Amicus Curiae Brief — Chicago v. Morales

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No. 97-1121

Iu the Supreme Court of the United States

OCTOBER TERM, 1997

CITY OF CHICAGO,

Petitioner,

JESUS MORALES, ET AL.,

Respondents.

On Writ of Certiorari to the

Supreme Court of Illinois

BRIEF OF AMICI CURIAE

NATIONAL DISTRICT ATTORNEYS ASSOCIATION

AND INTERNATIONAL ASSOCIATION OF CHIEFS

OF POLICE IN SUPPORT OF PETITIONER CITY

OF CHICAGO

WILLIAM L. MURPHY KRISTIN LINSLEY MYLES

District Attorney DANIEL P. COLLINS*

Richmond County STEPHEN E. MORRISSEY

(Staten Island), N.Y. MUNGER, TOLLES & OLSON LLP

President: National District 355 South Grand Avenue

Attorneys Association, Inc. Los Angeles, CA 90071

99 Canal Center Plaza (213) 683-9100

Suite 510

Annentria, VA 35814 Counsel for Amici Curiae

WAYNE W. SCHMIDT National District Attorneys

Suite 1008 Association and International

5519 N. Cumberland Avenue Association of Chiefs of Police

Chicago, IL 60656

* Counsel of Record

TABLE OF CONTENTS

Is a Targeted Response to the Very

Real Problems Posed by Criminal

. The Deleterious Effects of Loitering

by Street Gang Members Are Well

. The Illinois Supreme Court Erred in

Concluding That the Chicago Gang

Loitering Ordinance Was Unconstitutionally

1. The Requirements of the Vagueness

Doctrine

2. The Ordinance Is Not Impermissibly

Individual Police Officers To Issue

b. The Lower Court Erred In

Concluding That The Ordinance

Does Not Sufficiently Limit

Discretion To Issue Dispersal

SESE ARO EM CTO OCTET TTT ET

(1) The Ordinance’s Definition Of

“Loitering” Is Not Unconstitu-

tionally Vague ........-- 66s 000s

(2) The Ordinance Sufficiently

Defines “Criminal Street

Gang Member” ...........--555>

c. The Ability of Individual Officers To

Issue Dispersal Orders Is Further

Limited By The Applicable

Implementing Regulations ...........

d. The Ordinance Provides Adequate

Notice to Citizens of The Conduct

It Requires ....... cece cece seeeeces

C. The Ordinance is Fully Consistent With

this Court’s “Substantive Due Process”

Jurisprudence ........... cee eee eee enees

CONCLUSION ..... ccc ccc ccc c cee e eee nnceees

TABLE OF AUTHORITIES

Page

Cases

Boos v. Barry, 485 U.S. 312 (1988) .............c.csss0000 passim

City of Dallas v. Stanglin, 490 U.S. 19 (1989) .......... 5, 28

Collins v. City of Harker Heights,

I incase cerrtiieniteetaicaciigteninenntienitnions 29

Colten v. Kentucky, 407 U.S. 104 (1972) .......000000cccccccceee 24

Cox v. Louisiana, 379 U.S. 536 (1965) ..0.....0..0cc. 4, 24

Cox v. Louisiana, 379 U.S. 559 (1965)... ccccoees 24

Daniels v. Williams, 474 U.S. 327 (1986) .......0000000000000.. 12

Edwards v. California, 314 U.S. 160 (1941) ................. 28

Ellis v. Dyson, 421 U.S. 426 (1975) .....cccccccccccccccecceeseeees 18

Grayned v. City of Rockford,

408 U.S. 104 (1972) .........ccccccccccccceceeees 12, 13, 22, 24

Highland Farms Dairy, Inc. v. Agnew,

I tliat arc eessentnntagnmunnnninannnenio 23

Hutchins v. District of Columbia,

1858 U.S. App. LEXIS 10303

ts ECPI: ME ee a 28

Kelley v. Johnson, 425 U.S. 238 (1976) ........ooococcccccceees 28

Kent v. Dulles, 357 U.S. 116 (1958) .0......-.0o.ooococcccccecceee 28

Kolender v. Lawson, 461 U.S. 352 (1983) .............. passim

Lanzetta v. New Jersey, 306 U.S. 451 (1939) ............ 4,19

Maynard v. Cartwright, 486 U.S. 356 (1988) ................ 16

New York v. Uplinger, 467 U.S. 246 (1984) ....000.000000000.. 18

Ornelas v. United States,116 S. Ct. 1657 (1996) ..... 19, 20

TABLE OF AUTHORITIES

Page

Cases

Papachristou v. City o/ Jacksonville,

405 U.S. 186 (1GTED ..2.0<0000000secccvescccscesvevesseesees passim

People ex rel. Gallo v. Acuna,

14 Cal. 4th 1090 (1997) ...........ccccccceccceeeeeeeereennnnenenees 8

People v. Agnello, 259 Cal. App. 2d (1968) ......-......-00 20

People v. Curtis, 70 Cal. 2d 347 (1969) ........--.---eeeree 26

Reno v. Flores, 507 U.S. 292 (1993) .............ccccceeeeeeees 5, 28

Shuttlesworth v. City of Birmingham,

SBS UB. BT CUBS) ..0ccccccveecceccesscsvccvccscsccccscesesee passim

Smith v. Goguen, 415 U.S. 566 (1974) ...........ccccccceeeeees 12

Stone v. Powell, 428 U.S. 465 (1976) ..............ccc.cceeeeeeees 18

Touby v. United States, 500 U.S. 160 (1991) ...........-...-. 23

Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489 (1982) ..... 18, 23

Ward v. Rock Against Racism,

491 U.S. 781 (19S) .....cccccceccceeeccosccercvecceserececeeees 4, 23

Washington v. Glucksberg,

117 S. Ct. SVES (1GST) .......cccccecroeceeeccesceesceecersecsessees 28

Statutes And Rules

Chicago Municipal Code § 8-4-015 .................::00+++ passim

Supreme Court Rulle 37 .............cc.ccceeceseseeeernennennennnnnnnnns 1

US. Const., amend. XIV, § 1 .................0ccccccererrereenesnnsees 12

TABLE OF AUTHORITIES

Law Review Articles

Kahan, Social Influence, Social Meaning,

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

Lassiter, The Stop And Frisk Of Criminal

Street Gang Members, 14 Nat'l Black

L.J. 1 (1995)

Communities, And The New Policing,

97 Colum. L. Rev. 551 (1997)

Miscellaneous

California Jury Instructions,

Criminal § 16.104 (West 6th ed. 1996)

Curry et al., Gang Crime And Law

Enforcement Recordkeeping,

Nat'l Inst. for Justice, U.S. Dept.

| RES SNE A Se

NDAA, Resource Manual and Policy Positions

on Juvenile Crime Issues 18-20 (Nov. 1996)

Press Release, U.S. Dept. of Justice, Office of

Juvenile Justice and Delinquency

Prevention, New Survey Finds 25,009

Youth Gangs With More Than 650,000

Members (June 20, 1996)

TABLE OF AUTHORITIES

Miscellaneous

Statement of Steven R. Wiley,

Chief of FBI's Violent Crimes

and Major Offenders Section,

before the U.S. Senate Comm.

on the Judiciary, Apr. 23, 1997 ..............ccc00 6, 7,8

Tamaki, Boy’s Slaying In ‘Good’ Area

Stuns Family, L.A. Times, June 15, 1998 .............--. 6

2 Teens Charged In Gang Shooting,

Chi. Trib., Jume 14, 1998 ...........0cccccceeseecsereeeeeeeeeneees 6

There Are No Children Here,

Economist, Dec. 17, 1994 ...........cccceceeeeeeeeeeeeeneenenenees 7

US. Dept. of Justice, Bureau of Justice

Assistance, Urban Street Gang

Enforcement (Jan. 1997) ............cseeeeeeeereeeeesenneens 6

U.S. Dept. of Justice, Office of

Juvenile Justice and Delinquency

Prevention Fact Sheet # 12 ..............ccccccccseeeeeeeeneeeeneees 7

No. 97-1121

In the Supreme Court of the United States

OCTOBER TERM, 1997

CITY OF CHICAGO, Petitioner,

Vv.

JESUS MORALES, ET AL., Respondents.

On Writ of Certiorari to the

Supreme Court of Illinois

BRIEF OF AMICI CURIAE

NATIONAL DISTRICT ATTORNEYS ASSOCIATION

AND INFERNATIONAL ASSOCIATION OF CHIEFS

OF POLICE IN SUPPORT OF PETITIONER CITY

OF CHICAGO

Pursuant to this Court’s Rule 37.3, amici curiae Na-

tional District Attorneys Association, Inc. (““NDAA”) and

International Association of Chiefs of Police, Inc. (“IACP”)

respectfully submit this brief urging this Court to reverse

the judgment of the Supreme Court of Illinois and to hold

that Chicago Municipal Code § 8-4-015 is consistent with

the Due Process Clause of the Fourteenth Amendment.

INTEREST OF AMICI CURIAE

The NDAA is the sole organization representing local

prosecuting attorneys across the United States. Since its

founding in 1950, the NDAA’s programs of education,

' This brief is filed with the consent of both petitioner and

respondents, and letters reflecting those consents have been lodged with

the Clerk of this Court. Pursuant to this Court's Rule 37.6, amici curiae

NDAA and LACP state that this brief has not been authored in whole or

in part by counsel for a party and that no person or entity, other than

amici, their members, or their counsel, have made a monetary con-

tmbution to the preparation or submission of this brief.

training, publication, and amicus curiae activity have

carried out its guiding purpose of reforming the criminal

justice system for the benefit of all citizens. NDAA mem-

bers are responsible for the vast majority of criminal

prosecutions in this country, and are at the front line in

attempting to combat the serious problems presented by the

violent and lawless activities of criminal street gangs.

Members of the NDAA have long shared the concern that

sufficient means be developed to reduce the alarming trend

of gang violence in our Nation’s cities, and the NDAA

strongly believes that localities should be permitted to

employ creative approaches to fighting gang-related

criminal activity. The NDAA therefore has a compelling

interest in the outcome of this case.

The IACP is the largest organization of police executives

and line officers in the world, consisting of more than

16,000 members in 96 nations. Through its programs of

training, publications, legislative reform, and amicus curiae

advocacy, it seeks to make the delivery of vital law enforce-

ment services more effective, while at the same time

protecting the rights of all our citizens. Members of the

IACP have an important responsibility to protect the

communities they serve from the dangers posed by criminal

street gangs, and measures such as the Chicago ordinance

at issue in this case are a valuable contribution to that

effort. The [ACP therefore has a vital interest in this case.

SUMMARY OF ARGUMENT

In recent years, criminal street gangs—groups com-

prised of dangerous criminals joined together in a highly

cohesive organizational structure—have become an increas-

ingly serious problem plaguing our Nation's cities. Because

maintenance of “turf” is vital to a gang's unlawful aims,

gang members regularly engage in loitering in order to

claim territory, to recruit new members, and to intimidate

rival gangs members and area residents.

Chicago Municipal Code § 8-4-015 attempts specifically

to address the problem of gang loitering. The first sentence

of § 8-4-015(a) authorizes a police officer to order a group of

loiterers that he or she has probable cause to believe

contains a criminal street gang member “to disperse and

remove themselves from the area.” The second sentence of

that section requires those individuals promptly to comply

with such an order. Neither sentence is vague.

Although vagueness doctrine “focuses both on actual

notice to citizens and [on] arbitrary enforcement,” this

Court has observed that “the more important aspect of the

vagueness doctrine” is the requirement that sufficient

standards be provided to channel the discretion of law

enforcement officers. Kolender v. Lawson, 461 U.S. 352,

358 (1983). Moreover, in evaluating whether the first

sentence of § 8-4-015(a) is vague, the question necessarily

focuses on whether the ordinance sufficiently cabins police

discretion. Because the first sentence does not require any

citizen to do anything unless and until a dispersal order is

issued, the only question of “fair notice” raised by this

sentence is whether the ordinance, as a general matter,

adequately limits police discretion in “words of common

understanding.” Boos v. Barry, 485 U.S. 312, 332 (1988).

The ordinance adequately limits police discretion to

issue dispersal orders. The ordinance defines “loiter” as “to

remain in one place with no apparent purpose.” See

§ 8-4-015(c)(1). This term is sufficiently limited to avoid the

problems concerning the quite different ordinances at issue

in Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965),

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

(1972), which were drafted in such broads terms that they

could have been applied to literally anyone on the streets.

Here, the definition of “loitering” sets a specific, objective

test: a person has no “apparent purpose” for remaining in

one place if a reasonable person viewing the person's

behavior under the circumstances would not perceive a

reason why that person is remaining in one place.

The Chicago ordinance imposes further substantial

ee —— _

eS 3. aa

limits on the discretion of police officers by providing that

a dispersal order may be issued to a group of loiterers only

if it contains at Jeast one person whom the officer “reason-

ably believes to be a criminal street gang member.” The

ordinance contains a detailed definition of “criminal street

gang” that provides the sort of objective criteria that were

missing from the very broad definition of “gang” that was

found to be vague in Lanzetta v. New Jersey, 306 U.S. 451,

457 (1939). Moreover, the ordinance does not permit

officers randomly to label anyone they want as a “member”

of a criminal street gang; rather, they must have objective

probable cause of gang membership.

In any event, if further narrowing were required, it is

more than adequately supplied by the additional restric-

tions of the Chicago Police Department's General Order

92-4, which implements the ordinance. The lower court

simply refused to consider the Order, reasoning that federal

vagueness doctrine required that the necessary narrowing

of discretion be done entirely by the city’s legislature. This

holding is flatly contrary to this Court’s cases. See, e.g.,

Ward v. Rock Against Racism, 491 U.S. 781, 795-96 (1989).

The second sentence of §8-4-015(a), which requires

citizens promptly to obey a dispersal order, is also not

impermissibly vague. The standard of conduct defined by

this sentence—that persons who receive a dispersal order

must “remove themselves from the area”—is not vague

under this Court's cases. See Cox v. Louisiana, 379 U.S.

536, 551 (1965) (“move on” order “is narrow and specific”).

The Illinois Supreme Court went further, however, and

held that the ordinance must also, in effect, ensure that a

citizen has a sufficient factual basis to evaluate whether the

order has been properly issued. This latter requirement

finds no support in the cases of this Court. Statutes pro-

hibiting resisting arrest, for example, have never been

thought to be vague simply because the arrestee may not

comprehend all of the facts that comprise the officer's

probable cause to arrest. In any event, the ordinance here

provides sufficient guidance for avoiding a police order to

disperse: refrain from loitering with gang members.

The lower court also invalidated the ordinance on the

ground that it violates “substantive due process,” holding

that the ordinance effected an “arbitrary” deprivation of the

“personal liberty interests” in freedom of movement and in

associating with others. In so ruling, the lower court erred.

Although the lower court declined to consider whether

the ordinance infringed “fundamental rights,” it is clear

that it does not do so. Although this Court long has recog-

nized a right to travel from state to state and abroad, and

has at times referred more loosely to a “constitutional right

to freedom of movement,” see Kolender, 461 U.S. at 358, it

is clear that there is no generalized fundamental right to be

free of all restrictions upon one’s physical movement. Nor

does the ordinance implicate fundamental rights of associa-

tion. See City of Dallas v. Stanglin, 490 U.S. 19, 24 (1989).

Assuming arguendo that the court below was correct in

concluding that the ordinance implicates “liberty interests”

that comprise a “substantive component of the Due Process

Clause,” the interest asserted is at best a narrow one—the

right to remain in a public place after having been asked to

move on by an officer who reasonably believes that the

group of loiterers includes at least one criminal street gang

member. For several reasons, the ordinance does not

arbitrarily infringe this “liberty interest.”

