Petitioners Brief — Chicago v. Morales
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Supreme Court, U.S.
0 oe ee
eat JUN 19 1998
| CLERK
In THE
Supreme Court of the United States
OCTOBER TERM, 1997
City oF CHICAGO,
Petitioner,
Vv.
Jesus MORALES, et al.,
Respondents.
On Writ of Certiorari to the
Supreme Court of Illinois
BRIEF FOR THE PETITIONER
BRIAN L. CROWE
Corporation Counsel
of the City of Chicago
LAWRENCE ROSENTHAL *
Deputy Corporation Counsel
BENNA RUTH SOLOMON
Chief Assistant Corporation
Counsel
TIMOTHY W. JORANKO
Assistant Corporation
Counsel
City Hall, Room 610
Chicago, Illinois 60602
(312) 744-5337
Attorneys for Petitioner
* Counsel of Record
re NST
WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001
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ii
PARTIES TO THE PROCEEDING
The petitioner is the City of Chicago. The respondents
are persons arrested under Chicago’s Gang Loitering
Ordinance: James Youkhana, Fernando O. Cota, Jose
A. Merced, Roosevelt McMullan, Jr., Johnny R. New-
some, Anthony D. Cordero, Julio M. Barroso, Hermie J.
Khamo, Lamont J. Jordan, Lisa Gonzales, Florentine
Soto, Renee Goodwill, Tasha White, Sabrina Brown,
Gregorio Guiterrez, Sandy Garvin, Raul Jimenez, Jr.,
Daniel Washington, Jose Renteria, Jesus Morales, Mal-
colm Ramsey, Neil Round, i Lostroscio, Casey
A. Mazeika, Karl T. Kelly, Jesse K. Paschke, Roy
Delgado, Jr., Japheth Estrada, Jorge Lopez, Wladyslaw
W. Jedrol, James J. Portway, Michael A. Horton, Paris
Bryant, Wesley Saffold, Eric Jones, Roshindaj Bryant,
Leroy Minley, Jr., Eric Warren, Charlie Monden, Joseph
Dell, Tywan Durnell Riley, Eric Miller, Jerry Cunning-
ham, Eric Dennis, Vernon Diggs, Deandre Fitzpatrick,
Darryl Hall, Cornelius Holt, Jonathan Lewis, Seth Lewis,
Steve Reynolds, Claude Ross, Dushone Scott, Michael
Simmons, Chester Sparks, Clarence Taylor, Michael
Taylor, Stacey Wilson, Gabriel Ruiz, Maximilano Orozco,
Ricardo Florez, Anibal Hernandez, Pablo Estrada, Juan
Cruz, Andres Feliciano, and Peter Quinones.
TABLE OF CONTENTS
OPINIONS BELOW ..
ll tt tet dette hee ee
Cea -- <matetentsatensichenniiienee
CONSTITUTIONAL PROVISIONS AND ORDI-
RS Ee ee
FEES ee 58. ss) -
SUMMARY OF ARGUMENT .......
ESSE RC A OO TORN
I. THE GANG LOITERING ORDINANCE IS
NOT IMPERMISSIBLY VAGUE _.W.....
1. The Gang Loitering Ordinance Does Not
Proscribe Speech, TIE Ul Or Associa-
ES PEP Se Oe BE eae Sela
2. The Gang Loitering Ordinance Is A Per-
misible Regulation Of Loitering
B. The Gang Loitering Ordinance Contains Ap-
propriate Standards For Its Enforcement...
1. The Ordinance Provides Fair Notice Of
I
2. The Ordinance Does Not Authorize Arbi-
trary Or Discriminatory Enforcement...
(iii)
18
18
iv vv.
TABLE OF CONTENTS—Continued TABLE OF AUTHORITIES
Page CASES: Page
Il. THE GANG LOITERING ORDINANCE DOES Aptheker v. Secretary of State, 378 U.S. 500
NOT OFFEND SUBSTANTIVE DUE PRO- I ee 89-40
+ EE Be eee ee eo 39 Arizona v. Evans, 514 U.S. 1 (1995) 2
A. The Gang Lettering Osdinence Appreget- pany &- = pops (987) URE EN: ue
onl sp fl te ae net Board of Directors v. Rotary Club, 481 U.S. 537
PRCT aN Pay Ra OC wee (1987) 20, 21
B. The Gang Loitering Ordinance Does Not Boos v. Barry, 485 U.S. 312 (1988) —........... is 36
Create A Status Offense 44 Broadrick v. Oklahoma, 413 U.S. 601 (1973)........ 18, 23
Ill. THE GANG LOITERING ORDINANCE DOES pcmifig” wy 2 So) ogh-p he Neh cape toe =
NOT OFFEND THE FOURTH AMEND- Brown v. Texas, 443 U.S. 47 (1979) —................... 35
MENT 46 California v. Hodari D., 499 U.S. 621 (1991)... 13, 47
Pe ee a ee eee ee ae ee Chandler v. Florida, 449 U.S. 560 (1981) 42
Ce 8 Sea 50 City of Dallas v. Stanglin, 490 U.S. 19 (1989) sbtnwy a
City of Houston v. Hill, 482 U.S. 451 (1987)... 18
City of Milwaukee v. Nelson, 149 Wis. 2d 434, 439
N.W.2d 562, cert. denied, 493 U.S. 858 (1989)... 49
City of Renton v. Playtime Theatres, Inc., 475 U.S.
ER le et i I ay A ci it nN cn Be st BES 25
City of Tacoma v. Luvene, 118 Wash. 2d 826, 827
Fe ah AE sa i ee Rea 36, 45
Clark v. Community for Creative Non-Violence,
I I ied een eeiegioncnmnens 20, 24
Coates v. City of Cincinnati, 402 U.S. 611 (1971) .. 23, 29,
33
Collins v. City of Harker Heights, 508 U.S. 115
Re i i AE tl elt Sl se a SSA 40, 41
Colten v. Kentucky, 407 U.S. 104 (1972) ..19, 29, 31, 37, 40
Cox v. Louisiana, 379 U.S. 536 (1965) 19
Coz v. New Hampshire, 312 U.S. 569 (1941)... 24
Cruzan v. Director, 497 U.S. 261 (1990) 42
Day-Brite Lighting, Inc. v. ae 421
(1952) ... seed 43
DeVeau v. Braisted, 363 U.S. 144 (1960) . i se 37
Finzer v. Barry, 798 F.2d 1450 (D.C. Cir. 1986),
paige ong phd ~ lal eaeaigeade
Barry, 485 U.S. 312 (1988) . re acc 36
Florida v. Bostick, 501 U.S. 429 (1991) . lee Rta 47
vi
TABLE OF AUTHORITIES—Continued
Florida v. Jimeno, 500 U.S. 248 (1991) .................. 48
Florida v. Rodriguez, 469 U.S. 1 (1984) (per
REESE SINGS 8 NR IS 47
Frisby v. Schultz, 487 U.S. 474 (1988) ........... 23, 24, 25
Giboney v. nD ee eee eee TP
GED <cicecscnenntetiieenensetaaiiiadeas Prenat ihe 19
Gooding v. Wilson, 405 U.S. 518 (1972) _............... 17
Grayned v. City of Rockford, 408 U.S. 104 (1972) .. 29, 30,
33
Heller v. Doe, 509 U.S. 312 (1998) ................... 44
Helton v. State, 624 N.E. 2d 499 (Ind. Ct. App.
1998), cert. denied, 117 S. Ct. 1252 (1997)... 35
Hunter v. Bryant, 502 U.S. 224 (1991) (per
GD a caunecsinrnentthidiiieithemneiialiniaadatiaiitiaatiinetaiattiaas itive 36
Hurley v. Irish-American Gey, Lesbian and Bi-
sexual Group, 515 U.S. 557 (1995) .................. 20
Hynes v. Mayor and Council, 425 U.S. 610 (1976)... 18
Jackson v. State, 684 N.E.2d 532 (Ind. Ct. App.
RS B OA OEP NS 35
Kernats v. O'Sullivan, 35 F.8d 1171 (7th Cir.
RR FS NST dance 48
83-35, 43
Lanzetta v. New Jersey, 306 U.S. 451 (1939)... 32
Lewis v. United States, 445 U.S. 55 (1980) _...... 37, 43, 46
Members of the City Council v. Taxpayers For
Vincent, 466 U.S. 789 (1984) ......... Leave 25, 26, 42
Michael M. v. Superior Court, 450 U.S. 464 (1981) .. 37
Michigan v. Chesternut, 486 U.S. 567 (1988)... 47
Michigan v. DeFillippo, 443 U.S. 31 (1979) _....... 49
Michigan v. Long, 463 U.S. 1082 (1983) ............. 2
Moore v. City of East Cleveland, 481 U.S. 494
RE RS SEES HSER 5! SE 40
New State Ice Co. v. Liebmann, 285 U.S. 262
RR SCPE Se PE re PR 42
New York v. Class, 475 U.S. 106 (1986) —............. 2
New York v. Ferber, 458 U.S. 747 (1982) ........ 18, 22, 23
Ohio v. Robinette, 117 8. Ct. 417 (1996) 48
Osborne v. Ohio, 495 U.S. 108 (1990) 0. 18
vii
TABLE OF AUTHORITIES—Continued
Page
Papachristou v. City of Jacksonville, 405 U.S. 156
ES SCE TAS 8, 9, 31, 38, 40, 42, 43, 46, 47
Pennsylvania v. Labron, 518 U.S. 988 (1996) (per
Pe, ERS I i Fm en cae: 2
People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090,
929 P.2d 596, 60 Cal. Rptr. 2d 277, cert. denied,
Se ie es ee bidhtaeinenitenisiiahictied wits 24, 42
People v. Gardeley, 14 Cal. 4th 605, 927 P.2d 713,
59 Cal. Rptr. 2d 356 (1996), cert. denied, 118
8S. Ct. 148 (1997)
i 85
People v. Superior Court, 46 Cal. 34 381, 758 P.2d
1046, 250 Cal. Rptr. 515 (1988) 2.00. 45
Posters ‘N’ Things, Ltd. v. United States, 511
ee NE arate titecinchts etirattsipidanindnssgucinaged m 838
Powell v. Texas, 392 U.S. 514 (1968) 15, 46
Regan v. Time, Inc., 468 U.S. 641 (1984) ......W..... 28
44
25
45
22
89
Reno v. Flores, 507 U.S. 292 (1998) .......-- 0... 39,
Roberts v. United States Jaycees, 468 U.S. 609
ERB BE PI Sal Bs NE aE Sa TON 20
Robinson v. California, 370 U.S. 660 (1962)...
Roulette v. City of Seattle, 97 F. 3d 300 (9th Cir.
1996)
Shapiro v. Thompson, 394 U.S. 618 (1969) —........
Shuttlesworth v. City of Birmingham, 382 U.S. 87
IIE cissbecidestendedthleincteibtiatsuitataadsatiatnammmbiiiiiie 23, 32, 33
Shuttlesworth v. City of Birmingham, 394 U.S. 147
GED ihiisitirncektupeniidediiatiains
Smith v. Goquen, 415 U.S. 566 (1974) VIER RES 83
State v. Armstrong, 282 Minn. 39, 162 N.W.2d 357
IRE 8 Be Hot Se TRNAS SS RI aN 80, 45
State v. Walker, 506 N.W.2d 430 (Iowa 1993)
Swank v. Smart, 898 F.2d 1247 (7th Cir.), cert.
denied, 498 U.S. 853 (1990) 0. 21-22
Tennessee v. Garner, 471 U.S. 1 (1985) —.............. 49
Terry v. Ohio, 392 U.S. 1 (1968) ee. 35
Turner Broadcasting System, Inc. v. FCC, 512 U.S.
FE EES er AES ere ee ere 25, 26, 27
United States v. Albertini, 472 U.S. 675 (1985)...... 24, 26
United States v. Armstrong, 517 U.S. 456 (1996)... 88
viii
TABLE OF AUTHORITIES—Continued
Page
United States v. Bourgeois, 964 F.2d 935 (9th
Cir.), cert. denied, 506 U.S. 901 (1992)... 88
United States v. Hensley, 469 U.S. 221 (1985)... 36
United States v. Mendenhall, 446 U.S. 544 (1980)... 47
United States v. O’Brien, 391 U.S. 367 (1968)... 21, 24
United States v. Salerno, 481 U.S. 739 (1987) ....10, 18, 42
United States v. Trent, 718 F. Supp. 39 (D. Or.
PRGA eb 518, a A 88
United States v. Turner, 104 F.8d 1180 (9th Cir.),
cert. denied, 117 S. Ct. 1566 & 1722 (1997)... 88
United States Civil Service Commission v. Na-
tional Association of Letter Carriers, 413 U.S.
