Respondents Brief — Chicago v. Morales
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No. 97-1121
IN THE “TICE OF THE CLERK
Supreme Court of the Gn We pOwRI, U.S.
OCTOBER TERM, 1997
City of Chicago,
Petitioner
Jesus Morales, et ai..
Respondents
On Writ of Certiorari to the
Supreme Court of Illinois
BRIEF OF RESPONDENTS
HARVEY GROSSMAN* RITA FRY
Morris D. LIPSON COOK COUNTY PUBLIC DEFEN!
ADAM D. SCHWARTZ JAMES H. REDDY**
BARBARA O'TOOLE CHIEF OF APPELLATE DIVISION
THE ROGER BALDWIN FOUNDATION 69 W. Washington Street
OF ACLU, IN¢ Chicago, Illinois 60602
180 N. Michigan Ave., Suite 2300 (312) 603-0600
Chicago, Illinois 60601
(312) 201-9740 RICHARD J. O'BRIEN, JR
JEFFREY C. SHARER
STEVEN R. SHAPIRO SIDLEY & AUSTIN
AMERICAN CIVIL LIBERTIES UNION One First National Plaza
FOUNDATION Chicago, Illinois 60603
125 Broad Street (312) 853-7000
New York, New York 10004 : on
119) $49.2500 ee ( wenp of Record
‘hea: -" for All Other Respon
aeri
* Counsel of Record
or Youkhana and Cot
TABLE OF CONTENTS
TABLE OF AUTHORITIES
I. THE CHICAGO ORDINANCE IS VOID FOR
VON Litheiccibca ie il
A. The Ordinance Fails to Provide Adequate
PN Hicisilniviniedbiemobe le 17
B. The Ordinance Encourages Arbitrary and
Discriminatory Enforcement. ............................. 28
ll. THE ORDINANCE UNCONSTITUTIONALLY
ABRIDGES THE RIGHT OF FREE MOVEMENT
IN PUBLIC PLACES AND FORUM.6...................... 33
A. The Ordinance Burdens Respondents’
Fundamental Right of Free Movement in
Public Places and Forums...........cccccccceceeos----... 33
B. The Ordinance Fails Constitutional Scrutiny
Under Any Recognized Standard.................... 43
Ill. THE ORDINANCE IS SUBSTANTIALLY
OVERBROAD IN VIOLATION OF THE FIRST
ect seta eg PORE eae Te Oa A 53
C. The City Wrongly Asserts That the
Ordinance Passes Scrutiny as an Incidental
Burden on First Amendment Rights................ 65
IV. THE ORDINANCE VIOLATES THE EIGHTH
AMENDMENT BY CRIMINALIZING
Se PEI EIE cnctienccssnerasicisounsiganaciethinennenensntesnenennenescesonnecss 68
V. THE ORDINANCE VIOLATES THE FOURTH
AMENDMENT BY REQUIRING ARREST
WITHOUT PROBABLE CAUSE. ...........ccccccceeeeeees 72
TABLE OF AUTHORITIES
Abood v. Detroit Bd. of Educ., 431 U.S. 209, (1977)........... 41
Acadia Ins. Co. v. McNeil, 116 F.3d 599 (ist Cir. 1997).....26
Albright v. Oliver, 510 U.S. 266 (1994) 0000...ccccccccseeneeneeneee 40
Alliance to End Repression v. City of Chicago, No.
gs ie a IE AS a 66
American Civil Liberties Union v. City of Chicago, No. 98
CH 10054 (Circuit Ct. Cook County) ...0..........cccccccceeeeees 31
Aptheker v. Secretary of State, 378 U.S. 500 (1964)
CRE ME ne RE TERED Ra il a OE EEO 15, 43, 44, 45, 68
Berger v. State of New York, 388 U.S. 41 (1967)........... 79, 80
Bernal v. Fainter, 467 U.S. 216 (1984); ..0.....ccccccccccseeeeeeeeees 49
Board of Airport Comm'rs v. Jews for Jesus, 482 U.S. 569
a dnentions 61,71
Board of Directors of Rotary Int'l v. Rotary Club of Duarte,
a as LTS eR Aaa cls 62
Boos v. Barry, 485 U.S. 312 (1988). .............cccccc0ee 37, 67, 72
Bray v. Alexandria Women's Health Clinic, 506 U.S. 263
Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985))....61
Carey v. Population Serv. Int'l, 431 U.S. 678 (1977).......... 63
Church v. Huntsville, No. 93-C-1239-S, 1993 WL 646401,
PEE, SR, ee icersrccegrncascsiepsniepececentgsuecncnens 75
City of Los Angeles v. Preferred Communications, Inc., 476
City Council of Los Angeles v. Taxpayers for Vincent, 466
I a siempiepesmnanmsinnnapes 73
City of Cincinnati, 402 U.S. 611 (1971) ...... 14, 23, 56, 59, 69
City of Columbus v. Thompson, 266 N.W.2d 571
aati le A EE Ae I ae “Se eR RAE 20
City of Dallas v. Stanglin, 490 U.S. 19 (1989)...47, 48, 63, 64
City of Houston v. Hill, 482 U.S. 451 (1987)... 69
City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750
(1988) ....... : SEES LED TERE oe 69
City of Milwaukee v. Nelson, 439 N.W.2d 562 (Wis.)......... 80
City of Portland v. James, 444 P.2d 554 (Or. 1968)............ 20
City of Seattle v. Drew, 423 P.2d 522 (Wash. 1967)............ 20
City of Seattle v. Slack, 784 P.2d 494 (Wash. 1989)............ 18
City of Tacoma v. Luvene, 827 P.2d 1374
CURT, Ca ditetcenitntscninenitiniannirtaniiisintaisingie 18, 28, 76
Clark v. Community for Creative Non-Violence,
CD a ee ccerreiiitinniatiintatiiiitintindimeirsiniitaie 71
Coates v. City of Cincinnati, 402 U.S. 611 (1971)
14, 23, 24, 28, 35, 37, 56, 59, 69, 72
Colautti v. Franklin, 439 U.S. 379 (1979). .....cccccccceeceevseeens 30
Cole v. Housing Authority of Newport, 435 F.2d 807
CR EO Be iieininitinteninrcestititteatitiinanitaidiniinpiinnipicnn 47
Colorado Republican Fed. Campaign Comm. v. Federal
Election Comm'n, 116 S. Ct. 2309 (1996) .............ccccecee 54
Colten v. Kentucky, 407 U.S. 104 (1972)........... 33, 34, 47, 48
Committee for Pub. Educ. & Religious Liberty v. Nyquist,
GE ts SR tictrnenntntneiatiitntinins 50
Commonwealth v. Carpenter, 91 N.E.2d 666
cat cecieseiccitiactieine initia artitariaamaniatitiactutiliniican 20
Corfield v. Coryell, 6 F. Cas. 546, 552
ee Oe GO ercrrrtnrntbintitienatettinstntetnnnciiingd 42
Cox v. Louisiana, 379 U.S. 536 (1965) .....cccccceeeeeeeeeeenennes 21
Cramp v. Board of Pub. Instruction, 137 S.2d 828 (Fla.
SITE cocepscernscinesnisiceiesdiciinabenienimapetiannmnanmamititaiitrtlieuiaitias 29
Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 48-49
GE secimecirstrenusiempintnientinnebaadmiaaamainasints 42, 43
Day-Brite Lighting, Inc. v. Missouri, 342 U.S. 421
CED weceererttbintiteiibalihinntinentiaiintiittitmeeeatipeess 53
DeJonge v. State of Oregon, 299 U.S. 353 (1937) .....c.ccccceee 72
Dolan v. City of Tigard, 512 U.S. 374 (1994)j........ccccccceeee 50
Dunn v. Blumstein, 405 U.S. 330 (1972)...ccccccccceceeereeeeeennnees 58
Edenfield v. Fane, 507 U.S. 761 (1993). .........c.cccececeeeeeenees 50
iv
Edwards v. California, 314 U.S. 160 (1941) 42
Farber v. Rochford, 407 F. Supp. 529 (N.D. Ill. 1975)........ 79
Fenster v. Leary, 229 N.E.2d 426, 430 (N.Y. 1967)............ 59
Forsyth County v. Nationalist Movement, 505 U.S. 123
ED SS Ee ee ee 60
Foucha v. Louisiana, 504 U.S. 71 (1982) Side .. 56
Frisby v. Schultz, 487 U.S. 474 (1988) .......2....0..ccccce000 67, 73
Gordon v. Schiro, 310 F. Supp. 884 (E.D. La. 1970)........... 20
Graham v. Connor, 490 U.S. 386 (1989) ..........cc-cccccccceeeeeees 40
Grayned v. City of Rockford, 408 U.S. 104 (1972)........17, 23
Gregory v. City of Chicago, 394 U.S. 111 (1969)................ 70
Hague v. CIO, 101 F.2d 774 (3d Cir.)................ 43, 44, 67, 73
Hall v. United States, 459 F 2d 831 (D.C. Cir. 1971).......... 79
Hayes v. Municipal Court, 487 P.2d 974 (Okl. Ct. App.
RE ES ee oe ee 59
Healy v. James, 408 U.S. 169 (1972) ...........cccecceecenereeeeneeeee 68
Heffron v. International Soc 'y for Krishna Consciousness,
EE ee ee Ce ee 73
Holdren v. Legursky, 16 F.3d 57, 62 (4th Cir. 1994)........... 26
Hutchins v. District of Columbia, 144 F.3d 798 (D.C. Cir.
EEE FER ee ee a a Ce 47
Illinois v. Krull, 480 U.S. 340 (1987) ..0..2......ccccccccceceeeees 79, 80
Jackson v. State of Indiana, 634 N.E.2d 532, (Ind. Ct. App.
RS OS Va SE a TE 69
Johnson v. Fankell, 117 S. Ct. 1800 (1997)... cccceeees 26
Kent v. Dulles, 357 U.S. 116
rae we 15, 33, 39, 41, 42, 44, 45, 47
Keyishian v. Board of Regents, 385 U.S. 589 (1967).,.......... 50
King v. New Rochelle Municipal Housing Authority, 442
ee ee a ee 47
Kirkwood v. Loeb, 323 F. Supp. 611 (W.D. Tenn. 1971). ...25
Kolender v. Lawson, 461 U.S. 352 (1983)
we 14, 15, 16, 17, 18, 30, 35, 36, 37, 45, 46, 69, 70, 80
Lambert v. California, 355 U.S. 225 (1957) ............c.cceee0ee 33
v
Landmark Communications, Inc. v. Virginia, 435 U.S. 829
(1978) . 50
Landry v. Daley, 280 F. Supp. 968 (N.D. Ill. 1968)............. 20
Lanzetta v. New Jersey, 306 U.S. 451 (1939) ......000. ccccseseees 21
Lefkowitz v. Newsome, 420 U.S. 283 (1975).........-.---sceresees 79
Lewis v. United States, 445 U.S. 55 (1980).............. 54, 77, 80
Liparota v. United States, 471 U.S. 419 (1985). ..............00+ 30
Lucas v. South Carolina Coastal Council, 505 U.S. 1003,
BORO COO ccccrnentcteinslnsippettethicnebaninacttitinienisithsriaimeinacctistiveicis 50
Lutz v. City of York, 899 F.2d 255 (3d Cir. 1990).......... 46, 47
Maine v. Aucoin, 278 A.2d 395 (Me. 1971).......c.cceceseeees 20
McBoyle v. United States, 283 U.S. 25 (1931)........-.-ee-00 32
Memorial Hosp. v. Maricopa County, 415 U.S. 250
CDOED, saccticriiitiaiitisinalits vniieileciaideiiepsiniiattaaiipailasiiiaiiateraetil 46
Michael H. v. Gerald D., 491 U.S. 110 (1989). ..........cccc00+ 42
Miller v. Johnson, 515 U.S. 900 (1995). ........ccccccceeeeeeeneenees 49
Mitchell v. Prunty, 107 F.3d 1337 (9th Cir. 1997)............... 68
Moore v. City of East Cleveland, 431 U.S. 494
CODD DD ccctccrcisnitinnntesiiintniiniatinmnsitiiesisiaittneiaitseinninliemantne 48, 63
NAACP vy. Button, 371 U.S. 415 (1963) .......ccceccee0s 54, 60, 67
National Organization of Women, Inc. v. Scheidler, No.
lf | 15 | i ee 71
Nunez v. City of San Diego, 114 F.3d 935 (9th Cir. 1997)...47
Palko v. Connecticut, 302 U.S. 319, 325 (1937). ......c00000++ 48
Papachristou v. City of Jacksonville, 405 U.S. 156
|: eae 14, 19, 22, 23, 28, 29, 35, 42, 54, 78
Paul v. Virginia, 75 U.S. 168 (1868)...............cc-cceeeeeeeeenees 43
Palmer v. City of Euclid, 402 U.S. 544 (1971) .. 14, 21, 22, 23
Payton v. New York, 445 U.S. 573 (1980) .......-...c-cccceeeeesenes 79
Pearson v. Probate Court, 309 U.S. 270 (1940).............00+ 26
People ex rel. Gallo v. Acuna, 929 P.2d 596 (CaL. 1997)...31
People v. DeFillippo, 262 N.W.2d 921 (Mich. App. Ct. 1977)
79, 80
People v. Dioz, 151 N.E.2d 871 (N.Y. 1958)..........0ee0esereees 20
People v. Superior Court (Caswell), 758 P.2d 1046
Perry Educ. Ass'n v. Perry Local Educators’ Ass'n,
en a 67
Pierson v. Ray, 386 U.S. 547 (1967) .......ccccccccccccceeecceeeeesevees 80
Police Department v. Mosley, 408 U.S. 92 (1972) .......0c0«. 72
Pottinger v. Miami, 810 F. Supp. 1551 (S.D. Fla. 1992) .....75
Powell v. Stone, 507 F.2d 93
oe A Ee ea 24, 74, 76, 77, 79
Regan v. Wald, 468 U.S. 222 (1984) .........cccccccccccceseeeeseeneeee 44
Reno v. Flores, S07 U.S. 292 (1993) .......cccccccccccecseseeeeeneeesee 46
Ricks v. District of Columbia, 414 F.2d 1097 (D.C. Cir.
SE SO SIRE eg aca tnt Sl a a ROE 24, 25
Roberts v. United States Jaycees, 468 U.S. 609
ESE RS ELE ES See 13, 62
Robinson v. California, 370 U.S. 660 (1962)........... 16, 74, 75
Sable Communications of California, Inc. v. FCC, 492
SENET IE SS 1 Sh 50
Salinas v. United States, 118 S. Ct. 469 (1997) .........cccccceee 68
Scales v. United States, 367 U.S. 203 (1961) .........ccccccccee0ees 76
Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981)..74
Schneider v. State of New Jersey, 308 U.S. 147 (1939) .73, 74
Shapiro v. Thompson, 394 U.S. 618 (1969) .........ccccccccccceeeee 46
Shaw v. Hunt, 116 S. Ct. 1894, (1996) ......ccccccccccccccceceeeee 9,49
Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965).......
14, 16, 21, 22, 33, 60, 69, 70, 76
Sibron v. New York, 392 U.S. 40 (1968) ...........ccccecceseseesevees 80
Smith v. Goguen, 415 U.S. 566 (1974).............. 18, 63, 66, 70
Smith v. Organization of Foster Families, 431 U.S. 816
SR MES site Oh ak Se an 63
Soldal v. Cook County, 506 U.S. 56 (1992) .........ccccceceeesees 40
State of New Hampshire v. Hudson, 274 A.2d 878 (N.H.
