loitering ordinances that are in many ways indistinguishable

from the Chicago ordinance. In addition, as demonstrated in

Part II below, the Illinois Supreme Court’s recognition of a

constitutional right to loiter is directly at odds with the Califor-

nia Supreme Court’s recent decision in People ex rel. Gallo v.

Acuna, 929 P.2d 596, 602, cert. denied, 117 S. Ct. 2513 (1997),

which expressly refused to recognize such a right. In Acuna, the

California Supreme Court rejected constitutional challenges to

an injunction that operated in much the same way as the

Chicago ordinance, concluding that the public’s right to be

protected from gang violence and inumidation outweighed

whatever conceivable liberty interest individual gang members

might have in loitering on public streets.

Communities throughout the country are searching for

new and innovative ways to control gang violence and intimi-

dation. Decisions like this one inevitably chill legitimate

experimentation. This Court should grant certiorari and reverse

the decision below.

4.

ARGUMENT

I. The Chicago Ordinance Is An Appropriate Re-

sponse To Gang Warfare

A. Urban Gang Violence Has Reached Epidemic

Proportions

America’s cities are under siege. In most large urban

areas, and increasingly in medium and small ones as well,

stories of innocent persons shot in gang war crossfires have

become staples of newspaper headlines and TV news. E.g.,

Gammon, Suspected Gang Member Held in Fatal Shooting of

/3-Year-Old, L.A. Times, Feb. 27, 1998, at BS; Power, Boy

headed to school killed by gang member, police say, Dallas

Morning News, Jan. 29, 1998, at 21A; Craig & Boyd, Police

order crackdown after drive-by killings, Ft. Worth Star-

Telegram, Jan. 7, 1998, at 1.

There are over 23,000 youth gangs in the United States,

with over 650,000 gang members. U.S. Department of Justice,

Office of Juvenile Justice and Delinquency Prevention Fact

Sheet #72 (Dec. 1997) ““OJJDP Fact Sheet”). Gangs are active

in 98 percent of municipalities with populations over 100,000.

Statement of Steven R. Wiley, Chief of FBI’s Violent Crimes

and Major Offenders Section, before the U.S. Senate Commit-

tee on the Judiciary, Apr. 23, 1997 (“Wiley Statement”).

Chicago has some 125 street gangs, with more than 100,000

members. James B. Burns, U.S. Attorney, Anti-Violent Crime

Initiative Fact Sheet Northern District of Illinois (1996). Four

of Chicago’s gangs —the Gangster Disciples, the Vice Lords,

the Latin Kings, and the Latin Disciples—account for half of

the city’s gang members, dominate vast sections of the city, and

have extended their tentacles into 35 states. Wiley Statement,

supra.

a

These street gangs are not benign associations of

disadvantaged youths, but sophisticated criminal enterprises. A

recent study, based on interviews with 99 gang members in St.

Louis, found that most members “define their gang in terms of

criminal involvement.” G. David Curry & Scott H. Decker,

What's ina Name?: A Gang by any Other Name isn 't Quite the

Same, 31 Val. U. L. Rev. 501, 504 (1997). After statistically

demonstrating that young people commit more crimes, and

more serious crimes, during periods of gang membership than

prior to entering or after leaving the gang, the study’s authors

concluded: “Gangs facilitate the commission of crime. To

ignore that is to ignore (or worse, to excuse) the violence gang

members commit against each other and their communities.” Jd.

at 514.