First, the burden imposed by the ordinance is the fairly

modest one of moving on when ordered to do so. Second,

the ordinance clearly furthers a legitimate state interest by

regulating a behavior—gang loitering—that the city has

found to be both harmful in its own right (because it

intimidates residents) and likely to lead to the commission

of more serious crimes. Third, by targeting gang loitering,

the ordinance provides a “reasonable fit” with those legiti-

mate interests. Reno v. Flores, 507 U.S. 292, 305 (1993).

ee ee ee ee a eee

ARGUMENT

A. Chicago’s Gang Loitering Ordinance Is a Targeted

Response to the Very Real Problems Posed by

Criminal Street Gangs

1. The Deleterious Effects of Loitering by

Street Gang Members Are Well Documented

In recent years, criminal street gangs have become an

increasingly serious problem. All too often, one hears of

another drive-by shooting in which an innocent bystander

is killed; another “turf” battle that leaves one or more

teenage gang members dead; or another neighborhood in

which gang members regularly harass and intimidate

residents. See, e.g., Tamaki, Boy’s Slaying In ‘Good’ Area

Stuns Family, L.A. Times, June 15, 1998, at Al; 2 Teens

Charged In Gang Shooting, Chi. Trib., June 14, 1998, at 3.

The statistics are staggering. A recent study indicates

that gangs are active in all 50 States, and that over 650,000

young men and women are active in over 25,000 gangs.

See Press Release, U.S. Dept. of Justice, Office of Juvenile

Justice and Delinquency Prevention, New Survey Finds

25,009 Youth Gangs With More Than 650,000 Members

(June 20, 1996). Another study has shown that, in 1992,

those gangs committed over 46,000 crimes, including over

1,000 homicides. Curry et al., Gang Crime And Law

Enforcement Recordkeeping, Nat'l Inst. for Justice, U.S.

Dept. of Justice (June 1994). Gangs “now operate in cities

of all sizes, as well as suburban communities throughout

the United States.” U.S. Dept. of Justice, Bureau of Justice

Assistance, Urban Street Gang Enforcement (Jan. 1997).

The gang problem is particularly acute in major cities.

In Chicago, for example, the four largest street gangs—

which include the Gangster Disciples, the Latin Kings, the

Latin Disciples, and the Vice Lords—exercise control over

large sections of the city. Statement of Steven R. Wiley,

Chief of FBI’s Violent Crimes and Major Offenders Section,

before the U.S. Senate Comm. on the Judiciary, Apr. 23,

1997 (“Wiley Statement”). In 1994, 26 percent of all

homicides in Chicago were gang-related. Rodriguez Praises

Police and Community for Continued Crime Reduction,

1995 Crime and Murder Analysis News Conference (Jan. 4,

1996) (Rodriguez Statement”). As the court below recog-

nized, gangs “are responsible for a variety of criminal

activity, including drive-by shootings, drug dealing, and

vandalism.” Pet. App. 2a.

Today’s gangs cannot be confused with the charming

band of youths that harassed Officer Krupke in West Side

Story. Modern-day street gangs are comprised of dangerous

criminals who are joined together in a highly cohesive

organizational structure. In this regard, the Department of

Justice has identified five criteria that distinguish gangs

from other groups: (1) formal organizational structures;

(2) identifiable leadership; (3) identification with a terri-

tory; (4) recurrent interaction; and (5) a history of engaging

in serious or violent criminal activity. See U.S. Dept. of

Justice, Office of Juvenile Justice and Delinquency Preven-

tion Fact Sheet #12. Their members commit crimes at

rates far exceeding those of the population generally, and

recidivism rates among gang members are inordinately

high. See Wiley Statement, supra.

For the criminal street gang, “turf’ is currency. By

physically dominating the streets of a neighborhood, gangs

are able to establish lucrative monopolies over the drug

trade in those areas. “Area co-ordinators” for gangs like the

Gangster Disciples wield control over a square mile or more

of a neighborhood, conscripting teams of “soldiers,” “run-

ners,” and “look-outs” to distribute drugs, recruit new

members, avoid police detection of criminal activity, and

keep rival gangs out of the area. There Are No Children

Here, Economist, Dec. 17, 1994, at 21.

Because possession and maintenance of turf is the sine

qua non of gang existence, gangs routinely position small

groups of members in strategic locations throughout their

~ oS Se ee Ce

respective territories to signify, both to community mem-

bers and to would-be rivals, that those areas belong to

them. These groups of gang members loitering on street

corners are magnets for violence, as posturing between

members of rival gangs often ends in gunfire. Indeed, most

gang violence is the “product of old-fashioned fights over

turf, status and revenge ....” Wiley Statement, supra.

Traditional law enforcement methods have proven

ineffective in controlling the spread of gang activity. See

Kahan, Social Influence, Social Meaning, and Deterrence,

83 Va. L. Rev. 349, 375 (1997); NDAA, Resource Manual

and Policy Positions on Juvenile Crime Issues 18-20

(Nov. 1996). Rather, measures and enforcement strategies

targeted specifically at the unique problems presented by

gangs are essential. Jd. Accordingly, communities through-

out the country are testing various approaches to address-

ing the problem of street gangs. In California, for example,

courts have issued nuisance injunctions against gang

activities. See generally People ex rel. Gallo v. Acuna, 14

Cal. 4th 1090, cert. denied, 117 S. Ct. 2513 (1997).

The common theme motivating these law enforcement

approaches to gang activity is the desire to prevent violent

crime through prophylactic measures administered by local

police officers and local prosecutors in close cooperation

with community members who are most aware of the

problems at hand. These measures are part of a broader

trend in law enforcement, involving community policing and

community prosecution. Livingston, Police Discretion And

The Quality Of Life In Public Places: Courts, Communities,

And The New Policing, 97 Colum. L. Rev. 551, 561 (1997).

According to community policing theory, law enforcement

efforts are most successful when “police are a visible

presence in communities, oriented toward crime prevention

and problem-solving, and working toward partnership with

communities.” Jd. at 563. Dispersing gang members who

loiter in public areas, either through the enforcement of

injunctions or through the issuance of orders to “move on,”

sends a clear message that the community will no longer

tolerate gang intimidation and disorder. Kahan, supra, at

376. These measures reduce the opportunities for gang

members to maintain “turf,” to recruit new members, to

intimidate residents, and to commit serious crimes.

2. Chicago’s Ordinance Is a Targeted Response to

the Problems Posed by Gang Loitering

During the hearings that led to passage of Chicago's

gang loitering ordinance, witnesses from the community

and the police department testified about the specific

problems created by gang loitering. As summarized by the

Illinois Supreme Court, this testimony established that

“gang members loiter as part of a strategy to claim terri-

tory, recruit new members, and intimidate rival gangs and

ordinary community residents.” Pet. App. 2a. Because of

the central role that loitering plays in maintaining a gang's

control over an area, and the inherent intimidation that

such loitering causes to neighborhood residents, the City

Council concluded that an ordinance targeted specifically at

that conduct was necessary to address these unique

problems. Jd. at 60a-61la.

Accordingly, the City Council enacted an ordinance

adding a new § 8-4-015 to the Chicago Municipal Code that

directly addresses gang loitering. Subsection (a) provides

that “[w]henever a police officer observes a person whom he

reasonably believes to be a criminal street gang member

loitering in any public place with one or more other persons,

he shall order all such persons to disperse and remove

themselves from the area.” Pet. App. 6la. In order to limit

the discretion of police officers to issue such dispersal

orders, the ordinance provides specific definitions of the

terms “loiter” and “criminal street gang.” “Loitering” is

defined, not as “standing” simpliciter or “wandering around

with no lawful purpose,” cf. Shuttlesworth v. City of Bir-

mingham, 382 U.S. 87, 90 (1965); Papachristou v. City of

Jacksonville, 405 U.S. 156, 156 n.1 (1972), but as “remain-

[ing] in any one place with no apparent purpose.” See

§ 8-4-015(c)(1), Pet. App. 6la. “Criminal street gang” is

defined with a high degree of specificity to ensure that the

a Ee reer eae, Cen ene ae

groups that represent the core of the modern-day “street

gang” phenomenon. Specifically, § 8-4-015(c)(2) defines a

“criminal street gang” as an “ongoing organization, associa-

tion in fact or group of three or more persons” that has as

one of its “substantial activities” the commission of one or

more enumerated felonies, and “whose members individu-

ally or collectively engage in or have engaged in a pattern

of criminal gang activity.” Pet. App. 6la-62a. “Criminal

gang activity” is further defined to mean the commission of

certain enumerated felonies “with the specific intent to

promote, further, or assist in any criminal conduct by gang

members.” See § 8-4-015(c)(3), Pet. App. 62a.

At the time that the ordinance was being considered, the

Chicago Police Department informed the City Council that,

if the measure were adopted, the Department would

promulgate implementing regulations that would provide

further specific guidance concerning enforcement of the

ordinance. Pet. 4-5 (citing record). Accordingly, after the

ordinance was enacted, the Department issued General

Order 92-4, which provides several detailed guidelines for

its enforcement. First, the Order requires the Department

to identify, using certain specified types of reliable informa-

tion, those specific gangs that operate in Chicago. Pet. App.

66a-67a. Second, the Order provides that determinations

concerning who is and is not a “criminal street gang mem-

ber” within the meaning of the ordinance may be made only

on the basis of “specific, documented and reliable informa-

tion,” such as the person’s admission of gang membership,

his or her wearing of “distinctive emblems, tattoos, or

similar markings,” the person’s use of signals distinctive to

a particular street gang, or information from a reliable

informant that the person is a member of a specific street

gang. Jd. at 67a-68a. The Order specifically prohibits an

officer from establishing gang membership based solely on

the wearing of “clothing available for sale to the general

public.” Jd. at 67a. Third, the Order limits the geograph-

ical locations in which the ordinance can be enforced to

those specific areas of the City that have been formally

designated by the Department as involving significant gang

activity. Jd. at 68a-69a. Fourth, the Order provides that

only members of the Department's “Gang Crime Section”

and other specially designated officers are eligible to make

arrests under the ordinance. Jd. at 65a.

During the period that the Chicago ordinance was

enforced, it was very successful. In 1995, the last year

before the ordinance was struck down, gang-related mur-

ders declined by over 25 percent. Rodriguez Statement,

supra. By contrast, during the first year after the ordinance

was invalidated, gang-related homicides rose by 11%. Pet.

9 n.5. These statistics confirm Professor Livingston's

prediction that the invalidation of such laws would “seri-

ously impair[] legitimate community efforts to enhance the

quality of neighborhood life.” Livingston, supra, at 561.

B. The Illinois Supreme Court Erred in Concluding

That the Chicago Gang Loitering Ordinance Was

Unconstitutionally Vague

The Illinois Supreme Court's decision below rests upon

a fundamental misunderstanding of how the vagueness

doctrine applies in the context of an ordinance requiring

compliance with a police order. As explained below, the

doctrine in this context has two requirements. First, the

police officer's power to issue an order must be circum-

scribed according to objectively defined criteria. Second, the

substantive content of the orders authorized by the ordi-

nance must be sufficiently clear so that the citizen toward

whom the order is directed can determine what must be

done to comply with it and so that the officer may evaluate

the citizen’s compliance according to objective criteria. The

ordinance is this case easily satisfies these requirements.

In its analysis, however, the Illinois Supreme Court

effectively created a third requirement—namely, that the

ordinance must ensure that the citizen has suffic‘-nt

knowledge to permit him or her independently to evaluate

whether the officer was empowered to issue the command.

This novel requirement finds no support in this Court's

cases, and would lead to demonstrably absurd results.

1. The Requirements of the Vagueness Doctrine

The Due Process Clause of the Fourteenth Amendment

provides that no State shall “deprive any person of life,

liberty, or property, without due process of law.” U.S.

Const., amend. XIV, § 1. “The touchstone of due process is

protection of the individual against arbitrary action of

government.” Daniels v. Williams, 474 U.S. 327, 331

(1986) (citation omitted). Accordingly, the protections

afforded by this clause have long been held to inciude a

requirement that laws and regulations set forth their

commands with sufficient clarity. “It is a basic principle of

due process that an enactment is void for vagueness if its

prohibitions are not clearly defined.” Grayned v. City of

Rockford, 408 U.S. 104, 108 (1972); see also Kolender v.

Lawson, 461 U.S. 352, 357 (1983). This requirement

protects against two related evils. First, “[v)ague laws may

trap the innocent by not providing fair warning” as to what

is expected of citizens. Grayned, 408 U.S. at 108. Second,

‘{a] vague law impermissibly delegates basic policy matters

to policemen, judges, and juries for resolution on an ad hoc

and subjective basis, with attendant dangers of arbitrary

and discriminatory application.” Id.

Although vagueness doctrine thus “focuses both on

actual notice to citizens and [on] arbitrary enforcement,”

this Court has observed that “the more important aspect of

the vagueness doctrine,” Kolender, 461 U.S. at 357-58, is

the requirement that sufficient standards be provided for

enforcement and that the determination of what constitutes

a violation not be left to “the moment-to-moment judgment

of the policeman on his beat,” Smith v. Goguen, 415 U.S.

566, 575 (1974) (citation omitted).

While due process requires some degree of definiteness,

this Court has cautioned that “we can never expect mathe-

matical certainty from our language.” Grayned, 408 U.S. at

110. Thus, “due process does not require ‘impossible

standards’ of clarity.” Kolender, 461 U.S. at 361 (citation

omitted). Rather, an enactment provides sufficient notice

if it “give[s] the person of ordinary intelligence a reasonable

ps md ity to know what is prohibited.” Grayned, 408 U.S.

a ‘

2. The Ordinance Is Not Impermissibly Vague

Section 8-4-015(a) of the Chicago gang loitering ordi-

nance does two things. The first sentence of § 8-4-015(a)

authorizes police officers to issue a dispersal order to

The second sentence requires those individuals promptly to

comply with such an order. See Pet. App. 6la-63a. In light

of the other provisions of the ordinance that define the

relevant terms, neither sentence is vague.

a. The Ordinance Adequately Channels The

Discretion Of Individual Police Officers To

Issue Dispersal Orders

The first sentence of § 8-4-015(a) authorizes a police

officer to issue a dispersal order if and only if the officer

observes (1) a person whom he or she reasonably believes to

be a “criminal street gang member” (2) loitering (3) in a

public place (4) with one or more other persons. Pet. App.

61a. If all four of these criteria are met, then a dispersal

order may be issued. The Illinois Supreme Court found the

first two of these criteria to be impermissibly vague, and it

therefore held that the ordinance failed to “discourage

arbitrary or discriminatory enforcement.” Pet. App. 15a.

The lower court plainly erred.

apr In evaluating whether the first sentence of § 8-4-015(a)

is impermissibly vague, the question necessarily focuses on

whether the ordinance sufficiently channels the discretion

of a police officer to issue such an order. Shuttlesworth, 382

U.S. at 90-91; Boos v. Barry, 485 U.S. 312, 330-32 (1988).

Indeed, unless and until a dispersal order has been issued,

§ 8-4-015(a) does not require any citizen to do anything.

Accordingly, questions of fair notice do not arise until after

the order has issued, and those questions are addressed

below. See infra at 23-27.

This Court has made clear that enactments that wholly

fail to provide individual police officers with any objective

guidelines for issuing dispersal orders are unconstitutional.

For example, in Shuttlesworth, this Court considered the

constitutionality of a conviction obtained under an ordi-

nance that made it an offense “to stand or loiter upon any

street or sidewalk . . . after having been requested by any

police officer to move on.” 382 U.S. at 90 (emphasis added;

citation omitted). This Court observed that, literally read,

this provision “says that a person may stand on a public

sidewalk in Birmingham only at the whim of any police

officer of that city.” Jd. This Court concluded that the

literal reading, which authorized officers to issue “move-on”

orders to anyone standing under any circumstances on any

Birmingham street, would be unconstitutionally vague. /d.

at 90 & n.5. This Court noted, however, that the Alabama

Supreme Court had read the ordinance more narrowly to

permit an officer to order a citizen to move on only when the

citizen was blocking free passage on the sidewalk. Jd. at 91.

This Court held that, so construed, the ordinance was

constitutional. Jd.’