SE ID ene, enttetstnemnmncictnlltiiiiiniainiaidinatti Mik
Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489 (1982) ..10, 11, 17, 24, 29, 33,
$
34
Ward v. Rock Against Racism, 491 U.S. 781
+ REN C remaster th Bs EGE PS. 11, 25, 26, 27-28
Washington v. Glucksberg, 117 S. Ct. 2258 (1997) .. 12, 39,
40, 41, 48
Waters v. Barry, 711 F. Supp. 1125 (D.D.C. 1989)... 49
Wayte v. United States, 470 U.S. 598 (1985)... 38
Wiemerslage v. Maine Township High School Dis-
trict 207, 29 F.8d 1149 (7th Cir. 1994)... 80
Young v. American Mini-Theatres, Inc., 427 U.S.
Bf, RMR A ON Nt TTS 42
CONSTITUTIONAL PROVISIONS, STATUTES, AND
RULES:
Os passim
be ser ee, 2, 48, 49, 50
fc ER IER Rea ER a Re I 45
if §. fo | >. & ) See passim
A a RIO A NL 46
pe RS ce ENTE, SEI NIA, 5
i a a SIE SIA Ma SOE 1
AS AE I ES SO RI 2
Se 8
a O 8
ee CE UU a UE siabecckedlehiiathcnchotenicrncitietich absentia 8
ix
TABLE OF AUTHORITIES—Continued
American Law Institute, Model Penal Code
(1980)
MISCELLANEOUS:
America (C. Ronald Huff ed. De eh
Robert C. Ellickson, Controlling Chronic Miscon-
duct in City Spaces: Of Panhandlers, Skid Rows
rg Space Zoning, 105 Yale L.J. 1165
POPC eee ee eee eee eees
Tracey L. Meares, Social Organization and Drug
cane en 85 Am. Crim. L. Rev. 191
ee
Page
41
41
18
18
15
16
41
TABLE OF AUTHORITIES—Continued
Wesley G. Skogan, Disorder and Decline (1990)...
Jerome H. Skolnick & David H. Bayley, Commun-
ity Policing: Issues and Practices Around the
World (Nat'l Inst. of Justice 1988) .....................
Irving A. Spergel, The Youth Gang Problem: A
Community Approach (1995) ............-.-...--.--+----+-
Charles R. Swanson, Leonard Territo & Robert W.
Taylor, Police Administration: Structures, Proc-
esses and Behavior (3d ed. 1993) -......................
U.S. Department of Justice, Attorney General's
Report to the President: A Coordinated Ap-
proach to the Challenge of Gang Violence: A
Progress Report (April 1996) ..........................--
Samuel Walker, The Police in America (1992)......
James Q. Wilson & George L. Kelling, Broken Win-
dows, Atlantic Monthly, Mar. 1982 ......................
Page
15
15
35
15
In THE
Supreme Court of the United States
OCTOBER TERM, 1997
No. 97-1121
CiTy OF CHICAGO,
Vv.
JESUS MORALES, et al.,
Respondents.
Petitioner,
On Writ of Certiorari to the
Supreme Court of Illinois
BRIEF FOR THE PETITIONER
OPINIONS BELOW
The opinion of the Supreme Court of Illinois (Pet.
App. la-19a) is reported at 177 Ill. 2d 440, 687 N.E.2d
53 (1997). The opinion of the Illinois Appellate Court
in City of Chicago v. Youkhana (Pet. App. 20a-36a) is
reported at 277 Ill. App. 3d 101, 660 N.E.2d 34 (1995).
The opinions of the appellate court in City of Chicago
v. Morales (Pet. App. 37a-38a) and City of Chicago v.
Ramsey (Pet. App. 39a-40a) are unreported. The opin-
ion of the Circuit Court of Cook County in City of
Chicago v. Youkhana (Pet. App. 41la-59a) is unre-
ported.
JURISDICTION
The judgment of the Supreme Court of Illinois was
entered on October 17, 1997. The petition for certiorari
was filed on January 5, 1998. The jurisdiction of this
Court is invoked under 28 U.S.C. § 1257.4
1 The opinion of the Illinois Supreme Court invalidated the Chi-
cago gang loitering ordinance under the Due Process Clauses of
2
CONSTITUTIONAL PROVISIONS AND
ORDINANCE INVOLVED
The First Amendment provides, in pertinent part:
“Congress shall make no law . . . abridging the freedom
of speech, or of the press; or the righ’ of the people
peaceably to assemble, and to petition the Government
for a redress of grievances.” U.S. Const. amend. I. The
Fourth Amendment provides, in pertinent part: “The
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures, shall not be violated . . . .” U.S. Const. amend.
IV. The Due Process Clause of ‘the Fourteenth Amend-
ment provides in pertinent part: “nor shall any State
deprive any person of life, liberty, or property, without
due process of law... .” U.S. Const. amend. XIV, § I.
The Chicago gang loitering ordinance is set out in the
appendix to the petition for a writ of certiorari (Pet.
App. 60a-63a).
both the federal and state Constitutions. The text of these pro-
visions is virtually identical. Compare U.S. Const. amend. XIV, § 1
with Ill. Const. art. I, §2. In Michigan v. Long, 463 U.S. 1032
(1983), this Court held that when the decision of a state court
rests “primarily” on or is “interwoven” with federal law, this
Court may exercise jurisdiction unless the opinion of the state
court contains a “plain statement” that “clearly and expressly” in-
dicates that its judgment rests on an adequate and independent
state ground. Jd. at 1041. The Court has consistently hewed to
this rule in cases in which a state court relies on both federal and
state law to support its judgment. See, e.g., Pennsylvania v. Lab-
ron, 518 U.S. 988, 941 (1996) (per curiam) ; Arizona v. Evans, 514
U.S. 1, 7-10 (1995); New York v. Class, 475 U.S. 106, 109-10
(1986). In the decision below, the Illinois Supreme Court ex-
pressly invoked federal law and relied primarily on this Court’s
decisions in invalidating Chicago’s gang loitering ordinance. See,
e.g., Pet. App. 7a, 17a. And even though respondents brought the
holding of Long to the Illinois Supreme Court’s attention and asked
it to make an express statement that any judgment invalidating the
gang loitering ordinance would rest on an adequate and independ-
ent state ground, there is no plain statement in its opinion that the
court’s judgment rests on an adequate and independent state ground.
Thus, this Court has jurisdiction to review the judgment below.
3
STATEMENT
The enactment of Chicago’s gang loitering ordinance
followed hearings before the Chicago City Council’s Com-
mittee on Police and Fire exploring the problems that
criminal street gangs present for the people of Chicago—
in particular the problems created by public loitering by
gang members.” At the hearings, witnesses described how
criminal street gang members loiter as part of a strategy
to organize as a group, recruit new members, claim terri-
tory, and antagonize rival gangs and others. Supp. R.
{ at 121, 125; Supp. R. II at 32. Further testimony
explained the inadequacy of existing laws to address this
in in ri af eget Ny not commit any overt crim-
: y appear to be simply loitering.
Supp. R. I at 50-51, 68, 79-80, 138-40; i he
38. The testimony also showed that community resi-
dents are often afraid to file formal complaints, serve as
witnesses, or or take other steps necessary to prosecute crimi-
nal activity because of concerns for their own safety or
the safety of their family members or property. Supp.
R. I at 50, 52, 54, 69, 108-09, 135; Supp. R. II at 22-
25, 37, 40. There was also testimony reflecting the need
for a method of prosecuting gang members that does not
require law-abiding persons to place themselves in harm’s
way by testifying, even if they are willing to do so.
Supp. R. II at 24-25.
Perhaps most important, the testimony before the City
Council disclosed that criminal street gangs are menancing
and destructive regardless of whether their members are,
at a particular moment, violating other laws. The in-
timidating presence of gangs itself has a palpable detri-
mental effect on a family’s sense of well being, on the
willingness of parents to allow their children outside, and
2 The transcripts of the hearings were lodged with the trial
court in each case and were then added as a supplemental record
(“Supp. R.”) on appeal by stipulation.
4
on the willingness of Chicago residents to remain in the
City. Supp. R. I at 53, 62, 93, 95, 110, 132, 138;
Supp. R. II at 167.
Based on this testimony, the City Council, in the
preamble to the ordinance, made the following findings:
WHEREAS, in many ee or throughout
the City the burgeoning presence street gang
members in public has intimidated many law abiding
citizens; and
WHEREAS, one of the methods by which crimi-
nal street gangs establish control over identifiable
areas is by loitering in those areas and intimidating
others from entering those areas; and
WHEREAS, members of criminal street gangs
avoid arrest by committing no offense punishable
under existing laws when they know police are pres-
ent, while maintaining control over identifiable areas
by continued loitering; and
WHEREAS, the City Council has determined that
loitering in public places by criminal street gang
members creates a justifiable fear ge Baw — =
persons and property in the area use of
violence, drug-dealing and vandalism often associated
with such activity ....
Pet. App. 60a-61a. The ordinance provides:
Whenever a police officer observes a person 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 section.
Pet. App. 61a. “Loiter” is defined as “to remain *~ any
one place with no apparent purpose.” Ibid. The ordi-
nance also contains a comprehensive and precise defini-
tion of “criminal street gang.” Pet. App. 61a-62a.°
3“Criminal street gang” is defined as “any ongoing organiza-
tion, association in fact or group of three or more persons, formal
5
A violation of the ordinance is punishable by up to 6
months imprisonment, a $500 fine, and up to 120 hours
of community service. Pet. App. 63a. It is a defense to
a prosecution under the ordinance that “no person who
was observed loitering was in fact a member of a criminal
street gang.” Pet. App. 61a.
During the hearings, representatives of the Depart-
ments of Law and Police informed the City Council that
the Chicago Police Department would promulgate regula-
tions for the ordinance that would guide its enforcement
by the police. Supp. R. II at 185, 220. Chicago Police
Department General Order 92-4 was later promulgated
to govern enforcement of the gang loitering ordinance.
The General Order permits enforcement of the ordi-
nance only in areas of the City designated by a district
commander because “the presence of gang members has
a demonstrable effect on the activities of law abiding
persons in the surrounding community.” Pet. App. 68a.
The Order also provides specific criteria and objective
standards for defining criminal street gangs, and that such
gangs will be identfied only on the basis of “specific docu-
mented and reliable information” such as crime pattern
information, surveillance results, witness interviews, ad-
missions of street gang members, or information from
informants of proven reliability. Pet. App. 66a-67a. The
Order further explains how membership in a criminal
street gang can be established. The Order requires prob-
able cause to believe that an individual is a member of a
criminal street gang (Pet. App. 71a-72a), and probable
or informal, having as one of its substantial activities the com-
mission of one or more of the criminal acts enumerated in [the
ordinance’s definition of “criminal gang activity”], and whose merm-
bers individually or collectively engage in or have engaged in a
pattern of criminal gang activity.” Pet. App. 61a-62a. “Criminal
gang activity” and a “pattern of criminal gang activity” as defined
in the ordinance (Pet. App. 62a, 63a), largely track the definition
of an “enterprise” and a “pattern of racketeering activity” in the
federal racketeering statute. See 18 U.S.C. § 1961.
6
cause, in turn, must be substantiated by the arresting
officer’s “experience and knowledge of the alleged offend-
ers,” and corroborated by “specific, documented, and reli-
able information,” such as an individual's admission of
membership, an individual’s display of distinctive colors,
tattoos, or markings not ordinarily worn by persons other
than criminal street gang members, the use of distinctive
signs or symbols, or statements by a witness of proven
reliability or whose statements can be independently cor-
roborated. Pet. App. 67a-68a. Only members of the
gang crime section and other specially designated person-
nel may make arrests under the ordinance. Pet. App. 65a.*
After the ordinance became effective, numerous prose-
cutions of individuals for violating its proscriptions en-
sued, and various trial judges issued conflicting rulings on
the constitutionality of the ordinance. In City of Chicago
v. Youkhana, which became the first case to reach the
Illinois Appellate Court, the defendants moved to dismiss
the criminal cases against them on the ground that the
ordinance was unconstitutional on its face. The circuit
court granted that motion in a written opinion. Pet. App.
41a-59a.
On December 18, 1995, the appellate court affirmed.