RE CS SE RR ESS bE RL 20
State v. Armstrong, 162 N.W.2d 357 (Minn. 1968)....... 25, 76
Sun v. United States, 371 U.S. 471 (1963)............... 17, 19, 78
Territory of Hawaii v. Anduha, 31 Haw. 459
vii
SR Feit rtittaiitrmrcteapinrinitiiitinaniidliaadtieli i ie. 20
Territory of Hawaii v. Anduha, 48 F.2d 171
RE i cnincsteiiitiaiilaccitinrinienetlittiiinn cncatiiui 20, 43
Terry v. Ohio, 392 U.S. 1 (1968)... .17, 35, 37, 66, 78, 79, 80
Texas v. Johnson, 491 U.S. 397 (1989).......ccccccceeseeseeseeveees 72
The Passenger Cases, 48 U.S. (7 How.) 283, 492 (1849)....42
Thornhill v. Alabama, 310 U.S. 88 (1940) ........ccccccccccceeeseeseeees
14, 20, 22, 23, 35, 39, 55
Torres v. Commonwealth of Puerto Rico, 442 U.S. 465
CPU ei nticdstinkenitnncnndnentiigatsitiincitiniiinallimnditpitdaiapmaiia dys 79, 80
Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622,
SS ee ee eee Le eS eT 49, 50
Twining v. New Jersey, 211 U.S. 78 (1908) ........cccccccseeeseees 43
United States v. Cardiff, 344 U.S. 174 (1982) .......cccccceceeees 29
United States ex rel. Newsome v. Malcolm, 492 F.2d 1166
ee ee Re 24, 79
United States v. Grace, 461 U.S. 171 (1993) ........cccccccceseeees 67
United States v. Guest, 383 U.S. 745 (1966).........cc0ccces00e0 42
United States v. James Daniel Good Real Property, 510
See a ciseteieresenactininiaictenthinntiaii statin tanta biti eniea 40
United States v. Kilgen, 43\ F.2d 627 (Sth Cir. 1970)......... 20
United States v. Kokinda, 497 U.S. 720 (1990) .........cc.c00000 73
United States v. Lanier, 117 S. Ct. 1219
RE See eT ss ee ee 15, 29, 32, 33
United States v. O'Brien, 391 U.S. 367 (1968)............0000 71
United States v. O'Hagan, 117 S. Ct. 2199, (1997). ............ 54
United States v. Salerno, 481 U.S. 739 (1987)............-. 49, 55
United States v. Wheeler, 254 U.S. 281 (1920), .........ccc0ec000 41
Village of Hoffman Estates v. The Flipside, Hoffman Estates,
Inc., 455 U.S. 489 (1982).15, 17, 18, 21, 23, 29, 30, 45, 60
Wainwright v. Stone, 414 U.S. 21 (1973) .....cccccccccceeseeeeeeeees 26
Ward v. Rock Against Racism, 491 U.S. 781 (1989)......37, 71
Washington v. Glucksberg, 117 S. Ct. 2258
COTTE D: Wineinecteseencitinsniisciiiadabittelpariteiindiateinnatintaces 39, 54, 58
Waters v. Barry, 711 F. Supp. 1125, 1134
viii
I RO ercitictcintthntnisiincachidhsiencemmersstcenceneves 47, 80
West Virginia Bd. of Educ.. v. Barnette, 319 U.S. 624
(1942)..... Sniptniadeicinadeinsibibis bitenimanentneanesnesesonavembbestanscoeee 41
Wiemerslage v. Maine Township High Sch. Dist. 207, 29
PeBb D049 (PBs Cle. BODE) on carccereseiserecvescccccssccccccccccsvscssssces 25
Williams v. Fears, 179 U.S. 270 (1900)............ 15, 42, 43, 44
Wisconsin v. Starks, 186 N.W.2d 245 (Wis. 1971).............- 20
Wong Sun v. United States, 371 U.S. 471 (1963),.......... 17, 78
Wright v. Georgia, 373 U.S. 284 (1963) .......cccccceeereees 33, 76
Ybarra v. Illinois, 444 U.S. 85 (1979)......ccccccceeereereeneeeenes 78
Young v. American Mini Theatres, Inc., 427 U.S. 50
ID cittniteatiincsinetnitsinatentnienieinininenmamnemaen 49, 66
Zablocki v. Redhail, 434 U.S. 374 (1978) .....cccccccecceeeereeeeees 63
Zemel v. Rusk, 381 U.S. 1 (1965).......cccccccseeersereneeeneeneenes 44
STATUTES
FO AE Te 62
TE OUSS iit Raiie ech pie 7, 50
GG ii isi iis eos 7, 50
Re Pee eee Pe 7, 50
eer eee 7, 50
TO sisi ii cist ees, = eats 65
OT I, ischial pitti St ce 50, 63
a Tt ee eee ee 62, 63
eth A ic ciinisaiitdnciuillasiiobiiiacdee td 63
eee ee eee 63
MISCELLANEOUS
Anthony G. Amsterdam, Federal Constitutional Restrictions
on the Punishment of Crimes of Status, Crimes of General
Obnoxiousness, Crimes of Displeasing Police Officers and
the Like, 3 Crim. L. Bull. No. 4 205 (1967) ................. 24
Articles of Confederation, Art. ['V...............:.:ccscesseeseeeeeeees 40
1 William Blackstone, Commentaries 134. ............... 34, 38
Fox Butterfield, Reason for Dramatic Drop in Crime Puzzles
the Experts, N.Y. Times, Mar. 29, 1998 .0..........cccc0000 45
Z. Chafee, Three Human Rights in the Constitution of 1787,
eg EARNS aos oe Gov SY SUES Ct 8 SPR 35
Chicago Community Policing Evaluation Consortium,
Community Policing in Chicago, Year Four: An Interim
TEE. TIA: Accitiscicerinsteiclinisinitiltntiniencnticsuasmenes 45
Chicago Police Department, Annual Report 1997 ............ 45
City of Chicago, Gang and Narcotic Related Violent Crime:
Pg EEE SE 2S a eee 46
Caleb Foote, Vagrancy-Type Law and its Administration,
BO hs FU Bae Ba EE LOD. Sccncccesdscdtetnnsevsevccccestenics 36
Cong. Globe, 39th Cong., Ist Sess. 1119 (Mar. 1, 1866) 38
Cong. Globe, 39th Cong., Ist Sess. 1784 (Apr. 5, 1866) 38
Louis J. Gaal, Statistics of Anti-Gang Loitering Ordinance
CE TE cuninicnncenccdllcletiNinbcsiniiamnsiinennncsseiionion 25, 46
John C. Jeffries, Legality, Vagueness, and the Construction
of Penal Statutes, 71 Va. L. Rev. 189, 216 (1985) ..... 12
James Kent, | Commentaries on American Law 34 (John M.
Nis TIE ‘Susphcricasidihinaesnaiesabemtnintduinsctttocusiintcnennasien 35
1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive
Criminal Law, §§ 3.2(b), 3.2(C) (1986) .......cccccceeeeeeee 68
A GI Gi Se CEO a cc cerecrccsctstvicncnernevvecinennssovonnsees 35
Tracey L. Meares, Social Organization and Drug Law
Enforcement, 35 Am. Crim. L. Rev. 191 (1998). ........ 46
National Institute of Justice, Homicide in Eight U.S. Cities:
Trends, Context, and Policy Implications (Dec. 1997) 45
Peter W. Poulos, Chicago's Ban on Gang Loitering: Making
Sense of Vagueness and Overbreadth in Loitering Laws,
tie NG PC ccc cicntticchicccsateccensiadiiaidsntiiaibti 10
Irving A. Spergel, The Youth Gang Problem 70-89, 100-02
IIIT Uissciaa indasisiakasccidigshinenladindebineqniaibaionentinbanateyiintiemtatineeitiie 60
John Paul Stevens, The Third Branch of Liberty, 41 VU.
EE , TRUE re CHD Dik sttcnchihicintitimepemncevnvimin 37
xi
In THE
Supreme Court of the Bnited States
OCTOBER TERM, 1997
No. 97-1121
City of Chicago,
Petitioner,
Jesus Morales, et al.
Respondents.
On Writ of Certiorari to the
Supreme Court of Illinois
BRIEF OF RESPONDENTS
STATEMENT
The ordinance challenged in this case was adopted by the
Chicago City Council in June 1992. Prior to adopting the
ordinance, the City Council’s Committee on Police ard Fire
conducted hearings about street gangs in City neighborhoods.
More than thirty citizens testified at the hearings. These
citizens described gang members committing crimes such as
drug-dealing, prostitution, and robbery. £.g., Supp. R. Il at
32.
Many witnesses described steps they had taken,
individually and in groups, to effectively combat gang
presence. A member of the Northwest Neighborhood
Federation reported that the Federation had “evicted five
gangs from five different [Chicago] communities.” Supp. R.
I at 50. Others testified that they reported crime by gang
members, and testified against them in court. Supp. R. I at
71, 115; Supp. R. II at 23. One witness from a community
group described how she had participated both in “positive
loitering” to combat gang presence and also in neighborhood
foot patrols, Supp. R. I at 113, 115; she also videotaped gang
activities and showed the tapes to the police, Supp. R. I at
117. Various persons described confronting gang members
directly and regularly. Supp. R. I at 75, 80. Finally, some
persons identified gang members to police, e.g., Supp. R. I at
126; and many routinely called police when gang members
were present in their vicinity, Supp. R. I at 67, 70, 90, 94,
105, 108.
Witnesses and aldermen alike testified as to their
frustration about the lack of police responsiveness to the
incidence of serious and already illegal activities of the gang
members. Oftentimes, the police are called but they take too
long to respond. Supp. R. I at 61, 70, 80, 108. Some
witnesses complained that the police simply did not show up
at all when called. One witness, for example, described gang
members congregating in a playlot late at night, blowing their
whistles; the police told her that “until they break in and stab
you, we aren't going to do anything.” Supp. R. II at 36; see
also Supp. R. I at 93-94.
There was related testimony that stepped-up and
aggressive police presence in areas of serious gang activity
could be very effective in reducing or eliminating gang
activity. Eg, Supp. R. I at 79. One witness strongly
supported beefed up foot patrol presence in affected
neighborhoods. Supp. R. I at 83-85.
Various reservations were expressed about the ordinance
as an appropriate response to the problems posed by gang
presence. For example, one witness expressed concern that
the ordinance was “a little broad and a little vague.” Supp. R.
I at 78. A second witness emphasized “that people have to
gather,” and seemed to be worried that the ordinance might
inappropriately be applied to “young people on our block . . .
going to school.” Supp. R. I at 97. And a third witness
thought that the ordinance would be ineffective, and that a
broader-based approach was necessary. Supp. R. I at 144-46.
One witness suggested that the ordinance was not
necessary to combat the activities complained of at the
hearings, because sufficient laws already existed on the
books. Supp. R. I at 97, 101. At least three aldermen from
high-crime wards on the south and west sides of Chicago
vigorously echoed this theme. Alderman Steele, now a
Circuit Court Judge, remarked that the City of Chicago
already had a curfew law, a safe school law, and other laws
on the books, and implied that they were being inadequately
enforced. Supp. R. II at 43-44, 164. Alderman Shaw echoed
this point, noting that there were already laws “dealing with
drugs, recruitment [and] intimidation.” Supp. R. il at 51.
Alderman Jones remarked that the prospect of enforcement of
the ordinance reminded him of the days of street sweeps in
the early 1980s in Chicago. Supp. R. II at 70. And
Alderman O’Connor chastised the State’s Attorney of Cook
County for encouraging the passage of a new anti-gang law
when the county itself “ha[s] tools readily available to go
after the recruitment of gang members as opposed to us
sweeping the streets of known gang members.” Supp. R. | at
10. He also noted more generally that “their [sic] are readily
available tools, state and county level, which are not even
being utilized.” Supp. R. I at 11.
Finally, Chicago Police Deputy Superintendent Gerald
Cooper testified. He was the only representative of the
Chicago Police Department, and the only person with an
extensive professional policing background, who testified
before the Committee. He began by acknowledging the
serious problems posed by gang activities in neighborhoods.
Supp. R. II at 173. He acknowledged that the ordinance
could provide “another tool” for law enforcement, Supp. R. I!
at 178, but expressed concern that the police department had
“been down this road before.” Supp. R. II at 178. Cooper
said that the ordinance would be “of some benefit,” but only
where officers had “advance prior knowledge of the
background and the history of particular individuals.” Supp.
R. II at 179. He suggested that officers would not be able to
approach a group and determine which persons were gang
members and which were not, Supp. R. II at 179-80, and
warned that “innocent or lawful people” would be arrested
under the ordinance, Supp. R. II at 180. Cooper observed
that, in about 90 percent of the examples of gang conduct
given at the hearing, gang members would be subject to
arrest under existing laws. Supp. R. II at 181-82. Finally, in
answering whether the ordinance would eliminate youths
loitering on street corners, Cooper responded: “I don’t think
it will.” Supp. R. II at 184.
After these hearings, the Chicago City Council adopted
the loitering ordinance. It is triggered when any person
reasonably believed by a police officer to be a gang member
is found loitering with any other person or persons in any
public place. Pet. App. 6la. In such a circumstance, the
ordinance requires the officer to order all the persons to
“disperse and remove themselves from the area.” /d The
officer is further required to arrest any person who does not
“promptly” obey the order. General Order 92-4, sec.
IV.C.2.a., Pet. App. 72a.'
' Citations to the appendix to the City’s petition for certiorari appear as “Pet.
App..” and citations to the City’s brief in this Court appear herein as “Br.”
Citations to amicus briefs in support of the City appear as follows: to the Brief of
4
The ordinance was in effect for roughly three years. Over
that time, the City reports that approximately 45,000 move
on orders were issued and obeyed. Almost as many arrests
were made. Br. 16.
In City of Chicago v. Youkhana, the Circuit Court of
Cook County, in a written opinion, granted the motion to
dismiss of fourteen defendants who had been arrested for
violating the ordinance.’ The court held that the ordinance
was unconstitutional on three grounds. First, it held that the
ordinance was void for vagueness, bo‘: »ecause it failed to
give notice of what conduct it se? ced, and because it
vested too much discretion in po!.< ~.ficers. Pet. App. 44a-
53a. The court determined that the ordinance was not
susceptible of a limiting construction. Pet. App. 52a.
Second, the court determined that the ordinance
unconstitutionally criminalized status by criminalizing the
mere presence of gang members in public. Pet. App. 54a.
Finally, the court held that the ordinance, in “reach[ing] all
forms of protected conduct,” was overbroad, in violation of
both the First Amendment and Article 1, Section 5 of the
Illinois Constitution. Pet. App. 56a-58a. The court observed
that criminal laws already in existence provided police
officers with sufficient authority to arrest persons who
the United States, “Br. U.S.” and to the Amicus Brief of the Chicago
Neighborhood Organizations, “Br. CNO.” Citations to the Brief of the Chicago
Alliance for Neighborhood Safety as Amicus in support of Respondents appear as
“Br. CANS.” Finally, citations to the City’s briefs in the state courts appears as
follows: to the City's brief in the Illinois Supreme Court, “Pet. Br. lil. S. Ct”; to
the City’s opening brief in the Illinois Appellate Court, “Pet. Br. Ill. App. Ct,”
and to its reply, “Pet. Reply Br. Ill. App. Ct.”; and to the City’s trial court brief,
“Pet. Br. Tr. Ct.”
? In addition to this circuit court decision, twelve other circuit court judges
vague on its face; one ruled it vague as applied. The ordinance was upheld by
two of these judges. Peter W. Poulos, Chicago's Ban on Gang Loitering:
Making Sense of Vagueness and Overbreadth in Loitering Laws, 83 Cal. L. Rev.
379, 384 n. 26 (1995).
actually commit crime and to protect the public from conduct
that is truly illegal. R. 115.
The appellate court unanimously affirmed. First, it held
that the ordinance was overbroad in that it infringed upon the
court held that the ordinance was void for vagueness. Pet.
App. 3la-33a. Third, it agreed with the trial court that
because the ordinance was “triggered when a gang member is
loitering,” it effectively criminalized status rather than
conduct, in violation of the Eighth Amendment. Pet. App.
33a-34a. Finally, the court held that the ordinance was a
“wansparent attempt to avoid the probable cause
requirement” and thus violated the Fourth Amendment. Pet.
App. 35a. *
The City appealed to the Illinois Supreme Court, which,
on October 17, 1997, unanimously affirmed the judgment of
the appellate court. Like the courts below, the Illinois
Supreme Court found that the ordinance provided the police
no guidelines for determining when persons have apparent
purposes, that it thus amounted to a grant of unfettered
discretion to police officers, and that it was accordingly void
for vagueness. Pet. App. 15a. In addition, the court
specifically held that the ordinance failed to notify persons of
ordinary intelligence what formerly innocent (or lawful)
conduct it was criminalizing, Pet. App. 9a, and that it was
* The appellate court also struck the ordinance down on an independent state
snd: inih tance eaten Pet.
. 27a.
* Upon affirming the circuit court decision, the appellate court consolidated
the appeals taken by the City of cases in which a circuit court had ruled the
ordinance unconstitutional, and affirmed on the basis of Youkhana. City of
Chicago v. Ramsey (Pet. App. 39a-40a). These were cases involving sixty of
sixty-six Respondents. In addition, the appellate court consolidated all appeals
from judgments of conviction under the ordinance, and reversed those judgments.
again on the basis of Youkhana. City of Chicago v. Morales (Pet. App. 37a-38a).
These appeals involved the other six Respondents.
6
void for vagueness on this ground as well. Pet. App. 14a.
Like the courts below, the Illinois Supreme Court held that
the move-on order requirement did not cure the ordinance’s
vagueness defects, Pet. App. 13a, and that the ordinance did
not admit a limiting construction, Pet. App. 16a. The court
also held that the ordinance violated substantive due process
in that it unreasonably and arbitrarily interfered with liberty
interests protected by the Due Process Clause. Pet. App. |7a-
18a. The court emphasized that “[t}he city is not helpless in
its war against the criminal activity of gangs . . . [because]
{mJany of the offensive activities the city claims the gang
loitering ordinance will deter are already criminal acts.” Pet.
App. 19a. The court specifically identified relevant Illinois
criminal statutes, including prohibitions on intimidation (720
ILCS 5/12-6); compelling organization membership (720
ILCS 5/12-6.1); aggravated intimidation (720 ILCS 5/12-
6.2); and mob action (720 ILCS 5/25-1). The court did not
reach Respondents’ claims arising under the First, Fourth,
and Eighth Amendments.
SUMMARY OF ARGUMENT
In 1992, just prior to the dramatic decline in crime
nationally, the City of Chicago passed a vaguely worded
loitering law that is sweeping in its scope. Its stated purpose
is prophylactic - to prevent crime before it occurs by
dispersing from public places on pain of arrest persons who
an officer believes have “no apparent purpose.” While
supposedly directed at street gangs, the ordinance explicitly
provides that anyone — including a parent, sibling, spouse or
close friend — also is subject to the humiliation of banishment
or arrest if they are “with” a suspected gang member in a
public place.
The City’s ordinance simply cannot be reconciled
with our constitutional tradition, which protects the rights of
people to freedom of movement and association. These
guarantees always have included the right to freely use the
and
Jaycees, 468 US. 609 (1984); Shuttlesworth v. City of
Birmingham, 382 U.S. 87 (1965); Papachristou v. City of
Jacksonville, 405 U.S. 156 (1972).
because it is not limited to the “criminal” that the City fears,
but instead extends to anyone who is simply with a suspected
gang member in public, no matter why.
For over 60 years, the decisions of this Court have
condemned the inherent vagueness of loitering laws like
Chicago's. Thornhill v. Alabama, 310 U.S. 88, 100 (1940);
Shuttlesworth, 382 U.S. at 90-91; Palmer v. City of Euclid,
402 U.S. 544, 545 (1971); Papachristou, 405 U.S. at 162-71.
The ordinance’s vague prohibition on behavior without an
apparent purpose fails to provide any standard by which
people can measure their conduct. Papachristou, 405 U.S. at
165; Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971).
Similarly, the law provides no guidance to police officers.
Kolender v. Lawson, 461 U.S. 352, 360 (1983).
The City claims that any vagueness in the term
“loitering” is cured because the ordinance’s move on order
will inform people of what they need to do to avoid arrest —
move on. However, because such an order does not inform a
person of what they did to justify the order, or what to refrain
from doing in the future, or whether to make an informed
choice to peaceably submit to arrest and challenge the
charges in court, the ordinance still fails to provide fair
notice. United States v. Lanier, 117 S. Ct. 1219 (1997). The
ordinance is vague in all of its applications, and it is therefore
unconstitutional on its face. Village of Hoffman Estates v.
The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494
(1982).
This Court has recognized that loitering laws also
implicate the fundamental right of free movement in public
places and forums. Kolender, 461 U.S. at 358. That
freedom, and its corollary right to remain innocently on the
street, is of considerable vintage, and has been identified by
this Court as an aspect of substantive due process in a line of
cases beginning with Williams v. Fears, 179 U.S. 270, 274
(1900), running through Kent v. Dulles, 357 U.S. 116, 126
(1958), and Aptheker v. Secretary of State, 378 U.S. 500, 514
(1964), and culminating — for present purposes — with
Kolender, 461 U.S. at 358. The City dismisses freedom of
movement as being limited to the right “to travel abroad or
from one state to another.” However, our nation’s history
and tradition — as well as this Court’s cases — make clear that
the right to cross borders is an extension of the more basic
right to move within them. Under the ordinance, this right of
free movement is summarily suspended for substantial
numbers of Chicago’s citizenry, who are denied the simple
freedom to stand with another in public if a police officer
cannot discern their purpose and believes that at least one
person is a gang member.