Although criminal gangs have long been part of the

urban landscape, they have taken a dramatic new direction in

recent years, away from small-scale and localized activities to

highly organized takeovers of entire neighborhoods based on

the acquisition of lethal weaponry financed by the lucrative

trade in crack cocaine. See Herbert C. Covey et al., Juvenile

Gangs 101 (1992); Mills & Bunuel, Small Gang’s Big Grip

Troubles Neighborhood—The Saints Have Grown More Violent

And More Diverse Since Forming In The 1960s, Chi. Trib.,

Feb. 11, 1998, at B1. Brass knuckles and baseball bats are no

longer the weapons of choice. See There Are No Children Here,

Economist, Dec. 17, 1994, at 21 (“Now automatic and semi-

automatic assault weapons are de rigueur”). Chicago and Los

Angeles alone accounted for over 1,000 gang homicides in

1994. OJJDP Fact Sheet, supra. As one researcher has con-

cluded, “The amount of lethal violence currently directed by

youth gangs in major cities both against one another and

against the general public is without precedent.” Covey,

Juvenile Gangs, supra, at 27.

&

Vast stretches of the nation’s cities have become the

equivalent of war zones. A study of Chicago’s gangs labeled

them “a mobilized army, in the tens of thousands.” Chicago

Crime Commission, Gangs: Public Enemy Number One (1995).

Gang-dominated parts of Los Angeles have been described as

“small armies of youths fighting one another and the police.”

Stanley, Child Warriors, Time, June 18, 1990, at 30. Indeed,

the U.S. Army has trained its doctors in a South Central

hospital to familiarize them with the types of gunshot wounds

they may encounter on the battlefield. Stanley, Los Angeles: All

Ganged Up, Time, June 18, 1990, at 50.

The gangs themselves view their operations militarily.

The Economist reported on an “area co-ordinator” of Chicago’s

Gangster Disciples who controls a stretch of turf ten blocks

long and five blocks wide and who has 150 “soldiers” working

for him. There Are No Children Here, supra. These gang

“soldiers” are becoming progressively younger. See Thomas,

Putting Children on the Front Lines, Wash. Post, June 20,

1996, at Al; Mills & Bunuel, Not yet 13—and a murder

suspect, Chi. Trib., Feb. 4, 1998, at Al; There Are No Children

Here, supra (citing Chicago anti-gang counselor’s estimate that

80% of boys aged 13 to 15 in the area where he works are

involved in gangs). Children growing up in gang-dominated

neighborhoods often show signs of post-traumatic stress

disorder. Alfredo Gonzalez et al., Introduction to Gang

Violence Prevention 5-6 (1990). As one journalist reported

several years ago, “many of the children emerge from the

streets of Los Angeles more psychologically scarred than the

young mujahedin who patro! the mountain passes of Afghani-

stan.” Stanley, Child Warrio.s, supra, at 30.

-7-

B. The Gangs Use Street Intimidation As A

Military Tactic

Stationing small groups of gang members on the streets

is vital to the success of the gangs’ criminal operations. These

groups stake out and lay claim to gang turf, sell drugs to

finance the procurement of arms, recruit new members (often

coercively), serve as lookouts and intelligence gatherers, and

intimidate neighborhood residents and passers-by. See Pet. 3.

Intimidation takes many forms, including wearing gang colors

and clothing, flashing gang signs, and plastering buildings with

graffiti. See Michael Genelin, Gang Prosecutions: The Hardest

Game in Town, in The Gang Intervention Handbook 417

(1993). Street-comer squads of gang members also facilitate the

commission of violent gang crimes. See Malcolm W. Klein,

The American Street Gang (1995); Man Demanding Gang

Affiliation Shoots Teen Standing on Street, Chi. Trib., Feb. 17,

1998, at B3.

Law-abiding citizens are effectively imprisoned in their

homes as a result of the mere presence of gang members on the

streets. A California State Task Force on Gangs and Drugs

observed that “[s]}ome communities are literally held captive by

the violence, intimidation and decay.” California Council on

Criminal Justice, State Task Force on Gangs and Drugs, Final

Report 16 (1989). One woman told a court that the presence of

gang members made her afraid to walk down her street to buy

a loaf of bread in broad daylight. Zane, Judgment against

Owner of Crime-Ridden Building, S.F. Chron., Mar. 21, 1995,

at A18. Civil rights leader Jesse Jackson expressed the feelings

of many when he stated, “Just to think we can’t walk down our

-8-

own streets, how humiliating.” Johnson, Crime: New Frontier,

Chi. Sun-Times, Nov. 29, 1993, at 4.2

The California Supreme Court has vividly portrayed

what can happen to a community when gang members are

permitted to congregate without any effective control.