Similarly, in Boos v. Barry, this Court addressed a

District of Columbia statute that made it unlawful to

“congregate within 500 feet of any (embassy, legation, or

* The particular conviction at issue in Shuttlesworth occurred two

years before the Alabama Supreme Court adopted this narrowing

construction. 382 U.S. at 91-92. Accordingly, this Court was unable to

determine whether Shuttlesworth had been convicted under a Lteral (and

unconstitu.. nal) construction of the ordinance or instead under the more

narrow reading later adopted by the Alabama Supreme Court. /d. at 92.

Because Shuttlesworth's conviction may have rested on the unconsti-

tutional reading, it was reversed. Id.

consulate] and refuse to disperse after having been ordered

to do so by the police.” 485 U.S at 329. This Court noted

that, “(standing alone, this text is problematic both

because it applies to any congregation within 500 feet of an

embassy for any reason and because it appears to place no

limits at all on the dispersal authority of the police.” Id. at

330 (emphasis added; emphasis in original deleted). This

Court found, however, that the narrowing construction

adopted by the Court of Appeals sufficiently limited the

discretion of the police and cured any vagueness problem.

Id. at 330-32. Under this limiting construction, the police

could issue an order to disperse only where “normal em-

bassy activities have been or are about to be disrupted.” Jd.

at 332. This Court held that, so construed, the statute was

not impermissibly vague. Jd.

Construed against this precedent, the ordinance ade-

quately channels the discretion of police officers to issue

dispersal orders. Consistent with Shuttlesworth and Boos,

the ordinance does not confer unfettered discretion to order

any person standing on the streets of Chicago to move on;

rather, it authorizes a dispersal order only when a person

whom the officer reasonably believes to be a “criminal street

gang” member is “loitering” with one or more other persons.

Like the enactments upheld against facial challenges in

Shuttlesworth and Boos, the Chicago ordinance limits its

applicability to a specific type of public congregation that

has been determined by the city council to present particu-

lar harms that warrant the issuance of dispersal orders.

Shuttlesworth, 382 U.S. at 91; Boos, 485 U.S. at 332.

b. The Lower Court Erred In Concluding That

The Ordinance Does Not Sufficiently Limit

Discretion To Issue Dispersal Orders

Despite these limitations imposed by the terms of the

ordinance itself, the Illinois Supreme Court found the

ordinance to be vague because, in the court’s view, the

definitions of the terms “loitering” and “criminal street

gang” left “absolute” or “co:nplete” discretion to individual

police officers. Pet. App. 15a-16a. As such, the lower court

concluded that the Chicago ordinance suffered from the

same defect presented by the literal reading of the Shuttles-

worth ordinance, namely, that it “allow[s] a person to ‘stand

on a public sidewalk . . . only at the whim of any police

officer.” Pet. App. 13a (quoting Shuttlesworth, 382 U.S. at

90-92). As set forth below, the court erred.

(1) The Ordinance’s Definition Of “Loi-

tering” Is Not Vague

The ordinance defines “loiter” as “to remain in one place

with no apparent purpose.” See § 8-4-015(c)(1), Pet. App.

6la. This definition provides sufficient objective guidance

to channel a police officer's discretion to issue a dispersal

order. “To remain in one place” is hardly a subjective

concept, and the lower court did not contend otherwise. See

Pet. App. 10a. The second element of the definition also is

not vague: a person has no “apparent purpose” for remain-

ing in one place if a reasonable person viewing the person's

behavior under the circumstances would not perceive a

reason why that person is remaining in that place.

The Illinois Supreme Court concluded that this defini-

tion was vague because police officers might fail to perceive

the purposes of, 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.” Pet. App. 10a. This

reasoning is nonsensical. Given that hailing a taxi requires

making one’s purpose known to passing cab drivers, it is

unfathomable how the would-be cab rider could possibly fail

also to make his or her intentions known to observing police

officers. Similarly, the notion that police officers will

mistake a sweaty, out-of-breath person dressed in jogging

attire as being a purposeless “loiterer” is far-fetched in the

extreme. In any event, the fact that the ordinance might be

misapplied in certain hypothetical situations does not

provide a ground for invalidating it on its face. See

Maynard v. Cartwright, 486 U.S. 356, 361 (1988) (“Vague-

ness challenges to statutes not threatening First Amend-

ment interests are examined in light of the facts of the case

at hand; the statute is judged on an as-applied basis”).

The lower court also expressed concern that loitering is

pi oes rrp Awan pens man taker agrcenr th permed

to “loitering” therefore does not provide much of a check

against arbitrary sweeps by police officers seeking to

“removie] ‘undesirable persons’ from public.” Pet. App. 8a;

see also id. at 14a, 16a-17a. In reaching this conclusion, the

lower court construed Shuttlesworth and Papachristou as

standing for the proposition that a “loitering alone” ordi-

nance is void-for-vagueness, Pet. App. 8a, 16a-17a, but

neither decision supports that court’s view.

As noted above, Shuttlesworth involved an ordinance

authorizing police officers to order any person “stand/ing]

or loiter[{ing]” on the street to move on. 382 U.S. at 90

(emphasis added). This Court's conclusion that a literal

reading of the Birmingham ordinance would be unconstitu-

tional was based, not on the enactment’s use of the term

“loiter,” but on its use of the substantially broader term

“stand.” See Id. (“Literally read, therefore, the second part

of this ordinance says that a person may stand on a public

sidewalk in Birmingham only at the whim of any police

officer of that city.”) (emphasis added).

In Papachristou, the Jacksonville ordinance did not use

the term “loitering,” but instead prohibited, inter alia,

“persons wandering or strolling around from place to place

without any lawful purpose or object.” 405 U.S. at 156 n.1

(quoting Jacksonville Ordinance Code §26-57). This

definition is substantially broader than that used in the

Chicago ordinance. Because literally everyone on the

streets at some point moves from one place to another, the

Jacksonville ordinance’s reference to “wandering or stroll-

ing” could be applied to virtually anyone. By contrast, not

everyone on the public streets “remain[s] in one place” for

a significant period of time. Moreover, it is often very

difficult to discern the apparent purpose of a person who is

moving from one place to another, and this Court therefore

properly concluded that “[t]he qualification ‘without any

lawful purpose or object” in Jacksonville’s ordinance “may

be a trap for innocent acts.” Jd. at 164. Where, however,

several persons continue to “remain in one place” over time,

it is substantially more likely that they will exhibit behav-

ior that demonstrates their connection to that spot and

their apparent reasons for continuing to remain there.

Additionally, the ordinance in Papachristou authorized

officers to arrest and prosecute persons who were “wander-

ing or strolling”; the Chicago ordinance merely authorizes

the police to order such persons to move on. Cf. Village of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

489, 498-99 (1982) (noting that vagueness standards are

applied with less stringency where “the consequences of

imprecision are qualitatively less severe”).°

(2) The Ordinance Sufficiently Defines

“Criminal Street Gang Member”

In any event, even if a “loitering alone” ordinance were

impermissibly vague, the Chicago ordinance imposes

further substantial limits on the discretion of police officers

by providing that an order to disperse may be issued to a

group of loiterers only if that group contains at least one

person whom the officer “reasonably believes to be a

criminal street gang member.” Pet. App. 6la. The Illinois

Supreme Court expressed concern that in practice the

ordinance would give the police “complete discretion to

determine whether any members of a group are gang

* Moreover, nothing in this Court’s post -Papachristou cases supports

the lower court's view that all enactments prohibiting loitering

simpliciter are “doubtlessly unconstitutional.” Pet. App. 8a. Indeed,

since the decision in Papachristou, this Court has granted review in four

cases that challenged loitering ordinances, but in none of these cases did

the Court reach the question whether the ordinance’s definition of

“loitering” was impermissibly vague. Three of the cases were decided on

other grounds, see Kolender, 461 U.S. at 361 n.10; Stone v. Powell, 428

U.S. 465, 471 n.2 (1976); Ellis v. Dyson, 421 U.S. 426, 427 (1975), and one

was dismissed as improvidently granted, see New York v. Uplinger, 467

US. 246, 247-49 (1984).

members,” Jd., 15a, but that concern is plainly unfounded.

As noted earlier, see supra at 10, the Chicago ordinance

contains a specific and detailed definition of “criminal street

gang” that ensures that the term can be applied only to the

sort of organized and cohesive criminal groups that in

contemporary society are commonly understood by all to be

“street gangs.” As such, the term “criminal street gang”

does not refer to some abstract and amorphous concept that

may be applied by the police to whomever they wish; on the

contrary, it applies to a specific, well documented, and all

too familiar social reality of modern-day America. The

ordinance’s definition thus provides the sort of objective

criteria that were missing from the very different definition

of “gang” that was found to be vague in Lanzetta v. New

Jersey, 306 U.S. 451, 457 (1939) (invalidating, on vagueness

grounds, a “gangster” statute in which “gang” had been

construed by the state courts as meaning, inter alia, “a

company of persons acting together for some purpose,

usually criminal”). Indeed, the lower court did not contend

that the definition of “criminal street gang” in the Chicago

ordinance was vague, nor could it.

Similarly, the ordinance does not permit officers

randomly to label anyone they want as a “member” of a

criminal street gang. As the Illinois Supreme Court noted,

the ordinance’s requirement that an officer have “a reason-

able belief’ that a person is a gang member means that the

officer must have “probable cause” on this issue. Pet. App.

11a; see also Pet. App. 71a (General Order 92-4, construing

the ordinance the same way). “Probable cause” exists with

respect to a particular fact only if “the known facts and

circumstances are sufficient to warrant a man of reasonable

prudence in the belief” that the fact is true. Ornelas v.

United States, 116 S. Ct. 1657, 1661 (1996). Accordingly,

the Chicago ordinance requires the police to possess

sufficient facts to warrant an objectively reasonable belief

that an individual is a member of a “criminal street gang”

within the ordinance’s highly specific meaning of that term.

In light of the objective standards imposed by the

ordinance, the Illinois Supreme Court’s concern that the

ordinance gives officers “complete discretion” to determ’ ic

gang membership is unfathomable. The court below con-

tended that a probable cause standard “depends solely on

the police officer's subjective evaluation of the facts of the

situation in light of his own experience,” Pet. App. 12a

(citing Kolender, 461 U.S. at 368-69 (Brennan, J., concur-

ring)) (emphasis added), but that is demonstrably untrue,

as even the sole opinion cited by the lower court makes

clear. What Justice Brennan said in his separate opinion in

Kolender was not what the Illinois Supreme Court attrib-

uted to him; rather, he merely observed, consistent with

settled law, that standards such as “probable cause” and

“reasonable suspicion” depend “solely on the objective facts

known to the officers and evaluated in light of their experi-

ence.” 461 U.S. at 368-69 (emphasis added). The fact that

the lower court plainly mis-cited the only authority on

which it relied leaves no doubt as to its error. See Ornelas,

116 S. Ct. at 1661-62 (noting that probable cause and

reasonable suspicion are objective standards).* Indeed, if

probable cause determinations concerning objective facts

were insufficient to channel an officer’s discretion, then the

entirety of the criminal law would be impermissibly vague.

Throughout the course of their duties, officers are required

to make probable cause determinations concerning all sorts

of facts, and the court below did not identify any basis for

believing that the fact of gang membership is not subject to

reliable probable cause determinations.”

* See also People v. Agnello, 259 Cal. App. 2d 785, 792 (1968) (rejecting

a vagueness challenge to a similar statute, holding that “[t]he criterion

is not what subjectively appears reasonable to the actor whose decision

is in question, but what would appear to a reasonable man in the actor's

situation to be reasonable.) .

5 Nor could it have done so. As one commentator has noted, “[g)ang

membership is clearly susceptible to articulable, objective, reasonable

discernment by well-trained and experienced members of law

enforcement.” Lassiter, The Stop And Frisk Of Criminal Street Gang

The Illinois Supreme Court's holding also appears to

rest on the alternative view that the Chicago ordinance fails

to cabin police officers’ discretion because it permits officers

to order any and ail loitering gang members to move. Pet.

App. 16a (stating that the ordinance “could be used to

sweep these intolerable and objectionable gang members

from the city streets”). In reaching this conclusion, the

lower court relied on Papachristou, but this case is a far cry

indeed from the ordinance presented there. As noted above,

the ordinance in Papachristou could have been applied to

virtually anyone on the streets of Jacksonville, and it

therefore was a standardless delegation of authority to

individual officers to arrest whomever they wanted. In this

case, by contrast, the Chicago City Council made detailed

findings, after legislative hearings, that loitering by crimi-

nal street gang members causes particular, identifiable

harms. See supra at 9. These detailed findings—which

were not questioned by the court below, see Pet. App. 2a-3a,

16a-17a, and which are not reasonably subject to question—

formed the basis of the City Council’s policy decision to

authorize police officers to issue dispersal orders only to

those groups of loiterers that officers have probable cause

to believe contains at least one criminal street gang mem-

ber. Nothing in Papachristou or in the Constitution

requires the City Council to narrow police discretion further

by identifying in advance some “subset” of gang members

who should be permitted to loiter.

c. The Ability of Individual Officers To Issue

Dispersal Orders Is Further Limited By The

Applicable Implementing Regulations

In any event, if further narrowing were required, it is

Members, 14 Nat! Black L.J. 1, 35 (1995). Gang symbols worn on

clothing, gang-specific symbols displayed on tatoos and elsewhere,

communications through distinctive hand signals, and efforts generally

to demonstrate to passersby their control over their “territorial haunts”

all provide trained law enforcement officers with “objective positive

evidence marking members of criminal street gangs.” Id.

more than adequately supplied by the Chicago Police

Department's General Order 92-4. As set forth in detail

above, see supra at 10-11, the Order imposes further

significant restrictions on the discretion of members of the

Department to enforce the ordinance by, inter alia, requir-

ing that enforcement be limited to specific gangs that have

been identified, based upon reliable information, as operat-

ing in Chicago; requiring that determinations concerning

gang membership may only be made on the basis of certain

specified types of reliable information, and not on the basis

of generally available clothing alone; limiting the areas in

which the ordinance can be enforced to those where gangs

are active; and limiting the class of officers who are autho-

rized to enforce the ordinance. Pet. App. 65a-7la. These

additional restrictions further narrow significantly the

discretion of individual officers to issue dispersal orders,

and they further ensure that enforcement efforts will be

targeted to the specific problem at hand—the congregation

of members of identifiable criminal street gangs in neigh-

borhoods where gang violence and other gang-related

activities have become a menace to the community. Indeed,

the additional restrictions of the Order are so significant

that, under this Court's precedents as discussed above, it is

impossible to reach any conclusion other than that respon-

dents’ vagueness challenge must fail. Cf. Grayned, 408 U.S.

at 114 (“As always, enforcement requires the exercise of

some degree of police judgment, but, as confined, that

degree of judgment here is permissible.”).

The Illinois Supreme Court did not dispute the forego-

ing; rather, it refused to consider the General Order at all.

The court below held that consideration of the order was

improper in evaluating a vagueness challenge because

“lawmakers may not abdicate their responsibilities for

setting the standards of the criminal law” and because “[i]t

is the duty of the lawmakers to establish minimal guide-

lines to govern law enforcement.” Pet. App. 15a-16a. This

conclusion is plainly in error.

This Court long has held that “[i]n evaluating a facial

challenge to a state law, a federal court must . . . consider

any limiting construction that a state court or enforcement

agency has proffered.” Ward v. Rock Against Racism, 491

U.S. 781, 795-96 (1989) (quoting Hoffman Estates, 455 U.S.

at 494 n.5) (emphasis added). Indeed, in Hoffman Estates,

this Court rejected a vagueness challenge to a city ordi-

nance targeting purveyors of drug paraphernalia, precisely

because the ordinance—read together with enforcement

guidelines promulgated by the local police department—

sufficiently channeled the discretion of the enforcement

officers to defeat a facial vagueness challenge. See 455 U.S.

at 499-504. The lower court erred in failing to consider the

Order in deciding respondents’ vagueness challenge, and, in

light of the Order, that challenge undoubtedly fails.®

d. The Ordinance Provides Adequate Notice

to Citizens of The Conduct It Requires

The second sentence of § 8-4-015(a) of the ordinance

makes it an offense for any person to whom a dispersal

order has been issued to fail promptly to obey the order.