The City’s justification for its prophylactic measure,
that “standing around . . . under at least some circumstances”
(Br. 17) may give rise to illegal behavior in the indefinite
future, serves only to underscore the absence of narrow
tailoring. Indeed, as the Supreme Court of Illinois found, the
means and ends of the ordinance are so disconnected that it
cannot pass even the rational basis test required of all
legislation under the Due Process Clause.
Loitering laws also abridge fundamental rights of
speech and association. Kolender, 461 U.S. at 358;
Shuttlesworth, 382 U.S. at 90-91. By interfering with the
peaceful enjoyment of public streets, sidewalks, and parks,
the ordinance substantially burdens both intimate and
expressive association. See Roberts, 468 U.S. 618-19. The
City dismisses the ordinance’s burden on intimate association
by unjustifiably defining the right as one that cannot be
exercised out of doors; and the City trivializes the burden on
expressive association by pretending that the exercise of such
associational rights will always be apparent to police. But
when one lays the ordinance over the array of intimate and
associational conduct that human experience teaches us
occurs in the traditional public fora of the streets, sidewalks,
and parks, the ordinance’s unacceptable burden on protected
association is manifest. Because of its substantial
overbreadth, the ordinance is unconstitutional on its face.
The Chicago ordinance violates the Eighth
Amendment, as well, by criminalizing status in the absence
of any actus reus. The law banishes from the public way
suspected gang members, and any person who for any reason
is with a suspected gang member, not because of what they
have done, but instead because of who they are. The failure
to exhibit an “apparent purpose” at every moment that one is
in public cannot be the “act” needed to save the ordinance.
This “act” includes such ubiquitous, reflexive, and virtually
involuntary conduct as talking, strolling, eating, and just
enjoying the fresh air. If the law were otherwise, the
government might ban the status of narcotics addiction when
combined with the “act” of getting out of bed or failing to
leave the state; this, of course, would directly contravene
Robinson v. California, 370 U.S. 660 (1962).
10
Finally, the Chicago ordinance violates the Fourth
Amendment because it is, in the words of the Appellate Court
of Illinois, “a transparent attempt to avoid the probable cause
requirement.” Pet. App. 35a. The law makes it a crime to
look suspicious; that is, it authorizes arrest based upon the
City’s generic suspicion that someone might commit some
unspecified crime sometime in the future if that person were
allowed to continue to associate in public with a person who
is suspected of belonging to a gang. Indeed, the City
concedes that the ordinance is a “prophylactic” measure
intended to “stop crime before it occurs.” Br. 10, 14. This
evasion of the probable cause requirement violates core
Fourth Amendment principles. E.g., Wong Sun v. United
States, 371 U.S. 471, 479 (1963); see also Terry v. Ohio, 392
U.S. 1 (1968).
In sum, this Court should affirm the unanimous
judgment below striking down the Chicago Ordinance,
because it violates the First, Fourth, Fifth, Eighth, and
Fourteenth Amendments.
ARGUMENT
I. THE CHICAGO ORDINANCE IS VOLD FOR
VAGUENESS.
“(T]he void-for-vagueness doctrine requires that a penal
statute define 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 discriminatory enforcement.” Kolender v. Lawson, 461
U.S. 352, 357 (1983); see also Grayned v. City of Rockford,
408 U.S. 104 (1972). These standards are not to be
mechanically applied. Rather, “(t]he degree of vagueness
that the Constitution tolerates — as well as the relative
importance of fair notice and fair enforcement — depends in
part on the nature of the enactment.” Village of Hoffman
11
Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489,
498 (1982).
The factors that this Court has deemed relevant in making
such determinations demand a high degree of specificity in
the language of the City’s ordinance. See id at 455 U.S. at
498-99 (listing factors). The City’s law focuses not on the
narrow subject matter of economic regulation but rather on
the broad range of all activity in which people engage while
in public. It imposes criminal as opposed to civil penalties.
And the ordinance contains no scienter or mens rea
requirement that “may mitigate a law’s vagueness, especially
with respect to the adequacy of notice to the complainant that
his conduct is proscribed.” /d. at 499.
Most importantly, the demand for clarity of language is
great because the law threatens to inhibit the exercise of other
constitutionally protected rights. Smith v. Goguen, 415 U.S.
566, 573 (1974); Hoffman Estates, 455 U.S. at 499. A
loitering law of this type has “the potential for arbitrarily
suppressing First Amendment liberties” and “implicates
consideration of the constitutional right to freedom of
movement.” Kolender, 461 U.S. at 358.
In assessing the “nature of the enactment,” this Court
should consider the inherent operation of a loitering law.
While some of these laws are more definite in their
prohibition and more targeted to core criminal conduct,”
Chicago’s ordinance prohibits only the amorphous act of
loitering. It is, therefore, a prohibition reminiscent of the
most primitive and sweeping of the “street-cleaning” laws of
* For example, some laws contain requirements that the person engage in
conduct evidencing an intent to commit a specific illegal act. E.g., City of Seattle
v. Slack, 784 P.2d 494 (Wash. 1989) (intent to solicit an act of prostitution);
People v. Smith, 378 N.E.2d 1032 (N.Y. 1978) (purpose of soliciting an act of
prostitution); City of Tacoma v. Luvene, 827 P.2d 1374 (Wash. 1992)
(manifesting the purpose of engaging in drug-related activity); People v. Superior
Court (Caswell), 758 P.2d 1046, 1049 (Cal. 1988) (purpose of “engaging in or
soliciting any lewd or lascivious or any unlawful act”).
12
our nation’s past. See John C. Jeffries, Legality, Vagueness,
and the Construction of Penal Statutes, 71 Va. L. Rev. 189,
216 (1985) (noting the potential of Papachristou-type laws to
be used as street-sweeping devices and their susceptibility to
vagueness challenges).°
A law prohibiting a person from remaining in one place
“without an apparent purpose” is not a law to which people
can conform their conduct. Virtually all the time, people
have purposes for what they are doing. But often,
involuntarily and unconsciously, they simply do not overtly
display them. Despite this obvious fact about human
conduct, Chicago’s ordinance imposes the difficult, if not
surreal, duty to ever be vigilant to advertise one’s purposes.
Further, this Court should be mindful that, in addition to
possible arrest and prosecution, the law requires, in the first
instance, the summary imposition of a sanction — dispersal
from public by a police officer. Since most citizens will
simply disperse, discriminatory and arbitrary enforcement
may more easily occur because street level law enforcement
decisions are completely shielded from prosecutorial and
judicial review.
For over half a century, this Court has unequivocally
disapproved, as unacceptably vague, statutory language like
that in Chicago’s ordinance because it effects broad and
vague restrictions on persons “loitering” in public places.’ In
* Chicago's ordinance itself was used as a street-sweeping device. In 1994,
the Chicago Police Department announced Operation EDGE, as part of its efforts
to “enforc{e] drug laws and the anti-gang loitering ordinance.” Cops Taking
EDGE in Crime Battles, Chi. Sun-Times (July 5, 1994) at 14. Operation EDGE
involved flooding “hot spots” by as many as sixty uniformed officers, over a
several-hour period, and the making of dozens of arrests. /d In one such sweep,
out of one hundred arrests made, sixty-nine were for gang loitering. Sweep Nets
100 Arrests, Chi. Sun-Times, Metro Briefings Section (Feb. 6, 1995).
’ Indeed. even before this Court's decision in Papachristou, such vague and
road proscriptions gave lower federal and state courts no more pause than they
nave given this Court, and were regularly struck down on vagueness (often,
among other) grounds. E.g., United States v. Kilgen, 431 F.2d 627, 628 (Sth Cir.
13
Thornhill v. Alabama, 310 U.S. 88 (1940) a state law
prohibited, in part, “any person or persons . . . without just
cause or legal excuse therefore, [from] . . . loiter{ing] about
any place of lawful business . . . or picket[ing]” (emphasis
1970) (ordinance deeming a vagrant any person “wandering or strolling around
from place to place without any lawful purpose or object” and any “habitual
loafer”), Ricks v. District of Columbia, 414 F.2d 1097 (D.C. Cir. 1968) (statute
deeming a vagrant “any person who wanders about the street: at late or unusual
hours of the night without any visible or lawful business and not giving a giving
a good account of himself), Territory of Hawaii v. Anduha, 48 F.2d 171 (9th Cir.
1931) (statute making it a misdemeanor to “habitually loaf, loiter, and/or idle
upon any public street or highway or in any public place”); Kirkwood v. Loeb,
323 F. Supp. 611, 611-13 (E.D. Tenn. 1971) (ordinance prohibiting, inter alia,
loitering “without any legitimate business or purpose . . . on the sidewalks or
public streets . . . after having been directed by an officer or member of the police
force to move away therefrom”); Gordon v. Schiro, 310 F. Supp. 884, 887 (E.D.
La. 1970) (deeming vagrants any persons who “loiter around any public place of
assembly, without lawful business or reasons to be present”); Landry v. Daley, -
280 F. Supp. 968, 969 (N.D. Ill. 1968) (prohibiting any persons from, inter alia,
“wandering about the streets . . . without being able to give a satisfactory account
of themselves”), City of Columbus v. Thompson, 266 N.W.2d 571, 572 (Ohio
1971) (prohibiting “any person who wanders about the streets . . . without any
visible or lawful business and who does not give satisfactory account of
himself”), State of Maine v. Aucoin, 278 A.2d 395 (Me. 1971) (prohibiting any
person from “loiter[ing] in, on, or adjacent to any streets, ways, or public places,
in the [City of Portland]”);, State of Wisconsin v. Starks, 186 N.W.2d 245 (Wis.
1971) (prohibiting any person from “loitering near any structure, vehicle or
private grounds . . . without the consent of the owner” unless able to account for
his presence); State of New Hampshire v. Hudson, 274 A.2d 878 (N.H. 1971)
(prohibiting any person, “after being warned by police officer, [from] loiter{ing]
on sidewalks in the city in front of business establishments, public buildings or
houses of worship”); City of Portland v. James, 444 P.2d 554 (Or. 1968)
(prohibiting any person from “roam{ing] or be[ing] upon any street, alley or
public place [between the hours of | and 5 o'clock A.M.]”); City of Seattle v.
Drew, 423 P.2d $22, 523 (Wash. 1967) (prohibiting any person from “wandering
or loitering abroad . . . from one-half hour after sunset to one-half hour before
sunrise . . . [without giving] a satisfactory account of himself upon the demand of
any police officer”); People v. Diaz, 151 N.E.2d 871 (N.Y. 1958) (prohibiting
any person from “loung{ing]} or loiter{ing] about any street or street corner in the
City of Dunkirk”); Commonwealth v. Carpenter, 91 N.E.2d 666 (Mass. 1950)
(prohibiting any person from “willfully and unreasonably saunter[ing] or
loiter{ing] . . . for more than seven minutes after being directed by a police officer
to move on”); Territory of Hawaii v. Anduha, 31 Haw. 459 (Haw. 1930) (same
ordinance as in 48 F.2d 171).
14
added). In striking down the law on its face because of the
breadth of its burden on speech and assembly, the Court
concluded that the qualification “‘without just cause or legal
excuse’ does not in any effective manner restrict the breadth
of the regulation,” precisely because “the words themselves
have no ascertainable meaning either inherent or historical.”
(citing Lanzetta v. New Jersey, 306 U.S. 451, 453-455.) Id.
at 100 (emphasis added).*
Two decades later, in Shuttlesworth v. City of
Birmingham, 382 U.S. 87 (1965), the Court was faced with
an ordinance containing another vague and broad proscription
on loitering in public. That ordinance forbade “any person to
stand or loiter upon any street or sidewalk . . . after having
been requested by any police officer to move on.” /d. at 90.
The Court noted that the literal terms of the ordinance
contained an unquestionable “constitutional vice,” in that
they did “not provide for government by clearly defined laws,
but rather for government by the moment-to-moment
opinions of a policeman on his beat.” /d (quoting Cox v.
Louisiana, 379 U.S. 536, 579 (1965) (separate opinion of
Black, J.).’
In Palmer v. City of Euclid, 402 U.S. 544, 545 (1971), the
Court was faced with a loitering ordinance penalizing “any
person who wanders about the streets or other public ways or
who is found abroad at late or unusual hours in the night
without any visible or lawful business ....” This ordinance
* The Court’s assessment of the ambiguity of the law’s language was
essential to the overbreadth analysis. See Hoffman Estates, 455 U.S. at 494 0.6
(in determining whether an enactment is overbroad, “a court should evaluate the
ambiguous as well as the unambiguous scope of the enactment”).
* The City implies that the vice of the Shuttlesworth ordinance, as written,
was that it prohibited standing in public, in violation of the First Amendment.
Br. 32. But the Shuttlesworth passage in question — that the prohibition on
“stand{ing] or loiter{ing]” was not “clearly defined” — forces another conclusion.
Since no one can seriously maintain that the term “stand” is vague, or not clearly
defined, the Court's concern in this passage must have been with the vagueness
of the term “loiter.”
15
was deemed “vague and lacking ascertainable standards of
guilt.” Jd at 545. The Court reversed the conviction,
holding that, as to the defendant in that case, the ordinance
gave “insufficient notice” that it prohibited him from letting a
friend out of his car and then remaining in the car talking on
a car radio."®
Finally, the Court held the loitering law in Papachristou
v. City of Jacksonville, 405 US. 156 (1972),
unconstitutionally vague. That law prohibited, among other
things, “wandering or strolling around from place to place
without any lawful purpose or object.” /d. at 156 n. 1. The
Court struck the ordinance down as void for vagueness, both
in that it “fail[ed] to give a person of ordinary intelligence
fair notice that his contemplated conduct was forbidden . . .
and because it encourage[d] arbitrary and erratic arrests and
convictions.” /d. at 162 (citations omitted). The “restriction”
that the wandering or strolling had to be “without any lawful
purpose or object” did nothing to cure the ordinance’s
inherent vagueness; rather, it served simply to set “a trap for
innocent acts.” /d. at 164.
Thus, loitering ordinances that prohibit the simple act of
“loitering,” without further qualification or definition
(Shuttlesworth), as well as those that criminalize loitering
without lawful purpose (Thornhill, Palmer, and
Papachristou) have consistently been considered
impermissibly vague by this Court. Chicago’s ordinance is
likewise impermissibly vague. This Court, therefore, should
declare the Chicago ordinance unconstitutional on its face,
'° This “as applied” approach to correcting abuses of the law is the one
recommended by the Solicitor General. Br. U.S. 10, 17 n. 13. But as Palm
illustrates, this Court has been down that road before. With inherently vague
laws, unconstitutional in each and every application, the remedy is clear — facial
invalidation.
16
because it “is impermissibly vague in all of its applications,”
Hoffman Estates, 455 U.S. at 494."
A. The Ordinance Fails to Provide Adequate
Notice.
This Court has repeatedly struck down vague statutes
because they fail to provide persons with proper notice of
prohibited conduct. See Grayned v. City of Rockford, 408
U.S. 104, 108 & n. 3 (1972) (“Vague laws may trap the
innocent by not providing fair warning.”) (collecting cases);
Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971)
(ordinance prohibiting “three or more persons to assemble . .
. on any of the sidewalks, street corners . . . and there conduct
themselves in a manner annoying to persons passing by” held
unconstitutionally vague because “it subjects the exercise of
the right to assembly to an unascertainable standard”);
Papachristou, 405 U.S. at 162 (vagrancy ordinance held void
for vagueness because “it ‘fails to give a person of ordinary
intelligence fair notice that his contemplated conduct is
forbidden by the statute’”) (citation omitted). As shown
below, Chicago’s ordinance, because it does not provide any
meaningful standard to which persons may conform their
conduct, fails to provide fair warning.
The ordinance requires a police officer who observes a
person he reasonably believes to be a gang member
“loitering” in any public place with one or more persons to
order all such persons to disperse and remove themselves
from the area. The police officer is then expressly required to
'' In fact, at least so far as fair notice goes, Chicago's ordinance is even more
onerous than the ordinances in Thornhill, Palmer, and Papachristou. At least the
latter ordinances premised criminal liability on the actual purpose of the
suspected loiterer. Here, the requirement is having an “apparent” purpose. Thus,
Chicago's ordinance, unlike the laws at issue in this Court’s prior loitering cases,
does not allow explaining one’s real purpose. In the City’s words “it is
immaterial [to enforcement of the ordinance] whether an individual may be able
to explain his presence in a public place to the satisfaction of a police officer.”
Pet. Br. Ill. S. Ct. $2. Coupled with the lack of mens rea, this policy makes
falling into the law's “trap for the innocent” almost a certainty.
17
arrest anyone who does not promptly obey. General Order
92-4, sec. VI.C.3.a., Pet. App. 72a. The ordinance’s trigger is
“loitering,” which is defined as “to remain in any one place
with no apparent purpose.” Pet. App. 61a.
A law that prohibits remaining in a place without an
“apparent purpose” is so amorphous that it provides no
standard at all. People of ordinary intelligence cannot
understand how to comply with its requirement. They do not
and cannot know what they must do to demonstrate to an
observing police officer that they are being purposeful at all
times while in public. The City’s ordinance, therefore, is
vague “in the sense that no standard of conduct is specified at
all.” Coates, 402 U.S. at 614.
Courts have well recognized that the language of “no
apparent purpose” fails to provide a standard for conduct.
For example, in United States ex rel. Newsome v. Malcolm,
492 F.2d 1166 (2d Cir. 1974), the Second Circuit struck
down a New York criminal loitering statute, in part because
the phrase “loiter[ing], remain{ing] or wander{ing}] in or
about a place without apparent purpose” was so vague as to
make it impossible for a person to “conform his conduct” to
it. /d. at 1172 (emphasis added). The Court observed that a
person would be unable to discern whether he risked criminal
responsibility by “taking a leisurely stroll, by sitting briefly
on a park bench, or by seeking shelter from the elements in
the doorway of a building.” /d at 1172-73. Similarly, the
Ninth Circuit struck down as vague a prohibition on
“loiter[ing] or wander[ing] upon the streets or from place to
place without apparent purpose.” Powell v. Stone, 507 F.2d
93, 95 (9th Cir. 1974) (emphasis added), rev'd on other
grounds, 428 U.S. 465 (1976). And in Ricks v. District of
Columbia, 414 F.2d 1097 (D.C. Cir. 1968), the court ~
condemned as unconstitutionally vague a prohibition on
“wander[ing] about the streets at late or unusual hours . . .
without any visible or lawful business,” in part because this
18
language “failed to point up the prohibited act . . . and thus
did not differentiate conduct calculated to harm and that
which is essentially innocent.” /d. at 1104 (internal citations
omitted); see also Kirkwood v. Loeb, 323 F. Supp. 611 (W.D.