Describing a four-square-block neighborhood in San Jose as

“occupied territory,” the court explained:

Gang members, all of whom live elsewhere,

congregate on lawns, on sidewalks, and in front

of apartment complexes at all hours of the day

and night. They display a casual contempt for

notions of law, order, and decency—openly

drinking, smoking dope, sniffing toluene, and

even snorting cocaine laid out in neat lines on

. Although some would argue that the police action authorized

by the Chicago ordinance might have a harsh and disproportionate

impact on minority youths, prominent African-American scholars

have recognized that the failure of municipalities to take back the

streets from gang members will permit the much harsher impact of

gang violence to continue to flourish. In the words of Randall

Kennedy, “the main problem confronting black communities in the

United States is not excessive policing and invidious punishment but

rather a failure of the state to provide black communities with the

equal protection of the laws.” Randall Kennedy, The State, Criminal

Law, and Racial Discrimination, 107 Harv. L. Rev. 1255, 1256

(1994). See also Christo Lassiter, The Stop and Frisk of Criminal

Street Gang Members, 14 Nat’! Black LJ. 1, 2 (1995) (urging the

need to “stop and frisk” street gang members and to permit

identifiable membership in a criminal gang to “alone constitute

reasonable suspicion”). There can be no dispute that the most

frequent victims of gang violence are law-abiding residents of

minority communities. See Andrew Hacker, Two Nations: Black and

White, Separate, Hostile, and Unequal 179-198 (1992) (detailing

racial demographics of crime victims).

-9-

the hoods of residents’ cars. The people who

live in Rocksprings are subjected to loud talk,

fistfights and the sound of gunfire echoing in

the streets. Gang members take over sidewalks,

driveways, carports, apartment parking areas,

and impede traffic on the public thoroughfares

to conduct their drive-up drug bazaar. Murder,

attempted murder, drive-by shootings, assault

and battery, vandalism, arson, and theft are

commonplace. * * * The people of this commu-

nity are prisoners in their own homes.

People ex rel. Gallo v. Acuna, 929 P.2d 596, 601 (Cal. 1997).

Unchecked gang intimidation has a snowballing effect:

law-abiding citizens feel pressured to move out of gang-ridden

communities, leaving behind a neighborhood of increasingly

unlikely to venture out into the streets, where “their simple

presence would otherwise be a deterrent to crime.” Dan M.

Kahan, Social Influence, Social Meaning, and Deterrence, 83

Va. L. Rev. 349, 371 (1997). Indeed, residents may be afraid

even to report a crime, because cooperating with the authorities

may be perceived not only as dangerous, but useless as well. /d.

at 376.

Children are particularly vulnerable to the intimidation

of gang members congregating on the streets. Fear is the

primary tool of gang recruitment. If you’re a child and not in a

gang, a Chicago anti-drug counselor told the Economist,

“you're a target wherever you go.” There Are No Children

Here, supra. in Chicago, the heavy gang presence on the streets

around the Robert Taylor Homes housing project has resulted

in “waves of fear-induced absenteeism” from neighborhood

-10-

schools, prompting hundreds of volunteers to band together to

shepherd children to school and the School Board to hire

dozens of parents to serve as escorts. Braun, Shepherds for a

Flock in the Cross-Fire, L.A. Times, Jan. 16, 1998, at Al:

Martinez, Parents paid to walk line between gangs and school,

Chi. Trib., Jan. 21, 1998, at Al.

Cc. Prophylactic Measures, Such As The Chicago

Ordinance, Are Vital Tools.

Traditional police methods, even when coupled with

increasingly stiff penalties on gang offenders, have failed to

control gang violence and intimidation. See C. Ronald Huff.

