# Respondents Brief — Chicago v. Morales > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0150%3A11 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1999 - **Citation:** 527 U.S. 41 ## Text -—— ~~. 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 problem [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0150%3A11. Public record. Not legal advice.