Tenn. 1971) (striking down as vague a prohibition on
The City asserts that people “can judge . . . when one’s
purpose for staying put is not obvious to others who may
come along.” Br. 30.’ But this assertion is an affront to
common sense. People do not, and cannot reasonably be
expected to go through their daily lives being conscious of
whether they are at all times adequately manifesting to others
their purpose for being present in public. They can have no
confidence they will not be publicly embarrassed by a
dispersal order or suffer the trauma of arrest while they are at
shopping centers, plazas, or countless other places open to
the public in their city, or even in their own neighborhood.
This difficulty is compounded by the limitless scope of
human activity and inactivity covered by the law. It sweeps
within its purview much of the everyday, innocent behavior
in which people engage: from stopping on the sidewalk to
speak with a friend or relative, to a family standing outside
their own apartment on a hot evening to cool off; from a
couple of guys resting after a basketball game, to couples
" The City claims that the “better-reasoned decisions in the lower courts
conclude that the term ‘loitering’ has a common sense meaning that reasonable
persons can apprehend.” Br. 30 n. 18. But the cases cited for that proposition do
not remotely suggest that a prohibition on “loitering” alone would be adequate
for due process notice. Each one of those cases qualified “loiter” in critical ways
that, at a minimum, provided more specificity and hence more fair waning than
the term “loiter” itself. See People v. Superior Court, 758 P.2d 1046, 1049 (Cal.
1988) (statute criminalizing loitering “in or about any toilet open to the public for
the purpose of engaging in or soliciting any lewd or lascivious or any unlawful
act”) (emphasis added); State v. Armstrong, 162 N.W.2d 357, 358 (Minn. 1968)
(prohibiting loitering “with intent to solicit for purposes of prostitution”)
(emphasis added), Wiemersiage v. Maine Township High Sch. Dist. 207, 29 F.3d
1149 (7th Cir. 1994) (non-penal school disciplinary rule prohibiting loitering in
an area immediately adjacent to school property ).
19
sitting on a park bench discussing their relationship. While
all of these activities are purposeful, under this law they
would not have an “apparent purpose,” so persons engaging
in them would be subject to dispersal and arrest. In each of
these circumstances “ordinary people” would not think that
they would run afoul of a law prohibiting “loitering.”
The Illinois Supreme Court illustrated the reach of the
ordinance to these kinds of activities:
not always be able to make their purposes apparent to an
observing police officer. For example, a person waiting
to hail a taxi, resting on a corner during a jog, or stepping
into a doorway to evade a rain shower has a perfectly
legitimate purpose in all these scenarios; however, that
purpose will rarely be apparent to an observer.
Pet. App. 10a." In view of the City Council’s intent to create
“an exceptionally broad ordinance” to be used “to sweep . . .
gang members from the city streets,” Pet. App. 16a, and the
law’s unqualified charge to disperse or arrest all persons
without an apparent purpose, the Illinois Supreme Court
properly interpreted the ordinance as applying to these
situations.
" The Illinois Supreme Court ruled the ordinance to be “not reasonably
susceptible to a limiting construction.” Pet. App. 16a. The court reasoned that
the clear and unambiguous intent of the City Council was to write “an
exceptionally broad ordinance which could be used to sweep these intolerable
and objectionable gang members from the city streets.” Pet. App. l6a The
Illinois Supreme Court's refusal to provide a narrowing construction of the
ordinance is binding on this Court. As this Court has explained, “{flor the
purpose of determining whether a state statute is too vague and indefinite to
constitute valid legislation ‘we must take the statute as thought it read precisely
as the highest court of the State has interpreted it."” Wainwright v. Stone, 414
U.S. 21, 22 (1973) (quoting Minnesota ex rel. Pearson v. Probate Court, 309
U.S. 270, 273 (1940)), see also Johnson v. Fankell, 117 S. Ct. 1800, 1804
(1997). Equally binding is the Illinois Supreme Court's interpretation of the City
Council's legislative intent. Eg. Acadia ins. Co. v. McNeil, 116 F.3d 599, 605
(Ist Cir. 1997), Holdren v. Legursky, 16 F.3d 57, 62 (4th Cir. 1994), see also Br.
CANS 12-18.
20
The City has confirmed the correctness of the State
court’s conclusion that purposeful activities are subject to the
ordinance’s strictures through a series of examples of its
enforcement policies.'* In fact, the City established that it not
only intended to include purposeful conduct within the
ordinance’s reach, but that it would be selective about what
purposeful conduct it would sanction. Thus, two people
“debating the constitutionality of the ordinance” (Pet. Br. Ill.
S. Ct. 43), “a minister arguing with gang members” (Pet.
Reply Br. Ill. Ct. App. at 22), “a community outreach
employee who actively seeks out gang members to assist
them in breaking free of the gang” (Pet. App. 57a), and “a
street corner seminar with gang members on the merits of
President Clinton’s economic program” are all prohibited
(Pet. Br. Tr. Ct. 26-27). But a gang member speaking with
another person to request a charitable contribution to the
gang (Pet. Br. Ill. S. Ct. 46; see also Br. 27) or a person
soliciting a gang member’s vote in an upcoming election
(Pet. Reply Br. Ill. Ct. App. 21) would not be subject to
prosecution under the ordinance. The City also has advised
that a family that includes a suspected gang member is
subject to dispersal and arrest even when “they are outside
their apartment building getting some fresh air.” Supp. R. Il
at 231.
As the City’s own enforcement practices demonstrate, no
person could possibly seek to conform his conduct to a
consistent standard. The City ultimately makes subjective
and arbitrary choices between purposes it deems apparent and
* In this Court, the City has introduced a new standard — a purpose must be
“immediately discernable” to a police officer. Br. 38. This standard suggests a
quick and superficial evaluation of conduct. See Part |B. infra, regarding
bi pry er f
it is worth noting that. in a passage attempting to provide yet another
standard for understanding “no apparent purpose.” the Solicitor General believes
that. in smoking a cigarette outside a “no-smoking building, a person will have
an apparent purpose. Br. U.S. 12.
21
those that are “not apparent.” In short, there is “no standard .
.. at all.” Coates, 402 U.S. at 614."°
The Illinois Supreme Court also condemned Chicago’s
law because its vague language, coupled with the
legislature’s intent, prohibited innocent conduct that ordinary
persons would never reasonably suspect to be criminal. Pet.
App. 9a Thus, the court noted that the ordinance “makes
criminal activities which by modern standards are normally
innocent.” Pet. App. 9a (quoting Papachristou, 405 U.S. at
163).
Both the City (Br. 31) and its amici (e.g., Br. U.S. 15)
argue that the Illinois Supreme Court’s analysis was
'* The City has continually attempted to distinguish some prohibited
communications it characterizes as mere “chit chat” from other, permissible
the votes of gang members. The City believes only the latter to be independently
protected under the First Amendment (e.g. Br. 27). While Respondents take
exception to the City’s proffered distinction, see Part Ill, infra, it has no
relevance to the adequacy of the law's notice. To ordinary people, talking is
talking. In both sets of circumstances people are speaking with cach other in a
public place. Neither the content of the communication (e.g, “debating the
constitutionality of the ordinance” versus asking for money), nor the identity of
the speakers alters the participants’ reasonable expectation that their purpose —
communicating with another person in an historically recognized public forum —
is apparent. The lack of a standard is amply illustrated in the record. Defendant
Jesus Morales was observed to be “[tjalking to citizens on the street,” but neither
the arresting officer nor the trial court deemed that purpose to be sufficiently
apparent to escape an arrest and conviction for the offense of gang loitering.
Morales, R. 6.
' The state court went on to note that “[a}ithough persons of ordinary
intelligence may maintain a common and accepted meaning of the word ‘loiter,’
such term by itself is inadequate to inform a citizen of its criminal implications.”
Pet. App. 9a. This remark precisely explains why the City is wrong in asserting
that “if the term ‘loitering’ were so vague that people ordinarily cannot tell when
they are violating the law, all loitering laws would fall.” Br. 30. The common
sense meaning of “loiter” is simply too indefinite to mark a common sense
distinction between criminal and non-criminal activity, and so prohibitions on
“loitering” alone fail to provide fair warning. By contrast, a prohibition that
contains the term “loiter.” but that contains further detailed specification of the
prohibited act — for example, by adding an element of intent to commit an
additional illegal act, e.g , Luvene, 827 P.2d 1374 — have at least the possibility of
surviving vagueness scrutiny.
22
corrupted because, rather than determining vagueness, it
actually was making a substantive decision about whether
“innocent conduct” could be made criminal. They are wrong.
The State court, like this Court in Papachristou, did no more
than recognize that in such circumstances, where a law
criminalizes previously innocent conduct, more definiteness
in language is required.
This Court’s “fair warning” jurisprudence, of which the
notice requirement of the vagueness doctrine is a “related
manifestation,” United States v. Lanier, 117 S. Ct. 1219,
1225 (1997), long ago recognized this relationship between
vague statutory language and the unreasonable risk it imposes
on people engaging in conduct they reasonably believe to be
innocent. “The vice of vagueness in criminal statutes is the
treachery they conceal either in determining what persons are
included or what acts are prohibited. Words which are vague
and fluid [citation omitted], may be as much of a trap for the
innocent as the laws of Caligula.” United States v. Cardiff,
344 U.S. 174, 176 (1952); see also Cramp v. Board of Pub.
Instruction, 137 $.2d 828 (Fla. 1962)."’
Nor was the Illinois Supreme Court in error when it
considered in its evaluation of vagueness that the language of
the City’s loitering law did not distinguish between innocent
acts and “conduct calculated to cause harm.” Pet. App. 9a
(emphasis added); see also. Br. 31; Br. U.S. 15. This Court
has explicitly stated that in determining “[t]he degree of
vagueness that the Constitution tolerates,” a scienter
requirement is relevant “especially with respect to the
'’ This Court's decision in Hoffman Estates, 445 U.S. at 497 n. 9. as cited by
the Solicitor General (Br. U.S. 15), is not to the contrary. There, as the Solicitor
General posits, the Court said simply that because the law in issue was not vague,
the fact that innocent conduct was included within its scope was not a defect in
clarity, but an issue of substantive due process. The Court never said that in
evaluating the degree of definiteness required in a given penal statute it was
improper to consider the normally innocent nature of the conduct sought to be
23
adequacy of notice to the complainant that his conduct is
proscribed.” Hoffman Estates, 455 U.S. at 499; see also
Colautti v. Franklin, 439 U.S. 379, 395 (1979)."" Indeed, a
proper objective of a scienter requirement is to insure that a
law does not “criminalize a broad range of apparently
innocent conduct.” Liparota v. United States, 471 U.S. 419,
426 (1985)."”
In addition to lacking a standard for determining which
purposes are apparent and which are not, the ordinance does
not put persons of ordinary intelligence on notice as to where
in Chicago they can remain in public. It is City policy not to
disclose what areas are in fact designated for enforcement of
the ordinance.” Thus, while not every block or corner in
Chicago, presumably, is designated, persons of ordinary
intelligence do not and cannot know where they can go in the
City to avoid the ordinance’s strictures. Nor can they know
Though a scienter provision is not constitutionally required in every
criminal statute, Liparota, 471 U.S. 419, its absence is a factor to be considered
in determining if the statute provides constitutionally adequate notice.
'* While the City has no trouble making findings as to the purpose of gang
members in loitering (“WHEREAS, One of the methods by which criminal street
gangs establish control over identifiable areas is by loitering in those areas and
intimidating others from entering those areas,” Pet. App. 60a), it refuses to refine
its broad and vaguely worded loitering law to target that very conduct — conduct
that the City says it seeks to curb. Thus, “this is not a case where further
precision of the statutory language is cither impossible or impractical.”
Kolender, 461 U.S. at 361; see Anthony G. Amsterdam, Federal Constitutional
Restrictions on the Punishment of Crimes of Status, Crimes of General
Obnoxiousness, Crimes of Displeasing Police Officers, and the Like, 3 Crim. L.
Bull. No. 4 205, 219 (1967) (“it seems hardly disputable that some of these
prohibitions are expressed with an imprecision that is unnecessary in furtherance
of any legitimate regulatory objective”).
* The City refused a request, pursuant to the Illinois Freedom of
Information Act, to release information about the designated areas stating that
“[d}issemination of [information regarding] the size of designated areas and their
proximity to one another .. . would impair the Police Department's ability to
fight crime ...." American Civil Liberties Union v. City of Chicago, No. 98 CH
10054 (Circuit Ct. Cook County), Memorandum in Support of Defendants’
Motion for Summary Judgment and Request for Relief from the Index
Requirement at 6.
24
what exactly to do in the event that they are ordered to move
on. They cannot know where to move fo because they cannot
were changed “fairly often [because it was] .. . a fluid and
changing hind of situation.” Deposition of Thomas Needham
at 11 (“Needham Dep.”) (American Civil Liberties Union v.
City of Chicago, supra, note 20). This only exacerbates the
uncertainty. And the public cannot tell where they must move
from, because there exists no guidance in the ordinance, in
the General Order, or anywhere else indicating the
geographical scope of the term “area.””'
Finally, for all that appears, areas are designated with
high frequency. The ordinance was enforced in 24 out of 25
Chicago police districts.” It was enforced on the streets, in
parks, at schools, and in housing projects. Needisam Dep. at
85. Moreover, the sixty-six defendants in this case were
arrested in at least twenty-eight different locations.
(Complaints of Respondents)” Based on this information, a
person potentially affected by the ordinance could reasonably
assume that that there are thousands of designated areas in
the City of Chicago.
*' In this respect, the ordinance is completely different from the injunction
approved by the California Supreme Court in People ex rel. Gallo v. Acuna, 929
P.2d 596 (CaL. 1997). That injunction, based on very specific and detailed
findings about the criminal activities of certain named defendants in a specifically
delineated four square block area of San Jose, prohibited those very individuals
from returning to that delineated area. /d. at 282-83. Unlike those potentially
within the reach of Chicago's ordinance, those subject to the San Jose injunction
knew exactly where they could and could not go.
” Officer Louis Gaal, Chicago Police Department Gang Investigation
Section, Report on Gang Loitering Ordinance, at 2-3 (Jan. 5, 1996).
® Information about the Youkhana defendants was derived from the
complaints in the common law record. Clerks in the Illinois appellate and circuit
courts were unable to locate records for many of the defendants in Ramsey and
Morales, and as a result a common law record does not exist for them.
Information as to these defendants was developed from an examination of the
complaints on file at the office of the Clerk of the Circuit Court of Cook County.
25
the City further argues that even if the writ? ; terms of
the ordinance do not provide sufficient notice oi prohibited
conduct, the problem is solved by the move-on, or dispersal,
requirement of the law. Br. 30. The first flaw in the City’s
argument is that it treats the officer’s order of dispersal as an
event without practical or legal consequence. But dispersal is
only permitted because it is authorized under the ordinance.
An officer has no right in its absence to make such an order,
as a result of which persons suffer at least a restraint on their
right of free movement as well as the public humiliation and
stigma of being banished from public. Consequently, to
argue that one has a right to notice only before arrest but not
before being required to leave a public place runs afoul of the
most basic notion of due process.
This Court recently wrote that fair warning should be
given “in language that the common world will understand,
of what the law intends to do if a certain line is passed. To
make the warning fair, so far as possible the line should be
clear.” Lanier, 117 S. Ct. at 1219, 1220 (quoting McBoyle v.
United States, 283 U.S. 25, 27 (1931)). Here, the ordinance
informs the person “of what the law intends to do” — order
such person to disperse and remove himself from the area.
What it fails to do is define with clarity what “certain line is
passed.” Thus, the failure to provide notice prior to requiring
dispersal is, itself, a denial of fair warning.
A second flaw in the City’s view about notice is that in
reality it simply amounts to an end-run around this principle
of fair warning. On the City’s view, all a law would need to
do to comport with due process is include a provision that a
person will be told to disperse before being arrested and
prosecuted for underlying conduct that itself is insufficiently
defined by the law.
It is, of course, true, as the City points out, that persons
will know what they need to do to avoid arrest under the
ordinance ~ i.e., obey the order. Br. 29. But given the
26
vagueness of the term “loiter,” they will not know
specifically what they did that triggered the order or what
they need to do or refrain from doing in the future to avoid
being dispersed from public places. Moreover, a person has a
right to adequate notice so that he may determine whether the
officer is misapplying a law and whether to refuse to
disperse, submit peaceably to arrest, and defend the charges
at trial. Lambert v. California, 355 U.S. 225, 228 (1957)
(“Notice is sometimes essential so that the citizen has the
chance to defend charges.”). “(T]he touchstone [of fair
warning] is whether the statute, either standing alone or as
construed, made it reasonably clear at the relevant time, that
the defendant’s conduct was criminal,” Lanier, 117 S. Ct. at
1219-20 (emphasis added), not that it displeased a police
officer.
Because a move-on order, alone, can never inform
individuals how to conform their behavior to the law in
advance, such an order cannot, alone, cure a vague
description of the underlying prohibited conduct.
Consequently, the ordinance’s dispersal feature does not
serve this function.
Moreover, as the Illinois Supreme Court correctly
observed, Pet. App. 13a, the City’s position is directly
inconsistent with this Court’s teaching in Shuttlesworth.
Under Shuttlesworth, a loitering law that only notifies a
person that he acts illegally if he does not move on is
unconstitutionally vague. Shuttlesworth, 382 U.S. at 90-91:
see also Wright v. Georgia, 373 U.S. 284, 291-92 (1963)
(“[O}ne cannot be punished for failing to obey the command
of an officer if that command is itself violative of the
Constitution.”).