Denial, Overreaction, and Misidentification, in Gangs in

America 310, 313 (C. Ronald Huff ed., 1990); Walter B. Miller,

Why the United States Has Failed to Solve Its Youth Gang

Problem, in Gangs in America 263, 267; Steps Needed to

Combat Gangs, L.A. Times, Feb. 15, 1998, at B9 (“Efforts to

rid our communities of gangs are either nonexistent or not

working”). Gang-related violence “is so sporadic, so random,

so hard to predict, that it’s hard to stop,” according to a police

official in Elgin, a small city close to Chicago. “There’s

nothing that we haven't done or haven't tried to stop the

gangs.” Grandziel, Gang Shootings Riddle the Peace Amid

Local Rivals, Chi. Trib., Jan. 15, 1998, at B1.

Studies show that gang murders are less likely to be

solved than other murders, in part because they generally take

place on the street and thus leave few physical clues. See Gang

Killings Exceed 40% of L.A. Slayings, L.A. Times, Dec. 5,

1996, at Al. Moreover, gang intimidation often succeeds in

frightening potential witnesses away from the courtroom,

leaving prosecutors without a case. See Acuna, 929 P.2d at 614

(noting that numerous residents “refused to furnish declara-

tions, fearing for their lives if any gang member should

discover their identities”); Gang Violence to Silence Foes

Grows, Orlando Sentinel, June 18, 1997, at A4 (describing how

gang members congregated in front of the Orlando courthouse

$0 intimnid : ),

In light of the failure of traditional policing methods,

preventive measures against gang activity. See James Q.

Wilson, Just Take Away Their Guns, N.Y. Times Mag., Mar.

20, 1994, at 46-47. Local governments have taken a number of

different approaches. For example, nearly a dozen cities in

California—including Los Angeles, Pasadena, Norwalk, and

San Jose—have sought civil injunctions against gang actions

that constitute a public nuisance. Savage & Rivera, Court

Upholds Injunction Against Gangs, L.A. Times, June 28, 1997,

at Al. Other communities have stepped up enforcement of teen

curfews.

Like the Chicago ordinance, these approaches seek to

prevent serious crime before it occurs by breaking the gangs’

stranglehold on the streets and destroying their aura of

invincibility. Dispersing gang members and arresting them for

violating a loitering or similar ordinance disrupts their ability

to commit more serious crimes. Moreover, it sends a clear

signal that the community will no longer tolerate gang intimida-

tion and disorder. Over time, that strategy should allow law-

abiding citizens to regain control of the streets and encourage

young people who are now forced into gangs to resist their

recruitment efforts. See David Matza, Delinquency and Drift

52-59 (1990). In fact, the empirical evidence cited by the City

in its Petition shows that the Chicago ordinance did succeed in

substantially decreasing gang crime. See Pet. 9.

For all of the reasons outlined below and in the City’s

Petition, the Chicago ordinance is “a legitimate and appropriate

-12-

means by which to combat the problems of escalating violence

and crime in American cities.” Lisa A. Kainec, Comment,

Curbing Gang Related Violence in America, 43 Case W. Res.

L. Rev. 651, 652 (1993). Indeed, in many ways, it is a more

effective and less restrictive alternative than other measures

against gang activity upheld by the California Supreme Court

in Acuna have proven difficult to enforce. See L. Sherman,

Oceanside gang becoming active despite injunction, police

confirm, San Diego Union-Trib., Feb. 18, 1998, at B3. And teen

curfews are much more intrusive than Chicago’s narrowly-

targeted loitering ordinance, since they restrict the liberty of all

teenagers.’

IL. The Illinois Supreme Court’s Interpretation Of

Papachristou Conflicts With Numerous Cases

Upholding The Validity Of Loitering Ordinances.