Pet. App. 6la. This provision is not impermissibly vague.

As noted earlier, an enactment that imposes obligations

on a citizen must be sufficiently clear in two senses: it must

define its prohibitions “with sufficient definiteness that

ordinary people can understand what conduct is prohibited

and in a manner that does not encourage arbitrary and

* The lower court's construction of federal vagueness doctrine as

requiring that the narrowing of discretion be done entirely by the city’s

legislature, rather than by one of its executive agencies, also runs afoul

of this Court's repeated admonition that the Constitution does not impose

upon States a requirement of separation of powers. See Highland Farms

Dairy, Inc. v. Agnew, 300 U.S. 608, 612-13 (1937). Moreover, even within

the federal system of separation of powers, Congress has the power to

impose criminal sanctions for violation of administrative regulations,

even if those regulations have been promulgated by the agency charged

with criminally prosecuting persons who violate them. Touby v. United

States, 500 U.S. 160, 167-68 (1991).

discriminatory enforcement.” Kolender, 461 U.S. at 357.

The only provision of the ordinance that defines a standard

of conduct for citizens is the second sentence of § 8-4-015(a),

which provides that when a dispersal order is issued to a

group of persons under the ordinance, those persons must

“remove themselves from the area.” Pet. App. 61a.

There is nothing ambiguous about this standard, and

the Illinois Supreme Court did not contend otherwise.

Indeed, any such claim is squarely foreclosed by this Court's

precedents. This Court has previously held that a require-

ment that a person “move on” when ordered to do so by an

officer “is narrow and specific.” Cox v. Louisiana, 379 U.S.

536, 551 (1965) (“Cox I’); see also Colten v. Kentucky, 407

U.S. 104, 110 (1972) (rejecting vagueness challenge to

ordinance that required persons congregating with the

intent to cause inconvenience, annoyance, or alarm to

comply with a police order “to disperse”). Moreover, the

validity of the ordinance’s geographical standard, which

requires persons to remove themselves “from the area,” is

confirmed by other decisions of this Court rejecting vague-

ness challenges to enactments with comparable geograph-

ical elements. See Grayned, 408 U.S. at 111 & n.17 (“adja-

cent” to a school is not vague); Cox v. Louisiana, 379 U.S.

559, 568-69 (1965) (“Cox II’) (“near” a courthouse is not

vague); see generally Boos, 485 U.S. at 331.’

The Illinois Supreme Court nonetheless concluded that

the ordinance failed to provide adequate notice to citizens.

Pet. App. 13a. The ordinance was deficient in this regard

because, in the court’s view, the standards for issuing a

’ For the same reasons, the geographical standard set forth in the

ordinance provides sufficient guidance by which an officer can objectively

determine whether a citizen has complied with the dispersal order. As

such, the Chicago ordinance avoids the defects of the statute at issue in

Kolender, which, by requiring citizens to provide “credible and reliable”

identification during an investigatory stop, vested “virtually complete

discretion in the hands of the police to determine whether the suspect

ha[d] satisfied the statute.” 461 U.S. at 358.

dispersal order failed adequately to apprise citizens of the

circumstances that will lead to the issuance of such an

order: “An individual standing on a street corner with a

group of people has no way of knowing whether an ap-

proaching police officer has a reasonable belief that the

group contains a member of a criminal street gang.” Jd. at

lla-12a. This conclusion rests on a fundamental misappre-

hension of the requirements of vagueness doctrine.

As explained above, the standards set forth in the

Chicago ordinance are sufficiently clear to cabin the

discretion of individual officers to iss »« »ach orders. See

supra at 13-23. Moreover, becauss* ordinance and the

General Order are published, the « ~ sns of Chicago are on

notice that dispersal orders may be issued under the

criteria set forth in the ordinance. The Illinois Supreme

Court went further, however, and held that, in addition to

narrowing the discretion of police officers, informing the

public at large of the applicable standards under which

dispersal orders may be issued, and providing clear guid-

ance concerning the conduct required by a dispersal order,

the ordinance must also, in effect, ensure that a citizen has

a sufficient factual basis to permit him or her to evaluate

whether the order has been properly issued.

This latter requirement finds no support whatsoever in

the cases of this Court. Indeed, any such requirement is

foreclosed by Boos v. Barry, in which this Court addressed

a statute that had been c-nstrued to permit police officers

to issue dispersal orders within the vicinity of an embassy,

but only where “the police reasonably believe that a threat

to the security or peace of the embassy is present.” 485

U.S. at 330 (citation omitted) (emphasis added). It is

apparent that, as the Illinois Supreme Court observed with

respect to the Chicago ordinance, this “reasonable belief”

standard of the Boos statute often will be satisfied based in

whole or in part upon information known to the officer

issuing the dispersal order but not known to the person to

whom the order is issued. Thus, for example, the officer

may know that the embassy is presently hosting its head of

state, who has been the subject of credible death threats; or

that the embassy at that moment has a large number of

guests inside; or that the rear fire door to the embassy is

temporarily stuck shut; or that the ambassador is inside

recovering from a recent operation. Even though the

statute, as construed, obviously permitted police officers to

rely upon such undisclosed factors in issuing dispersal

orders outside embassies, this Court found it sufficient that

the statute, in general language “of common understand-

ing,” provided objective standards to channel the discretion

of individual officers. 485 U.S. at 332. Nothing in the

Court's opinion suggests that, in addition to meeting these

requirements, an enactment must also provide a basis by

which a citizen may independently verify the propriety of a

particular dispersal order.

Moreover, the novel notice requirement imposed by the

Illinois Supreme Court in this case defies common sense

and is hopelessly unworkable. Under the lower court's

reasoning, a person could not be prosecuted for resisting

arrest unless he or she was first apprised of the information

that led the officer to order the person to submit to arrest.

Just as the lower court was concerned that a dispersal

order might be based on a mistaken belief, rooted in facts

known only to the officer, that a group of loiterers contains

a criminal street gang member, so too a police officer's

decision to effect a warrantless arrest might in some cases

be based upon a probable cause determination derived from

information unknown to the arrestee. But it has never been

thought that the Constitution forbids a State from requiring

compliance with a police officer's order of arrest, even if it

later turns out that the officer lacked probable cause. See,

e.g., People v. Curtis, 70 Cal. 2d 347, 352-53 (1969) (reject-

ing due process and Fourth Amendment challenges to

California statute prohibiting forceful resistance to unlaw-

ful as well as lawful arrests).

In any event, it is simply untrue that, as Respondents

have asserted, “the ordinance here provides no guidance for

avoiding a police order to disperse in the first place.” Brief

in Opp. for Morales Resps. 13. A citizen who desires to

avoid receiving a dispersal order can generally do so by

refraining from loitering with criminal street gang members

in Chicago. That an officer might nonetheless issue a

dispersal order based on a reasonable but erroneous belief

that a group of loiterers contains a gang member does not

render the ordinance vague. Indeed, if that were true, the

entirety of the criminal law would be vague: the fact that a

citizen might attempt to follow every law scrupulously does

not eliminate the possibility that, in a particular set of

circumstances, an officer might nonetheless reasonably but

mistakenly conclude that probable cause to arrest exists.*

C. The Ordinance is Fully Consistent With this

Court’s “Substantive Due Process” Jurisprudence

The court below also invalidated the ordinance on the

ground that it violates “substantive due process.” Pet. App.

19a. In reaching this conclusion, the court first stated that

the freedom to engage in “harmless activities” such as

“loafing, loitering, and nightwalking” is “an aspect of the

personal liberties protected by the due process clause.” /d.

at 17a-18a (citing Papachristou). The court held that, by

requiring groups of loiterers containing probable gang

members to comply with an order to move on, the ordinance

implicates the “personal liberty interests” in freedom of

movement and in associating with others. Jd. at 18a. The

lower court, however, did not characterize these “liberty

* Respondents’ assertion that the ordinance is somehow unique or

infirm because it “elevate([s] an officer's reasonable suspicion or probable

cause into an element of the offense,” Brief in Opp. for Morales Resps. 14,

is even more wide of the mark. Statutes that make it a crime to resist a

lawful arrest often require, as an element of the offense, a showing that

the arresting officer had probable cause to make a warrantless arrest.

See, e.g., California Jury Instructions, Criminal § 16.104 (West 6th ed.

1996) (defining “lawful arrest” to include warrantless arrests made with

“reasonable cause,” and defining “reasonable cause”).

interests” as being “fundamental rights” whose infringe-

ment would have to be justified under “strict scrutiny,” c/.

Reno v. Flores, 507 U.S. 292, 301-02 (1993); on the contrary,

the court considered only whether the ordinance “intrude[{d]

upon [these] personal liberties arbitrarily or in an utterly

unreasonable manner.” Pet. App. 18a.

Applying this standard, the court held that the ordi-

nance was “arbitrary” in two respects. First, the court held

that it was arbitrary to apply the ordinance to persons

whom the police had probable cause to believe were gang

members but who were not actually gang members. Id.

Second, the court found it arbitrary that the ordinance was

“aimed at persons based merely on the suspicion that they

may commit some future crime.” Jd. Both of these

conclusions were erroneous.”

* Because the court thus held that the ordinance was arbitrary, it

declined to consider whether the ordinance infringed “fundamental

rights.” Jd. at 19a. It is clear, however, that the ordinance does not do

so. This Court has made clear that such rights include only “those

this Nation's history and tradition’ and ‘implicit in the concept of ordered

liberty,’ such that ‘neither liberty nor justice would exist if they were

sacrificed.” Washington v. Glucksberg, 117 S. Ct. 2258, 2268 (1997)

(citations omitted). This Court has recognized as “fundamental” in this

sense “certain basic matters of procreation, marriage, and family

lfe,”"Kelley v. Johnson, 425 U.S. 238, 244 (1976), but quite obviously none

of those mghts is implicated here. Moreover, although this Court long

has recognized a right to travel from state to state and abroad, see Kent

v. Dulles, 357 U.S. 116, 125-26 (1958); Edwards v. California, 314 US.

160, 178 (1941), and has at times referred more loosely to a

“constitutional nght to freedom of movement,” see Kolender, 461 US. at

358; Kent, 357 U.S. at 126, it is clear that there is no generalized

fundamental right to be free of restrictions upon one’s physical

movement. See, e.g., Hutchins v. District of Columbia, 1998 U.S. App.

LEXIS 10303 at *80 (D.C. Cir. May 22, 1998) (Silberman, J., dissenting)

(“[S)uch a broad assertion would lead to somewhat ridiculous results—for

example, installing a traffic light would trigger strict scrutiny.”). Nor

does the ordinance imphicate fundamental nghts of association. See City

of Dallas v. Stanglin, 490 U.S. 19, 24 (1989) (holding that the “right of

association” as a “fundamental element of personal liberty” extends only

to “certain intimate human relationships”). Finally, nothing in

Even assuming arguendo that the lower court was

correct in concluding that the ordinance implicates liberty

interests that comprise a “substantive component of the

Due Process Clause” protected against “arbitrary” govern-

mental action,” judicial restraint still dictates that the

interests so recognized be carefully defined. Collins v. City

of Harker Heights, 503 U.S. 115, 125-26 (1992). Here, the

proper description of the right asserted by respondents is at

best a narrow one—the right to remain in a public place

after having been asked to move on by an officer who rea-

sonably believes that the group of loiterers asked to move

on includes at least one member of a criminal street gang.

For several reasons, the ordinance does not arbitrarily in-

fringe the liberty interests asserted here, however defined.

First, the burden imposed by the ordinance is relatively

modest. All that a citizen needs to do to comply with the

ordinance is to move on when requested to do so. If the

citizen desires to associate with criminal gang members, he

may continue to do so simply by moving indoors, or by

refraining from loitering.

Second, the ordinance clearly serves a valid and legiti-

mate state interest. The City of Chicago reasonably

concluded, based upon numerous studies of the matter, that

gang loitering was intimidating to residents and contrib-

uted significantly to increased levels of violence. Although

the court below found it distasteful that the City Council

specifically targeted gang members on the supposition that

“they may commit some future crime,” Pet. App. 18a, there

is simply no authority for the view that a local legislative

body, in the exercise of its police powers, may not regulate

behavior—such as gang loitering—that it finds to be both

Papachristou creates a “fundamental right” to loiter on the streets under

the circumstances addressed by the Chicago ordinance. Although Justice

Douglas’ colorful opinion in that case refers to the “amenities of life” as

including loafing, wandering, and strolling, 405 U.S. at 164, nothing in

the opinion suggests that government limitations on these “amenities”

would be subject to “strict scrutiny.”

harmful in its own right (because it intimidates neighbor-

hood residents and reduces property values) and likely to

lead to the commission of more serious crimes.

Third, the ordinance and General Order are anything

but arbitrary in the manner in which they target the

problem of gang activity in Chicago’s neighborhoods. As

noted above, the ordinance goes directly to the problem at

hand—the congregation of groups of gang members and

others loitering without apparent purpose. The lower court

believed it was “arbitrary” not to limit the applicability of

the ordinance to actual gang members (as opposed to those

whom the police have probable cause to believe are gang

members), Pet. App. 18a, but it cited no authority for this

view. Moreover, as explained above, supra at 26-27, police

officers are regularly required to make probable cause

determinations with respect to a wide variety of matters,

and the fact that such a system tolerates errors—someone

may be lawfully arrested who is in fact innocent—does not

render it arbitrary.

CONCLUSION

The judgment of the Supreme Court of Illinois should be

reversed.

Dated: June 19, 1998 Respectfully submitted,

KRISTIN LINSLEY MYLES

DANIEL P. COLLINS*

STEPHEN E. MORRISSEY

MUNGER, TOLLES & OLSON LLP

355 South Grand Avenue

Los Angeles, CA 90071

(213) 683-9100

Counsel for Amici Curiae

National District Attorneys

Association and International

Association of Chiefs of Police

* Counsel of Record

x o

SCR 6" ST YP See ai ee

EE: RD SPP Nae PR

AMICUS CURIAE

BRIEF

| Supreme Court, U.S.

\\3 FILED

JUN 19 1998

No. 97-1121

In the Supreme Court of the Gnited States

OCTOBER TERM, 1997

City OF CHICAGO,

Petitioner,

Vv.

JESUS MORALES, ET AL.,

Respondents.

On Writ of Certiorari

to the Supreme Court of Illinois

BRIEF AMICUS CURIAE OF THE

CHICAGO NEIGHBORHOOD ORGANIZATIONS

IN SUPPORT OF PETITIONER

DAN M. KAHAN MICHELE L. ODORIZZI

TRACEY L. MEARES Counsel of Record

University of Chicago JEFFREY W. SARLES

Law School STEFFEN N. JOHNSON

1111 East 60th Street Mayer, Brown & Platt

Chicago, Illinois 60637 190 South LaSalle Street

(773) 702-9566 Chicago, Illinois 60603

(312) 782-0600

Counsel for Amici Curiae

QUESTION PRESENTED

Whether Chicago’s gang loitering ordinance, which enjoys the

overwhelming support of citizens who share in the burdens as well

as the benefits of the law, and which was adopted because it has

a significantly less destructive impact on gang members and their

communities than do alternative law-enforcement policies, strikes

a reasonable and constitutional balance between liberty and order.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...............--.05:-

i. au us eneehe® me i

TABLE OF AUVROUNTINS ..........c ec eeee iv

INTRODUCTION AND INTEREST OF AMICI CURIAE .. |

SUMMARY OF ARGUMENT ...........---..--. 4

a i dis bps oe 6

I. THE GENERALIZED IMPACT OF A POLICING

TECHNIQUE ON MEMBERS OF THE

COMMUNITY IS RELEVANT TO THE LEVEL

OF JUDICIAL SCRUTINY ...........55-. 6

Il. THE BURDENS ON LIBERTY ASSOCIATED

WITH THE ORDINANCE AFFECT MEMBERS

OF THE COMMUNITY GENERALLY ...... 14

lll. THE ORDINANCE REASONABLY BALANCES

i Me Ce . . tte eee eee meee 18

A. The Ordinance Substantially Promotes

CY ee i ae le 19

l Gang criminality plagues inner-city

neighborhoods. ............. 19

2. The Ordinance is geared to reducing

gang activity through its effect on

TABLE OF CONTENTS - continued

l. The Ordinance is liberty-enhancing

for the community at large and for

youths who resent pressure to join

ED. B klod C cw > Deba-owe

conventional “crack down”

strategies for combating gangs.