The City argues that Colten v. Kentucky, 407 U.S. 104
(1972), is “dispositive” as to the constitutionality of loitering
ordinances that require move-on orders. Br. 29. It is
mistaken. In Colten, this Court was confronted with a
27
disorderly conduct statute that, in contrast to the ordinance
here, clearly defined the conduct that it made subject to an
order of dispersal. According to the City’s selective
quotation, Colten says that “anyone ‘should understand that
he could be convicted . . . if he fails to obey an order to move
on.”” Br. 29 (quoting Colten, 407 U.S. at 110). But what the
City leaves out of this quotation says much more than what it
left in.
The Colten law subjected one to arrest if he refused an
order to disperse when he was congregating with others in a
public place with intent to cause public inconvenience,
annoyance, or alarm. In fact, what the Court wrote was that
“[ajny person who stands in a group of persons along a
highway where the police are investigating a traffic violation
and seeks to engage the attention of an officer issuing a
summons should understand that he could be convicted under
[this law] . . . if he fails to obey an order to move on.”
Colten, 407 U.S. at 110 (emphases indicating passages
omitted by City). The point of this passage is not that the
move-on order cures any potential notice problem attending
the definition of the underlying crime. Rather, the point is
that the clarity of the underlying conduct legitimizes the
move-on order.
Chicago’s move-on order cannot save its ordinance
precisely because the ordinance fails to define the underlying
conduct purportedly prohibited. Nothing in Colten remotely
suggests that this Court would approve Chicago’s loitering
law solely on the basis of its dispersal requirement.
Because Chicago’s ordinance fails to describe the
underlying conduct that it purports to prohibit in a manner
that is understandable to a person of ordinary intelligence, it
fails adequately to notify and is thus unconstitutionally
vague.
B. The Ordinance Encourages Arbitrary And
Discriminatory Enforcement.
28
“[T]he most important aspect of the vagueness doctrine is
guidelines to govern law enforcement.” Kolender, 461 U.S.
at 358 (internal quotation and citation omitted). Where a
criminal statute fails to provide such minimal guidelines, it
“may permit a standardless sweep [that] allows policemen,
prosecutors, and juries to pursue their personal
predilections.” /d. (internal quotation and citation omitted).
It furnishes a convenient tool for “‘harsh and discriminatory
enforcement by local prosecuting officials, against particular
groups deemed to merit their displeasure.”” Papachristou,
405 U.S. at 170 (quoting Thornhill v. Alabama, 310 U.S. 88,
97-98 (1940)). *
In Coates, an ordinance that subjected the right of
assembly to the unascertainable standard of whether persons
assembling on any sidewalk were “conduct[ing] themselves
in a manner annoying to persons passing by” could not stand,
in part because its violation could “entirely depend upon
whether or not a policemen [was] annoyed.” 402 U.S. at 614.
Similarly, in Kolender, a criminal statute that required
persons who loitered to provide “‘credible and reliable’
identification and to account for their presence when
requested by a peace officer under circumstances that would
justify a stop under the standards of Terry v. Ohio” was found
to be vague. The statute, the Court held, “vest{ed] virtually
complete discretion in the hands of the police to determine
whether the suspect ha[d] satisfied the statute... .” 461 U.S.
at 358. Like the ordinances in Coates and Kolender.
Chicago's ordinance provides no standards by which a police
The City suggests that a serious commitment to community policing
involves supporting “a greater leeway for state and local government to address
signs of chronic disorder on the streets.” Br. 15. While it is obscure what kind of
“leeway” the City might have in mind, it is perfectly clear that the ordinance is, in
See generally Brief of Amici Curiae National Black Police Association, et al.
29
officer can determine what conduct it prohibits, thus inviting
discriminatory enforcement. For this reason as well, it is
unconstitutionally vague.
Despite the critical role that a police officer plays under
the ordinance in determining when conduct lacks an apparent
purpose, neither the ordinance nor the General Order
provides any guidelines whatsoever for making that
determination. Instead, the determination is left to the
officer’s subjective, wholly discretionary judgment. The
City’s “talking” examples dramatically illustrate that this is
so. As noted, the City has indicated that some kinds of
communications between persons appear on the individuals’
sleeves, and others do not. Police officers are advised that
persons conducting street corner seminars on economics or
debating the constitutionality of this ordinance (or,
presumably, the likely outcome of this case) have no
“apparent purpose.” Nor do ministers who are arguing with
gang members. But police officers are also advised that gang
members asking for donations and persons soliciting the
votes of suspected gang members and others in their vicinity
do have an “apparent purpose” and are to be left alone. The
proposed distinction, which police officers are to make, is
that some talk is “chit-chat” and other talk is not. Br. 21, 38.
But how, conceivably, can police officers be expected to act
on such a distinction? They can’t ask what people are talking
about. Even if they could command answers (which they
cannot, Kolender, 461 U.S. at 360 n. 9), any answer would
divulge what the individuals’ actual purposes were. But the
ordinance instructs police officers to determine only whether
there is an apparent purpose; any actual purpose, the City
has instructed, is “immaterial.” Pet. Br. Ill. S. Ct. 52.
Police officers will not be able to distinguish ministers
and political candidates from other people. They will not
readily be able to determine the conterit of street corner
conversations. Moreover, under the intermediate scrutiny
30
test advanced by the City, Br. 24-25, neither the content of
the speech nor the identity of the speaker may be considered
in making the chit-chat assessment. Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989). See infra Section IIIL.C.
In sum, police officers are left completely to their own
devices, without standards, in determining when to enforce
and when not to enforce the ordinance. Because the
ordinance thus vests police officers with unlimited
enforcement discretion, it is like the ordinances in Coates and
Kolender, and is void for vagueness.
The City argues that the discretion of police officers is
limited because the ordinance requires that the “officer
‘reasonably believes’ that the group contains a member of a
criminal street gang.” Br. 34. While “reasonable belief” is
not, in itself, vague, whether a reasonable belief requirement,
in a particular context, serves to sufficiently limit police
discretion depends on what the reasonable belief must be of.
As the Illinois Supreme Court correctly noted, even if the
ordinance’s reasonable belief provision objectively limited
the discretion of police officers with respect to who is a gang
member, it “does absolutely nothing to cure the imprecisions
of the definition of the “loitering” element of the crime,” Pet.
App. 16a. That requirement, therefore, does nothing to save
the ordinance.
Thus, the City’s citations to Terry and Boos, Br. 35-36,
are unavailing. In both of those cases, while “reasonable
belief” was the level of certainty of criminal conduct required
before an officer could act, the criminal conduct itself was
sufficiently well defined. In fact, in Boos, it was the
definiteness of the law’s language that legitimized the move-
on order — not the other way around. Boos v. Barry, 485 U.S.
312, 332 (1988).*
** Finally, the inherent risk of arbitrary and discriminatory enforcement of
the ordinance is vividly illustrated by the record of Jesus Morales, one of the
defendants convicted of gang loitering. The arresting officer, Officer Frannie,
31
Because Chicago’s ordinance, even in combination with
the General Order, sets no standard with its prohibition on
being in public with “no apparent purpose,” it fails to provide
guidance to police officers as to how to enforce it. Moreover,
the enforcement policies of the City only highlight the
arbitrariness of the law. No amount of tinkering with, or
interpreting, other parts of the ordinance — either its putative
restrictions on whom to arrest and where, or its requirement
of a move-on order — will cure this underlying and fatal grant
of unfettered discretion to police officers and thus, no amount
of tinkering can save the ordinance from unconstitutionality.
admitted at trial that he originally approached Morales, who was standing with a
group of Hispanic teenagers talking to citizens on the corner in a Caucasian
neighborhood “because we wanted to know if they lived in the neighborhood or
from the neighborhood.” Morales, R. 6-7, 12-14. He did not recognize Morales
or any of the others. /d at 6. He did not ask any of them if they were gang
members. /d. at 8. 10. While he said that he knew that they were gang members
“from pass [sic] experience,” id at 8, he admitted that he made this judgment
specifically as to Morales and at least one of the other teenagers solely on the
basis that they were wearing blue and black clothing. /d at 8,10. A fair reading
of Frannie’s testimony — especially in light of his admission that he didn’t
recognize any of the teenagers — was that the “past experience” was simply his
experience that the colors worn by these individuals were allegedly gang colors.
(Instructively, the City asserts that some of the teenagers were self-admitted gang
members, Br. 34 n. 21, but it cites only to the arrest report. That report — which
was not offered in evidence — was fairly contradicted by Frannie’s own testimony
at (rial that “there were no statements made [as to possible gang membership of
any of the persons involved.J” /d at 10.)
This example highlights the fact that the vague terms of this ordinance clear
the way for a police officer or tner of fact to make decisions about whom to arrest
and convict based on whim, personal animus or outright racial discrimination.
32
ll. THE ORDINANCE UNCONSTITUTIONALLY
ABRIDGES THE RIGHT OF FREE
MOVEMENT IN PUBLIC PLACES AND
FORUMS.
A. The Ordinance Burdens Respondents’
Fundamental Right Of Free Movement In
Public Places And Forums.
Chicago’s ordinance abridges Respondents’ fundamental
right of free movement in public places and forums.” The
Illinois Supreme Court correctly recognized that the
ordinance burdens Respondents’ freedom of movement, and
held that the ordinance fails even the tolerant rational basis
test applicable to all legislation. Pet. App. 18a-19a; e.g,
Washington v. Glucksberg, 117 S. Ct. 2258, 2271 (1997). As
explained below, the right of free movement is embodied in
various Anglo-American charters of government and has
been identified by, among others, Blackstone, Kent, and
members of this Court dating back to Justice Washington and
Chief Justice Taney. This history at once clarifies the
fundamental nature of the right and refutes the City’s claim
that free movement under the Constitution is limited to
“travel abroad or from one state to another.” Br. 39. In fact,
that history, along with this Court’s free movement and right-
to-travel case law, reveals that the right to move between
* Respondents challenge the ordinance insofar as it unconstitutionally
affects the conduct both of suspected gang members and of persons not suspected
to be gang members. Thirty-four Respondents were charged with “loitering”
with “one or more” or “two or more™ persons who were alleged to be members of
a (sometimes named) criminal street gang. “The charges [in these cases} were
framed in the words of the [ordinance] and so must be given a like construction.”
Thornhill v. State of Alabama, 310 U.S. 88, 96 (1940).
33
jurisdictions is an extension of the even more fundamental, if
often implicit, right to move within them.”
The right of free movement is firmly grounded in our
nation’s history and tradition. The City’s strawman rhetoric
notwithstanding, this fundamental guarantee in no sense
amounts to a “fundamental right to loiter.” £.g., Br. 39, 40-
41. Rather, carefully described, it is the basic right of the
individual to free movement in public places and forums, and
the corollary right of the individual not to be banished from
public places and forums if he chooses to remain there, so
long as he is not threatening or engaging in otherwise
unlawful conduct. This is the timeworn right identified by
Blackstone: “[P]ersonal liberty consists in the power of loco-
motion, of changing situation, or removing one’s person to
whatsoever place one’s own inclination may direct... .” 1
William Blackstone, Commentaries *134. The right includes
going to, remaining in, and leaving, at one’s own pleasure,
such public places and forums as parks, plazas, streets,
sidewalks, and the myriad other public spaces in and around
*” Respondents’ assertion of their fundamental right of free movement is
fully consistent with Graham v. Connor, 490 U.S. 386 (1989), and cases
following Graham. Although substantive due process cannot safeguard a liberty
imterest that already enjoys “an explicit source of constitutional protection,”
County of Sacramento v. Lewis, 118 S. Ct. 1708, 1714 (1998) (quoting Albright
v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion)), the analysis in a
particular case cannot always be pigeonholed under the Bill of Rights, on one
side, or the Fourteenth Amendment, on the other: “Certain wrongs affect more
than a single right and. accordingly, can implicate more than one of the
Constitution's commands.” Soldal v. Cook County, 506 U.S. 56, 70 (1992); see
also United States v. James Daniel Good Real Property, $10 U.S. 43, 49-50
(1993). Im such cases, the Court “examine[s] cach constitutional provision in
turn,” Soldail, 506 U.S. at 70, and “[t}he proper question is not which Amendment
controls but whether [any] Amendment is violated.” James Daniel Good Real
Property, 510 U.S. at 50. Because Respondents’ right of free movement is
separate and independent of the speech and associational nghts protected by the
First Amendment, of the right not to be arrested except upon probable cause
protected by the Fourth Amendment. and of the right not to be punished solely on
the basis of status protected by the Eighth Amendment, it is properly analyzed as
a substantive component of the Fourteenth Amendment.
34
one’s neighborhood. Indeed, the free use of such places is,
an an integral and indispensable part of daily urban
Freedom of movement found perhaps its earliest
expression in the Anglo-American legal tradition in the
Magna Carta, which guaranteed free passage into and out of
England. Magna Carta, ch. 42 (1215). On this side of the
Atlantic, the Articles of Confederation provided that “the
people of each State shall have free ingress and egress to and
from any other State... .” Articles of Confederation, Art.
[V. The Rhode Island Charter explicitly granted that
colony's citizens the right “to passe and repasse with
freedome, into and through the rest of the English Collonies
...." Z. Chafee, Three Human Rights in the Constitution of
1787 177 (1956) (emphasis added). And Kent wrote that
“{e]very nation is bound, in time of peace, to grant a passage
for lawful purpose over their lands, rivers, and seas to the
people of other states ....” 1 James Kent, Commentaries on
American Law *34. In United States v. Wheeler, 254 U.S.
281, 293 (1920), the Court summarized the early American
tradition as follows: “In all the states, from the beginning
down to the adoption of the Articles of Confederation, the
citizens thereof possessed the fundamental right, inherent in
citizens of all free governments, peacefully to dwell within
the limits of their respective states, to move at will from place
to place therein, and to have free ingress thereto and egress
therefrom . . . .” (emphasis added).
™* The City’s suggestion that “loitering is the antithesis of travel,” Br. 40, is
shallow. An ordinance that prohibits otherwise law-abiding persons from
pausing. resting. or standing still in public places manifestly affects one’s
freedom of movement. Just as a meaningful nght of free speech must include a
right not to speak (e.g. West Virginia Bd of Educ. v. Barnette, 319 US. 624.
642 (1942)), and a meaningful nght of association must embrace a nght not to
associate (e.g. Abood v. Detroit Bd of Educ. 431 U.S. 209, 234 (1977), so a
meaningful mght of free movement must encompass a nght to remain in one
place.
35
Early formulations of the right of free movement made
clear that free movement within frontiers was the foundation
on which the right to travel across them was built. In
Corfield v. Coryell, 6 F. Cas. 546, 552 (C.C.E.D. Pa. 1823)
(No. 3,230), Justice Washington recognized the right of all
citizens to “pass through, or to reside” in any state of the
Union. Chief Justice Taney’s dissenting opinion in The
Passenger Cases, 48 U.S. (7 How.) 283, 492 (1849), later
embraced by a majority of the Court in Crandall v. Nevada,
73 U.S. (6 Wall.) 35, 48-49 (1868), is even more to the point:
“We are all citizens of the United States; and, as members of
the same community, must have the right to pass and repass
through every part of it without interruption, as freely as in
our own States.” (Emphasis added.)”
U.S. 110, 122 (1989).” In fact, the Court’s treatment of free
™* Rather than acknowledge the historical roots of the right of free
movement, the City observes that loitering laws have a “considerable pedigree”
tracing back to enactments in early England designed “to help
control their serfs...” Br. 41. This Court recognized long ago,
“the theory of the Elizabethan poor laws no longer fits the facts.” Edwards v.
California, 314 U.S. 160, 174 (1941). Indeed, most of the feudal laws from
* Although freedom of movement “has long been recognized as a basic right
under the Constitution.” Guest, 383 U.S. at 758, the Court has not always been
clear as to the textual source of that right. Eg. Williams v. Fears, 179 U.S. 270,
274 (1900) (due process clause of Fourteenth Amendment): Kent v. Dulles, 357
U.S. 116, 125 (1958) (due process clause of Fifth Amendment); Edwards v.
California, 314 U.S. at 173-74 (commerce clause): Twining v. New Jersey, 211
36
movement as a facet of substantive due process dates back at
least to Williams v. Fears, 179 U.S. 270, 274 (1900) where it
explained:
Undoubtedly the right of locomotion, the right to remove
from one place to another according to inclination, is an
attribute of personal liberty, and the right, ordinarily, of
free transit from or through the territory of any State is a
right secured by the Fourteenth Amendment and by other
provisions of the Constitution.
The Ninth Circuit struck a similar chord some thirty years
later, when, in invalidating a state law that like Chicago’s
under our constitution and laws, consists of the right of
locomotion — to go where one pleases, and when, and to
do that which may lead to one’s business or pleasure,
only so far restrained as the rights of others may make it
necessary for the welfare of all other citizens.
Territory of Hawaii v. Anduha, 48 F.2d 171, 172 (9th Cir.
1931) (citation and quotations omitted); see also Hague v.
CIO, 101 F.2d 774, 780 (3d Cir.) (affirming decree
“[i]ndividuals coming into or going about a city upon their
lawful concerns must be allowed free locomotion upon the
streets and public places”), modified and aff'd on other
grounds, 307 U.S. 496 (1939).
U.S. 78. 97 (1908) (privileges or immunities clause of Fourteenth Amendment).
Paul v. Virginia, 75 U.S. 168, 180 (1868) (privileges and immunities clause of
Article 1V), Crandall v. Nevada, 73 U.S. at 43-44 (general principles of
federalism). The Court's modern travel cases rest principally on the due process
and equal protection components of the Fifth and Fourteenth Amendments. Eg.
Aptheker v. Secretary of State, 37% U.S. 500. 505-06 (1964) (due process):
Shapire v. Thompson. 394 U.S. 618. 627 (1969) (equal protection): see also John
Paul Stevens. The Third Branch of Liberty, 41 U. Miami L. Rev. 277. 287-88
(1986).
37
Williams, Anduha, and Hague all followed logically from
the expressed understanding of at least one framer of the
Fourteenth Amendment, Representative Wilson, who quoted
Blackstone in explaining that the “liberty” to be protected by
the Due Process Clause “consists in the power of locomotion,
of changing situation, or moving one’s person to whatsoever
place one’s own inclination may direct... .” Cong. Globe,
39th Cong., Ist Sess. 1119 (Mar. 1, 1866) (quoting 1 William
Blackstone, Commentaries *134). Also apt was a question
This Court reaffirmed its grounding of free movement in
substantive due process in Kent v. Dulles, 357 U.S. 116
(1958), and Aptheker v. Secretary of State, 378 U.S. 500
(1964), both of which involved individuals denied
on the basis of their affiliations with the Communist Party.”'