This Court long has recognized that cities have the right

to prevent “antisocial conduct” on their streets and sidewalks

through ordinances directed with “reasonable specificity”

toward the prohibited conduct. Coates v. City of Cincinnati,

402 U.S. 611, 614 (1971). In this case, however, the Illinois

Supreme Court struck down Chicago’s gang-loitering ordi-

nance on the ground, among others, that it failed to provide a

sufficient explanation of the conduct prohibited and left too

much discretion to individual police officers to decide who

could and could not be ordered, on pain of arrest, to “move on.”

. Curfews are also difficult and costly to enforce. A recent

survey by amicus U.S. Conference of Mayors found that 276 of 347

responding cities had nighttime curfews for teenagers, but reported

that many respondents complained of the high costs involved in

enforcing those curfews. See More cities use curfews to try to cut

youth crime, Chi. Trib., Dec. 1, 1997, at A10.

.

The court rejected the argument that the officer’s discretion was

properly limited by the requirement that an order to disperse be

given only if he “reasonably believe[d]” that a group of

loiterers included a member of a criminal street gang. Pet. App.

61a. Citing this Court’s decision in Papachristou, the court

below treated that limitation as immaterial, concluding that

Chicago’s ordinance effectively allowed police to arrest anyone

they deemed to be undesirable. Pet. App.17a.

In fact, the ordinance does no such thing. No one can

be arrested without first disobeying an order to “move on.”

Moreover, an order to “move on” will not be valid unless the

officer had a reasonable suspicion that one of the people

standing around in a group for no apparent purpose was a

member of a criminal gang. The Chicago City Council ex-

pressly found that “loitering in public places by criminal street

gang members creates a justifiable fear for the safety of persons

and property in the area because of the violence, drug-dealing

and vandalism often associated with such activity.” Pet. App.

60a-61a. Thus, the ordinance is designed to allow an officer to

issue an order to “move on” only in circumstances where there

is a reasonable apprehension of a likely threat to the safety of

persons or property.

The Chicago ordinance is similar in many respects to

more traditional loitering ordinances, which have often

—although not always—been upheld against vagueness

challenges. For example, in City of Milwaukee v. Nelson, 439

N.W.2d 562, 563 n.1 (Wis. 1989), the Wisconsin Supreme

Court rejected a vagueness challenge to an ordinance that

prohibited loitering “in a place, at a time, or in a manner not

usual for law-abiding individuals under circumstances that

-14-

warrant alarm for the safety of persons or property.”* Accord

State v. Ecker, 311 So. 2d 104, 109 (Fla. 1975); Bell v. State,

313 S.E.2d 678 (Ga. 1984) (upholding a similar ordinance),

Salt Lake City v. Savage, 541 P.2d 1035, 1036 (Utah 1975)

(same); State v. Starks, 186 N.W.2d 245 (Wis. 1971) (same);

City of Seattle v. Drew, 423 P.2d 522 (Wash. 1967) (same).In

Ecker, the Florida Supreme Court rejected the argument that

the ordinance was unconstitutional because it was subject to the

kind of arbitrary enforcement condemned in Papachristou,

noting that the circumstances that would permit an officer to

make a stop pursuant to the ordinance “are not very different

from those that the United States Supreme Court described as

‘specific and articulable facts’ in Terry v. Ohio, (392 U.S. 1, 21

(1968)}.” 311 So. 2d at 110.

Although a number of courts have disagreed and struck

down similar loitering ordinances,’ Terry provides a logical

framework for limiting an officer's discretion under traditional

loitering ordinances and under the Chicago crdinance as well.

In Terry, this Court reached a reasonable accommodation

between individual and community rights by permitting police

officers to pat down suspects whom they reasonably suspect of

contemplating a crime. That decision allayed the same kinds of

concerns about arbitrary enforcement voiced by the Illinois

7 The ordinance challenged in Nelson is based on the American

Law Institute’s Model Penal Code § 250.6. See 439 N.W.2d at 565.

’ See City of Bellevue v. Miller, 536 P.2d 603 (Wash. 1975)

(striking down an ordinance similar to that upheld in the Ne/son

case); accord City of Portland v. White, 495 P.2d 778 (Or. Ct. App.