3. Objective criteria and political

monitoring furnish safeguards

IL 0 an 6 bea Ah 6 08%

CONCLUSION

. 27

TABLE OF AUTHORITIES

Cases:

Armstrong v. United States, 364 U.S. 40 (1960)... ...... x

Bouie v. South Carolina, 378 U.S. 347 (1964) ......... 10

Boyce Motor Lines v. United States,

OO 8 iiss 5 6s o's cncsac es 9

Church of Lukumi Babalu Aye v. City of Hialeah,

PUMICE. oo cn ook oececuus 7,13

Connecticut v. Doehr, 501 U.S. 1 (1991) ............ 25

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ....... 8

Cox v. Louisiana, 379 U.S. $36 (1965) ............. 10

Employment Division v. Smith, 494 U.S. 872 (1990) ..... . 7

Federal Election Commission v. Akins,

IE oo i oc San diencc es vo <a 8

Grayned v. City of Rockford, 408 U.S. 104 (1972) ....... 9

Keystone Bituminous Coal Ass'n v. DeBenedictis,

PO A TONE LS IRIEL 8

Leathers v. Medlock, 499 U.S. 439 (1991) ..........-. 7

Medina v. California, 505 U.S. 437 (1992)..........-. 6

Michigan Dep't of State Police v. Sitz,

QO6 U.S. GOR CIGGRD 0 ww ccc c ccc ce sevens 8

Minneapolis Star & Tribune Co. v. Minnesota

Comm'r of Revenue, 460 U.S. 575 (1983) ......... 7

National Treasury Employees Union v. Von Raab,

GBD UG. GEG CEREED o cc cc ccc cress teescivenss 8

-V-

TABLE OF AUTHORITIES - continued

New York v. Burger, 482 U.S. 691 (1987) ............ 4

Papachristou v. City of Jacksonville,

I SIE eS ccs cceces 6, 9-11, 13

People ex rel. Gallo v. Acuna,

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

op EG re 26

Schall v. Martin, 467 U.S. 253 (1984) ............ 26, 28

Shuttlesworth v. City of Birmingham,

Pe eee 6, 9-11, 13

South Carolina State Hwy. Dep't v. Barnwell Bros..,

SE barbs BESS EES CS So dws 8

United States v. Carolene Products Co..,

OB EE ee eer See 6

United States v. Salerno, 481 U.S. 739 (1987) ......... 28

Vernonia Sch. Dist. v. Acton,

Pe CE oat os ve Bee eon ediva 9, 13

Village of Hoffman Estates v. The Flipside, Hoffman

Estates, Inc., 455 U.S. 489 (1982) ............. 29

Statutes:

Voting Rights Act of 1965, 42 U.S.C. § 1971 et seq..... 10

Miscellaneous:

1998 Chicago Community Policing Convention

Resolution Endorsing Chicago's Anti-Gang

DEES Gwactcebiccstceveser 15, 26

-vi-

TABLE OF AUTHORITIES - continued

G. Akerlof & J. Yellen, Gang Behavior,

Law Enforcement, and Community

Values in Values and Public Policy

S, GO GED aid 8 bts cevecvses 24

All Things Considered: Miami Curfew Gaining Support

Among Many Black Groups (National Public

Radio broadcast, Feb. 24, 1994) .............. 11

E. Anderson, Streetwise: Race, Class, and Change

in an Urban Community (1990) ..........45. 23, 24

D. Barry & D. Sontag, Disrespect as Catalyst

for Police Brutality, N.Y. Times,

Sie, FR ee oii. 0 6 ara Hee EA d oe wictey 29

P. Bennett, Growing Up, Skewed, with Violence,

Bost. Globe, June 4, 1992, atl .........5 5546. 21

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

L.A. Times, Jan 16, 1998, at Al ..........+.-45- 21

B. Clements, Views Differ on Dallas’ Curfew,

Which Spawned Tacoma’s Plan, News

Trib. (Tacoma, Wash.), Oct. 17, 1994, at BI .... 12, 13

R. Conner, et al., Listen to the Voice

of the Projects (letter to the Editor),

N.Y. Times, Apr. 15, 1994, at A30 ........-.4.--. 14

H. Covey, et al., Juvenile Gangs (1992) ........-++-: 19

Sen. U. Curie, The ACLU Pits the Civil Rights of Few

Against the Common Good (Letter to Editor),

Wash. Times, Nov. 30, 1996, atAl2 ..........-- 14

M. Dawson, Behind the Mule: Race and Class in

African-American Politics (1994) .. 2... 5656550)

-Vii-

TABLE (.F AUTHORITIES - continued

D. DeFotis, Police Fret for Public after Gang

Shootings, Chi. Trib., June 2, 1998, at Bl ........ 20

W. Douglas, Vagrancy and Arrest on

Suspicion, 70 Yale L.J. 1 (1960) .............. 10

J. Ely, Democracy and Distrust (1980)............. 7,8

M. Genelin, Gang Prosecutions: The Hardest

Game in Town, in The Gang

Intervention Handbook (1993) ................ 20

A. Gonzalez, et al., Introduction to Gang

Violence Prevention (1990) .................. 21

B. Harden, Letter from New York: “Ideal State

of Cleanliness” Is Apple of Giuliani's Eye,

Wash. Post, Mar. 23, 1998, atA6 ............. 12

J. Jacobs, The Death and Life of Great

NY 24

M. Jankowski, Islands in the Street:

Gangs and American Urban Society (1991) ...... 23, 24

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

es Ne 20

Joint Ctr. for Political & Economic Studies, Black

Elected Officials: A National Roster (1993) ........ 11

Joint Ctr. for Political Studies, Black Elected

Officials: A National Roster (1984) ............. 11

Journal, City Council, Chicago, May 20,1998 ........ 15

-Viii-

TABLE OF AUTHORITIES - continued

G. Kelling & C. Coles, Fixing

Reducing Crime in Our Communities (1996) ....... 29

R. Kennedy, Race, Crime, and the Law ch. 3 (1997)... .. 10

M. Klarman, The Puzzling Resistance to Political

Process Theory, 77 Va. L. Rev. 747 (1991) ........ 7

M. Klein, The American Street Gang (1995) .......... 20

S. Lawson, Running for Freedom:

Civil Rights and Black Politics

in America Since 1941 (1991) . 2... 6 oe ew ee 11

D. Livingston, Police Discretion and the Quality

of Life in Public Places: Courts,

Communities, and the New Policing,

97 Colum. L. Rev. 551 (1997) ... 10, 12-14, 24, 28, 29

T. Locy, D.C. Curfew Overturned in Federal Court,

Wash. Post, Oct. 30, 1996, atAl..........555. 12

Louis Harris & Assoc., Inc., Between Hope

and Fear: Teens Speak Out on Crime

and the Community (1995) . 0... 666 0 ee eee 22

Man Demanding Gang Affiliation Shoots Teen

Standing on Street, Chi. Trib.,

. 8% © | pene er eC ae a 9 i 20

M. Martinez, Parents Paid to Walk Line Between Gangs

and School, Chi. Trib., Jan. 21, 1998, atAl ...... 21

D. Matza, Delinquency and Drift (1964).........-++-+. 23

-ix-

TABLE OF AUTHORITIES - continued

M. Mauer, The Sentencing Project, Young Black Men

and the Criminal Justice System:

A Growire National Problem (1990) ........... 27

T. Meares, Charting Race and Class Differences in

Attitudes Toward Drug Legalization and Law

Enforcement: Lessons for Federal Criminal Law,

1 Buff. Crim. L. Rev. 137 (1997) ............. 18

T. Meares, It’s a Question of Connections,

ee We i I ETD noc cc ccc cc csee 12

T. Meares, Social Organization

and Drug Law Enforcement,

5 Am, Crim. L. Rev. 191 (1998) ....... 12, 18, 22, 25

W. Miller, Lower Class Culture as a Generating

Milieu of Gang Delinquency,

ee ecee 23

W. Miller, Why the United States Has Failed to Solve

Its Youth Gang Problem, in Gangs in America

Gise HUD OEE Gg DUDE ocr crv cccccccs 21, 22

S. Mills & D. Bunuel, Not Yet 13 — and a Murder Suspect,

— | Se ee | Serer 21

S. Mills & D. Bunuel, Small Gang’s Big Grip Troubles

Neighborhood — The Saints Have

Grown More Violent And More

Diverse Since Forming In The 1960s,

Ge Wes OU Ole MOTE cc ccc cece eee 19

Office of Juvenile Justice and Delinquency Prevention,

U.S. Dept. of Justice, Curfew: An Answer to

Juvenile Delinquency and Victimization? ,

Juvenile Justice Bulletin, April 1996 ............ 25

-X- -xi-

. BLE OF AUTHORITIES - continued W. Stuntz, The Uneasy Relationship Between

R. Posner, The Most Punitive Nation, Pee mah tk arene

Times Li Sete. Gat: 0) MB i okic i ow.sa- 37 ee PU ERURELERE LE 27

S. Power, Boy Headed to School Killed by Gang ee ee

Member, Police Say, Dallas Morning mon- ribune, Aug. 7, 1994, at G2 se. & oe ¢ 2.0 S.¢ > 12

News, Jam. 29, 1996 2... ccc er wewccenee. 19 There Are No Children Here, Economist,

K. Pye, The Warren Court and Criminal Procedure, eT i sg 5 wv wot 19-21

67 Mich. L. Rev. 249 (1968) ...........5545- 10 P. Thomas, Putting Children on the Front Lines,

Quiet R atin ae - The | of the Wash. Post, June 20, 1996, atAl ............. 21

Voting Rights Act, 1965-1990 S. Wasserstrom, & L. Seidman, The Fourth

(C. Davidson et al. eds., 1994) ... 2... 26-5 e eee 11 Amendment As Constitutional

R. Sampson, et al., Community Structure and a FE Dis MRED. 5 cc cc ce mesenens 9

Crime: Testing Social-Disorganization Theory,

94 Am. J. Soc. 774 (1989) .. 2... ee eee 17

R. Sampson, Neighborhoods and Violent

Crime: A Multilevel Study of Collective Efficacy,

277 Schonce GIB (1GST) 2. eee 17

Sourcebook of Criminal Justice Statistics

Table 1.36 (K. Maguire et al. eds. 1994) ......... 11

F. Spielman, AntiGang Law Won't Be Abused, City

Says, Chi. Sun-Times, June 19, 1992, at 10 ....... 16

A. Stanley, Child Warriors, Time, June 18, 1990, at 30... 21

C. Steiker, Second Thoughts About First Principles,

107 Harv. L. Rev. 820 (1994) ............005. 10

W. Stuntz, Privacy's Problem and the Law ~

of Criminal Procedure,

93 Mich. L. Rev. 1016 (1995)... . 2... eee ees o)

INTRODUCTION AND INTEREST OF AMICI CURIAE'

Amici— collectively, “the Neighborhood Groups” — are 20

Chicago.’ Working closely with their elected representatives on the

City Council, the Neighborhood Groups played a critical role in

the design of the gang-loitering ordinance (“the Ordinance”).

Because the Ordinance’s implementing regulations oblige the police

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

letters have been lodged with the Clerk of the Court. This brief was not authored

in whole or in part by counsel for a party, and no person or entity, other than the

amici curiae, their members, and their counsel made a monetary contribution to

the preparation and submission of this brief.

* Amici include: United Neighborhood Organization, a nonprofit organization

whose focus is economic development, school reform, and civic participation:

Southwest Neighbors Against Gangs, a southwest side community organization

whose efforts include aggressive graffiti removal and active Nite Patrol; West

Woodlawn Council of Block Clubs, representing roughly 75 block clubs in

Woodlawn; Hegewisch Community Committee, a 60-year-old organization

working to prevent juvenile delinquency; Chicago Roseland Coalition for

Community Control, an economic development corporation of 24 years in

Roseland; South Chicago Chamber of Commerce, representing 275 area

businesses, churches, and school and community groups; Ravenswood

Community Council, dedicated to housing, youth, senior programs, and

community safety; Nobel Neighbors, an organization committed to improving

living conditions in West Humboldt Park; Hermosa Community Organization, an

organization addressing escalating neighborhood crime and providing tuition

support for area children; Reach Out & Touch Ministries, working to provide at-

risk youth in Englewood with job opportunities; West Humboldt Park Family &

Community Development Council, a community-based group committed to

working to increase the quality of life in East & West Garfield Park through

crime prevention and economic development; Crime Stoppers, an Englewood

organization directed at controlling conditions that foster crime; Lawndale

Business & Local Development Council, representing 66 local businesses working

to create jobs on Chicago's west side; CARE, rehabilitating homes, removing

graffiti, and promoting neighborhood safety; Near Westside Community

Development Corporation, a “bottom up” planning movement aimed at

neighborhood development and self-sufficiency; Edgewater Community Council,

which focuses on housing and public safety issues; Emmaus Ministries, an

outreach to young men involved in high-risk street activity including gangs.

prostitution, and substance abuse; Walls Community Church, a west side church

committed to urban life and the poor; Circle Urban Ministries, which operates

youth development and shelter programs in the Austin community.

x,”

to consult with community associations, the Neighborhood Groups

have also been intimately involved in determining where and how

the Ordinance is enforced. Finally, the Neighborhood Groups have

played an active role defending the Ordinance, filing amicus briefs

in the Illinois Court of Appeals, the Illinois Supreme Court, ar“

in support of the petition for certiorari.

The interest of the Neighborhood Groups can be simply

stated: to be heard. No other group of citizens is in a better

position to address the practical impact of the Ordinance. The

Groups’ members are the ones who daily face a heightened risk of

criminal victimization from gang criminality, and who experience

first-hand the destructive impact of gangs — and more severe

means of abating gangs — on the lives of their communities. The

Groups are the mothers and fathers, the sisters and brothers, and

the neighbors and friends of the youths subject to the law. They

support the Ordinance because it is a form of policing that secures

order without destroying the lives of community youth who find

themselves enmeshed in the complex social and economic forces

that fuel gang criminality.

From the outset, those who have opposed the Ordinance have

dismissed the unique perspective of the Neighborhood Groups’

members as irrelevant. An exchange from the City Council

hearings on the Ordinance typifies the critics’ attitude. At the

hearings, dozens of residents — from church leaders, to

representatives of local neighborhood associations, to ordinary

citizens — testified in favor of the proposed law. Harvey

Grossman, Director of the Illinois ACLU, testified against it:

I am a lawyer, and I spend a great deal of time doing

nothing more than reviewing ordinances and statutes,

and it turns into a little bit of a long exam game.

* * * We pick apart the statute. We focus on [a]

word or [a] phrase, and we try to say why that phrase

might or might not be constitutional.

Supp. R. Il at 107. Alderman William Beavers, a Council

member who represents a ward on Chicago’s south side, objected

to this bookish conception of how to appraise the constitutionality

of the law. “I don’t know if you are attuned to what’s going [on]

in these neighborhoods,” he told Grossman. “Maybe I need to

take you out there and show you what's really going on.” Id. at

119. To which Grossman replied that that would not be necessary:

I think our ability to come together and to try to

resolve issues [like this] really doesn’t * * * depend

on if I see what’s happening in your neighborhood or

you see what’s happening in my neighborhood.

Id. at 120. Rather, what it does depend on, he stated (ibid.), is

empathy or ability to understand what’s happening to

other people and, two, some commitment, some

intellectual integrity and some commitment to

principle. And the principle that I am suggesting to

you is inviolate. It doesn’t change.

The Neighborhood Groups submit that this conception of how

to assess the constitutionality of the Ordinance is just plain wrong.