In Kent 357 U.S. at 117-19, 130, the Court held that the
Secretary of State did not have the statutory authority to deny
passports on that basis. In so doing, it explained:
The right to travel is a part of the ‘liberty’ of which the
citizen cannot be deprived without due process of law
.... Freedom of movement across frontiers in either
direction, and inside frontiers as well, was a part of our
” Relying on Zemel v. Rusk, 381 U.S. 1 (1965), the Court in Regan v. Wald,
468 U.S. 222, 241-42 (1984), suggested that the right-to-travel aspects of
Kent and Aptheker were “controlled” by First Amendment concerns. The Zeme/
Court, however. addressed separately the First Amendment and due process
issues that had been raised in that case. 381 U.S. at 13-16 (due process); id. at
16-17 (First Amendment). In any event, to the extent Kent and Aptheker were
driven. in part. by the selective. association-based nature of the regulations at
issue. those regulations closely parallel! Chicago's ordinance. which restricts only
the movement of certain individuals on the basis of a disfavored association. See
Past 11. infra.
38
tata in li el ee —— . .
heritage. . . . Freedom of movesient is basic in our
scheme of values.
Id. at 126 (emphasis added). In Aptheker, 378 U.S. at 514.
the Court struck down the statute that authorized the denials
squarely on the basis of the Due Process Clause, quoting
Kent, and holding that because the prohibition at issue was
“supported only by a tenuous relationship between the bare
fact of organizational membership and the activity Congress
sought to proscribe[,)” the statute “swe[pt] too widely and
too indiscriminately across the liberty guaranteed in the Fifth
Amendment.”
The relevance of Kent and Aptheker to laws like
Chicago’s that restrict localized movement is demonstrated
by Kolender v. Lawson, 461 U.S. 352 (1983). In Kolender,
the Court struck down as impermissibly vague a state statute
that required persons who loiter or wander on the streets to
provide “credible and reliable” identification at the reques. of
a police officer who has reasonable suspicion of criminal
activity. /d. at 353-54. The Court relied explicitly on both
Kent and Aptheker in concluding that the statute
“implicate(d] consideration of the constitutional right to
freedom of movement.” /d at 358.”
Chicago's ordinance imposes an even greater burden on
freedom of movement than did the statute in Kolender. A
police officer needs no suspicion whatsoever of criminal
activity to take action under Chicago's ordinance. Indeed, if
the officer reasonably believes that a group of individuals
includes a gang member, he must order the group to disperse
even if he knows that nothing untoward is afoot. An
individual challenged under the ordinance in Kolender could
simply identify himself and avoid arrest; Chicago’s
ordinance, by contrast, provides no opportunity for its targets
to explain their purposes, so they must in every case move on
or face arrest.
In sum, freedom of movement encompasses more than
the mere right, in the City’s words, “to travel abroad or from
one state to another.” Br. 39. Although many of the Court’s
cases have involved burdens on travel between jurisdictions,
e.g., Shapiro v. Thompson, 394 U.S. 618 (1969), the Court
has been clear that those cases treat the right to travel “in
only a limited sense” and do not define the “ultimate scope”
of the right. Memorial Hosp. v. Maricopa County, 415 U.S.
250, 255 (1974). Our nation’s history and tradition,
particularly as they have been applied by this Court in the
context of substantive due process, demonstrate that the right
to travel across borders is but an outgrowth of the much more
basic right to travel within them. This was the conclusion of
the Third Circuit in Lutz v. City of York, 899 F.2d 255, 268
(3d Cir. 1990). There, the court reviewed at length this
Court’s right-to-travel and substantive due process
jurisprudence and concluded that “the right to move freely
about one’s neighborhood or town . . . is indeed ‘implicit in
the concept of ordered liberty’ and ‘deeply rooted in the
Nation’s history[,]’” and is therefore a fundamental right
protected by the Due Process Clause of the Fourteenth
Amendment.” Other lower courts agree with Lutz,” and to
*% The Lutz court upheld the vehicular cruising ordinance before it by
applying an intermediate standard of review that it analogized to First
Amendment review of content-neutral time, place, and manner restrictions. Lutz.
899 F.2d at 269-70 & n. 40. The Lutz court's application of intermediate scrutiny
is at loggerheads with this Court's approach to substantive due process, where
infringements of fundamental rights necessarily fail constitutional scrutiny unless
they are “narrowly tailored to serve a compelling state interest.” Reno v. Flores,
507 U.S. 292, 302 (1993). In any event, intermediate scrutiny would be
inappropriate in this case. The burden imposed by Chicago's ordinance — a
blanket prohibition of certain persons appearing idle in public — dwarfs the
40
the extent this Court perceives any constitutional distinction
between interstate and localized movement,” it has explicitly
declined to draw it. Memorial Hospital, 415 U.S. at 255.
Finally, the City contends that this Court’s decisions in
Colten v. Kentucky, 407 U.S. 104 (1972), and City of Dallas
v. Stanglin, 490 U.S. 19 (1989), “refuse to recognize a right
to go — or remain — wherever one wants.” Br. 40. Again, the
City mischaracterizes the interest at stake. Clearly, the right
of free movement in public places and forums does not afford
to anyone an unqualified license to roam the public streets
and parks completely free of any and all restrictions. As the
Lutz court recognized, the right is implicated, and heightened
scrutiny is warranted, only where a restriction imposes some
nontrivial burden on movement. Lutz, 899 F.2d at 270 n. 41
(“Nothing we say today suggests that more conventional
traffic regulations such as speed limits, stop signs, and the
like need now be subjected to heightened judicial scrutiny.”).
Wherever lies the line between trivial and nontrivial burdens,
requiring someone crossing the street at a busy intersection to
restriction of repetitive driving that was at issue in Lutz. Moreover, the Third
Circuit itself recognized that where restrictions on movement distinguish among
classes of travelers, as Chicago's does, the better analogy is to content-specific
restrictions of speech, which command a more exacting standard of review. Lutz,
899 F.2d at 270 n. 40.
* E.g., Hutchins v. District of Columbia, 144 F.3d 798, 806 (D.C. Cir. 1998)
(petition for reh’g pending) (invalidating juvenile curfew ordinance), aff'g, 942
F. Supp. 665 (D.D.C. 1996); id. at 825 (Tatel, J., concurring in judgment); Nunez
v. City of San Diego, 114 F.3d 935, 944 (9th Cir. 1997) (invalidating juvenile
rons ordinance); Waters v. Barry, 711 F. Supp. 1125, 1134 (D.D.C. 1989)
(same).
** Several lower courts have found the distinction insupportable. E.g., Lutz,
899 F.2d at 268; King v. New Rochelle Municipal Housing Authority, 442 F.2d
646, 648 (2d Cir. 1971); of Cole v. Housing Authority of Newport, 435 F.2d 807
(Ist Cir. 1970) (invalidating municipal durational residency requirement for
access to public housing as applied to applicant who moved from within state).
* Dicta in Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 277
(1993), indicate only that barriers erected by protesters in the vicinity of abortion
clinics do not burden ‘he right to interstate travel. The Court in Bray did not
address the right of localized movement involved here.
41
wait for a “walk” signal lies clearly to one side, and forcing
an otherwise law-abiding individual to remove himself from
a public place, on pain of arrest, lies as clearly to the other.”’
o > > SJ SJ
The right of free movement in public places and forums,
with its corollary right to remain in one place while there, is a
prerogative of every individual that is both “deeply rooted in
this Nation’s history and tradition,” Moore v. City of East
Cleveland, 431 U.S. 494, 503 (1977), and “implicit in the
concept of ordered liberty,” Palko v. Connecticut, 302 U.S.
319, 325 (1937). That the City’s ordinance severely burdens
that right is beyond question. The ordinance subjects to
dispersal or arrest every person who appears idle in public
with another — wholly without regard to his actual purpose
for being there, wholly without regard to whether he himself
is a gang member, and wholly without regard to whether he
has any reason to know or suspect that he is with a gang
member — anytime a police officer suspects that he or his
companion is a gang member. The areas the City has
designated for enforcement of the ordinance are constantly
subject to change, appear to be substantial, and in any event
are closely kept secrets, see Part I.A, supra, so the citizenry
cannot avail itself of even a single safe public haven within
the city limits. Thus, the City’s ordinance effectively
*”” As for Colten and Stanglin, neither of those cases considered the right of
free movement that is implicated by Chicago's ordinance. Stanglin addressed
only the First Amendment status of “chance encounters in dance halls,” involving
“hundreds of teenagers... .” 490 U.S. at 24-25. Colten, too, was primarily a
First Amendment case. There, the Court sustained a conviction under a
disorderly conduct statute that made unlawful the failure to obey a police order to
disperse where such refusal was accompanied by a specific intent to “cause public
inconvenience, annoyance or alarm.” 407 U.S. at 108. Unlike Chicago's
ordinance. the statute at issue in Colten required an individualized determination
by police that a particular person harbored a specific intent to cause a public
harm. Moreover, the defendant in Colten was free to move or cease moving
anywhere he pleased other than the crowded roadside scene of the traffic accident
from which he was ordered (five times over) to disperse; Chicago's ordinance, on
42
banishes from the public way a sizable portion of the
population, and in so doing substantially abridges the
fundamental right of free movement.
B. The Ordinance Fails Constitutional Scrutiny
Under Any Recognized Standard.
Because the City’s ordinance burdens fundamental rights,
it is subject to strict scrutiny. “In order to withstand strict
scrutiny, the law must advance a compelling state interest by
the least restrictive means available.” Bernal v. Fainter, 467
U.S. 216, 219 (1984); see also Miller v. Johnson, 515 U.S.
900, 920 (1995). Thus, the ordinance must “substantially
address, if not achieve, the avowed purpose.” Shaw v. Hunt,
116 S. Ct. 1894, 1905 (1996); see also Turner Broadcasting
System, Inc. v. FCC, 512 U.S. 622, 664 (1994) (“Turner I’)
(the government must prove that its law “will in fact alleviate
[the targeted] harms in a direct and material way”).
Ameliorating the violence, drug-trafficking, and
vandalism attributed to street gangs, see Br. 41-42, Pet. App.
60a, 65a, is a state interest of considerable moment. Ez,
United States v. Salerno, 481 U.S. 739, 748-49 (1987).
Likewise, the interest in preserving the stability of
neighborhoods, Br. 42, is worthy of “high respect.” Young v.
American Mini Theatres, Inc., 427 U.S. 50, 71 (1976)
(plurality opinion). But the existence of even a serious
problem does not justify any and all means that the City
might devise to address it. Here, the City has utterly failed to
establish that the ordinance satisfies any of the other
requirements of strict scrutiny.
Indeed, because the City erroneously insists that its
sweeping prohibition implicates no fundamental right, it
advances no argument whatsoever that the ordinance could
survive strict scrutiny. The City does, however, make much
of the City Council’s findings and of crime statistics
regarding gang violence. And if required to defend its
ordinance under strict scrutiny, the City no doubt would point
43
to the legislative findings and the crime statistics as proof.
The City, however, overstates the significance of the findings
and misstates the significance of the crime statistics.
As to the City Council’s findings, it is well-established
that legislative findings cannot, as a general proposition,
sustain a law that is unconstitutional. £.g., Dolan v. City of
Tigard, 512 U.S. 374, 394-96 (1994); Lucas v. South
Carolina Coastal Council, 505 U.S. 1003, 1010, 1021, 1040
(1992); Committee for Pub. Educ. & Religious Liberty v.
Nyquist, 413 U.S. 756, 773-74 (1973). The fact that the City
Council concluded that a sufficient nexus existed between the
ordinance and the evils of gang crime does not relieve this
Court of its independent duty to determine whether the
ordinance satisfies constitutional requirements. Sable
Communications of California, Inc. v. FCC, 492 U.S. 115,
129 (1989); City of Los Angeles v. Preferred
Communications, Inc., 476 U.S. 488, 495-96 (1986);
Landmark Communications, Inc. v. Virginia, 435 U.S. 829,
844 (1978); Keyishian v. Board of Regents, 385 U.S. 589,
608-10 (1967); see also Turner Broadcasting System, Inc. v.
FCC, 117 S. Ct. 1174, 1205 (1997) (“Turner IT’) (O’Connor,
J., dissenting). As part of this duty, the Court should
consider whether the Council’s factual justifications for the
law are based on substantial evidence and constitute
reasonable inferences from such evidence. Turner J, 512 U.S.
at 666; Edenfield v. Fane, 507 U.S. 761, 770-73 (1993).
It is perfectly clear from even a cursory review that the
legislative findings are little more than a self-justifying
preface to an ordinance driven more by political needs than
law enforcement needs. For example, the City Council
purports to find as a legislative “fact” that the City “has an
interest in discouraging all persons from loitering in public
places with criminal gang members.” Pet. App. 6la
(emphasis added). The hearing record is devoid of
information that non—-gang members who merely associate
44
with gang members, and are not themselves involved in any
criminal activities, in any way further criminal activities or
otherwise pose any threat to law-abiding citizens. In fact,
the Council had ample evidence to develop findings that were
quite the opposite of those it did develop regarding the
potential effectiveness of the ordinance. See Statement,
supra. The Council is certainly entitled to speculate, but its
unsupported conjecture is not entitled to much weight when
fundamental constitutional rights are at stake.
Nor do the crime statistics proffered by the City prove the
ordinance’s effectiveness. E.g., Br. 16. To begin with, such
statistics — and their potential for manipulation — must be
approached with significant analytical caution. In recent
years, Chicago, like most other cities, has realized a
substantial downward trend in the commission of serious
crimes. See Chicago Police Dep’t, Annual Report 1997, at
14. The potential causes for this phenomenon are varied and
their interrelationship hopelessly complex. Experts have
identified factors such as Chicago’s new system of
community policing, the improved economy, high
incarceration rates, demographic and population changes, gun
seizures, stabilization of drug markets, nuisance and violence
abatement programs, greater social stability, and decreases in
drug and alcohol use.*
In addition to the practical difficulty — if not impossibility
~ of drawing any reliable conclusions in this area, the City’s
own data, when examined as a whole, supports the notion
that the ordinance had no effect on gang-related homicides as
* Eg. Chicago Community Policing Evaluation Consortium, Community
Policing in Chicago, Year Four: An Interim Report, at 9 (Nov. 1997), National
Institute of Justice, Homicide in Eight U.S. Cities: Trends, Context, and Policy
Implications, at 3 (Dec. 1997), Fox Butterfield, Reason for Dramatic Drop in
Crime Puzzles the Experts, N.Y. Times, Mar. 29, 1998.
45
much as it supports the City’s proffered thesis.” See City of
Chicago, Gang and Narcotic Related Violent Crime: 1993-97
(June 1998). In fact, the record from the years that the
ordinance was enforced is quite mixed: in 1994, gang related
homicides increased faster than non—gang rellated homicides
(27% to 3%); but in 1995, gang related homicides decreased
faster than non—gang related homicides (26% to 4%). The
record from the post-enforcement years also is mixed: in
1996, gang related homicides increased by 7% while non-
gang related homicides decreased by 8%; whereas in 1997,
gang related homicides decreased by 19% while non—gang
related homicides increased by 1%. Significantly, taking the
two post-enforcement years as a whole, gang related
homicide decreased by 13%, while nom-—gang related
homicide decreased by just 7%.”
Reason and logic make plain the exceedimgly speculative
fit between the City’s ordinance and its objective of
preventing gang criminality. The likelihood that providing
police the ability to disperse a group that might contain a
gang member will prevent the commission off a gang-related
crime is remote. First and foremost, the fact that such an
assemblage is poised to commit a crime is sheer speculation.
In fact, nothing in the ordinance even requires such a
determination in any given case. Second, the City
acknowledges that gangs do not typically commit crimes in
** Instead of confronting the entirety of its own data set, the City selectively
emphasizes the years that support its theory and ignores the years that undermine
its theory. See Br. 16 & n.'11.
” Similarly, the report of Chicago Police Officer Louis J. Gaal indicates that
gang related homicides increased during the first two years of enforcement of the
ordinance, and decreased only during the third. See Louis J. Gaal, Statistics of
Anti-Gang Loitering Ordinance (Jan. 5, 1996). One comimentator incorrectly
cites the report of Officer Gaal as empirical evidence that gamg-related homicides
decreased during all three years of enforcement. See Tracey L. Meares, Social
Organization and Drug Law Enforcement, 35 Am. Crim. L. Rev. 191, 225 & n.
117 (1998). The City in turns cites this commentator’s conclusions as evidence
that the ordinance reduced gang crime. Br. 16n. 11.
46
full view of the police. It is difficult to imagine that forcing a
gang member contemplating criminal activity to move
around the corner, into the alley, or into his house will in any
significant number of cases prevent the contemplated crime
from taking place. If the threat of incarceration that exists by
virtue of laws already on the books is not a sufficient
deterrent, it strains reason to pretend that the ability to
disperse will be.
The ordinance fares just as poorly with respect to the
least restrictive means requirement. Indeed, it is the
antithesis of a narrowly drawn enactment. In the name of
preventing gang crime, it sweeps up a vast array of innocent
and, in many instances, constitutionally protected conauct.
In any given case, whether enforcement of the ordinance
prevents a crime from happening or whether it merely
abridges one’s fundamental rights is anybody's guess. And
by gratuitously extending the ordinance to prohibit loitering
even by non—gang members, the City Council guaranteed that
the police could disperse or arrest myriad individuals
engaged in harmless, legitimate, and often constitutionally
protected activities and posing no threat whatsoever to the
interests the ordinance purports to protect.*'
The City defends this course as a valid “prophylactic”
measure that “weigh(s] the benefits of prevention against the
cost of prohibiting conduct that is sometimes innocent,” Br.
43, but none of the cases the City cites supports its ordinance.
To begin with, none of the City’s “prophylaxis” cases
involved liberty interests commensurate with those at stake in
this case. In Day-Brite Lighting, Inc. v. Missouri, 342 U.S.
421, 423 (1952) (cited at Br. 43), for example, the Court
“' It was for these reasons that a number of individuals, including aldermen,
expressed serious concerns about the ordinance causing the infringement of the
basic freedoms of innocent people, both because of the vagueness of the
perceived to be gang members. Eg. Supp. R. I at 11-13, 17-18, 37-38, 43-44,
97-98, 101-02; Supp. R. II at 14-15, 57, 69-71, 77, 79, 85-89, 219, 229-32.