1972); Powell v. Stone, 507 F.2d 93 (9th Cir. 1974), rev'd on other

grounds, 428 U.S. 465 (1976); United States ex rel. Newsome v.

Malcolm, 492 F.2d 1166 (2d Cir. 1974), aff'd, 420 U.S. 283 (1975),

People v. Berck, 300 N.E.2d 411 (N.Y. 1973).

-15-

Supreme Court here, by crafting an objective

standard—“reasonable suspicion”—based on how “a reason-

ably experienced police officer” would construe the facts at

hand. 392 U.S. at 21-22. The Chicago ordinance is simply an

application of the Terry principle that an experienced police

officer should be able to take appropriate crime prevention

measures based on a reasonable suspicion informed by objec-

tive factors. See also Minnesota v. Dickerson, 508 U.S. 366,

373 (1993) (reaffirming Terry reasonableness standard), id. at

380 (Scalia, J., concurring) (under the common law at the time

the Bill of Rights was ratified, it was “reasonable to detain

suspicious persons for the purpose of demanding that they give

an account of themselves”).

Like a Terry stop, an order to disperse under the

Chicago ordinance and the implementing Police Department

Order (see Pet. App. 66a-67a) has to be based on objective

criteria that lead to reasonable suspicion by an experienced

police officer. But those criteria are relatively easy to define.

Gang members make a point of flaunting their membership, via

particular tattoos, jackets, clothing colors, clothing position

(e.g., the direction their hats or belt buckles face), hand signals,

and hair styles. See Martin S. Jankowski, /s/ands in the Street.

Gangs and American Urban Society (1991); Davis v. State,

1998 WL 57720, at *9-*10 (Ala. Feb. 13, 1998) (describing

how bandanna colors identify gang affiliation). As a result,

gang membership lends itself to articulable, objective, and

reasonable discernment by well-trained and experienced police

officers.

° Indeed, an identification of gang membership is ‘ikely to be

a good deal more objective than the kind of drug courier profile that

this Court found to be sufficient to justify detention of an alleged

(continued...)

-16-

The Illinois Supreme Court’s void-for-vagueness

analysis is indicative of the confusion that surrounds loitering

ordinances generally.’ Amici urge this Court to grant the City’s

Petition in order to dispel that confusion and enable local

governments to enforce reasonably drawn measures to control

crime, like Chicago’s gang-loitering ordinance.

Ill. The Illinois Supreme Court Erred In Concluding

That The Ordinance Unreasonably Intrudes Upon

Constitutional Protected Activity.

This Court should also grant the City’s Petition to

review the Illinois Supreme Court’s conclusion that

Papachristou recognizes an apparently absolute constitutional

right to loiter. As the City points out, the California Supreme

Court recently considered—and rejected—the very same

argument in People ex rel. Gallo v. Acuna, 929 P.2d 596 (Cal.

*...continued)

drug trafficker in United States v. Sokolow, 490 U.S. 1 (1989).

. The courts are also sharply divided on whether Papachristou

requires invalidating ordinances that proscribe “loitering plus.”

Compare, e.g., City of Tacoma v. Luvene, 827 P.2d 1374, 1379

(Wash. 1992) (upholding a drug-loitering ordinance that makes it

unlawful “to loiter in or near any thoroughfare, place open to the

public, or near any public or private place in a manner and under

circumstances manifesting the purpose to engage in drug-related

activity”); State v. VJW, 680 P.2d 1068, 1070 (Wash. Ct. App. 1984)

(upholding a Seattle “prostitution loitering” ordinance); and City of

Akron v. Holley, 557 N.E.2d 861, 867 (Ohio Mun. Ct. 1989)

(upholding a drug-loitering ordinance), with American Civil Liberties

Union vy. City of Alexandria, 747 F. Supp. 324 (E.D. Va. 1990)

(invaliding an ordinance similar to Tacoma’s); Wyche v. State, 619

So. 2d 231 (Fla. 1993) (same); EL. v. State, 619 So. 2d 252, 253

(Fla. 1993) (same); Johnson v. Carson, 569 F. Supp. 974, 975 (M.D.