The court made four separate holdings of facial unconsti-
tutionality on federal grounds: the ordinance infringes
constitutionally protected rights of speech and assembly
because it “gives the police power to order dispersal and
arrest those who associate with gang members in public
places” (Pet. App. 26a); it is unconstitutionally vague
because it “failfs] to establish . . . guidelines” for its en-
forcement (Pet. App. 33a); it “unconstitutionally crim-
inalizes a person’s status” because it is directed at loitering
by gang members (ibid.); and it “jeopardizes the rights
4 Under the General Order the Gang Crimes Section must main-
tain and disseminate files reflecting the names of persons who the
Department has probable cause to believe are members of criminal
street gangs. Pet. App. 70a-7la. The files are reviewed semi-
annually to ensure that they remain current. /bid.
7
guaranteed under the fourth amendment” because it
“seems to us to be a transparent attempt to avoid the
probable cause requirement” (Pet. App. 35a). Following
that decision, on December 29, 1995, the appellate court
consolidated all appeals the City had taken in other cases
in which a trial court had declared the ordinance to be
unconstitutional, and -ffirmed on the strength of Youk-
hana in an opinion captioned City of Chicago v. Ramsey
(Pet. App. 39a-40a). Also on that date, the appellate
court consolidated all appeals from judgments of convic-
tion under the ordinance, and reversed the judgments on
the strength of the decision in Youkhana in an opinion
yo City of Chicago v. Morales (Pet. App. 37a-
a).
5 The evidence supporting the convictions was as follows:
The arresting officer observed respondent Gutierrez loitering with
two other men. Gutierrez Tr. 8-9, 12. Gutierrez had previously
admitted to the officer that he belonged to the Latin Kings. /d. at
11-12, 13-14. The officer ordered the group to disperse, and when
the officer returned after driving around the block, the loiterers
were in the same place, and were arrested. Jd. at 12-13, 18-19.
The arresting officer saw respondent Washington and several
others standing on the street and yelling. Washington Tr. 10, 17.
He approached the group, and several persons in it admitted that
they were Vice Lords. Jd. at 11, 16-17. The officer ordered them to
disperse. Jd. at 11. The officer returned later, saw the same youths,
and again ordered them to disperse. Jd. at 11, 18. He returned still
later, saw the same group, and arrested them. /d. at 12, 18-19.
The arresting officer observed respondent Renteria with the other
persons loitering on a corner. Renteria Tr. 16-18. The arresting
officer knew that the gang card file for the Satan Disciples contained
a card identifying Renteria as a gang member. /d. at 14-15. Ren-
teria also admitted to the officers that he was a street gang mem-
ber. Jd. at 27. The officer ordered the group to leave. /d. at 18,
23-24, 25-26. When she returned 15-20 minutes later, Renteria
poy — on the corner, and she arrested him. Jd. at 16-17, 19, 24,
Respondent Garvin stipulated to the arresting officer’s testimony
that he had been loitering with two other persons, they were or-
dered to move on based on his admission to the officer that he was
ments. In addition, the City moved the appellate court to
the ordinance fails to give persons fair notice of what
conduct is prohibited by “mak[ing] criminal activities
which by modern standards are normally innocent” (Pet.
App. 9a (quoting Papachristou v. City of Jacksonville,
405 U.S. 156, 163 (1972)), and employs language—
the term “loitering”—that “is inadequate to inform a citi-
zen of its criminal implications” (Pet. App. 9a). As for
the ordinance’s requirement that a police officer reasonably
believe that a group of loiterers includes a member of a
a member of the Latin Kings and his tattoos, and that Garvin
failed to obey the order. Garvin Tr. 9.
Respondent Jimenez stipulated that the allegations in the com-
plaint against him—that he was a known member of the Ambrose
gang, and that he remained in a known location for gang activity
after being ordered to disperse—were correct. Jimenez R. C.2;
Jimenez Tr. 3-4.
Finally, the arresting officer observed loitering by six individ-
uals he believed to be gang members, including respondent Morales.
Morales Tr. 6-8. Morales admitted at trial that he knew that he
was with members of the Gangster Disciples. Jd. at 19. The officer
ordered the loiterers to move on, but when he returned 5-10 minutes
later they were still present, and he arrested them. /d. at 11.
6 The Illinois Supreme Court has mandatory jurisdiction in cases
in which the appellate court has issued a certificate of importance.
See Ill. Const. art. VI, §4(c); Il. Sup. Ct. R. 316. Its exercise
of jurisdiction in cases on petition for leave to appeal is discre-
tionary. See Ill. Sup. Ct. R. 315.
9
criminal street gang, the court concluded that this “de-
the
1
+f
ep
u
g
i
save the ordinance because “[mJerely adding the
of refusing to obey an order by police to disperse
does gang loitering ordinance to such a
level that it provides adequate notice of proscribed con-
duct. The court also concluded that the
fl
:
a
Second, the court determined that the gang loitering
ordinance offends substantive due process. Again relying
on Papachristou, the court concluded that the freedom to
American life.” Pet. App. 17a. The court also determined
that a prohibition on loitering infringes the “right to
travel,” the “right of locomotion,” the “right to freedom
of movement,” and “the general right to associate with
others.” Pet. App. 18a. This deprivation of constitu-
SUMMARY OF ARGUMENT
Surely no one could doubt the magnitude of the problem
that gang crime poses for many of our Nation’s cities.
And as the findings of the Chicago City Council make
clear, part of that problem can be traced to the ability of
gang members and their cohorts to loiter with im-
punity. A collection of brazen, disorderly and visibly law-
10
less persons on the public ways intimidates residents, de-
tracts from property values, and ultimately destabilizes
communities. The gang loitering ordinance and similar
laws give the authorities a way to address this type of civil
disorder. Such laws achieve an important prophylactic
objective as well—because when police officers can order
gang members to move along, they can prevent crime
before it occurs.
The Illinois Supreme Court invalidated the gang loiter-
ing ordinance on its face as impermissibly vague and in-
consistent with substantive due process. Neither of these
doctrines, however, prevents state and local governments
from taking the modest yet important step of authorizing
police officers to move loiterers along before they commit
some other crime or otherwise harm their communities.
The first step in assessing a facial challenge to a law
“is to determine whether the enactment reaches a substan-
tial amount of constitutionally protected conduct.” Village
of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489, 494 (1982) (footnote omitted). This is
the overbreadth doctrine, which permits facial invalidation
of a challenged enactment only when it proscribes a sub-
stantial amount of conduct protected by the First Amend-
ment. E.g., United States v. Salerno, 481 U.S. 739, 745
(1987). The gang loitering ordinance, however, is not di-
rected at First Amendment rights of speech, assembly, or
association. It concerns only “loitering,” which the ordi-
nance defines as “remain{ing] in any one place with no
apparent purpose.” Pet. App. 6la. Accordingly, this re-
striction on “loitering” will rarely, if ever, apply to protests,
picketing, or other protected conduct, since such activities
by their very nature will nearly always have an “apparent
purpose.” The ordinance instead will reach at most per-
sons engaged in mere casual social interaction—those with
no apparent purpose—and this Court has firmly rejected
the notion that the Constitution secures any generalized
right of “social association.” City of Dallas v. Stanglin,
490 U.S. 19, 25 (1989). In any event, even if the gang
ll
loitering ordinance were deemed on its face to regulate
speech, assembly, or association, it would be permissible
regulation of the time, place, and manner of such activities
under the test announced in Ward v. Rock Against Racism,
491 U.S. 781 (1989).
U.S. 352, 357 (1983). On the first prong of this test,
no one who has been given a police order to move along
could fail to understand what is required of him, and
under our ordinance, no arrest can be made unless there
is first a police order and then a refusal to comply with
that order. Indeed, when it comes to providing notice to
potential offenders, a law requiring disobedience of a
police order before an arrest can be made is the anti-
thesis of vague: people are told precisely what they must
do to avoid arrest.
The second prong requires that the challenged law
“provide explicit standards for those who apply
Hoffman Estates, 455 U.S. at 498. The gang loi
ordinance contains express standards for its enforcement,
since it requires disobedience of an order to disperse, and
it permits officers to issue such an order only if the officer
“reasonably believes” that a group of loiterers contains
a member of a criminal street gang. In Kolender, the
Court acknowledged that a loitering law would be valid
if it authorized investigative stops based on “reasonable
suspicion” because this standard provides “neutral limi-
tations on the conduct of individual officers.” 461 U.S.
at 361. If “reasonable suspicion” is an appropriately
neutral limitation on an officer’s authority to detain loiter-
ers, requiring an officer to have a reasonable basis to
identify a loiterer as a gang member before issuing an
enforceable order to move on is surely a permissible neu-
lb
12
tral limitation as well. The concept of membership in
a criminal street gang is not so amorphous that it pre-
cludes objectively based enforcement decisions; there are
many objective indicia of membership in a criminal street
gang, such as an individual’s admissions, his display of
distinctive signs or of symbols, the existence of informa-
tion from a reliable informant, or the like. Moreover,
the decision to target gang loitering itself was neither
arbitrary nor discriminatory—gang loitering poses spe-
cial problems, and thus appropriately became subject to
special restrictions.
As for substantive due process, neither this Court's
precedents nor principles of sound constitutionalism sup-
port a fundamental right to loiter. In fact, history and
tradition point the other way—there is a considerable
legacy in our country of regulating loitering. And when,
as here, an enactment infringes no fundamental liberty, it
need only be rationally related to a legitimate govern-
mental interest. E.g., Washington v. Glucksberg, 117
S. Ct. 2258, 2271-72 (1997).
The gang loitering ordinance easily passes this test. It
infringes the “liberty” to use the public ways only to a
limited extent—even known gang members can loiter
alone, and they can loiter with others as long as they
move along when ordered. While the Illinois Supreme
Court was troubled that the ordinance was not limited
in its scope to persons loitering to engage in illegal ac-
tivity, the mere potential for a prophylactic enactment
to reach “innocent” conduct does not give rise to a sub-
stantive due process violation. Here, the City Council
reasonably concluded that it was necessary to address a
visibly lawless and destabilizing type of loitering on the
public ways. The Council identified a particular circum-
stance in which loitering jeopardizes legitimate govern-
mental interests and authorized the police to disperse
loiterers in that circumstance. Because the authority to
disperse loiterers in such circumstances is rationally re-
lated to legitimate governmental objectives, it does not
offend substantive due process.
13
Finally, we address an alternate ground to invalidate
the ordinance respondents have pressed—that it author-
izes arrests on suspicion in violation of the Fourth Amend-
ordinance. Under the ordinance, no one can be arrested
until they have disobeyed a police order; at that point,
der, not merely “suspicion.” And there is nothing in the
to move along. Such an order is not even subject to at-
tack under the Fourth Amendment, since it does not
physically restrain the person who receives it and hence
is not a “seizure” subject to Fourth Amendment review.
See, e.g., California v. Hodari D., 499 U.S. 621, 626
(1991). In any event, there is .othing “unreasonable”
within the meaning of the Fourth Amendment about
granting the police authority to enforce an order to move
on by arrest as long as the order itself is authorized by
an otherwise valid police power measure.
ARGUMENT
Criminal street gangs, as the Illinois Supreme Court
recognized, “are an expanding cancer in our society and
their illegal activities endanger the safety of many law-
abiding citizens.” Pet. App. 17a.7 Among the problems
posed by gangs are those engendered when gangs can
loiter with impunity on the public ways. The findings of
the Chicago City Council, which the Illinois Supreme
Court did not question, explain that loitering by street
gang members and their hangers-on poses at least two
kinds of problems. First, although gang members bla-
7 That assessment is widely shared. See generally, ¢.g., Carolyn
Rebecca Block & Richard Block, Street Gang Crime in Chicago
(Nat'l Inst. of Justice Dec. 1998); G. David Curry, Richard A.
Ball & Scott H. Decker, Estimating the National Scope of Gang
Crime from Law Enforcement Data, in Gangs in America 21-36
(C. Ronald Huff ed. 1996); U.S. Department of Justice, Attorney
General's Report to the President: A Coordinated Approach to
the Challenge of Gang Violence: A Progress Report (April 1996).
munity residents’ sense of safety and security, detracts
from property values, and can ultimately destabilize en-
The Illinois Supreme Court correctly observed that
“{mJany of the offensive activities the city claims the gang
loitering ordinance will deter are already criminal acts.
Pet. App. 19a. But surely it is no answer to law-abiding
residents, who no longer feel safe when they go outdoors,
to wait for someone to eventually be incarcerated as a
result of a conviction on a serious felony charge—if proof
beyond a reasonable doubt can be assembled from the
testimony of witnesses willing to cooperate and able to
remain alive until the time of trial. And even apart from
whether loitering facilitates the commission of other
crimes, it can destabilize communities as a consequence
of the very presence of these menacing groups on the
public ways. Loitering laws, by granting the police “se
authority to move a visibly lawless and often dangerous
element away from law-abiding persons, thus provide an
important alternative to more conventional and reactive
policing—by moving gang members along, police officers
can restore order to the streetscape and stop crime be-
fore it occurs. Without them, the police must wait for a
breach of the peace, often having tragic consequences,
and then hope that they can secure convictions. And by
enabling the police to demonstrate control over the street-
scape and the most lawless elements in the community,
loitering laws make people feel safer, thereby reinvigor-
ating neighborhoods.