We do not deny that the Ordinance poses challenging issues. But

we do deny, emphatically, that those issues — bearing as they do

on the proper balance of liberty and order in our communities —

can adequately be considered from the perspective of someone who

does “nothing more” than “pick apart” statutes and ordinances for

a living. We vehemently contest the suggestion that these issues

can fairly be resolved by a formulaic application of “inviolate”

“intellectual” “principle[s]” that “do[]n’t depend,” “really,” on

“see[ing] what's happening in [our] neighborhood{s].” And most

important of all, we indignantly resist the characterization of the

complex issues in this case as one big “exam game.” /bid.

The fate of the Ordinance is not a “game” for members of the

Neighborhood Groups. The goal of this brief is to show that their

perspective is constitutionally relevant and to explain why, in their

-4-

view, the Ordinance strikes a constitutionally permissible balance

between liberty and order.

SUMMARY OF ARGUMENT

I. Courts should adjust the level of constitutional scrutiny

applied to a policing technique based on the breadth of its impact

on liberty within the community. The proposition that courts

should reserve the highest degree of scrutiny for laws that

concentrate burdens on politically disempowered minorities figures

prominently across a wide expanse of doctrines. The exacting

scrutiny associated with this Court’s Due Process vagueness

jurisprudence reflects the assumption that communities never share

in the burden on liberty associated with public order laws, the

incidence of which is predictably concentrated on minority citizens.

That perception accurately captured the political reality of the

1960s and early 1970s, when this Court's leading criminal

procedure precedents were established. Today, however, minority

citizens are no longer so disenfranchised, and in fact exercise

significant authority in the Nation's inner-cities. They are using

their new-found political power to secure effective law enforcement

in the form of anti-loitering laws, curfews, and order-maintenance

policing.

It makes little sense to approach the constitutional questions

posed by these laws as if they were the same ones posed by an

earlier generation of public order provisions, the purpose and

effect of which were to oppress minorities. Rather than subject all

such laws to searching scrutiny, courts should consider whether the

community at large is meaningfully sharing in the burden created

by the challenged provision. If it is, courts should afford

significant weight to the judgment of the community's political

representatives that the subject law reasonably balances liberty and

order.

II. The Ordinance affects members of the community at large

in a meaningful way. Unlike the anti-loitering laws of an earlier

-5-

generation, the Ordinance is not a tool of repression being used by

white majorities to reinforce the exclusion of minorities from the

community's political and economic life. To the contrary,

representatives of Chicago's poorest minority communities have

played a key role in the adoption and implementation of this law.

The residents of those communities, moreover, are linked by

strong social and familial ties to the gang members against whom

the Ordinance is enforced. It is precisely because they care so

deeply about the welfare of these persons that residents favor the

relatively mild gang-loitering law as an alternative to draconian

penalty enhancements for gang crimes, severe mandatory minimum

prison sentences for drug distribution, and similarly punitive

measures. The pervasive sense of “linked fate” between the

majority of these communities’ residents and the youths affected by

the Ordinance provides a compelling reason to respect the

community’s determination that such measures enhance rather than

detract from liberty in their communities.

III. Evaluated under an appropriately deferential standard of

review, the Ordinance strikes a reasonable balance between liberty

and order. Like other forms of order-maintenance policing, the

Ordinance promotes obedience to law primarily through its positive

effect on community social norms. Suppressing visible displays of

gang authority counteracts the social pressures that drive many

youths to join or emulate gang members. It also provides

assurance to committed law-abiders, who are more likely to

cooperate with each other and with the police when insulated from

relentless public intimidation by gang members. At the same time,

the guidelines established by the Ordinance’s implementing

regulations, combined with the ongoing role of community

organizations in overseeing its implementation, furnish potent

safeguards against abusive enforcement. Indeed, the Ordinance

represents a significantly /ess coercive alternative to conventional

law-enforcement strategies for combating gangs, and even to other

forms of order-maintenance policing, which afford police officers

considerably more discretion in enforcement.

ARGUMENT

I. THE GENERALIZED IMPACT OF A POLICING

TECHNIQUE ON MEMBERS OF THE COMMUNITY IS

RELEVANT TO THE LEVEL OF JUDICIAL SCRUTINY

Applying this Court’s decisions in Papachristou v. City of

Jacksonville, 405 U.S. 156 (1972), and Shuttlesworth v. City of

Birmingham, 382 U.S. 87 (1965), the Illinois Supreme Court held

that the Ordinance was unconstitutionally vague. We submit that

proper reach, of those decisions. The exacting demand for

Statutory precision reflected in those cases is reserved for

discretionary policing techniques the coercive incidence of which

is concentrated on a politically disempowered minority. When the

policing technique affects the community generally, in contrast,

courts appropriately relax the degree of scrutiny in recognition of

the community’s own incentives to police its police.’

This Court commonly describes constitutional rights —

particularly those that relate to criminal justice — as guaranteeing

a reasonable “balance * * * between liberty and order.” E.g.,

Medina v. California, 505 U.S. 437, 443 (1992). In determining

whether the balance struck by any particular policy is reasonable,

courts appropriately pay attention to how diffusely the impact of

that policy is felt within the community. Where the coercive

incidence of a particular policy is being visited on a powerless

to determine whether the order benefits of the law for the

community at large truly outweigh the liberty costs to the few.

See generally United States v. Carolene Products Co , 304 U.S.

’ The court below also held that the Ordinance violated substantive due process.

We dispute that ruling on the same ground — namely, that in undertaking to

enforce its own conception of liberty, the court applied a degree of scrutiny

inconsistent with the deference that is due when the law in question does not

concentrate burdens on a disempowered minority but rather affects members of

the community generally.

-7-

144, 152 n.4 (1938); J. Ely, Democracy and Distrust 73-104

(1980). This explains why courts strictly scrutinize policies that

discriminate on the basis of race, restrict “dangerous” speech, or

impose special obligations on account of religion. See M.

Klarman, The Puzzling Resistance to Political Process Theory, 77

Va. L. Rev. 747, 748-57, 760-63 (1991).

But when a community can be seen as internalizing the

coercive incidence of a particular policy, courts are much less

likely to second-guess political institutions on whezher the tradeoff

between liberty and order is appropriate. Thus, the Free Exercise

Clause proscribes “‘prohibition{s] that society is prepared to

impose upon [religious minorities] but not upon itself’” (Church of

Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 545 (1993)),

but does not affect “neutral law{s] of general applicability”

resulting from the normal “political process” in our “democratic

government” (Employment Division v. Smith, 494 U.S. 872, 879,

890 (1990)). Likewise, this Court has readily sustained free speech

challenges to taxes that “single[] out the press,” reasoning that

“the political constraints that prevent a legislature from passing

crippling taxes of general applicability are weakened” in such

circumstances, while rejecting free speech challenges to taxes of

general applicability, reasoning that there is little cause to “fear

that a government will destroy a selected group of taxpayers by

burdensome taxation if it must impose the same burden on the rest

of its constituency.” See Minneapolis Star & Tribune Co. v.

Minnesota Comm'r of Revenue, 460 U.S. 575, 585 (1983)

(invalidating a tax targeted at the press); of. Leathers v. Medlock,

499 U.S. 439, 447 (1991) (sustaining a generally applicable sales

tax as applied to the press).

These principles apply broadly in constitutional law. For

instance, in challenges to state laws pursuant to the Dormant

Commerce Clause, the Court carefully scrutinizes laws whose

“burden falls principally upon those without the state,” simply

because such laws are “not likely to be subjected to those political

-8-

restraints which are normally exerted on legislation where it affects

adversely some interests within the state.” South Carolina State

Hwy. Dep't v. Barnwell Bros., 303 U.S. 177, 184 n.2 (1938).

Similarly, the Takings Clause principally “bar[{s] Government from

forcing some people alone to bear public burdens which, in all

fairness and justice, should be borne by the public as a whole”

(Armstrong v. United States, 364 U.S. 40, 49 (1960)), but does

not limit land-use regulations that impose equal burdens on all

property owners (see Keystone Bituminous Coal Ass'n v.

DeBenedictis, 480 U.S. 470, 486 (1987)). Even the Court's

standing cases reflect the notion that the generality of a burden is

important in determining what role (if any) the judiciary should

play in its redress. As the Court explained just a few days ago in

Federal Election Commission v. Akins, 118 S. Ct. 1777, 1785

(1998), “where large numbers of Americans suffer alike, the

more appropriate remedy for a widely shared grievance.”

same emphasis on how burdens are apportioned. Normally, the

police must obtain a warrant, supported by probable cause, before

they can conduct a search. See, e.g., Coolidge v. New Hampshire,

403 U.S. 443, 449-50 (1971). This requirement recognizes that

law-enforcement officials are not likely to attach sufficient value

to the liberty of individual criminal suspects, whose interests are

generally a matter of indifference to the general public. See ibid.;

cf. Ely, supra, at 96-97. Law-enforcement officials need not

obtain a warrant or even have probable cause, however, to stop

motorists at sobriety checkpoints (see Michigan Dep't of State

Police v. Sitz, 496 U.S. 444 (1980)), or to search all persons

entering airports or government buildings (see National Treasury

Employees Union v. Von Raab, 489 U.S. 656, 675 n.3 (1989)).

Insofar as these policies burden average members of the

community, there is far less reason for courts to doubt the

determination of politically accountable officials that these policies

strike a fair balance between liberty and order. See S. Wasserstrom

-9-

& L. Seidman, The Fourth Amendment As Constitutional Theory,

77 Geo. L.J. 19, 95-96 (1988).

If the burden of a law-enforcement policy falls on someone

other than the average citizen, deference is still due so long as the

political process can be viewed as sufficiently attentive to that

party’s interests. Thus, random drug-testing of student athletes is

exempted from the warrant requirement not because student

athletes exercise significant influence in the political process but

because their parents, who naturally take their children’s interests

to heart, do. See Vernonia Sch. Dist. v. Acton, 515 U.S. 646

(1995). Likewise, searches of regulated commercial enterprises,

which exert considerable influence in the political process, and

which pass the cost of regulation onto consumers, are exempt from

the warrant requirement under the “administrative search”

doctrine. See, e.g., New York v. Burger, 482 U.S. 691 (1987);

W. Stuntz, Privacy’s Problem and the Law of Criminal Procedure,

93 Mich. L. Rev. 1016, 1044-45 (1995).

There is no reason to approach the Due Process constraints on

policing any differently. The “void for vagueness” doctrine

permits “reasonable breadth” in statutory drafting in order to

accommodate the need for “flexibility” in law enforcement and the

interest of citizens in avoiding “arbitrary and discriminatory

application.” Grayned v. City of Rockford, 408 U.S. 104, 109-10

(1972); see Boyce Motor Lines v. United States, 342 U.S. 337.

340 (1952) (Constitution demands only “a reasonable degree of

certainty” in light of “untold and unforeseen variations in factual

situations”). Just how precise the language of a statute must be to

be “reasonable” should depend on how widely the burden of that

law is likely to be felt within the community.

Papachristou and Shuttlesworth reflect the exacting degree of

precision that courts appropriately demand when the burdens of

community policing are being concentrated on politically

disadvantaged minorities. Well into the 1960s. discretionary law

enforcement authority was a central means by which communities

-10-

in both the North and South excluded minorities from economic

and political life.‘ Shuttlesworth and Papachristou both arose from

this factual coniext, as did a variety of other landmark criminal

procedure precedents.’ Because those arrested under the public

order laws of the era typically came “from minority groups” with

insufficient political clout “to protect themselves” and without “the

prestige to prevent an easy laying-on of hands by the police,” it

would have been absurd, the author of Papachristou observed, for

courts to defer to the judgment of the community's political

institutions on whether those forms of policing embodied a

reasonable balance of liberty and order. W. Douglas, Vagrancy

and Arrest on Suspicion, 70 Yale L.J. 1, 13 (1960).

It would be a mistake, however, to assume that the conditions

that informed Papachristou and Shuttlesworth are immutable. For

one thing, as a result of the Voting Rights Act of 1965, 42 U.S.C.

§ 1971 et seq., African-Americans are no longer so disen-

franchised, and in fact exercise considerable political influence,

particularly in the Nation's inner-cities.° Nor is the relationship

* See R. Kennedy, Race, Crime, and the Law ch. 3 (1997); C. Steiker, Second

Thoughts About First Principles, 107 Harv. L. Rev. 820, 839-40 (1994); D.

Livingston, Police Discretion and the Quality of Life in Public Places: Courts,

Communities, and the New Policing, ¥7 Colum. L. Rev. 551, 595-601 (1997).

* At issue in Shuttlesworth was the application of a loitering ordinance to a

““notorious’ * * * civil rights” activist at a time when African-Americans were

engaged in picketing and boycotting of businesses that discriminated on the basis

of race. See 382 U.S. at 101-02 (Fortas, J., concurring). Papachristou involved

the application of such a law to two interracial couples situng in a parked car.

See 405 U.S. at 158-59. See also Cox v. Louisiana, 379 U.S. 536 (1965)

(invalidating conviction obtained under vaguely worded statute as applied to

protesting civil rights demonstrators); Bouie v. South Carolina, 378 U.S. 347

(1964) (same). See generally K. Pye, The Warren Court and Criminal

Procedure, 67 Mich. L. Rev. 249, 256 (1968), and Steiker, supra, at 844.

* On the dramatic effects of the Act on minority registration, turnout, and

representation, see Quiet Revolunon in the South: The Impact of the Voting Rights

Act, 1965-1990 (C. Davidson et al. eds., 1994). On the increase of African-

(continued...)

between minorities and police marked by the unbridled animosity

that furnished the backdrop for Papachrist.: and Shuttlesworth.

Due in large part to the increased political representation of

minorities, African-Americans today make up a significant

percentage of all urban police departments.’ New York,

Washington, D.C., and Los Angeles, for example, have all had

black police chiefs accountable to black mayors.

Indeed, rather than shunning the police, African-Americans

are now using their political strength to remedy the historic under-

enforcement of \aw in their communities. In nearly every large

American city, African-Americans have supplied the impetus for

the revival of community policing. African-American community

groups (including the Urban League) were the driving force behind

the adoption of curfews in cities such as Miami, Dallas, San

Diego, and Washington, D.C.* African-American city council

°(.. continued)

American representation in elected offices at all levels of government, see Jomt

Cw. for Political & Economic Studies, Black Elected Officials: A National Roster

(1993); Joint Ctr. for Political Studies, Black Elected Officials: A National Roster

(1984); see also $. Lawson, Running for Freedom: Civil Rights and Black Politics

in America Since 1941, at 170-182 (1991) (detailing progress of Black urban

polincians and noung triumphs of candidates in Newark. Oakland, New Orleans,

Atlanta, Detroit, and Gary among other cities).

’ Consider the “index of black represeatation.” which is calculated by dividing

the percent of African-American police officers in a department by the percent

of African Americans in the local population of several major cities. Los

Angeles’s index increased from .55 to 1.00 between 1983 and 1992. Detroit's

index increased from .49 to .70 during the same period. Chicago, San Diego.

Dallas, and Phoenix posted indexes of .64, .80, 64, .77 in 1992, respectively,

each an increase from 1982 levels. See Sourcebook of Criminal Justice Staustics

Table 1.36 at 49 (K. Maguire et al. eds. 1994).

* See All Things Considered: Miami Curfew Gaining Support Among Many Black

Groups (National Public Radio broadcast, Feb. 24. 1994) (reporting that curfew

ordinance sponsored by Afncan-American County commissioner is supported by

70% of African-Americans in Dade County and by Greater Miami Urban

League); The Teen Curfew Works (editorial), San Diego Union-Tribune. Aug. .

(continued...

-12-

members, representing the city’s most crime-ridden districts, were

instrumental in the enactment of the Chicago’s Ordinance. See pp.

14-16, infra. African-Americans have also strongly supported the

use of anti-loitering laws in other cities, as well as the renewed

attention to order-maintenance policing in New York.’