Fla. 1983) (striking down a prostitution-loitering ordinance).

-17-

1997). In that case, the court upheld an injunction against gang

activity that was found to constitute a public nuisance. In

practice, the injunction was in many ways more restrictive than

the Chicago ordinance, enjoining dozens of gang members

from, among other things, “[s]tanding, sitting, walking, driving,

gathering or appearing anywhere in public view with any other

defendant * * * or with any other known” member of the

identified gangs. /d. at 608. Despite the breadth of the injunc-

tion, the California Supreme Court declined to find that the

gang members’ constitutional rights to associate were impli-

cated. Because the injunction did not infringe on either intimate

or private activity or joint political or social advocacy, the court

concluded that it simply did not implicate any constitutionally

protected interest. /d. at 609.

In any event, the Illinois Supreme Court erred in

concluding that whatever intrusion there might be into pro-

tected “liberty” interests was unreasonable. As the California

Supreme Court recognized in Acuna, a court must consider not

only the rights of gang members, but also the rights of the

community:

The state has not only a right to “maintain a

decent society,” but an obligation to do so. * * *

[T]he community’s right to security and protec-

tion must be reconciled with the individual’s

right to expressive and associative freedom.

Reconciliation begins with the acknowledgment

that the interests of the community are not

invariably less important than the freedom of

individuals. Indeed, the security and protection

of the community is the bedrock on which the

superstructure of individual liberty rests.

Id. at 603 (citation omitted).

-18-

By concentrating solely on the “liberty” interests of

people who had refused to “move on” in response to a police

order, the Illinois Supreme Court ignored the liberty interests

of law-abiding citizens. As the record in this case and numerous

scholarly studies demonstrate, permitting groups of gang

members to camp out on city streets impedes the very liberties

invoked by the court below—to travel, to move freely, and to

associate with others. People living in gang-infested neighbor-

hoods who wish to walk along their streets and associate with

their neighbors have every right to do so free of threats,

whether voiced or silent, and to expect the police to take crime

prevention measures to promote their personal safety and the

integrity of their homes, businesses, and communities.

In his concurring opinion in Kovacs v. Cooper, 336 U.S.

77, 89 (1949), Justice Frankfurter remarked that “[wlise

accommodation between liberty and order always has been, and

ever will be, indispensable for a democratic society.” The

Chicago ordinance provides a good example of just such a

“wise accommodation.” The ordinance recognizes that individ-

ual liberties are hollow without community safety. Although

it imposes some restraints on the ability of some individuals to

stand on the street for no apparent purpose, those restraints are

minimal and more than justified by their potential to greatly

expand the liberties enjoyed by law-abiding residents.

As the California Supreme Court observed in Acuna, to

allow the liberty of the peaceful and industrious residents of a

community to “be forfeited to preserve the illusion of freedom

for those whose ill conduct is deleterious to the community as

a whole is to ignore half the political promise of the Constitu-

tion and the whole of its sense.” 929 P.2d at 618. The Chicago

ordinance implements the most basic promises of our Consti-

tution—to “insure domestic Tranquility, provide for the

-19-

common defence, promote the general Welfare, and secure the

Blessings of Liberty to ourselves and our posterity.” This Court

should reverse the court below to enable Chicago to give effect

to those promises and to prevent the horrors of gang violence

CONCLUSION

For the reasons outlined above and in the City’s

Petition, the amici urge the Court to grant the City’s Petition

and to reverse the judgment below.

Respectfully submitted.

Michele L. Odorizzi

Counsel of Record

Jeffrey W. Sarles

Steffen N. Johnson

Mayer, Brown & Platt

190 South LaSalle Street

Chicago, Illinois 60603

(312) 782-0600

Counsel for Amici Curiae

MARCH 1998