47
explained that the challenged legislation — a state law that
required employers to afford employees four hours paid leave
on election day — was “in form a minimum wage
requirement,” and that the state legislatures “may within
extremely broad limits control practices in the business-labor
field .. . .”; see also Washington v. Glucksberg, 117 S. Ct.
2258, 2271 (1997) (cited at Br. 43) (“[T]he asserted ‘right’ to
assistance in committing suicide is not a fundamental liberty
interest protected by the Due Process Clause.”); Lewis v.
United States, 445 U.S. 55, 65 n. 8 (1980) (cited at Br. 43)
(“These legislative restrictions on the use of firearms are
neither based upon constitutionally suspect criteria, nor do
they trench upon any constitutionally protected liberties.”).
While “prophylactic” legislation can, if narrowly tailored,
have the virtue of “prevent[ing] crime before it occurs,” Br.
10, it likewise has the vice, duly noted by this Court, of
“encompass{ing}] more than the core activity prohibited.”
United States v. O'Hagan, 117 S. Ct. 2199, 2217 (1997). For
that reason, the Court has long recognized that prophylactic
deprivations of personal liberty are inconsistent with our
fundamental conceptions of criminal justice and are ripe for
abuse by the authorities charged with their enforcement.
E.g., NAACP v. Button, 371 U.S. 415, 438 (1963) (“Broad
prophylactic rules in the area of free expression are suspect.
... Precision of regulation must be the touchstone in an area
so closely touching our most precious freedoms.”) (citations
omitted); Papachristou, 405 U.S. at 171 (“The implicit
presumption in these generalized vagrancy standards — that
crime is being nipped in the bud — is too extravagant to
deserve extended treatment.”); Colorado Republican Fed.
Campaign Comm. v. Federal Election Comm'n, 116 S. Ct.
2309, 2329 (1996) (Thomas, J., concurring in judgment and
dissenting in part) (“Broad prophylactic bans on campaign
expenditures and contributions are not designed with the
precision required by the First Amendment because they
48
sweep protected speech within their prohibitions.”); accord,
e.g., Thornhill v. State of Alabama, 310 U.S. at 105.”
The contrast between Chicago’s ordinance and the
prophylactic curtailments of liberty that this Court has
countenanced is stark. Under Chicago’s scheme, every group
of two or more people that contains even a single suspected
gang member and remains, apparently without a purpose, in a
single public place is deemed by legislative fiat to present
such a danger to the community that all of its members must
be ordered to disperse on pain of arrest and possible
incarceration. The terms of the ordinance and its
implementing administrative order are mandatory;
individualized assessment of dangerousness is required or,
for that matter, permitted, and once an officer has determined
that a suspected gang member is present, everyone —
suspected gang members, strangers to the police, and even
known non—gang members - is subject to dispersal and
arrest. See Pet. App. 6la, 72a. As a result, the ordinance is
wildly overinclusive. On its face, the ordinance applies to
two friends waiting to meet a third for dinner; to a mother
and her son getting a breath of fresh air on the sidewalk in
front of their home; to high-school sweethearts holding hands
on a park bench; to classmates hanging out across the street
from their school during their lunch break; and to teammates
waiting for an open basketball court (unless, of course, they
“ Indeed. the presumption underlying the City’s ordinance — namely, that
certain groups of individuals pose such a threat of future criminality that they
should be ordered to disperse on pain of arrest and possible incarceration -
should appear a familiar one to this Court. The Court has had several occasions
to review laws that abridge personal liberty on the basis of some prediction of
future dangerousness. and it has upheld such laws only under narrowly defined
circumstances that bear no resemblance to those now at bar. Compare. eg.
Salerno, 481 U.S. at 750-51, with Foucha v. Louisiana, 504 U.S. 71, 81-82
(1992). Moreover, Chicago's ordinance paints with far broader a brush than the
state law struck down in Foucha, which at least required a determination that the
individual defendant posed some threat to the community before any deprivation
of liberty could attach.
49
lawless” behavior at which the City claims the ordinance is
directed.
Finally, the fact that the City has ample alternative means
of addressing the problems it claims the ordinance is needed
to solve is proof positive that the ordinance is not the least
restrictive means for advancing the interests at stake. As the
Illinois Supreme Court correctly observed, “[mJany of the
offensive activities the city claims the gang loitering
ordinance will deter are already criminal acts.” Pet. App.
19a. Among other things, Illinois statutes proscribe
“intimidation,” 720 ILCS 5/12-6; “compelling organization
membership of persons,” 720 ILCS 5/12-6.1; “aggravated
intimidation,” 720 ILCS 720/6.2; “the assembly of two or
more persons to do an unlawful act,” 720 ILCS 5/2-1(2); and
“mob action,” 720 ILCS 5/25-1." Such laws serve the same
ends as the ordinance, but do so by means “directed with
reasonable specificity toward the conduct to be prohibited.”
Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971);
see also Foucha v. Louisiana, 504 U.S. 71, 82 (1982)
(striking down preventive detention scheme where, inter alia,
the state failed to “explain why its interest would not be
vindicated by the ordinary criminal processes involving
charge and conviction, the use of enhanced sentences for
recidivists, and other permissible ways of dealing with
* In addition to the host of criminal remedies available under state law, the
City also has available to it civil remedies, directed specifically at gang-related
activities, under the Illinois Streetgang Terrorism Omnibus Prevention Act, 740
ILCS 147/1, et seq.
50
that people have been testifying about today and Friday.
Is that your assessment? Are there already laws and
it’s just a question of enforcement?
MR. COOPER: I think there are already laws. | think
there are already enough laws on the books at this point,
criminal laws, criminal penalties which are much
different than the ones that are articulated in the
ordinance.
But certainly, there is always going to be situations
where there is no specific violation for or statute for, but
for the most part and in the examples that people have
been giving, I would think that 90 percent of those
instances are actually criminal offenses where people, in
fact, can be arrested.
Supp. R. II at 181-82. Later, Deputy Cooper was asked
“[bJjottomline, what is the police department’s position on
this ordinance? Do you folks want it or would you just prefer
that it not be on the books?” Supp. R. I] 185. Again, his
response was instructive:
Under the appropriate circumstances, the ordinance can
be a viable tool for the police. What I am suggesting,
however, is that there is much more that can be done
rather than an additional law on the books, and I would
51
prefer that the — ov I would rather suggest or request the
City Council, in its infinite wisdom, begin to look at the
totality of the problem as opposed to looking at it from a
one-dimensional point of view.
Supp. R. II at 185-86. Deputy Cooper’s testimony reveals
that separate and apart from the ordinance, the City has
available to it “other, reasonable ways to achieve [its] goals
with a lesser burden on constitutionally protected activity
...” Dunn v. Blumstein, 405 U.S. 330, 343 (1972).
Chicago’s ordinance is much more ethan “strong
medicine.” Br. 38. Whether it effectively prevents crime,
promotes neighborhood stability, or furthers any other
noteworthy state interest is a dubious proposition in and of
itself. It is clear beyond peradventure though that the
ordinance comes no where close to being a narrowly tailored
measure to combat those societal ills.
0 46o@ OO B: @
In any event, the ordinance is not “rationally related to
legitimate government interests.” Glucksberg, 117 S. Ct. at
2271. The Illinois Supreme Court struck down the Chicago
ordinance on this basis, holding that the law was “utterly
unreasonable.” Pet App. 18a. The court reasoned that the
ordinance was “arbitrarily aimed at persons based merely on
the suspicion that they may commit some future crime,”
without regard to “whether they are actually gang members
or have committed any crime.” /d This ruling is sound and
alone warrants affirmance.
The ordinance does not target the commission of crime,
or even the conditions that lead to crime. Instead, it targets in
blunderbuss fashion all persons who appear to be doing
nothing in public, whether or not they are gang members, and
whether or not they are committing or planning to commit a
crime, merely because they happen at a particular moment to
be with a suspected gang member. In this way, the law
sweeps innumerable innocent activities and law-abiding
52
citizens off of the streets.
Thus, the ordinance is doubly irrational. First, it
arbitrarily punishes countless individuals who have done
nothing criminal — or, for that matter, suspicious, beyond
appearing idle in public with a suspected gang member. See
Fenster v. Leary, 229 N.E.2d 426, 430 (N.Y. 1967) (striking
down vagrancy law under rationality review because law
impermissibly targeted “suspected criminals, with respect to
whom the authorities do not have enough evidence to make a
proper arrest or secure a conviction on the crime suspected”).
Second, by driving innocent persons from the public way,
and by attacking the social bonds that might help gang
members to live a better life, the ordinance destabilizes the
very communities the City seeks to help. See Hayes v.
Municipal Court, 487 P.2d 974, 980 (Okl. Ct. App. 1971)
(striking down loitering law under rationality review, stating
that “[t]o forbid people from being on public streets as a
preventive measure rings of a totalitarian police state
operated for the efficiency of the government and not in the
interest of a free people. All citizens are justly concerned
about crime. But, that concern must take rational expression
and not become a mindless fear that erodes the rights of a
free people.”).
In short, the ordinance is so arbitrary and irrational
that it cannot survive scrutiny under even a deferential
standard of review.
Ill. THE ORDINANCE IS SUBSTANTIALLY
OVERBROAD IN VIOLATION OF THE FIRST
AMENDMENT.
It is hardly a controversial proposition that laws that
interfere with citizens’ peaceful enjoyment of public streets,
sidewalks, and parks directly implicate all of the closely
allied First Amendment rights of speech, assembly, and
association. E.g., Coates v. City of Cincinnati, 402 U.S. 611,
53
615 (1971) (loitering ordinance directly implicates right of
assembly); Shuttlesworth v. City of Birmingham, 382 U.S.
87, 90-91 (1965) (loitering ordinance directly implicates First
Amendment freedoms). Nor is it surprising that an ordinance
targeted at public assembly, which makes no effort to
distinguish between lawful and unlawful gatherings, sweeps
within its broad reach numerous associational activities that
are not only innocent but constitutionally protected. From
the City’s point of view, the extraordinary breadth of the
ordinance is the mark of its effectiveness. This Court,
however, has taken a very different approach, repeatedly
stressing that “[p]recision of regulation must be the
touchstone in an area so closely touching our most precious
freedoms.” NAACP v. Button, 371 U.S. 415, 438 (1963).
A law that lacks “precision of regulation” can be fatally
overbroad in two distinct ways: “where every application
creates an impermissible risk of suppression of ideas, such as
an ordinance that delegates overly broad discretion to the
decision maker. and ... where the ordinance sweeps too
broadly, penalizing a substantial amount of speech that is
constitutionally protected.” Forsyth County v. Nationalist
Movement, 505 U.S. 123, 129-30 (1992) (citations omitted).“
Moreover, “[uJnder the First Amendment overbreadth
doctrine, an individual whose own speech or conduct may be
prohibited is permitted to challenge a statute on its face
‘because it threatens others not before the court — those who
desire to engage in legally protected expression but who may
refrain from doing so rather than risk prosecution or
“ The Court has explained that in assessing whether a legislative enactment
burdens a substantial amount of protected activity, it “evaluate[s] the ambiguous
as well as the unambiguous scope of the enactment. To this extent, the vagueness
of a law affects overbreadth analysis.” Village of Hoffman Estates v. The
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n. 6 (1982). This is so
because “ambiguous meanings cause citizens to steer far wider of the unlawful
zone than if the boundaries of the forbidden areas were clearly marked.” /d.
(internal quotation marks and alterations omitted).
54
undertake to have the law declared partially invalid.’” Board
of Airport Comm'rs v. Jews for Jesus, 482 U.S. 569, 574
(1987) (quoting Brockett v. Spokane Arcades, Inc., 472 U.S.
491, 503 (1985)).
The ordinance is unconstitutional under both strands of
the overbreadth doctrine because it reaches vast amounts of
constitutionally protected conduct, not only of the class of
suspected gang members at whom it is purportedly aimed,
but also of the millions in the general population of the City
of Chicago. Further, the ordinance abridges these vital First
Amendment freedoms in the very places in which they
should be most vibrant — traditional public fora.
The overbreadth of Chicago’s ordinance is neither
speculative nor marginal. A mother talking with her child on
the street corner will most likely be ordered to move on and
possibly be arrested by a police officer who has reason to
believe that her child belongs to a gang. Likewise, an anti-
gang counselor will lose the public way as a site for locating
and meeting with troubled youths.** Such results are not just
irrational. They directly and _ substantially burden
associational activities — both intimate and expressive — that
the First Amendment carefully safeguards. Moreover, this is
a paradigmatic case for invocation of the overbreadth
doctrine precisely because the City has not even attempted in
the ordinance to distinguish between gang members and non—
gang members. And the latter are most likely to disperse —
and sacrifice their associational rights — rather than risk arrest
to preserve a later constitutional challenge. E.g., Jews for
Jesus, 482 U.S. at 574; Brockett v. Spokane Arcades, Inc.,
472 U.S. 491, 503 (1985). Public frustration with gang
criminality cannot justify making criminals of all those who
* Eg. Affidavit of Julio Matias, % 4, 11 (Supp. R., Ex. A) (anti-gang
counselor expressing fear of being arrested in connection with gang intervention
activities). See generally Brief Amicus Curiae See Forever/The May Angelou
Public Charter School.
55
may associate lawfully with suspected gang members any
more than it can justify the ordinance’s hopeless vagueness.
While the City pays lip service to the notion that the
ordinance implicates no associational rights — e.g., its hollow
refrain that the ordinance “is directed at loitering, pure and
simple,” Br. 18 — it ultimately concedes, as it must, that the
terms of the ordinance have the potential to reach activity
protected by the First Amendment. Br. 22-23. But by
cobbling together overly narrow constructions of the
associational rights at issue with its unsubstantiated (and
unsound) claim that the “no apparent purpose” feature of the
ordinance will provide an ad hoc safe harbor for First
Amendment activity, the City attempts to quantify the
ordinance as covering only the “tiniest fraction” of protected
activity. Br. 23. As shown below, the City’s overbreadth
construct is seriously at odds with law and human
experience.
A. The Ordinance Substantially Burdens Intimate
Association.
“The Court has long recognized that, because the Bill of
Rights is designed to secure individual liberty, it must afford
the formation and preservation of certain kinds of highly
personal relationships a substantial measure of sanctuary
from unjustified interference by the State. . . . Moreover, the
constitutional shelter afforded such relationships reflects the
realization that individuals draw much of their emotional
enrichment from close ties with others.” Roberts v. United
States Jaycees, 468 U.S. 609, 618-19 (1984); see also Board
of Directors of Rotary Int'l v. Rotary Club of Duarte, 481
U.S. 537, 545 (1987).
The Court has wisely eschewed identifying with precision
the range of relationships protected by the right of intimate
association, but it has had occasion to give examples.
Among those that have been deemed entitled to protection
are ones that attend the creation and sustenance of a family,
56
including marriage, childbirth, the raising and education of
children, and the choice of living arrangements among
relatives. E.g., Zablocki v. Redhail, 434 U.S. 374 (1978);
Carey v. Population Serv. Int'l, 431 U.S. 678 (1977); Smith
v. Organization of Foster Families, 431 U.S. 816 (1977);
Moore v. City of East Cleveland, 431 U.S. 494 (1977). At
the same time, the Court has “not held that constitutional
protection is restricted to relationships among family
members.” Rotary Int'l, 481 U.S. at 545. Examples of
associations the Court has deemed unworthy of protection are
“large business associations,” Roberts, 468 U.S. at 620, and
“chance encounters in dance halls,” involving “hundreds of
teenagers,” City of Dallas v. Stanglin, 490 U.S. 19, 24-25
(1989). In short, “[djetermining the limits of state authority
over an individual’s freedom to enter into a particular
association . . . entails a careful assessment of where that
relationship’s objective characteristics locate it on a spectrum
from the most intimate to the most attenuated of personal
attachments.” Roberts, 468 U.S. at 620.
Even actual gang members — not to mention suspected
gang members and non—gang members — have relationships
that qualify for protection under the rubric of intimate
association. So do their parents, siblings, spouses, and
children. These persons — gang members, actual or
suspected, on the one hand, and their parents, siblings,
spouses, and children, on the other — are all entitled to the full
measure of constitutional protection afforded their intimate
relationships. Anyone familiar with urban life can appreciate
that there is much in the way of constitutionally cognizable
intimate association that takes place on the street corner, on
the sidewalk, and in the neighborhood park. It is in these
places that people, including gang members, spend important
and meaningful time with parents, siblings, children, and
neighbors. Indeed, in many neighborhoods where the
sidewalk and streets often serve as an extension of the home,
57
this kind of activity is a vital piece of the fabric of life. But
under the ordinance, the right to engage in this broad range of
intimate — and innocent — association is subject to the
Hobson’s choice of dispersal or arrest. Both significantly
burden the right of intimate association.
The City casually dismisses the ordinance’s serious
impingement on intimate associational rights by proclaiming
that “there is nothing that is ‘intimate’ ab «it loitering in
public.” Br. 21. But nothing in this Court’s decisions
suggests such a crabbed view of intimate association that
would automatically deny protection to any activity that takes
place out of doors. To the contrary, it is the nature of the
association itself, not whether it happens to occur indoors or
out, that triggers First Amendment protection. See Roberts,
468 U.S. at 618-19; Rotary Int'l, 481 U.S. at 545-46. Nor
does the reality of human experience jibe with the City’s
view. Additional examples abound. A suspected gang
member, with other family members, watching his child at
play; parents sitting in the park with their gang-member son;
a father and son discussing the latter's job opportunities on
the sidewalk in front of their home; even a suspected gang
member proposing marriage to his girlfriend along Chicago's
lakefront. The City’s view not only belies an unfortunate
class and cultural myopia, but also underscores forcefully the
fact that the “no apparent purpose” feature of the ordinance
does absolutely nothing to safeguard rights of intimate
* The City cites Rotary International and Stanglin. It cites Rotary
International as authority for the broad proposition that “the right of intimate
association does not extend to “activities carried on in the presence of strangers.”
Br. 21. The quoted portion is plucked out of context, however, and the Rotary
Court merely considered the presence of strangers at — or, more accurately, the
Rotary Club's policy of inviting of strangers to — its meetings as one factor
among many that defeated the Club's claim that its activities were protected
intimate association. The City cites Stanglin for the unremarkable proposition
that the Constitution recognizes no generalized right of social association. Br.
21. Moreover, Stanglin, with its “chance encounters” among as many as 1,000
strangers, 490 U.S. at 22, is obviously of no particular guidance here.