The relationship between the political supporters of these laws

and those at whom those laws are aimed also distinguishes the new

community policing from the old. Unlike the 1960s, today there

is no natural antagonism between the supporters of community

policing and those who bear the coercive incidence of curfews,

anti-loitering laws, and the like. On the contrary, these two groups

are intimately linked by strong emotional, social, and even familial

ties. In fact, many inner-city residents support anti-loitering laws

and curfews precisely because they see them as tolerably moderate

alternatives to the draconian punishment of minor drug offenses. '°

The idea that the resurgence of public order laws signals a

return to the discriminatory and arbitrary policing that motivated

Papachristou completely misconceives the political reality. These

*(...continued)

1994, at G2 (minority community support for San Diego curfew); B. Clements,

Views Differ on Dallas’ Curfew, Which Spawned Tacoma's Plan, News Trib.

(Tacoma, Wash.), Oct. 17, 1994, at Bl (same, Dallas curfew); T. Locy, D.C.

Curfew Overturned in Federal Court, Wash. Post, Oct. 30, 1996, at Al

(Washington, D.C. curfew sponsored by African-American council member and

supported by African-American Mayor).

* See Livingston, supra, at 623 (“Loitering legislation in the 1990s has often had

broad community support, particularly in some predominantly minority

communities plagued by street-level drug dealing.”); B. Harden, Letter from New

York: “Ideal State of Cleanliness” Is Apple of Giuliani's Eye, Wash. Post, Mar.

23, 1998, at A6 (reporting majority of city’s African-Americans support Mayor

Giuliani based on perception that his emphasis on “civility” is responsible for

steep drops in crime in poor, minority neighborhoods).

See T. Meares, It’s a Question of Connections, 31 Val. U. L. Rev. 579, 588-

89 (1997); T. Meares, Social Organization and Drug Law Enforcement, 35 Am.

Crim. L. Rev. 191, 211-17 (1998).

-13-

new public order laws “are not facially aimed at rendering some

people, like racial minorities, transients, and the poor, outsiders to

the community.” Livingston, supra, at 594. Rather, they are part

and parcel of minority communities’ efforts to restore community

organization. Meares, Social Organization, supra, at 224-26."'

Because the circumstances surrounding the adoption and

enforcement of public order laws can vary, constitutional doctrine

should not presume that all such laws are of a piece. The most

straightforward way for the Due Process vagueness doctrine to take

account of the relevant differences in such laws is through the

burden-internalization principle that informs constitutional

jurisprudence in so many other settings. Thus, rather than subject

all public order laws to the searching scrutiny embodied in

Papachristou and Shuttlesworth, courts should first ask whether the

community itself is sharing in the burden that that law imposes on

individual freedom. Relevant indications are the purposes served

by the law (see Church of the Lukumi Babalu Aye, 508 U.S. at

545-46), the relationship between supporters of the law and those

to whom it is being applied (see Vernonia School Dist., 515 U.S.

at 649-50, 665), and the availability of administrative procedures

aimed at guaranteeing effective political oversight of the exercise

of discretion (see Livingston, supra, at 653-58). If, on this basis,

a court concludes that a law’s impact on liberty is being widely felt

'' Not surprisingly, when civil libertarians challenge curfews, anti-loitering laws,

and like forms of order-maintenance policing as inviting racial harassment, their

lawsuits are frequently opposed by minority citizens themselves. See, ¢.g.,

Clements, supra, at B1 (quoting African-American mother who spear-headed

support for Dallas curfew: claim that curfew would lead to racial harassment

“was an ACLU scare tactic that polarized the community”); R. Conner et al.,

Listen to the Voice of the Projects (leter to the Editor), N.Y. Times, Apr. 15,

1994, at A30 (noting that residents of Chicago housing projects sought legal

representation to oppose ACLU class action brought on residents’ behalf); Sen.

U. Curie, The ACLU Pits the Civil Rights of Few Against the Common Good

(Letter to Editor), Wash. Times, Nov. 30, 1996, at Al2 (comment of African-

American legislator on ACLU opposition to curfews: “the ACLU seem{s} to be

marching to music only it c[an] hear”).

-14-

within the community, it should afford that law greater deference,

in recognition of the community's own considered judgment that

it appropriately balances liberty and order.

Il. THE BURDENS ON LIBERTY ASSOCIATED WITH

THE ORDINANCE AFFECT MEMBERS OF THE

COMMUNITY GENERALLY

This Court's jurisprudence reserves the strictest scrutiny for

police practices that concentrate burdens on individuals who are

excluded from the political process and whose interests are not

otherwise adequately represented by members of the community at

large. That situation does not describe the Ordinance. Rather, the

day-to-day impact of the Ordinance has been felt generally by the

citizens of affected neighborhoods, who are intimately connected

to the city’s gang members, and who support the law because it is

the least coercive means of protecting themselves, their children,

and their neighbors from the scourge of gang criminality.

Unlike the public order provisions scrutinized by this Court

in the 1960s, the Ordinance was not imposed on minorities by an

alien political establishment; rather, it was enacted at the behest of

those very citizens. Members of the Neighborhood Groups, as

well as many other grassroots organizations from the poorest and

most crime-ridden minority neighborhoods in the city, played a

critical role in the Ordinance’s adoption and implementation. '

The Chicago City Council held two days of hearings on the

Ordinance, replete with testimony of residents and community

leaders registering support for its adoption. As numerous residents

explained, when “[a] gang claims the neighborhood as its own,”

“[t]hey know where you live,” “what time you leave, what time

" For example, the transcripts of the meeting of Chicago City Council Committee

on Police and Fire on May 15, 1992, and May 18, 1992, demonstrate that there

was widespread support for the Ordinance from neighborhood groups on

Chicago's predominantly minority-7th, 8th, and 20th wards on the south side of

the city.

-15-

you come home.” Supp. R. I at 54, 66, 67. “You can’t get on

the bus * * * [or] go to church on Sundays,” because “[w]hen you

go to the bus stop, there is a group of people” waiting. /d. at 108.

Residents of Chicago's poorer neighborhoods — those located in

proximity to the expressways — also described the loitering of

gang members and associates as designed to facilitate drug sales:

individuals loiter on corners to advertise the wares of associates

hidden in dark alleys and to warn their compatriots of the arrival

of police. /bid. As gang control solidifies, “people begin to hide

behind locked doors, [and] the gang is free again to turn the

community into open air drugstores and eventually a war zone.”

Id. at 54. Not surprisingly, when the proposed Ordinance was put

to a vote, Aldermen representing the city’s poorest, predominantly

minority wards—e.g., Alderman Ed Smith, representing Chicago's

highest-crime police district—supplied the key support for its

passage.

These communities continued to support the Ordinance after

enactment. In fact, the City Council recently adopted a resolution

supporting the invalidated Ordinance by a 3-to-1 margin. Journal,

City Council, Chicago, May 20, 1998, at 70134, 70135.

Significantly, representatives of predominantly African-American

and Latino wards — especially those in which gang-related crime

poses serious challenges to the daily lives of residents — voted in

favor.’ In addition, the residents of these same wards have been

actively organizing a petition drive in support of the Ordinance.

To date, over 8,500 signatures have been collected throughout the

City. 1998 Chicago Community Policing Convention Resolution

Endorsing Chicago’s Anti-Gang Loitering Ordinance, on file with

Office of City Clerk. Over half of these have been collected in the

predominantly Latino communities of Pilsen, Little Village, Back

'’ Alderman representing the predominantly Afncan-American 2d, 7th, 8th, 17th,

20th, 21st, 27th, and 29th wards all voted in favor of the resolution. Similarly,

Alderman Frias, Olivo, Solis, Suarez, and Colom, all of whom represent heavily

Latino-influenced wards, voted in favor. Journal, City Council, Chicago, supra.

-16-

of the Yards, Marquette Park, and Gage Park, all wards with

vexing crime problems. /bid.

In short, any suggestion that the Ordinance was adopted as a

cover for harassing minority youths is completely misguided.

Indeed, Aldermen from high-income and exclusive areas could not

have sought to have it applied in this way, since enforcement is

expressly confined to neighborhoods suffering from a pronounced

gang presence. Moreover, the City volunteered not to enforce the

Ordinance in those wards in which the Alderman did not support

it. See F. Spielman, Anti-Gang Law Won't Be Abused, City Says,

Chi. Sun-Times, June 19, 1992, at 10.

Nor can it be credibly maintained that those citizens who

supported the Ordinance did so to oppress minorities within their

own neighborhoods. Although not every person in those

communities faced a significant risk of being approached by the

police under the Ordinance, even those who were never asked to

“move along” felt its impact in a meaningful way. After all, those

who were subject to the Ordinance were not “outsiders”; they

were the sons and daughters, the brothers and sisters, and the

friends and neighbors of the community’s own residents. Indeed,

residents who supported the Ordinance did so precisely because

they saw it as an acceptably moderate way to steer their children

and their neighbors’ children away from the gang life.

The spirit that marked community support for the Ordinance

reflects two larger currents of sentiment in inner-city communities.

The first is an extended sense of empathy. Individuals in these

communities tend to evaluate whether a policy benefits them

individually by considering its impact not just on themselves but

also on members of the groups to which they belong. University

of Chicago political scientist Michael Dawson has referred to this

decisionmaking process as “linked fate.” M. Dawson, Behind the

Mule: Race and Class in African-American Politics 75-84 (1994).

Dawson has demonstrated through extensive use of public opinion

-17-

surveys that linked fate is especially prominent among African-Americans.

It was, in fact, this sense of solidarity with — and not any

antagonism toward — the community's youth that motivated the

grass-roots support for the Ordinance. Testifying at the City

Council hearings, for example, Acasi Abey, President of the

Brothers West Association, objected to law enforcement strategies

that treat gang members as outsiders:

[I}t’s a community problem. I think a lot of times we ap-

proach a gang problem as if these kids were from outerspace.

They are next door neighbors. Some of them go to church.

Some of them are in school. Some of them are in college.

Supp. R. I at 143. Mr. Neil Bosanko, head of amicus South

Chicago Chamber of Commerce (an organization comprising 275

businesses, churches, and school and community groups), is a

parent of a youth imprisoned for his involvement in a gang-style

murder. He supported the Ordinance as a morally responsible way

to steer community youth away from gang life and to counter the

escalating number of young murder victims from his neighborhood

and young lives wasted in prison.

The second common sensibility that motivated the grass-roots

support for the Ordinance was resentment of “get tough” law

enforcement strategies. These approaches, which feature severe

prison sentences for drug-dealing and related “street” crimes, can

in fact undermine inner-city communities’ own capacity to resist

crime. Empirical work in criminology (undertaken, significantly,

in Chicago) demonstrates that institutions of community life such

as friendship networks, shared adult supervision of teens, and

informal associations are critical to a neighborhood's ability to

control offenders. See R. Sampson, Neighborhoods and Violent

Crime: A Multilevel Study of Collective Efficacy, 277 Science 918

(1997); R. Sampson et al., Community Structure and Crime:

Testing Social-Disorganization Theory, 94 Am. J. Soc. 774 (1989).

Widespread imprisonment in high crime neighborhoods breaks up

-18-

families, disrupts local employment markets, and generally

enfeebles the community institutions that prevent crime. See T.

Meares, Social Organization, supra, at 205-11. The “get tough”

style of law enforcement is generally resented by minorities for

precisely that reason. In sum, the residents of poor, minority

communities favor “middle ground” solutions to crime — ones that

furnish a reasonable prospect of relief from crime without severely

disrupting their communities. See T. Meares, Charting Race and

Class Differences in Attitudes Toward Drug Legalization and Law

Enforcement: Lessons for Federal Criminal Law, | Buff. Crim. L.

Rev. 137, 144-47 (1997) (documenting that African-Americans are

more likely to support drug criminalization, but to oppose severe

penalties for offenders, than are similarly situated whites).

Testimony at the hearings shows community residents’

awareness of the high costs that both gang criminality and severe

prison terms visit on poor, minority communities. Imprisonment

of youths such as Mr. Bosanko’s son destroys lives just as surely

as does gang violence. The goal of the Ordinance, as one resident

put it, was not “to hurt anyone,” but only to give the police the

power “to clean these corners up.” Supp. R. I at 67. Given the

unusual sensitivity of the residents of these neighborhoods to the

individual and societal costs of invasive policing, their considered

judgment that the Ordinance embodies a reasonable accommodation

of liberty and order is entitled to substantial deference.

Ill. THE ORDINANCE REASONABLY BALANCES

LIBERTY AND ORDER

Because the coercive incidence of the Ordinance is felt by

members of the affected communities generally, this Court should

afford considerable deference to the judgment of the residents’

political representatives that the Ordinance embodies a reasonable

balance between liberty and order. See Part I, supra. Under this

standard, the Ordinance passes muster under both procedural and

substantive Due Process. The Ordinance is designed to protect the

whole community — not just law-abiding citizens, but prospective

-19-

and current gang members as well — from the destructive impact

of gang criminality. It does so, moreover, not by severely

punishing gang members, who are also in significant ways victims

of social conditions that they did not create. Rather, through a

guided regime of discretion, subject to ongoing political

monitoring, the Ordinance attacks the pathological social norms

that fuel gang criminality and destroy the lives of gang members

and non-gang members alike.

A. The Ordinance Substantially Promotes Order

1. Guag criminality plagues inner-city neighborhoods.

Gang criminality has made the inner-city neighborhoods of

Chicago deadly places to live. Stories of innocent bystanders shot

in gang-war crossfire have become staples of newspaper headlines

and TV news in Chicago as elsewhere. E.g., D. DeFotis, Police

Fret for Public after Gang Shootings, Chi. Trib., June 2, 1998, at

Bl; S. Power, Boy Headed to School Killed by Gang Member,

Police Say, Dallas Morning News, Jan. 29, 1998, at 21A.

Although criminal gangs have long been part of the urban

landscape, they have taken a dramatic new direction in recent

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

organized takeovers of entire neighborhoods based on the

acquisition of lethal weaponry financed by lucrative trading in

crack cocaine. See H. Covey, et al., Juvenile Gangs 101 (1992);

S. Mills & D. Bunuel, Small Gang's Big Grip Troubles

Neighborhood — The Saints Have Grown More Violent And More

Diverse Since Forming In The 1960s, Chi. Trib., Feb. 11, 1998,

at B1. Brass knuckles and baseball bats are no longer the weapons

of choice. See There Are No Children Here, Economist, Dec. 17,

1994, at 21 (“Now automatic and semi-automatic assault weapons

are de rigueur”). Chicago and Los Angeles alone account for

1,000 gang homicides annually. OJJDP Fact Sheet, supra.

Street-level intimidation is one of the primary strategies by

which gangs extend their influence. By stationing small groups of

-20-

gang members on the streets, gangs stake out and lay claim to turf,

sell drugs to finance the procurement of arms, recruit new

Intumidation takes many forms, including wearing gang colors and

clothing, flashing gang signs, and plastering buildings with graffiti.

See M. Genelin, Gang Prosecutions: The Hardest Game in Town,

in The Gang Intervention Handbook 417 (1993). Street-corner

squads of gang members also facilitate the commission of violent

gang crimes. See M. Klein, The American Street Gang (1995);

Man Demanding Gang Affiliation Shoots Teen Standing on Street,

Chi. Trib., Feb. 17, 1998, at B3.

Law-abiding citizens are effectively imprisoned in their homes

as a result of the mere presence of gang members on the streets.

At the City Council hearings prior to passage of the Ordinance,

residents vividly described their fear to walk their own streets in

the face of loitering gang members for whom drugs, shootings,

and vandalism constitute business as usual. See Supp. R. | at 53,

62, 93, 95, 110, 132, 138. Civil rights leader Jesse Jackson

expressed the feelings of many when he stated, “Just to think we

can’t walk down our own streets, how humiliating.” M. Johnson,

Crime: New Frontier, Chi. Sun-Times, Nov. 29, 1993, at 4.

Children are particularly vulnerable to the intimidation of

gang members congregating on the streets. Fear is the primary

tool of gang recruitment. “[I]f you're [a child and] not in a

gang,” a Chicago anti-drug counselor told the Economist, “you're

a target wherever you go.” There Are No Children Here, supra.