The importance of loitering and other public order
laws has been underscored by the emergence of commu-
15
nity-orien‘ed policing and its theoretical underpinning—
the “Broken Windows” thesis first advanced by Professors
James Q. Wilson and George Kelling. These scholars ob-
served that in the wake of the professionalization of po-
licing in the 1950s and 1960s, law enforcement had
Stressed strategies based on investigating those crimes
thought to be most serious, thereby overlooking the im-
portant function that public order maintenance served.
See James Q. Wilson & George L. Kelling, Broken Win-
dows, Atlantic Monthly, Mar. 1982, at 33-38. The
“Broken Windows” thesis is that crime is most effectively
combatted when the police can address signs of visible
disorder—including loitering—that destabilize communi-
ties and stimulate the commission of more serious crimes.
See id. at 31-33.° As Professor Kahan has observed:
“Norms of order are critical to keeping social influence
pointed away from, rather than toward, criminality; the
spectacle of open gang activity, vandalism, aggressive
panhandling, and other forms of disorder transmits signals
that cause both law-breakers and law-abiders to behave
in ways conducive to crime.” Dan M. Kahan, Social In-
fluence, Social Meaning, and Deterrence, 83 Va. L. Rev.
349, 391 (1997) (footnote omitted). In light of these
insights, commentators have repeatedly called for courts
to provide greater leeway for state and local governments
to address signs of chronic disorder on the streets.”
8 See also, e.g., George L. Kelling & Catherine M. Coles, Fixing
Broken Windows 71-107 (1996); Charles R. Swanson, Leonard
Territo & Robert W. Taylor, Police Administration: Structures,
Processes and Behavior 3-29 (3d ed. 1993); Samuel Walker, The
Police in America 12-29 (1992).
9 See also, ¢.g., Kelling & Coles, supra at 16-36; Wesley G. Sko-
gan, Disorder and Decline 9-10, 51-57, 73-75, 85-124 (1990):
Jerome H. Skolnick & David H. Bayley, Community Policing: 1s-
sues and Practices Around the World 4-19 (Nat'l Inst. of Justice
1988).
10 See, e.g., Robert C. Ellickson, Controlling Chronic Misconduct
in City Spaces: Of Panhandlers, Skid Rows and Public Space
Zoning, 105 Yale L.J. 1165, 1177-84, 1238-46 (1996) ; Kahan, supra
at 389-94; Debra Livingston, Police Discretion and the Quality of
Life in Public Places: Courts, Communities and the New Policing,
and obeyed, and nearly the same number of
made of those who failed to move on after being ordered
to do so. Removing a visibly lawless element, whose very
presence on the public ways was often viewed by rival
gangs as an invitation to violence, had a substantial effect
on the level of gang-related violence in Chicago. In 1995,
for example, the last year in which the ordinance was en-
forced, gang-related homicide in Chicago dropped 26%,
a considerably steeper decline than the 9% drop in the
overall homicide rate that year. But in 1996, without
enforcement of the ordinance, while the overall homicide
rate fell another 4%, the level of gang-related homicide
jumped 7%." Perhaps it is just this simple: if fewer
97 Colum. L. Rev. 551, 650-72 (1997) ; Tracey L. Meares, Social Or-
ganization and Drug Law Enforcement, 35 Am. Crim. L. Rev. 191,
218-27 (1998).
11 These figures can be found in a five-year report by the Police
Department of the City of Chicago entitled Gang and Narcotic-
Related Crime: 1998-1997, which nas been lodged with the Court
and served on counsel for respondents. The homicide percentages
in the report have changed slightly from those we reported in our
petition because the results of investigations completed in 1997 of
homicides ocurring in 1996 have become available, enabling the
motive of some homicides to be reclassified. As the report reflects,
this pattern of substantial decline in gang-related crime followed
by an increase after enforcement of the ordinance ceased was ob-
served for a variety of other types of gang-related crimes. The
report also shows that, in every year, at least 92% of all gang-
related homicides were committed outdoors. The report further
reflects, for 1997, a decline in gang-related homicides but a con-
tinued increase in both gang-related aggravated battery with a
firearm and drive-by shootings. Based on the available empirical
evidence, at least one scholar has offered her tentative view that
enforcement of the gang loitering ordinance appeared to combat
gang crime effectively. See Meares, supra at 224-26.
17
gang members are loitering in public where they consti-
tute an inviting target for their rivals, fewer of them—
and innocent people nearby—will be shot to death.
Nevertheless, in the decision below, the Illinois Supreme
Court found Chicago’s ordinance to be impermissibly
vague and inconsistent with substantive due process on its
face because it does not exclude from its scope persons
engaged in “innocent” activities. See Pet. App. 10a, 17a-
18a. In our view, these holdings are inconsistent with the
unquestioned power of legislatures to enact prophylactic
laws that criminalize conduct, like Standing around,
that may be innocent in isolation, but that is unaccept-
ably likely, under at least some circumstances, to give
rise to substantive evils within the power of government
to address. We now explain why this is so.
I. THE GANG LOITERING ORDINANCE IS NOT IM.
PERMISSIBLY VAGUE.
Laws that are claimed to have been framed with insuffi-
cient precision can be attacked on their face under two dif-
ferent doctrines. First, the overbreadth doctrine permits fa-
cial invalidation of laws that impermissibly inhibit the exer-
cise of First Amendment rights. E.g., Gooding v. Wilson,
405 U.S. 518, 521 (1972). Second, even a law that does
not reach such protected conduct may be impermissibly
vague because it fails to establish sufficient standards to
guide the police and public. E.g., Kolender vy. Lawson, 461
U.S. 352, 357-58 (1983). Accordingly, “a court’s first
task is to determine whether an enactment reaches a sub-
stantial amount of constitutionally protected conduct. If it
does not, the overbreadth challenge must fail. The court
should then examine the facial vagueness challenge .. .
and should uphold the challenge only if the enactment is
impermissibly vague in all of its applications.” Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455
U.S. 489, 494 (1982) (footnote omitted). We thus turn
to that two-part inquiry.
18
A. The Gang Loitering Ordinance Is Not Overbroad.
“The general test of vagueness applies w::h particular
force in review of laws dealing with speech.” Hynes v.
Mayor and Council, 425 U.S. 610, 620 (1976). The over-
breadth doctrine excepts laws that implicate First Amend-
ment rights from the general rule that only laws incapable
of any valid application can be struck down on their face.
See United States v. Salerno, 481 U.S. 739, 745 (1987).
Even so, not every law that has the potential to reach
conduct protected by the First Amendment is facially
invalid. To the contrary, an enactment should not “be
held invalid on its face merely because it is possible to
conceive of a single impermissible application. . . .” City
of Houston v. Hill, 482 U.S. 451, 458 (1987) (quoting
Broadrick v. Oklahoma, 413 U.S. 601, 630 (1973)
(Brennan, J., dissenting) ). Rather, to invalidate a chal-
lenged law on this basis, “the overbreadth of a statute
must not only be real, but substantial as well, judged in
relation to the statute’s plainly legitimate sweep.” New
York v. Ferber, 458 U.S. 747, 770 (1982) (quoting
Broadrick, 413 U.S. at 615). The gang loitering ordi-
nance, as we now explain, passes this test.
1. The gang loitering ordinance does not proscribe
speech, assembly, or association.
Respondents have claimed in this litigation that the
gang loitering ordinance proscribes conduct within the
ambit of the First Amendment's protection for speech,
assembly, and association, and even convinced the state
intermediate appellate court on this point (Pet. App.
24a-27a). In fact, however, this ordinance is directed at
loitering, pure and simple; and loitering, at least as de-
fined in this ordinance, does not qualify as speech, as-
12 Accord, e.g., Osborne v. Ohio, 495 U.S. 103, 112 (1990); Board
of Airport Commissioners v. Jews For Jesus, Inc., 482 U.S. 569,
574 (1987) ; City of Houston v. Hill, 482 U.S. at 459.
19
sembiy, or association within the meaning of the First
Amendment.
they loiter does not confer upon their loitering a First
Amendment immunity from regulation: “{I]t has never
been deemed an abridgment of freedom of speech or press
to make a course of conduct illegal merely because the
conduct was in part initiated, evidenced, or carried out by
means of language, either spoken, written, or printed.”
Giboney v. Empire Storage & Ice Co., 336 US. 490, 502
(1949). Accord, e.g., Cox v. Louisiana, 379 US. 536,
555-56 (1965).
Nor does the ordinance proscribe freedom of assembly.
The term “assembly” connotes a Purposeful gathering
and not one with “no apparent purpose.” In fact, the
Court has made clear that the right to assemble does not
protect persons merely because they are standing in prox-
imity to each other. Instead, an assemblage is protected
under the First Amendment only when the gathering is
itself a “method[] of expression. .. .” Shuttlesworth vy.
20
City of Birmingham, 394 U.S. 147, 152 (1969). In
Clark v. Community for Creative Non-Violence, 468 U.S.
288 (1984), for example, the Court assumed that individ-
uals who sought to sleep in a public park as part of a
protest against homelessness could advance a First Amend-
ment claim only because “the demonstration [wa]s ex-
pressive conduct protected to some extent by the First
Amendment.” Id. at 293 (footnote omitted). Similarly,
in Hurley v. Irish-American Gay, Lesbian and Bisexual
Group, 515 U.S. 557 (1995), the Court held that a
St. Patrick’s Day parade enjoyed First Amendment pro-
tection because people were to assemble as “a form of
expression. .. .” Jd. at 568. This ordinance, however,
will rarely if ever reach that type of assemblage. Public
speeches, leafleting, demonstrations, picketing, and other
expressive activities will almost always be outside the
scope of the ordinance by its terms, since these activities
will almost always have an “apparent purpose.” After
all, the entire point of such activities is to convey a mes-
sage to others—only an unusually ineffectual demonstra-
tion will have no “apparent purpose.” Indeed, neither of
the state appellate courts construed the ordinance to reach
demonstrations or other overtly expressive activities.
The final right that respondents have invoked, “freedom
of association,” is not expressly protected by the Constitu-
tion. For this reason, the right to associate is protected
only in two senses: when undertaken for the purpose of
engaging in activities otherwise protected by the First
Amendment, such as “speech, assembly, petition for the
redress of grievances, and the exercise of religion,” Rob-
erts v. United States Jaycees, 468 U.S. 609, 618 (1984),
or when undertaken to engage in “intimate human relation-
ships” that attend to the “creation and sustenance of a
family—marriage; childbirth; the raising and education of
children; and cohabitation with one’s relatives,” id. at 617,
619 (citations omitted). Accord, e.g., Board of Directors
v. Rotary Club, 481 U.S. 537, 544 (1987). Thus, like
assembly, association is entitled to constitutional protec-
tion only when individuals gather for a particular and
21
of protected association. As we have just explained above,
it is not directed at speech or assembly within the mean-
ing of the First Amendment. As for intimate associative
rights, there is little that is “intimate” about loitering in
public. To the contrary, loitering in public plainly is not
“the kind of private or personal relationship . . . accorded
protection under the First Amendment” because the right
of “intimate association” does not extend to “activities
carried on in the presence of strangers.” Rotary Club,
481 U.S. at 547.
Indeed, this Court has held that laws that restrict the
ability of persons to gather together in public, but that do
not proscribe anything that can be characterized as pri-
marily expressive activity, do not abridge rights of speech,
assembly, or association. In City of Dallas v. Stanglin, 490
U.S. 19 (1989), this Court upheld an ordinance regulat-
ing youth dances even though it prevented older persons
from attending dances with younger ones. The Court
rejected the claim that “the Constitution recognizes a
generalized right of ‘social association,’” and concluded
that the ordinance at issue “impinges on no constitutionally
protected right.” /d. at 25. The conduct regulated by the
ordinance, the Court held, was simply not sufficiently
expressive to be entitled to First Amendment protection.