58
association. If it is the City’s position that intimate
associational rights cannot by definition be exercised in
public, a fortiori it will never be apparent to the City’s police
officers that an act of intimate association is occurring.
B. The Ordinance Substantially Burdens
Expressive Association.
Chicago's ordinance also impinges the right of expressive
association of both gang members and those who interact
with them. This Court has “long understood as implicit in
the right to engage in activities protected by the First
Amendment a corresponding right to associate with others in
pursuit of a wide variety of political, social, economic,
educational, religious, and cultural ends.” Roberts, 468 U.S.
at 622. The City has all along conceded in this litigation, as
it has had to, that the plain terms of the ordinance have the
capacity to burden this right of expressive association. For
example, the City acknowledged to the trial court that the
ordinance could apply to members of a community outreach
group who were attempting to persuade a gang member to
leave his gang, Pet. App. 57a; to a minister arguing with gang
members, Pet. Reply Br. Ill. App. Ct. 22; to a street corner
seminar on President Clinton’s economic programs, Pet. Br.
Tr. Ct. 26-27; or to a debate over the constitutionality of the
ordinance itself, Pet. Br. Ill. S. Ct. 43, so long as in each case
a police officer reasonably believed a gang member to be
present at the discussion.”
“ The City has had occasion elsewhere to argue that gangs engage in
expressive activity protected by the First Amendment. In seeking relief from an
injunction restricting its investigations of First Amendment activities (“Decree”),
the City represented to the court there as follows:
Chicago gangs are ongoing organizations continually engaged in assorted
criminal activity. However, because a gang may be or claim to be involved
in First Amendment activity, the Decree inhibits the maintenance of records
of gang membership . . . . Moreover. gangs are increasingly engaged in
political activities. This means that investigations of gangs will increasingly
implicate the Decree. Indeed, once a gang begins engaging in political
59
The fact that the ordinance reaches expressive
association, and does so in a substantial way, is not some
mere “hypothetical possibility.” Br. 22. Orgamized social
groups, from proselytizers to grassroots politicians, associate
with gang members — often without outwardly apparent
purposes. And as communities attempt to reclaim their
troubled youth, gangs themselves have become increasingly
engaged in community-based political activities that are
traditionally protected as expressive association. E£.g,
Pamela Constable, “Peace Summit” Aims to Steer Young
Latinos From Gang Violence, Wash. Post, Apr. 4, 1996, at
BS (gang members formulating “peace plan” for Latino
community development); Don Terry, Chicago Gangs,
Extending Turf, Turn to Politics, N.Y. Times, Oct. 25, 1993,
at Al2 (gang involvement with health care, education, voter
registration and supporting of candidates); Gang Summit
Ends With Call For Jobs, L.A. Times, May 3, 1993, at Al3
(policy positions of gang summit on employment and civil
rights issues).
activity, a substantial claim may be made that gang membership itself may
be First Amendment information within the meaning of the decree.
Memorandum of City of Chicago in Support of its Motion to Modify the 1982
Alliance Consent Decree at 35, Alliance to End Repression v. City of Chicago,
No. 74 C 3268 (N_D. IIL) (filed 3/7/97) (citations omitted; emphasis added), see
also Irving A. Spergel. The Youth Gang Problem: A Community Approach \20-
24 (1995) (detailing active participation of Chicago street gangs in electoral
politics during past several decades).
“ See also Marcia Slocum Greene, Cleaning Up A D.C. Community's ‘War
Zone’; Joined In A New Battle, Old Rivals Work To Erase Signs of Simple City's
Brutal Past, Wash. Post, Feb. 26, 1997, at Bl; Marylynne Pitz, Survivors of
Gang Warfare Were Abundant At the Rally; Members of 4 Gangs Go To Rally
For Peace, Pittsburgh Post-Gazette, Sept. 3, 1996, at Bl; George Papajohn,
Gangs Aren't Rookies in City Politics, Chi. Trib., March 31, 1995, sec. | at 1.
Doug Smith, Valley Gang Members Join To Mark Peace Anniversary, L.A.
Times, Oct. 30, 1994, at Bl; George Papajohn, A Peek Behind Gang's Talk of
Political Action, Chi. Trib., Oct. 2, 1994, sec. 2 at 1; John Kass & George
Papajohn, Group's Rapid Success a Real Inside Story, Chi. Trib., July 24, 1994,
sec. 4 at 1; Jackson Tells Gang Members They're Ai Cutting Edge of Civil Rights
60
The ordinance is all the more inimical to the First
Amendment because the areas most affected by the ordinance
- public streets, sidewalks, and parks — are the
quintessential public fora. United States v. Grace, 461 U.S.
171, 180 (1993); Boos v. Barry, 485 U.S. 312, 318 (1988).
Restrictions on the liberties guaranteed by the First
Amendment are most abhorrent within those areas that have
“immemorially been held in trust for the use of the public,
and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and
discussing public questions.” Perry Educ. Ass'n v. Perry
Local Educaiors’ Ass'n, 460 U.S. 37, 45 (1983) (quoting
Hague v. CIO, 307 US. 496, 515 (1939)); see also
International Soc'y for Krishna Consciousness, Inc., 505
U.S. at 678-79; Frisby v. Schultz, 487 U.S. 474, 481 (1988);
Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S.
788, 802 (1985). Public streets, the Court has held, are “the
archetype of a traditional public forum.” Frisby v. Schultz,
487 U.S. 474, 480 (1988).
Again, the reality of the human experience in urban
neighborhoods — particularly in poor and minority areas -
forcefully illustrates the wide net that the ordinance casts
over expressive association. The streets and sidewalks do not
function exclusively as fora for large-scale rallies or formal
demonstrations. Most discussion of matters of public interest
and concern is informal and private; neighbors discussing the
state of city services, the conditions of alleys, the arrival of
Asian beetles, or their views about street gangs are all
associating for expressive purposes but will rarely exhibit a
purpose “apparent” to an objective observer. In fact, formal
demonstrations, marches, and parades are few in number
compared to the everyday use of the streets for expressive
association. But the ordinance operates to burden this
Push. L.A. Times, Oct. 25, 1993, at Al6, Gang Members Turn From Sireets to
Talk of Peace. N.Y. Times, May 2, 1993, at |.
61
infinite variety of expressive association in one of two ways:
dispersal or arrest.
The ordinance’s burden on associational rights is further
exacerbated by its “guilt by association” feature. As
explained in Healy v. James, 408 U.S. 169, 186 (1972),
government cannot “impos{e] criminal sanctions or deny[]
rights and privileges solely because of a citizen's association
with an unpopular organization . . . [G}uilt by association
alone, without establishing that an individual's association
poses the threat feared by the Government, is an
impermissible basis upon which to deny First Amendment
rights.” /d at 186 (citations and internal quotation marks
omitted); see also Aptheker v. Secretary of State, 378 U.S.
500, 514 (1964) (“The prohibition against travel is supported
only by a tenuous relationship between the bare fact of
organizational membership and the activity Congress sought
to proscribe. The broad and enveloping prohibition
indiscriminately excludes plainly relevant considerations
such as the individual's knowledge, activity, commitment,
and purposes in and places for travel.”); cf Mitchell v.
Prunty, 107 F.3d 1337, 1342 (9th Cir. 1997) (Kozinski, J.)
(rejecting as “guilt by association” the argument that gang
membership alone is evidence that defendant aided and
abetted a murder).”
” Contrary to petitioner's suggestion, e.g, Br. 5, n. 3; Br. 35, n. 23, the
ordinance in this respect bears little resemblance to other statutory schemes that
are directed against ongoing criminal enterprises. For example, there is no
criminal liability under the substantive provision of the federal Racketeer
Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1961, ef seq.,
unless the government can prove that an employee or associate of a criminal
enterprise conducted or participated in the enterprise's affairs “through a pattern
of racketeering activity,” i.¢., through the commission of two or more enumerated
crimes. /d § 1962(c). Nor is there liability under the conspiracy provision of
RICO, id § 1962(d), without proof of the defendant's “inten[t] to further an
endeavor which. if completed. would satisfy all of the elements of a substantive
criminal offense ... .” Salinas v. United States, 118 S. Ct. 469, 477 (1997).
State laws that target gang membership likewise require proof of criminal
conduct or intent before imposing punishment. E g., Cal. Penal Code § 186.22(a)
62
In its effort to dismiss the substantial burden the
ordinance places on expressive association, the City advances
two fictions. First, it inexplicably quantifies the amount of
expressive association at stake as the “tiniest fraction.” Br.
23. As support for this extraordinary conclusion, the City
tells us that none of the Respondents was doing “anything [ ]
protected by the First Amendment.” Br. 22. The record of
course furnishes no particularized facts to support this
sweeping assertion. Moreover, even if the City’s assertion
were true, it would completely beg the question of facial
overbreadth since that question concerns not the details of
Respondents’ arrests but rather whether there is “a significant
potential for unconstitutional application of the ordinance.”
City of Houston v. Hill, 482 U.S. 451, 458 n. 6 (1987)
(emphasis in original); see also City of Lakewood v. Plain
Dealer Pub. Co., 486 U.S. 750, 759 (1988); Kolender v.
Lawson, 461 U.S. 352 (1983); Coates v. City of Cincinnati,
402 U.S. 611 (1971); Shuttlesworth v. City of Birmingham,
(Califorma Street Terrorism Enforcement and Prevention (“STEP”) Act does not
punish gang membership unless member had “knowledge” that gang has engaged
in “pattern of criminal gang activity.” and member “willfully promotes, furthers.
Of assists in any felonious criminal conduct by members of that gang”); id at §
186.22(b\ 1) (STEP Act does not enhance criminal sentence unless gang member
committed felony “for the benefit of. at the direction of. or in association with
ten dion, Seobet Geapone abl teen Sinai ation aur af
capacity of an agent for or accessory to, or is legally accountable
voluntarily associates himself with a course or pattern of gang-related criminal
ivity”)
63
382 U.S. 87 (1965). On that question a far more pertinent
statistic is the City’s assertion that its officers issued some
45,000 dispersal orders that were obeyed under the authority
of the ordinance. Br. 16.
The City’s second attempt to trivialize the ordinance’s
burden on expression is its assurance that most of whatever
little expressive association transpires on the streets of
Chicago will have an “apparent purpose.” Agreement from
this Court on this proposition would amount to an
extraordinary retreat from the teaching of this Court's
jurisprudence in this area. This point cannot be
overemphasized. Conditioning the exercise of a fundamental
right such as expressive association upon the “moment-to-
moment judgment of the policeman on his beat,” Smith v.
Goguen, 415 U.S. 566, 575 (1974) (quoting Gregory v. City
of Chicago, 394 US. 111, 120 (1969) (Black, J.,
concurring)); see also Kolender, 461 US. at 358;
Shuttlesworth, 382 U.S. at 90, is something this Court has
vigilantly guarded against. While anyone will surely
recognize a parade or a formal demonstration for what it is,
the opportunities for expressive association beyond these
isolated, large-scale events are enormous, not just some “tiny
fraction.” And in that gulf of expressive opportunities, the
City’s conjecture that citizens’ purposes will be apparent to
the police simply is not sufficient protection. The
preservation of First Amendment freedoms should not be
made to hang in the balance of the ability of individual police
officers to divine the purposes of persons exercising those
rights.”
“ The avowed target of Chicago's ordinance is criminal street gang activity.
However if the City’s law is upheld, any ordinance using the City’s definition of
“criminal street gang” — which, in the City’s words, “largely track[s] the
definition of an ‘enterprise’ . . . in the federal racketeering statute” (Br. 4-5 n. 3) —
could be used prospectively to subject members of countless grass roots advocacy
organizations to similar restraints on speech and association without any
individualized judicial finding of wrongdoing. Groups such as ADEPT,
64
C. The City Wrongly Asserts That The Ordinance
Passes Scrutiny As An Incidental Burden On
First Amendment Rights.
Because the ordinance substantially burdens First
Amendment rights, it is overbroad an . valid on its face.
Jews for Jesus, 482 U.S. at 574. Starting from the contrary —
and faulty — premise that the ordinance only burdens speech
incidentally, the City argues that the ordinance should be
subjected to an intermediate level of scrutiny like that used in
United States v. O'Brien, 391 U.S. 367, 376 (1968), or for
time, place, and manner restrictions, Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989), and that the ordinance
easily satisfies such scrutiny. Br. 24-25. The only plausible
explanation for the City’s use of the intermediate test is its
recognition that the ordinance flunks strict scrutiny, which it
plainly does. See Part I1.B, supra.
Even if the law warranted scrutiny of the ordinance as a
would not survive. Government may impose time, place, and
without reference to the content of the regulated speech, that
they are narrowly tailored to serve a significant government
interest, and that they leave open ample alternative channels
for communication of the information.”” Ward, 491 U.S. at
791 (quoting Clark v. Community for Creative Non-Violence,
468 U.S. 288, 293 (1984)). Relatedly, under the O’Brien
test, “the governmental interest must be unconnected to
5/25-1(2) — as part of a course of civil
pe rn Py pe yp agp! on gar tne yaar gaphlbasar
members gather in public with “no apparent purpose.” C/,
Orpanisation of Women, Inc. v. Scheidlor, Ne 96 C 7288 (ND. mi) Gury fading
that anti-abortion group, Pro-Life Action Network, was RICO enterprise and that
its operation), on remand from 510 U.S. 249 (1994).
65
expression.” Texas v. Johnson, 491 U.S. 397, 407 (1989).
The ordinance meets none of these requirements.
Here, the City’s interest is not unconnected to
association. Rather, it fargefs association, and includes
within its sweep myriad forms that are both entirely innocent
and constitutionally protected. Nor is the ordinance content-
neutral. Persons subject to the ordinance are identified by
their status as purported gang members. With respect to
persons who are not gang members, but wish to engage in
various forms of expression and association with gang
members, the ordinance similarly imposes a content-based
disability forbidden in the decisions of this Court. Simon &
Schuster, 502 U.S. at 115-16 (identity of speaker not basis for
content-based disincentives on expression); Boos, 485 U.S. at
312 (ban on particular class of derogatory signs); Police
Department v. Mosley, 408 U.S. 92 (1972) (ban on all but
labor picketing is content-based); Bellotti, 435 U.S. at 784-85
(legislature not permitted to dictate which speakers may
address public issue). Contrary to the City’s position, Br. 25,
the conclusion that the ordinance is content-based flows from
its selective designation of persons disqualified from
speaking and associating on the public ways, not from its
impact on or relation to particular private conversations.
Nor is the ordinance narrowly tailored to serve the City’s
substantial interests in crime prevention and maintenance of
public order. In a variety of situations, this Court has held
that restrictions on expression and association are not
narrowly drawn where government can enact or enforce
specific laws addressing particular crimes or civil ills. Of
particular note is DeJonge v. State of Oregon, 299 U.S. 353,
365 (1937), where the Court directed the State to enforce
valid laws protecting public order in preference to
criminalizing peaceable assembly. See also Village of
Schaumburg, 444 U.S. at 636-37 (charitable solicitation;
crime and fraud); Coates, 402 U.S. at 614 (assembly and
66
association; traffic and public order laws); Schneider v. State
of New Jersey, 308 U.S. 147, 164 (1939) (leafletting; littering
laws).
Finally, denial of the public wavs as a gathering place for
alternative channels for communication. Gang members and
those who would associate with them cannot be confined to
formal modes of expression or to a state of constant
movement. Br. 27. They are entitled, as are any other
citizens, to use the streets for informal assembly, exchanging
ideas, and discussing public questions. Hague v. C/O, 307
U.S. 496, 515-516 (1939); see also United States v. Kokinda,
497 U.S. 720, 728 (1990) (public sidewalk as facilitating
daily life and commerce of neighborhood or city). When
expression and association are banned in specific locations
often the only alternative. Heffron v. International Soc 'y for
Krishna Consciousness, 452 U.S. 640 (1981) (state
fairgrounds); City Council of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 812 (1984) (posting signs prohibited;
leafletting on street allowed); Frisby, 487 U.S. at 483
(single-home targeting banned; forum otherwise available).*'
So long as gang members and those who would associate
with them behave lawfully on the public ways, their rights,
“' In arguing that the ordinance leaves open adequate alternative channels for
communication, the City claims that the ordinance will only be enforced in those
“limited areas” designated pursuant to General Order 92-4. Br. 28. At the same
time, despite a request under the Illinois Freedom of Information Act and
subsequent FOIA litigation. the City has refused to disclose to the public which
areas have been so designated. clasming that to do so would impair the ability of
the police to fight crime. See note 20, supra. Nevertheless, it is clear that the
areas designated are substantial, as noted above. the ordinance was enfurced in
twenty-four of twenty-five police districts, and was enforced on streets. in parks.
at schools, and at housing projects. See p. 25. supra in these circumstances, no
one will ever know where in the City he can safely stand with others in public. or
even where in public he can safely remove to if ordered under the ordinance to
disperse: the “alternative channels” cited by the City are thus illusory.
67
like those of the general public, should be subject to the rule
long applied by this Court. “[O]ne is not to have the exercise
of his liberty of expression in appropriate places abridged on
the plea that it may be exercised in some other place.” Schad
v. Borough of Mount Ephraim, 452 U.S. 61, 76-77 (1981)
(quoting Schneider v. New Jersey, 308 U.S. 147, 163 (1989)).
IV. THE ORDINANCE VIOLATES THE EIGHTH
AMENDMENT BY CRIMINALIZING STATUS.
Criminalization of status alone imposes cruel and unusual
punishment in violation of the Eighth Amendment. Robinson
v. California, 370 U.S. 660, 666-68 (1962). Accordingly,
“criminal penalties may be inflicted only if the accused .. .
has committed some actus reus.” Powell v. Texas, 392 U.S.
514, 533 (1968) (plurality opinion). Thus, while the state
my criminalize the conduct of public drunkenness, even
when committed by an alcoholic, Powell, 392 U.S. at 532, it
may not criminalize the status of narcotics addiction.
Robinson, 370 U.S. at 666-67. Together, Robinson and
Powell prohibit the use of the penal power of the state against
persons, defined by their status, solely upon the belief that
they are more prone to criminal behavior than others.
Chicago’s ordinance unconstitutionally criminalizes both
the status of gang membership, and the status of being an
associate of a gang member (broadly defined by the
ordinance to include anyone who for any reason is with a
suspected gang member). The offense the ordinance purports
to create lacks an actus reus — the foundation of all criminal
statutes
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