The Court wrote: “It is possible to find some kernel of
expression in almost every activity a person undertakes—
for example, walking down the street or meeting one’s
friends at a shopping mall—but such a kernal is not suffi-
cient to bring the activity within the protection of the
First Amendment.” /bid. Cf. United States v. O’Brien,
391 U.S. 367, 376 (1968) (“We cannot accept the view
that an apparently limitless variety of conduct can be
labeled ‘speech’ whenever the person engaging in the con-
duct intends thereby to express an idea.”).™
13 Of course, laws regulating social gatherings affect a liberty
interest, and thus are subject to review under the rubric of sub-
stantive due process. See Stanglin, 490 U.S. at 28 (Stevens, J.,
concurring in the judgment). See also Swank v. Smart, 898 F.2d
tHe
ih
HEP
2% a
il
darl
ts
Ba
Litcit
|
i
in other protected activities are a tiny fraction
the police will encounter standing in public,
engaged in such activities will usually have a
purpose apparent to any police officer. Surely a law di-
rected itering is far more likely to be applied to
persons engaged in the kind of casual social interaction
the Court held to be unprotected in Stanglin than to some-
one engaged in gang outreach or similarly protected ac-
ties. Indeed, after the many thousands of arrests under
the ordinance, this record reflects not a single instance in
which anyone—including the 66 respondents—was ar-
ett
in
5
As we explain above, merely being able to imagine a
hypothetical application of a challenged enactment that
would be impermissible does not make for substantial
overbreadth. In New York v. Ferber, for example, ‘he
Court was quite clear on this point. While acknowledging
that the child pornography statute at issue could conceiv-
1247, 1251-52 (7th Cir.), cert. denied, 498 U.S. 853 (1990). We
address that doctrine in Part II below.
14In fact, because this ordinance proscribes only remaining in
one place after being ordered to move rather than what persons
can say or write, there is great doubt whether it is even subject
to attack as overbroad. At least one circuit has concluded that
laws directed at what is generally conduct with no inherently ex-
pressive purpose can never be invalidated as overbroad. See Roulette
v. City of Seattle, 97 F.3d 300, 303-05 (9th Cir. 1996) (upholding
ordinance prohibiting sitting or lying on sidewalks).
. z, 48
v. Time, Inc., 468 U.S. 641, 651-52 (1984) (plurality
26a-27a. But of course, the First Amendment is con-
cerned with “speech” and other expressive activities, not
innocence. As Stanglin makes clear, a variety of casual
social interactions may be “innocent,” but that does not
15 The gang loitering ordinance, which confines its scope to con-
duct with “no apparent purpose,” contrasts sharply with laws that
this Court has condemned as overbroad. In Coates v. City of Cin-
cinnati, 402 U.S. 611 (1971), for example, the ordinance at issue
made it a crime for “three or more persons to . . . conduct them-
selves in a manner annoying to persons passing by.” Id. at 611.
The Court held this ordinance invalid, reasoning that activity pro-
tected by the First Amendment is often annoying and hence the
ordinance could reach virtually any demonstration, picketing, or
public assembly. See id. at 615-16. Similarly, in Shuttlesworth v.
City of Birmingham, 382 U.S. 87 (1965), the ordinance made it
“unlawful for any person to stand or loiter upon any street or side-
walk ... after having been requested by any police officer to move
on.” Id. at 90. By effectively granting police officers the authority
to prevent anyone from standing still in Birmingham, the ordinance
plainly could reach picketing and demonstrations, and hence created
an “ever-present potential for arbitrarily suppressing First Amend-
ment liberties... .” Jd. at 90-91.
24
make them protected by the First Amendment.’* A poten-
tial for application of this ordinance to “innocent” activity
accordingly does not render it overbroad.
2. The gang loitering ordinance is a permissible
regulation of loitering. ;
Even if the gang loitering ordinance reached activities
that qualified as speech, assembly, or association, that
would not seal its fate. As we explain above, a law is
overbroad only when it “reaches a substantial amount of
constitutionally protected conduct” (Hoffman Estates, 455
U.S. at 494 (emphasis supplied) ), and, of course, not all
speech, assembly, or association is constitutionally pro-
tected. To the contrary, there is ample power to regulate
such activities. It has been clear since at least United
States v. O’Brien, for example, that when “ ‘speech’ and
‘nonspeech’ elements are combined in the same course of
conduct, a sufficiently important governmental interest in
regulating the nonspeech element can justify incidental
restrictions on First Amendment freedoms.” 391 U.S. at
376. Thus “[t}he First Amendment does not bar applica-
tion of a neutral regulation that incidentally burdens
speech ... .” United States v. Albertini, 472 U.S. 675.
688 (1985). It has also been clear since at least Cox vy.
New Hampshire, 312 U.S. 569 (1941), that the First
Amendment permits reasonable regulation of the time,
place, and manner of speech, public assemblies, and other
forms of association. Accordingly, even laws that ex-
pressly proscribe entirely peaceful expressive conduct are
frequently upheld. See, e.g., Frisby v. Schultz, 487 US.
at 481-87 (prohibition on residential picketing); Com-
munity For Creative Non-Violence, 468 U.S. at 293-99
16The California Supreme Court has taken precisely this ap-
proach, concluding that a civil injunction prohibiting gang mem-
bers from associating together in public infringed at most the kind
of generalized social associations held to be unprotected in Stanglin.
See People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 1110-12, 929
P.2d 596, 608-09, 60 Cal. Rptr. 2d 277, 289-90, cert. denied, 117
S. Ct. 2613 (1997).
25
(prohibition on sleeping in public park as part of a
protest).
The test for evaluating incidental restrictions on speech
and assembly “is little, if any, different from the standard
applied to time, place, or manner restrictions.” Ward v.
Rock Against Racism, 491 U.S. 781, 798 (1989) (quot-
ing Community For Creative Non-Violence, 468 U.S. at
298). Such laws are upheld when they are not based on
the content of expression, when they are narrowly tailored
to promote a substantial governmental interest, and when
they leave open adequate alternative channels for com-
munication. E.g., Rock Against Racism, 491 U.S. at 791-
800; Frisby v. Schultz, 487 U.S. at 481-82. Essentially
the same test governs laws claimed to infringe the right of
association: “Infringement on that right may be justified
by regulations adopted to serve compelling state interests,
unrelated to the suppression of ideas, that cannot be
achieved through means significantly less restrictive of
associational freedom.” Roberts, 468 U.S. at 623. The
gang loitering ordinance satisfies this test.
First, the ordinance is content-neutral. “As a general
rule, laws that by their terms distinguish favored speech
from disfavored speech on the basis of the ideas or views
expressed are content based.” Turner Broadcasting Sys-
tem, Inc. v. FCC, 512 U.S. 622, 643 (1994). Legislation
is accordingly content-neutral if it is “justified without
reference to the content of the regulated speech.” City of
Renton v. Playtime Theatres, Inc., 475 US. 41, 48
(1986) (citations and internal quotations omitted). The
gang loitering ordinance is classically content-neutral. The
requirement that loiterers move on when ordered to do so
has nothing to do with the content of the speech that may
pass among them as they loiter—or even whether they are
speaking at all—it is applicable to all who loiter in public.
Like the ordinance prohibiting the posting of signs on
municipal lightposts upheld in Members of the City Coun-
cil v. Taxpayers For Vincent, 466 U.S. 789 (1984), this
enactment is “neutral—indeed it is silent—concerning any
26
speaker’s point of view. . . .” Id. at 804. Instead, as the
Chicago City Council made clear in the ordinance’s pre-
amble, the justification for the gang loitering ordinance
flows from the devastating effect that loitering by criminal
street gang members and their associates has on the people
living nearby—people who fear for their own safety, their
families, their property, their neighborhoods, and their
businesses. And “a regulation that serves purposes un-
related to the content of expression is deemed neutral,
even if it has an incidental effect on some speakers or mes-
— not on others.” Rock Against Racism, 491 U.S.
at .
Second, the ordinance is narrowly tailored to achieve
important governmental interests. Surely no one could
doubt the importance of the interests that the gang loiter-
ing ordinance is intended to serve. It exceeds by many
orders of magnitude the types of governmental interests
that have been held sufficient to support restrictions on
First Amendment activity. See, e.g., Turner Broadcasting,
512 U.S. at 662-64 (promoting free and high quality
competitive cable television service); Rock Agairst Rac-
ism, 491 U.S. at 796 (restricting volume of music at con-
certs in a public park); Taxpayers For Vincent, 466 US.
at 807 (reducing visual clutter caused by signs).
The ordinance is also narrowly tailored to promote
these interests. Narrow tailoring does not require the least
restrictive means for promoting the government's interests.
E.g., Turner Broadcasting, 512 US. at 662; Rock Against
Racism, 491 U.S. at 798. Rather, a regulation is narrowly
tailored if it “promotes a substantial government interest
that would be achieved less effectively absent the regula-
tion.” Id. at 799 (quoting Albertini, 472 US. at 689).
“So long as the means chosen are not substantially broader
than necessary to achieve the government's interest . . . the
regulation will not be invalid simply because a court
concludes that a government's interest could be adequately
served by some less-speech-restrictive alternative.” Rock
Against Racism, 491 U.S. at 800.
27
Here, the findings «i the City Council make clear that
this ordinance is likely the most efficacious way of address-
ing the problem at issue. The evidence before the City
Council established that gang members do not commit
other offenses in the presence of police officers and that
it is problematic to prosecute them for offenses com-
mitted outside the presence of police officers because such
cases will necessarily require the testimony of civilian
witnesses. The Council also found that loitering by gang
members and those who join them has itself become a
problem for communities because the presence of a visibly
lawless element terrifies residents, invites violence, drives
down property values, and otherwise tends to destabilize
communities, and that these problems are not adequately
addressed by existing laws. And while the legislature's
findings are not conclusive when the record contains
genuine disputes of fact on the efficacy of a regulation
restricting First Amendment activity (¢.¢., Turner Broad-
casting, 512 U.S. at 665-68). this record contains no
evidence or even an offer of proof from any respondent
that there were means available to the City to address
the problems engendered by gang loitering in some sig-
nificantly less restrictive way that would still be as effec-
tive—and plainly the testimony before the City Council
amply supported its finding that existing laws were inade-
quate to the challenge posed by gang crime.
Finally, the ordinance leaves open alternative channels
for communication. Under the ordinance. gang members
remain free to protest, picket, solicit contributions for their
gangs, conduct a leafleting campaign, or engage in any
other of the innumerable types of expressive conduct that
has an “apparent purpose.” Gang members also remain
free to associate with each other and anyone else indoors
or outdoors if they walk instead of loiter together; and
they remain free to loiter outdoors as well, either alone,
or in groups as long as they obey orders to move on.
Moreover, in evaluating the facial validity of challenged
enactments, administrative regulations and guidelines for
enforcement should be considered. See Rock Against
28
Racism, 491 U.S. at 795-96. Under General Order 92-4,
the gang loitering ordinance is not enforced throughout
Chicago, but only in those limited areas designated by
police district commanders as “areas in which the presence
of gang members has a demonstrable effect on the activi-
ties of law abiding persons in the surrounding community.”
Pet. App. 68a. Thus, in most areas of the City, the
ordinance has no effect on the activities of gang members
and their associates.'”
In short, there remain many—indeed innumerable—
opportunities available to gang members to express their
ideas and to associate with others. They are required to
refrain from no more than remaining in place after having
received a police order to move along. Accordingly,
whether or not an ordinance directed at loitering can be
said to regulate conduct that qualifies as speech, assembly,
or association within the ambit of the First Amendment,
this ordinance does not impermissibly impinge upon any-
thing protected by that Amendment.
B. The Gang Loitering Ordinance Contains Appro-
priate Standards For Its Enforcement.
As we explained at the outset of this discussion. when a
challenged enactment does not reach a substantial amount
of constitutionally protected conduct, it should be invali-
dated on its face only if it is vague in all its applications.
To invalidate an enactment for this reason, it must be
17 The Illinois Supreme Court questioned whether General Order
92-4 had been followed uniformly, observing that respondent Mor-
ales was arrested based on a police officer’s determination that he
was a gang member that, in turn, was based solely on the fact that
he was wearing black and blue clothing, in violation of the restric-
tions on such determinations contained in the General Order. See
Pet. App. 16a & n.1. In fact, as we explain below, the court appears
to have misconstrued the record on this point. See infra at 34
n.21. But in any event, the court’s observation goes only to the
question whether the standards in the order for identifying gang
members have been consistently applied. There is no indication in
this record that the ordinance has been enforced in any but those
areas designated under General Order 92-4.
29
vague “in the sense that no standard of conduct is specified
at all.” Coates v. City of Cincinnati, 402 U.S. 611, 614
(1971). By contrast, when “a penal statute define[s] the
criminal offense with sufficient definiteness that ordinary
people can understand what conduct is prohibited and in
a manner that does not encourage arbitrary and discrim-
inatory enforcement,” Kolender v. Lawson, 461 U.S. at
357, the requisite specificity is present. Thus, this doctrine
has two prongs, focusing “on actual notice to citizens
and arbitrary enforcement... .” Jd. at 358. There is no
constitutional infirmity on either prong here.
1, The ordinance provides fair notice of what it
prohibits.
Due process requires that “laws give the person of
ordinary intelligence a reasonable opportunity to know
what is prohibited, so that he may act accordingly.”
Hoffman Estates, 455 U.S. at 498 (quoting Grayned v.
City of Rockford, 408 U.S. 104, 108 (1972)). The gang
loitering ordinance easily satisfies this test. No one who
has been given a police order to move on could fail to
understand what is required of him, and under our ordi-
nance, no arrest can be made unless there is first a police
order to disperse and then a refusal to comply with that
order. On this point, Colten v. Kentucky should be dis-
positive. As we note above, Colten had attempted to
debate a police officer while the officer was issuing a traf-
fic ticket to Colten’s friend and then disobeyed the offi-
cer’s order to move along. See 407 U.S. at 106-07. The
Court upheld the Kentucky disorderly conduct statute
under which Colten had been convicted against a vague-
ness attack, noting that anyone “should understand that he
could be convicted . . . if he fails to obey an order to
move on.” /d. at 110. Since the statute required dis-
obedience of a police order, it was “sufficiently specific to
provide fair warning that certain kinds of conduct are
prohibited.” /bid.
The Illinois Supreme Court thought that the gang
loitering ordinance failed to provide the requisite notice
30
because of its use of the term “loitering.” See Pet. App.
9a-lla. Of course, if the term “loitering” were so vague
that people ordinarily cannot tell when they are violating
the law, all loitering laws would fall. There is no justifi-
cation for so radical a conclusion. The ordinance straight-
forwardly defines the term “loiter” as “to remain in any
one place with no apparent purpose” (Pet. App. 61a),
and surely persons of common intelligence can grasp the
concept of remaining in one place, as opposed to moving
along, and can judge as well when one’s purpose for stay-
ing put is not obvious to others who may come along."
There may be some imprecision in the concept of loitering,
but of course “we can never expect mathematical certainty
from our language.” Grayned, 408 U.S. at 110 (foot-
note omitted). See also United States Civil Service Com-
mission v. National Association of Letter Carriers, 413
U.S. 548, 577-79 (1973).
In any event, the Illinois Supreme Court ultimately
acknowledged that there is “a common and accepted
meaning of the word ‘loiter,’” but added that this “term
by itself is inadequate to inform a citizen of its criminal
implications.” Pet. App. 9a. Even if it is true that per-
sons do not generally know when loitering can subject
the loiterer to sanctions, this problem is also solved by
the requirement that police officers order a group of
loiterers to move on and by authorizing arrest only if this
order is disobeyed. As we explain above, no one who
has been given a police order to move on could fail to
understand what is required of him. This point also ad-
dresses the Illinois Supreme Court's related concern that
“[pleople with entirely legitimate and lawful purposes will
18 Indeed the better-reasoned decisions in the lower courts con-
clude that the term “loitering” has a common sense meaning that
reasonable persons can apprehend. See, e.g., Wiemerslage v. Maine
Township High School District 207, 29 F.3d 1149, 1152 (7th Cir.
1994); People v. Superior Court, 46 Cal. 3d 381, 390-92, 758 P.2d
1046, 1049-50, 250 Cal. Rptr. 515, 518-19 (1988): State v. Arm-
strong, 282 Minn. 39, 42, 162 N.W.2d 357, 360 (1968).
31
police officer.” Pet. App. 10a. While this may occasion-
ally be the case, people will always receive actual notice
that they are required to move along before they are
subject to arrest. And as Colten illustrates, the requirement
of fair notice does not entitle persons to debate police
In the same vein, the Illinois Supreme Court also con-
cluded that the gang loitering ordinance “fails to distin-
guish between innocent conduct and conduct calculated
to cause harm and ‘makes criminal activities which by
modern standards are normally innocent.’” Pet. App. 9a
(citation omitted) (quoting Papachristou v. City of Jack-
sonville, 405 U.S. 156, 163 (1972)). Again, whatever
problem is created by a law that criminalizes conduct
people normally believe to be innocent is solved when
persons receive actual notice from a police order of what
they are expected to do. And for just that reason, the
vagueness problem in the Papachristou case on which the
Illinois Supreme Court primarily relied was quite different.
The vagrancy ordinance at issue in Papachristou was so
broadly written that it reached any person walking any-
where in Jacksonville at night, at least if the person did
so on more than one occasion. See 405 U.S. at 163.
Thus, the Court reasoned, virtually anyone could fall into
this “vagrancy net.” Ibid. That reasoning does not reach
19 Perhaps the Illincis Supreme Court’s concern that the ordi-
nance could be applied to persons with legitimate purposes was not
an objection on grounds of vagueness, since the police order makes
it perfectly clear what one must do to comply with the law, Lut
instead was a substantive due process concern that the ordinance
transgresses the constitutional limitations on the municipal police
power. We address that issue in Part II below
32
the gang loitering ordinance, which requires actual notice
to loiterers of what is required before they are subject to
arrest.”°
To be sure, the Illinois Supreme Court was correct that
if police officers are afforded standardless discretion to
order individuals to move on, the mere fact that a police
order is given does not serve to sustain the order. See
Pet. App. 12a-14a. As the court below recognized, dicta
in Shuttlesworth v. City of Birmingham, 382 U.S. 87
(1965), indicates that an ordinance granting the police
discretion to order anyone standing on a sidewalk to move
on would be impermissibly vague. The Court’s concern,
however, was not lack of fair notice, but rather that the
ordinance could be used against First Amendment activi-
ties and authorized the police to act arbitrarily and dis-
criminatorily. See id. at 90-91 & n.5. That concern is
not present here; we explain above that orders issued
under this ordinance do not reach conduct protected by
the First Amendment, and we address the question of
standards for enforcement in Part I.B.2 below. The
Shuttlesworth dicta thus does not preclude use of a police
order as a means of providing fair notice to the public.
Indeed, an ordinance requiring disobedience of a police
order before an arrest can be made is the antithesis of
vague: people are told precisely what they must do—
move along—to avoid arrest.
20 This same point also distinguishes another case cited by the
court below, Lanzetta v. New Jersey, 306 U.S. 451 (1939). There,
the Court invalidated a statute making it a crime to belong to a
“gang,” which had been construed to mean any group of two or
more persons with no lawful purpose but without any requirement
that the group be engaged in criminal activity. See id. at 456-57.
The Court invalidated the statute because it failed to provide suffi-
cient notice to the class of persons subject to its prohibition. See
id. at 457-58. Here, of course, under the gang loitering ordinance,
actual notice is provided to persons before they become subject to
arrest.
33
2. The ordinance does not authorize arbitrary or
discriminatory enforcement.
Due process also requires that “laws must provide
explicit standards for those who apply them.” Hoffman
Estates, 455 U.S. at 498 (quoting Grayned, 408 U.S. at
108). This principle mandates that “a legislature estab-
lish minimal guidelines to govern law enforcement.”
Kolender, 461 U.S. at 358 (quoting Smith v. Goguen,
415 U.S. 566, 574 (1974)). The requirement that laws
contain enforcement standards is designed to ensure that
the authorities are not authorized to conduct “ ‘a standard-
less sweep [that] allows policemen, prosecutors, and juries
to pursue their personal predilections.’” Kolender, 461
U.S. at 358 (quoting Smith, 415 U.S. at 575). The or-
dinance considered in Shuttlesworth, for example, flunked
this test because it contained no standards for when
police could order someone standing on a public way to
move on. See 382 U.S. at 90-91.
On this basis, enactments that are enforced based on
the wholly subjective judgments of police officers should
be condemned. For example, the statute at issue in Ko-
lender required a loiterer to provide “credible and reliable”
identification to a police officer, and thereby permitted
officers to make inherently subjective credibility deter-
minations about a suspect's identification. This left “vir-
tually complete discretion in the hands of the police to de-
termine whether the suspect has satisfied the statute... .”
461 US. at 358. See also Coates, 402 U.S. at 614 (or-
dinance prohibiting “annoying” conduct was impermis-
sibly vague because it depended on a police officer’s
subjective reactions and accordingly “no standard of con-
duct is specified at all”). But a law that “sets forth objec-
tive criteria” for enforcement should be upheld. See
Posters ‘N’ Things, Ltd. v. United States, 511 U.S. 513.
526 (1994). The gang loitering ordinance specifies such
objective standards.
First, under the plain meaning of the term “loitering”
used in the ordinance, it does not permit officers to issue
34
any type of order to anyone who is moving along or who
has an apparent purpose. Second, the ordinance permits
no arrest if individuals have dispersed after having re-
ceived a police order. These two limitations mean that
enforcement is based on what a police officer actually
observes, and not on inherently subjective assessments of
a suspect’s intent or credibility.
Third, and most important, the ordinance contains an
expressly objective test for the propriety of an order direct-
ing loiterers to move—when the officer “reasonably be-
lieves” that the group contains a member of a criminal
Street gang. Pet. App. 61a.** This facially objective
standard for enforcement unambiguously cabins discretion.
And permitting police officers to act based only on their
objectively reasonable beliefs is sufficient to address vague-
21 General Order 92-4 construes the ordinance to require prob-
able cause to believe that a loiterer is a member of a criminal street
gang, and there are rigorous standards for determining member-
ship. Pet. App. 67a-68a, 7la-72a. Such administrative guidelines
for enforcement are appropriately considered in evaluating claims
of vagueness. See, e.g., Kolender, 461 U.S. at 355; Hoffman Estates,
455 U.S. at 494 n.5. The Illinois Supreme Court questioned the
efficacy of General Order 92-4, stating that it had made “a thorough
examination of the record” and had concluded that police officers
“had not followed the guidelines of the general order in a uniform
manner.” Pet. App. 16a (footnote omitted). The single example
the court cited—that respondent Morales was arrested solely be-
cause he was wearing blue and black clothing (Pet. App. 16a n.1)—
in fact discloses a misunderstanding of the record. Morales was
not arrested because of the colors he was wearing; he was ar-
rested because the loiterers admitted that they belonged to a
criminal street gang. See Morales R. C.3. And the trial judge
who later convicted Morales found that he had admitted that he
was loitering with a member of a criminal street gang, although
he denied belonging to the gang. Morales Tr. at 19, 22, In any
event, the Illinois Supreme Court’s observation, even if correct, con-
siders the record in only one of these 66 consolidated cases, which
are themselves a tiny fraction of the cases brought under this ordi-
nance, and surely cannot be taken as a finding that General Order
92-4 has been ignored. There has been no evidentiary hearing on
the Chicago Police Department's adherence to the General Order,
aa any Mate court made em express finding of fast.on thie
po
35
ness concerns. In Kolender, for example, the Court ex-
plained that a loitering ordinance would be valid if it
authorized investigative stops based on reasonable suspi-
cion of criminal activity under the standard announced
in Terry v. Ohio, 392 U.S. 1 (1968), since this standard
“neutral limitations on the conduct of individual
officers.” 461 U.S. at 361 (quoting Brown v. Texas, 443
U.S. 47, 51 (1979)). The Terry test, of course, is an
objective one, even though the police must form their own
judgments based on their reasonable beliefs when applying
it. And if the Terry “reasonable suspicion” standard is an
appropriately neutral limitation on an officer’s authority
to detain loiterer,, then surely requiring an officer to have
a reasonable basis to identify a loiterer as a member of a
criminal street gang is an equally neutral limitation on the
power to order loiterers to move on.
Police officers thus do not receive “unfettered discre-
tion” under this law, as the Illinois Supreme Court claimed
(Pet. App. 16a), but instead must have an objectively
reasonable basis on which to identify a loiterer as a mem-
ber of a criminal street gang. Certainly there is nothing
about the concept of membership in a criminal street gang
so amorphous and subjective that it is impossible to have
objectively based beliefs on this point. In fact, gangs fre-
quently have a quite coherent structure and methods of
recruitment and admission.”* Many jurisdictions have even
made gang membership an element of an offense or a
basis for sentencing enhancement, and vagueness attacks
on such enactments have repeatedly been rejected. As
22 See, e.g. Jeffrey Fagan, Gangs, Drugs and Neighborhood
Change, in Gangs in America 42-73 (C. Ronald Huff ed. 1996);
Martin Sanchez Jankowski, Jslands in the Street: Gangs and
American Urban Society 37-100 (1991); Irving A. Spergel, The
Youth Gang Problem: A Community Approach 70-109 (1995).
23 See, ¢.g., People v. Gardeley, 14 Cal. 4th 605, 623-24, 927 P.2d
713, 724-25, 59 Cal. Rptr. 2d 356, 367-68 (1996), cert. denied, 118
S. Ct. 148 (1997); Jackson v. State, 634 N.E.2d 532, 535-36 (Ind.
Ct. App. 1994); Helton v. State, 624 N.E.2d 499, 505-07 (Ind. Ct.
App. 1993) cert. denied, 117 S. Ct. 1252 (1997); State v. Walker,
36
General Order 92-4 reflects, there are a variety of objec-
as an individual's admissions, his display of distinctive
signs or symbols, or the existence of information from a
reliable informant. See Pet. App. 67a-68a. In addition,
the General Order provides that only specially trained
and designated officers familiar with gang crime can make
gang loitering arrests. See Pet. App. 65a.
Nor does vagueness doctrine prohibit laws that empower
a police officer to issue an enforceable order based on his
objectively reasonable belief. This Court approved just
such a law in Boos v. Barry, 485 U.S. 312 (1988). In
that case, the Court considered a vagueness attack on a
law governing congregations near foreign embassies that
had been construed to permit the police to order groups
to disperse “ ‘only when the police reasonably believe that
a threat to the security or peace of the embassy is pres-
ent.” Jd. at 330 (quoting Finzer v. Barry, 798 F.2d
1450, 1471 (D.C. Cir. 1986)). The Court concluded
that the statute, as construed, “withstands . . . vagueness
challenge” because it contained a prohibition expressed
“in words of common understanding.” 485 U.S. at 332
(citations omitted). And permitting officers to act on
their reasonable beliefs is hardly novel. The Fourth
Amendment permits persons to be detained on a police
Officer’s reasonable suspicion of criminal activity (e.g.,
United States v. Hensley, 469 U.S. 221, 227-29 (1985)),
and permits arrests based on probable cause, a standard
requiring only “reasonably trustworthy information to war-
rant a prudent [person] in believing” that a crime has been
committed (e.g., Hunter v. Bryant, 502 U.S. 224, 228
(1991) (per curiam)). These standards necessarily rely
506 N.W.2d 430, 431-32 (lowa 1993). An inventory of state laws
that make gang membership an element of an offense or a basis
for sentencing enhancement is contained in the Brief Amicus
Curiae of Ohio, et al. And in City of Tacoma v. Luvene, 118 Wash.
2d 826, 827 P.2d 1374 (1992), the court rejected a vagueness attack
on a loitering ordinance that permitted enforcement based on gang
membership. See id. at 846-48 & n.12, 827 P.2d at 1384-86 & n.12.
of potential dangerousness [wa]s rational.” Lewis, 445
U.S. at 67 (footnote omitted). See also, e.g., Michael
M. v. Superior Court, 450 U.S. 464 (1981) (upholding
statutory rape law proscribing sexual intercourse with fe-
males under age 18 not married to the accused); DeVeau
v. Braisted, 363 U.S. 144 (1960) (upholding as an anti-
38
corruption measure disqualification of convicted felons
from holding any position in waterfront union).
special dangers gangs pose would mean that such
was neither arbitrary nor discriminatory. Here too, se-
lecting gangs for special treatment is justified by the spe-
cial challenges they pose for law enforcement. And for
this reason as well, the ordinance considered in Papachris-
tou again involved a far different problem. The Jackson-
ville vagrancy ordinance identified no discrete class of in-
dividuals who posed a threat to their communities, and
hence there were “no standards governing the exercise of
the discretion granted by the ordinance .. . .” 405 U.S.
at 170. As we have explained, the same cannot be said
of the gang loitering ordinance.
Of course, this ordinance will strike many as strong
medicine. While persons with an apparent purpose—such
as individuals waiting at a marked bus stop or playing
basketball on a public court—are not subject to the ordi-
nance, it is true that gang members and others with them
who are merely sitting on a park bench, chatting on a
sidewalk, or otherwise remaining in one public place for
any other purpose not immediately discernable to a police
officer, can be ordered to disperse. But while a law that
requires persons to obey all police orders may be tough,
it is surely not vague. The real objection to harsh laws
is that they may not advance legitimate governmental in-
terests. That, however, is a substantive due process ob-
jection, and not one of vagueness. It is thus to that issue
that we next turn.
24 See, ¢.g., United States v. Turner, 104 F.3d 1180, 1185 (9th
Cir.), cert. denied, 117 S. Ct. 1566 & 1722 (1997); United States
v. Bourgeois, 964 F.2d 935, 941 (9th Cir.), cert. denied, 506 U.S.
901 (1992) ; United States v. Trent, 718 F. Supp. 39 (D. Or. 1989).
See generally United States v. Armstrong, 517 U.S. 456, 463-71
(1996); Wayte v. United States, 470 U.S. 598, 608-10 (1985).
Il. THE GANG LOITERING ORDINANCE DOES NOT
OFFEND SUBSTANTIVE DUE PROCESS.
The Illinois Supreme Court determined that the gang
loitering ordinance was inconsistent with principles of sub-
Stantive due process. As with all facial challenges not
based on the First Amendment, this result can stand only
if the ordinance is invalid in all its applications. See Reno
v. Flores, 507 U.S. 292, 300-01 (1993). And as we ex-
plain below, substantive due process does not support the
court’s novel holding that the Constitution secures the
right to stand still on the public way even when one is not
engaged in speech, assembly, or other conduct that enjoys
A. The Gang Loitering Ordinance Appropriately Ad-
vances Legitimate Governmental! Interests.
Under substantive due process principles, a law that in-
fringes no fundamental right or liberty interest need only
be rationally related to a legitimate governmental interest.
See, ¢.g., Washington v. Glucksberg, 117 S. Ct. 2258,
2271-72 (1997); Reno v. Flores, 507 U.S. at 301-03.
singe to dhe. Geach, mooeble, ar Coates, T De-
ing unreasonable barriers as one leaves or enters a juris-
diction. See, e.g., Shapiro v. Thompson, 394 U.S. 618,
629-31 (1969) (right to travel between states); Aptheker
40
v. Secretary of State. 378 U.S. 500, 505-06 (1964) (right
to travel abroad). ihe Court has never recognized a gen-
eralized right to walk wherever one wishes. Indeed, as
we explain above, the Court's decisions in Colten and
Stanglin refuse to recognize a right to go—or remain—
wherever one wants. In any event, whatever protections
the concept of substantive due process offers to those as-
serting the “right to travel” or the “right of locomotion,”
surely loitering is the antithesis of travel. If geng mem-
bers and their associates only obey orders to move along
when issued—exercising the very right to travel the Illinois
Supreme Court supposed was infringed by the ordinance
—they will not be subject to arrest.
Aside from its incorrect reliance on associational and
travel rights, the Illinois Supreme Court relied on Papa-
christou for the conclusion that the right to loiter is one
of the “amenities of American life.” Pet. App. 17a. The
Papachristou opinion, however, never states that some
form of heightened judicial scrutiny is required of any
regulation of loitering. And the Court should hesitate to
create such a rule. In fact, “the Court has always been
reluctant to expand the concept of substantive due process
because guideposts for responsible decisionmaking in this
unchartered area are scarce and open-ended.” Collins y.
City of Harker Heights, 503 U.S. 115, 125 ( 1992). This
Court instead “ ‘exercise[s] the utmost care whenever we
are asked to break new ground in this field,’ lest the lib-
erty protected by the Due Process Clause be subtly trans-
formed into the policy preferences of the members of this
Court.” Glucksberg, 117 S. Ct. at 2268 (citations omit-
ted) (quoting Moore v. City of East Cleveland, 431 US.
494, 502 (1977) (plurality opinion) ).
To assess a claim that a right or liberty interest should
be treated as fundamental, “{oJur Nation’s history, legal
traditions, and practices . . . provide the crucial ‘guide-
posts for responsible decisionmaking’ that direct and re-
strain our exposition of the Due Process Clause.” Glucks-
berg, 117 S. Ct. at 2268 (citation omitted) (quoting
41
Collins, 503 U.S. at 125). The court below, however,
identified no history, tradition, or practice of
a right to loiter. In fact, history and tradition are quite to
states by statute and the remaining one by common law.
See American Law Institute, Model Penal Code § 250.6,
Comment 1 (1980).%° The Model Penal Code itself rec-
ommends a prohibition on loitering under circumstances
that reasonably warrant alarm for the safety of persons or
property. See id. § 250.6 & Comment 3. Our ordinance,
of course, is simply a more precise version of this model,
since it specifies one particular circumstance in which the
legislature found that loitering reasonably warrants alarm.
Nor can loitering laws fairly be characterized as “one
of those ‘arbitrary impositions’ or ‘purposeless restraints’
at odds with the Due Process Clause .. . .” Glucksberg,
117 S. Ct. at 2275 (Souter, J., concurring in the judg-
ment). Preserving legislative freedom to regulate loiter-
ing is, to the contrary, part of the community's basic en-
titlement to create a safe and secure environment for all.
The judgment that anti-loitering provisions are useful in
preventing crime is supported not only by the findings of
25 See also, ¢.g., Jeffrey S. Adler, A Historical Analysis of the
Law of Vagrancy, 27 Criminology 209 (1989); Caleb Foote, Vag-
rancy-Type Law and Its Administration, 104 U. Pa. L. Rev. 608,
615-31 (1956); Rollin M. Perkins, The Vagrancy Concept, 9 Hast-
ings L.J. 287 (1958). The authority of police to issue orders to
persons to move along as a means of keeping the peace is also
deeply rooted. See, e.g., Robert Force, Decriminalization of Breach
of the Peace Statutes: A Nonpenal Approach to Order Mainte-
nance, 46 Tul. L. Rev. 367, 392-404 (1972). An inventory of cur-
rent state loitering and disperse! 'aws is found in the Brief Amicus
Curiae of Ohio, et al.
42
the Chicago City Council, but, as we explain above, by
the verdict of history and the substantial body of scholarly
opinion that supports the “Broken Windows” thesis that
underlies this and similar public order laws. And surely
no one could doubt that the “general interest in preventing
crime is compelling.” United States v. Salerno, 481 U.S.
at 750. The governmental interest in preserving, and in-
deed enhancing, the stability and desirability of urban
neighborhoods is equally so: “‘{T]he City’s interest in
attempting to preserve [or improve] the quality of urban
life is one that must be accorded high respect.’” Taxpay-
ers For Vincent, 466 U.S. at 807 (brackets in original )
(quoting Young v. American Mini-Theatres, Inc., 427
U.S. 50, 71 (1976) (plurality opinion)). Thus, to cir-
cumscribe legislative power to enact loitering and similar
public order laws would impinge upon critical govern-
mental interests. Perhaps even worse, such a holding
would disregard the famous admonition from Justice
Brandeis: “To stay experimentation in things social and
economic is a grave responsibility. Denial of the right to
experiment may be fraught with serious consequences to
the nation.” New State Ice Co. v. Liebmann, 285 U.S.
262, 311 (1932) (dissenting opinion). Accord, e.g., Cru-
zan v. Director, 497 U.S. 261, 292 (1990) (O’Connor,
J., concurring); Chandler v. Florida, 449 U.S. 560, 579.
80 (1981).
Nor should it matter if loitering can be considered one
of the “amenities of life.” Papachristou, 405 U.S. at 164.
In organized society, the “amenities” of some must some-
times be regulated for the benefit of the community as a
whole. And in assessing such regulation, as the California
Supreme Court observed while upholding a civil injunction
against loitering by gang members, a court “begins with
the acknowledgement that the interests of the community
are not invariably less important than the freedom of in-
dividuals.” People ex rel. Gallo v. Acuna, 14 Cal. 4th
1090, 1102, 929 P.2d 596, 603, 60 Cal. Rptr. 2d 277,
284, cert. denied, 117 S. Ct. 2513 (1997). This ordinance,
of course, was enacted precisely because the intimidating
43
nce of members often prevents law-abiding per-
say th pe ae ha their own “amenities of life.” And pre-
serving the ability of the politically accountable branches
of government to weigh the competing claims of different
constituencies whose liberties may come into conflict is
how we “maximize individual freedoms within a frame-
work of ordered liberty.” Kolender, 461 U.S. at 357.
Thus, to the extent that language in Papachristou sug-
gests that loitering laws are suspect because they have the
potential to reach conduct that can be innocuous in na-
ture, this represents a brand of substantive due process
that should surely be interred. Enactment of all prophyl-
actic laws involves weighing the benefits of prevention
against the cost of prohibiting conduct that is sometimes
innocent. The Court has long recognized the propriety of
legislation that proscribes particular conduct not because
it is invariably malicious or even inappropriate, but rather
because it is unacceptably likely to give rise to substan-
tive evils within the power of government to prohibit.
For example, in Day-Brite Lighting, Inc. v. Missouri,
342 U.S. 421 (1952), the Court sustained a law requir-
ing employers to grant four hours paid leave on election
days, since otherwise employers might use the power to
withhold leave as a means of influencing their employ-
ees’ votes. See id. at 423-25. Or, more recently, in Glucks-
berg, in the course of sustaining a prohibition on assisted
suicide, the Court explained that, whatever the merits of
assisted suicide, this prohibition advanced a legitimate in-
terest in ensuring that the state not start “down the path
to voluntary, and perhaps involuntary, euthanasia.” 117
S. Ct. at 2274. Accord id. at 2290-93 (Souter, J., con-
curring in the judgment). And, as we observe above, in
Lewis this Court upheld a prohibition on the possession
of firearms by felons whose convictions were uncounseled,
iargely as a prophylactic measure.
Applying the correct test, it is plain that the gang loiter-
ing ordinance should be upheld as reasonably related to
aa
legitimate government interests. As we explain above, the
ordinance advances legitimate—indeed compelling—gov-
ernmental interests by combatting the deleterious effects of
gang loitering. Conversely, it infringes whatever liberty
interest there is in using the public ways to a very limited
extent—anyone can loiter alone, or even with others, in-
cluding criminal street gang members, as long as they
move along when directed to do so. Of course, we do not
contend that the ordinance could never be applied to per-
sons whose conduct may be in fact innocuous or inoffen-
sive. But the benefits from removing a visibly lawless
element of loiterers from the public ways—because loiter-
ing by gang members and those who join them destabilizes
communities, facilitates criminal activity and gang recruit-
ment, intimidates law-abiding residents, lowers property
values, and places both gang members and those loitering
with them at risk if rival gangs come along—surely could
reasonably be thought to justify whatever burden is im-
posed on persons engaged in “innocent” activity who are
directed to move along as a result of this ordinance. And
whether the City Council could have crafted a narrower
law is quite beside the point—under the rational basis test,
the legislature is not required “to have chosen the least
restrictive means of achieving its legislative end.” Heller
v. Doe, 509 U.S. 312, 330 (1993). See also Reno v.
Flores, 507 U.S. at 305 (“narrow tailoring is required
only when fundamental rights are involved”).
In short, in this ordinance, the legislature identified a
particular circumstance in which loitering jeopardizes
legitimate governmental interests and authorized police of-
ficers to disperse loiterers in that circumstance. Because
that authorization is rationally related to legitimate gov-
ernmental interests, it should not have been set at naught
in the name of substantive due process.
B. The Gang Loitering Ordinance Does Not Create A
Status Offense.
Substantive due process, incorporating as it does the
prohibition on “cruel and unusual punishments” contained
45
in the Eighth Amendment, forbids the imposition of crim-
inal penalties based on an individual’s status alone. For
that reason, in Robinson v. California, 370 U.S. 660
(1962), the Court invalidated a statute making it a crime
to be a narcotics addict. See id. at 666-68. In Powell v.
Texas, 392 U.S. 514 (1968), however, the Court upheld
a public drunkenness statute as applied to an alcoholic,
making clear that even behavior persons are compelled to
engage in by virtue of their status can be a basis for regu-
lation as long as the law at issue requires that “the ac-
cused has committed some act, has engaged in some be-
havior, which society has an interest in preventing . . . .”
Id. at 533 (plurality opinion). See also id. at 549-50
(White, J., concurring in the result). The gang loitering
ordinance, of course, requires an affirmative act, and thus
comports with this rule. In fact, two discrete types of con-
duct are required. Not only must someone first loiter, but
he must then disobey an order to disperse.”®
The intermediate state appellate court held that the
ordinance created a status offense because the ordinance
“can be triggered only when a gang member is found
loitering.” Pet. App. 34a. This feature, however, does
not make for a forbidden status offense, but rather a
special restriction on conduct by persons whose status
warrants such a measure. And there is no constitutional
prohibition against placing such a restriction on persons
whose status warrants such measures, as long as it does not
impose penalties based on status alone. Such measures
are in fact common.
For example, statutory rape laws are based on the age
and sometimes the sex of an individual. Similarly, federal
law prohibits possession of firearms by convicted felons,
26 The lower courts have consistently held that loitering alone
can constitute the required conduct. See, e.g., People v. Superior
Court, 46 Cal. 3d 381, 398, 758 P.2d 1046, 1054-55, 250 Cal. Rptr.
515, 523-24 (1988); State v. Armstrong, 282 Minn. 39, 42%, 162
N.W.2d 357, 360, (1968); City of Tacoma v. Luvene, 118 Wash.
2d 826, 843-44, 827 P.2d 1374, 1382-83 (1992).
46
persons who illegally use or who are addicted to con-
trolled substances, persons who have been adjudicated
mentally ill or who have been committed to a mental
institution, aliens unlawfully in the country, persons who
have been dishonorably discharged from the armed forces,
and persons who have renounced American citizenship.
See 18 U.S.C. § 922(g). Under the appellate court's
holding, presumably these laws would bi. invalid because
they are “triggered” by the status of an individual. Yet
such reasoning cannot be squared with decisions such as
Lewis, which, as we explain in Part 1.B.2 above, upheld
the prohibition on possession of firearms by convicted
felons even when applied to those whose convictions were
unconstitutionally obtained, since they were in a class of
persons that could rationally be viewed as potentially
dangerous. Similarly, the gang loitering ordinance crimi-
nalizes not mere status but rather conduct by gang mem-
bers and their associates that the City Council reasonably
found to have a destructive impact on many communi-
ties—“public behavior which may create substantial health
and safety hazards . . . and which offends the moral and
aesthetic sensibilities of a large segment of the com-
munity.” Powell, 392 U.S. at 532. For that reason, this
ordinance does not create a forbidden status offense.
Ill. THE GANG LOITERING ORDINANCE DOES NOT
OFFEND THE FOURTH AMENDMENT.
Finally, we address an alternate ground that respond-
ents have continued to press for invalidating the gang
loitering ordinance—that it violates the Fourth Amend-
ment.” Indeed respondents persuaded the state appellate
court that the ordinance authorized arrests without com-
pliance with that Amendment’s “probable cause require-
ment.” Pet. App. 35a. That court concluded that the
ordinance authorizes “[a]rresting a person on suspicion
. .” Ibid. (quoting Papachristou, 405 U.S. at 169).
27 Respondents pressed this ground at each level in the state
courts and have renewed it in this Court in defense of the judg-
ment below. See Brief In Opposition of Respondents Youkhana
and Cota at 23-24; Pet. App. 5a, 35a, 58a-59a n.9.
47
This is demonstrably incorrect—the plain terms of the
ordinance make clear that it does not permit arrests
based on “suspicion.” Before loiterers can be arrested,
this ordinance—unlike Jacksonville’s vagrancy ordinance
at issue in Papachristou—tequires police officers to order
loiterers to move on. Even then, no arrests can be made
unless the order is disobeyed. At that point, of course,
the officer is not acting on suspicion but on his own
knowledge that his order has not been obeyed.
Perhaps the appellate court’s concern was not that
arrests could be made on suspicion, but rather that the
underlying orders to move on could be given on suspi-
cion. This also raises no Fourth Amendment problem.
An order to move on is simply not subject to attack un-
der the Fourth Amendment. Such an order is not a
“seizure,” to which that Amendment applies.
This Court has made clear that absent a “seizure”
within the meaning of the Fourth Amendment, interac-
tion between a police officer and an individual “implicates
no Fourth Amendment interest.” Florida v. Rodriguez,
469 U.S. 1, 5-6 (1984) (per curiam). A “seizure,” in
turn, occurs only when a “reasonable person would have
believed that he was not free to leave,” Michigan v.
Chesternut, 486 U.S. 567, 573 (1988) (quoting United
States v. Mendenhall, 446 U.S. 544, 554 (1980) (opin-
ion of Stewart, J.)), or at a minimum, when an individ-
ual would not reasonably feel free to “terminate the
encounter” with the police, Florida v. Bostick, 501 U.S.
429, 436 (1991). In California v. Hodari D., 499 US.
621 (1991), the Court applied this test and held that a
police officer’s order to halt—when not obeyed—is not
subject to the Fourth Amendment. Rather, a “seizure”
triggering the probable cause requirement occurs only
when there is “application of physical force to restrain
movement.” Jd. at 626. Accord Brower v. County of
Inyo, 489 U.S. 593, 596 (1989) (“Violation of the
Fourth Amendment requires an intentional acquisition
of physical control.”). An order to move on under the
gang loitering ordinance, of course, involves no such
48
forcible restraint—indeed the opposite of forcible re-
straint—and thus is not a seizure.
Nor can an order to disperse be viewed as a “seizure”
simply because the recipients’ “freedom of movement” is
limited to the extent that they must actually move. Such
a boundless view of the Fourth Amendment would con-
vert every traffic direction or every crowd control instruc-
tion from an officer to a pedestrian into a “seizure” sub-
ject to Fourth Amendment review. That expansive notion
is, of course, not the law.”8
In any event, even if an order to move along were a
“seizure,” it would still not violate the Fourth Amend-
ment. We explain in Part II.A above why the City Coun-
cil’s decision to confer authority on police officers to order
gang members and others who loiter with them to move
along was reasonably related to legitimate governmental
interests. And the Fourth Amendment, of course, pro-
scribes only “unreasonable” seizures. Accordingly, the
“touchstone of the Fourth Amendment is reasonableness.”
Ohio v. Robinette, 117 S. Ct. 417, 421 (1996) (quoting
Florida v. Jimeno, 500 U.S. 248, 250 (1991)). If orders
issued under this ordinance reasonably advance legitimate
police powers, and we explain in Part II.A above why
they do, then they cannot be viewed as constitutionally
“unreasonable,” any more than other orders an officer is-
sues to persons as a reasonable exercise of the police
power—such as a traffic direction or a crowd control in-
struction—are constitutionally unreasonable.
Thus the Fourth Amendment provides no independent
basis to attack this ordinance. Indeed, the Fourth Amend-
ment has always been understood to permit a police officer
to “arrest a person when he has probable cause to believe
28 Although the issue has not been frequently litigated, the Sev-
enth Circuit has observed that directions from police officers at an
accident scene or to a loiterer to move on do not implicate the
Fourth Amendment. See Kernats v. O'Sullivan, 35 F.3d 1171, 1181
n.7 (7th Cir. 1994). See also id. at 1184 (Crabb, J., concurring).
49
that person has committed a crime.” Tennessee v. Garner,
471 U.S. 1, 7 (1985). This classic restatement of the
scope of the Fourth Amendment is of course silent about
what types of conduct the government may make a crime.
Instead its guarantee is procedural—to require only that
there be probable cause to believe that some law has been
broken before an arrest can be made. Michigan v. De-
Fillippo, 443 U.S. 31 (1979), illustrates the point. De-
Fillippo had been arrested under an ordinance that au-
thorized police officers to stop individuals based on rea-
sonable cause to believe some further investigation is
warranted, and then required such individuals to identify
themselves and produce evidence of their identity. See id.
at 33-34. The state courts later held that the ordinance
was impermissibly vague and hence unconstitutional (id.
at 34), but this Court concluded that DeFillippo’s arrest
nevertheless comported with the Fourth Amendment. Be-
cause DeFillippo had violated the terms of the ordinance,
“there was abundant probable cause to satisfy the con-
stitutional prerequisite for an arrest.” /d. at 37. After all,
the Court explained, “[p]olice are charged to enforce laws
until and unless they are declared unconstitutional.” /d.
at 38.”
Here, too, the Fourth Amendment poses no obstacle to
enforcement of a duly enacted law. The gang loitering
ordinance, of course, grants no authority to search and
seize except when there is probable cause to believe that
its terms have been violated—that an order to disperse has
been properly given and disobeyed. If the Court accepts
our submission that a requirement to obey police orders
to move along can be validly placed on gang members
29 See also, ¢.g., Waters v. Barry, 711 F. Supp. 1125, 1137-38
(D.D.C. 1989) (Fourth Amendment permitted arrest under curfew
ordinance regardless of its substantive constitutionality u der the
First and the Fourteenth Amendments); City of Milwaukee v.
Nelson, 149 Wis. 2d 434, 454-62, 489 N.W.2d 562, 569-72 (as long
as probable cause existed to believe defendant had loitered in viola-
tion of ordinance his arrest comported with the Fourth Amend-
ment), cert. denied, 493 U.S. 858 (1989).
and their associates, then an arrest made on probable
cause to believe that a duly authorized police order has
been disobeyed does not offend the Fourth Amendment.
The judgment of the Supreme Court of Illinois should
be reversed.
(312) 744-5337
Attorneys for Petitioner
* Counsel of Record
June 19, 1998
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.