In Chicago, the heavy gang presence on the streets around the

Robert Taylor housing project has resulted in “waves of fear-

induced absenteeism” from neighborhood schools, prompting

hundreds of volunteers to band together to shepherd children to

school and the School Board to hire dozens of parents to serve as

escorts. S. Braun, Shepherds for a Flock in the Cross-Fire, L.A.

-21-

Times, Jan 16, 1998, at Al; M. Martinez, Parents Paid to Walk

Line Between Gangs and School, Chi. Trib., Jan. 21, 1998, at Al.

Gangs have focused their recruitment on increasingly younger

children as the competition to control turf and drug markets has

intensified. See P. Thomas, Putting Children on the Front Lines,

Wash. Post, June 20, 1996, at Al; S. Mills & D. Bunuel, Nor Yer

13 — and a Murder Suspect, Chi. Trib., Feb. 4, 1998, at Al;

There Are No Children Here, supra (citing Chicago anti-gang

counselor's estimate that 80% of boys aged 13 to 15 in the area

where he works are involved in gangs). Moreover, whether or not

they are gang members, children growing up in gang-dominated

neighborhoods often show signs of post-traumatic str>ss disorder.

A. Gonzalez et al., Introduction to Gang Violence Prevention 5-6

(1990). A study of children in Chicago day care centers found that

100% of them had seen a shooting by the age of five. P. Bennett,

Growing Up, Skewed, with Violence, Bost. Globe, June 4, 1992,

at 1. As one journalist reported several years ago, “many of the

children emerge from the streets of Los Angeles more

mountain passes of Afghanistan.” A. Stanley, Child Warriors,

Time, June 18, 1990, at 30.

Inner-city residents in Chicago and elsewhere are, in a very

real sense, engaged in a battle to protect themselves from a deadly

members. Their formidable challenge is to find a cure that does

not itself threaten the well-being of their communities and children.

2. The Ordinance is geared to reducing gang activity

through its effect on social norms. The disease of gang

criminality has proven notoriously resistant to treatment. The

conventional prescription is the “crack down” strategy of severe

prison terms, which has done little to reduce gangs (see, e.g., W

Miller, Why the United States Has Failed to Solve Its Youth Gang

Problem, in Gangs in America 263, 267 (C. R. Huff ed., 1990)),

-22-

while leaving a trail of broken lives and fractured communities in

its wake (see Meares, Social Organization, supra, at 206-07).

The Ordinance employs a unique approach to combating

gangs based on a distinctive theory of why they exist. Rather than

trying to bludgeon gang members into submission through severe

punishments, the Ordinance seeks to reform the social norms that

drive individuals into crime and weaken the community's own

crime-defense mechanisms.

The causes of gang criminality are subtle. Residents of gang-

of relatively gang-free ones. See Miller, supra, at 280-81. Nor is

law-enforcement in gang-ridden neighborhoods invariably more

lax. See id. at 267. Rather, the difference between these

communities lies mainly in the attitudes of their residents toward

gangs. Juveniles in gang-ridden neighborhoods do not necessarily

look up to gang members. Indeed, they are just as likely as those

in relatively gang-free neighborhoods to resent gangs as violent

and destructive. See Louis Harris & Assocs., Inc., Between Hope

and Fear: Teens Speak Out on Crime and the Community, table

5-2, at 104 (1995). Nevertheless, those in gang-ridden

neighborhoods are much more likely to believe that a majority of

their peers admire gang members: whereas only 19% of juveniles

in relatively gang-free communities believe that, 66% of those in

gang-ridden ones do. /bid.

These perceptions can reinforce themselves and ultimately

determine the level of gang activity in a particular community. In

relatively gang-free neighborhoods, the belief that others devalue

gang membership strengthens the aversion that individual youths

have toward joining them. But the belief of juveniles in gang-

ridden neighborhoods that their peers admire gang members can

make joining one seem worthwhile even to those only weakly

committed (or opposed) to gangs. See D. Matza, Delinquency and

Drift 54-56 (1964). Notwithstanding their private reservations,

moreover, the decision of such individuals to join gangs conveys

-23-

publicty that they, too, value membership, a signal that reinforces

the pressure on other teens to do the same. See id. at 52-59. This

“system of shared misunderstanding” is one mechanism by which

social norms fuel criminal gang activity. /d. at 53.

Another is the effect of visible gang activity on emotional

dispositions. In a community pervaded by gang activity, residents

are more likely to form the aggressive disposition that gang

members themselves prize. The apparent authority and status of

gang members imbues their mannerisms with connotations of

strength. Indeed, the failure to imitate their demeanor can make

one appear weak and vulnerable. See E. Anderson, Streetwise:

Race, Class, and Change in an Urban Community 177-79, 181

(1990); M. Jankowski, Islands in the Street: Gangs and American

Urban Society 28 (1991). As a result, individuals face strong

pressure to cultivate the aggressive bearing associated with gang

membership. When numerous individuals cultivate that bearing

simultaneously, more of them are likely to turn to crime, both

because of the (mis)information those mannerisms impart about

public attitudes toward gang membership, and because of the

obstacles they create to interactions with law-abiders, who strongly

devalue aggression. See Anderson, supra, at 177-78, 189.

This social-norm account not only helps to explain why gangs

exist, but also identifies which policies are likely to abate them.

The conventional suppression strategy does not, in part because

policies that severely punish gang activity may actually reinforce

the norms that promote gang membership. Delinquency is status-

enhancing because juveniles often view willingness to break the

law as a sign of strength and courage. See, e.g., W. Miller, Lower

Class Culture as a Generating Milieu of Gang Delinquency, 14 J.

Soc. Issues 5, 8-9 (1958). The more severe the penalty, the more

strength law-breaking projects. Thus, the crackdown strategy is at

A more effective approach is to attack the public signs and

cues that inform juveniles’ (mis)perception that their peers value

-24-

gang criminalit’. That is what Chicago is trying to achieve with

the Ordinance. Other jurisdictions seek to produce the same effect

through curfews or nuisance injunctions. See Livingston, supra,

at 640-42. By preventing gangs from openly displaying their

authority, these policing strategies counteract the perception that

gang members enjoy a high status in the community. As that

perception recedes, so does the reputational pressure to join them.

The suppression of open gang activity also positively

influences the attitude and behavior of law-abiding members of the

community. Like other forms of public disorder, gang activity

drives some law-abiding citizens out of the community and others

off the streets, thereby depriving the community of their stabilizing

influence. See Anderson, supra, at 2-5, 58-59, 69-76; J. Jacobs,

The Death and Life of Great American Cities 29-35 (1961). In

addition, gang activity drives a wedge between the community and

the police. When individuals understand gangs to be in control,

they infer that cooperating with law-enforcement officials is likely

to be both futile and dangerous. See G. Akerlof & J. Yellen,

Gang Behavior, Law Enforcement, and Community Values in

Values and Public Policy 173-84 (H. Aaron et al., eds., 1994).

The reluctance of the community to turn on the gangs not only

shields them from punishment but also legitimizes gang

membership in the eyes of potential recruits. See Jankowski,

supra, at 193-202. By counteracting perceptions that gangs control

the community, gang-loitering laws and curfews give law-abiders

the confidence they need to oppose gangs. Once the community

withdraws its support for them, the perception of waning gang

influence quickly becomes a reality. See id. at 201-02.

A growing body of evidence documents the effectiveness of

the social-norm strategy for fighting gangs. Law-enforcement

officials in Chicago, for example, report dramatic reductions in

violent offenses in the neighborhoods where the Ordinance has

been most vigorously enforced. See Meares, Social Organization,

supra, at 225. Numerous other municipalities report the

-25-

effectiveness of curfews in reducing the incidence of juvenile

victimization and juvenile crime. See Office of Juvenile Justice and

Delinquency Prevention, U.S. Dept. of Justice, Curfew: An Answer

to Juvenile Delinquency and Victimization?, Juvenile Justice

Bulletin, April 1996, at 1, 3-9. Courts should respect the

considered judgment of Chicago’s lawmakers that the Ordinance

embodies the most promising way to solve the persistent problem

of gang criminality.

B. The Ordinance Places Minimal Restraints on Liberty

The Ordinance is carefully crafted to minimize any restraint

on liberty. In fact, both because it serves as a substitute for severe

punishments, and because it dissipates widely resented norms, the

Ordinance may actually enhance liberty for many youths likely to

be subject to the “move along” orders it authorizes. Moreover,

both the Ordinance and its implementing regulations employ

objective standards to limit police discretion and to provide gang

loiterers with an opportunity to avoid any criminal sanction simply

by obeying an order to move along.

1. The Ordinance is liberty-enhancing for the community at

large and for youths who resent pressure to join gangs. \n

declaring that the Ordinance unconstitutionally abridges liberty, the

Illinois Supreme Court focused only on the restraints that the

Ordinance put on the behavior of gang members. As a result, it

failed to consider the various ways in which the Ordinance actually

enhances the liberty of the communities in which it is enforced.

Cf. Connecticut v. Doehr, 501 U.S. 1, 11 (1991) (due process

requires “due regard for any ancillary interest” of third parties).

First, the Ordinance enhances the liberty of community

residents to use and enjoy their own streets. Gang crime and

intimidation diminish the liberty not only of their victims, but also

of community residents who must take costly and opportunity-

sacrificing precautions to avoid becoming victims. Permitting gang

members to camp out on city streets impedes the very liberties

-26-

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

associate with others. People living in gang-infested neighborhoods

who wish to walk along their streets and to associate with their

neighbors have every right to do so free of threats, whether spoken

or silent, and to expect the police to take measures to promote

their safety and the integrity of their homes and businesses.

By seeking to prevent serious crime before it occurs, the

Ordinance breaks the gangs’ stranglehold on the streets, destroys

their aura of invincibility, and disrupts their ability to commit more

serious crimes. As the California Supreme Court recently

observed, to forfeit the liberty of peaceful and industrious residents

of a community “to preserve the illusion of freedom for those

whose ill conduct is deleterious to the community as a whole is to

ignore half the political promise of the Constitution and the whole

of its sense.” People ex rel. Gallo v. Acuna, 929 P.2d 596, 618

(Cal.), cert. denied, 117 S. Ct. 2513 (1997).

Second, the Ordinance liberates community youth from the

intense pressure that they feel to join gangs. The vast majority of

individuals join gangs not because they value gang membership

intrinsically, but because they perceive (mistakenly) that their peers

value it and (correctly) that failing to join can lead to deadly

repercussions. See p. 22, supra. These impressions are formed

and transmitted through the intimidating presence of gang members

on neighborhood streets. See pp. 22-25, supra. By vanquishing

this presence, the Ordinance relieves the pressure that drives

youths into self-destructive gang criminality. Thus, it should come

as no surprise that over 1,500 youths in Chicago have registered

support for the Ordinance. See 1998 Resolution, supra.

The Ordinance thus reflects a “combined interest in protecting

both the community and the juvenile himself from the consequences

of future criminal conduct.” Schall v. Martin, 467 U.S. 253, 264

(1984) (emphasis added). It recognizes that society has a legitimate

interest in protecting a juvenile from “the downward spiral of

criminal activity into which peer pressure may lead the child.” /d.

-27-

at 266. In that sense, it is liberty-enhancing, even with regard to

many of the very persons likely to be its targets.

2. The ordinance is a liberty-conserving alternative to

conventional “crack down” strategies for combating gangs. The

Illinois Supreme Court's conclusion that the Ordinance exacts an

unconstitutional toll on liberty also overlooks the liberty-destroying

effects of severe punishment — the Ordinance’s principal

alternative. Legislatures commonly attempt to compensate for

judicial restrictions on effective street-level policing by adopting

even longer prison terms. R. Posner, The Most Punitive Nation,

Times Literary Supp., Sept. 1, 1995, at 3, 4; W. Stuntz, The

Uneasy Relationship Between Criminal Procedure and Criminal

Justice, 107 Yale L.J. 1 (1997). Indeed, many inner-city residents

support anti-loitering laws precisely because they see them as

tolerably moderate alternatives to draconian punishment of minor

drug offenses. See p. 17, supra. The kids whom the police can’t

order off the streets today, they realize, are the same ones they'll

be carting off to jail tomorrow.

The identity of the Ordinance as an alternative to long prison

terms goes to the heart of the interest that the Neighborhood

Groups have in this case. As coercive as enforcing order on the

streets can be, it pales in comparison to the disproportionate impact

of incarceration on young African-American and other minority

men.'* The ironic consequence of judicial decisions invalidating

the Ordinance and like forms of community policing would be a

vast curtailment of individual liberty in the name of preserving it.

3. Objective criteria and political monitoring furnish

safeguards against abuse. The Illinois Supreme Court held that

the Ordinance was invalid on its face. A Due Process facial

See, e.g., M. Mauer & T. Huling, The Sentencing Project, Young Black

Americans and the Criminal Justice System: Five Years Later 4 (1995) (finding

one-third of African-American men are either imprisoned, on parole, or on

probation).

-28-

challenge should be sustained only if “no set of circumstances

exists under which the Act would be valid.” United States v.

Salerno, 481 U.S. 739, 745 (1987). That is clearly not the case

here: the objective enforcement criteria specified by the Ordinance

itself and by the police department's enforcement guidelines,

combined with the community consultation procedures found in the

regulations, reasonably constrain discretion. Considered against

the backdrop of the community's own internalization of the effects

of the Ordinance, these safeguards clearly satisfy Due Process.

See Part I, supra; Livingston, supra, at 650-70.

Significantly, the Ordinance incorporates an objective standard

against which to test the propriety of an officer's order to disperse.

Such an order is authorized only if the officer “reasonably

believes” that one or more members of a group of loiterers is a

member of a criminal street gang. Pet. App. 6la. In addition, the

terms “criminal street gang” and “loiter” are carefully defined to

deter any over broad reading. /d. at 6la-62a. These provisions

safeguard against any concerns about unfettered police discretion.

Such concerns should be further allayed by the Chicago Police

Department's implementing guidelines, specifically adopted “to

ensure that the anti-gang loitering is not enforced in an arbitrary

or discriminatory way.” Pet. App. 65a. Under those guidelines,

the Ordinance may be enforced only by trained officers in certain

“areas frequented by members of criminal street gangs” — as

designated after consultation with community leaders and residents

— thereby significantly limiting the scope of enforcement. Pet.

App. 68a. Thus, the Ordinance and regulations permit criminal

sanctions only based on “a prediction of future criminal conduct

{that] is ‘an experienced one based on a host of variables’ that

cannot be readily codified.” Schall, 467 U.S. at 279 (emphasis

added). Finally, the guidelines oblige the police to consult with

community groups concerning implementation of the Ordinance

-29-

(Pet. App. 68a), thereby assuring effective and ongoing political

oversight of the exercise of police discretion."

Should this Court uphold the lower court’s decision to

invalidate the Ordinance, it will remit Chicago — not to mention

other cities contemplating norm-focused strategies for combating

gangs — to policing strategies that involve even more discretion.

A reasonably close substitute for Chicago's invalidated gang-

loitering law, for example, would be New York’s strategy of

order-maintenance policing. See generally G. Kelling & C. Coles,

Fixing Broken Windows: Restoring Order and Reducing Crime in

Our Communities (1996). The “public order” provisions at the

base of that strategy — including laws against public drunkenness,

prostitution, aggressive panhandling, jaywalking, and unlicensed

street vending — are specific enough on their face to survive

vagueness challenges. See Livingston, supra, at 615-16. Yet the

officers who enforce these laws retain considerable latitude about

whether to enforce them at all, and, if so, where and against

whom. See id. at 609. Teen curfews invite considerable discretion

as well. Distinguishing legitimate from abusive police behavior is

thus much more difficult when a police department engages in

general order-maintenance policing than it is under a gang-loitering

ordinance like Chicago’s, which, contrary to its apparent

generality, jealously guards against the diffusion of enforcement

authority. Indeed, New York's order-maintenance policing

reportedly has generated a considerable increase in police-

misconduct complaints. See D. Barry & D. Sontag, Disrespect as

Catalyst for Police Brutality, N.Y. Times, Nov. 19, 1997, at Al.

'S The court below disregarded the Police Department's guidelines on the ground

that they were not binding under state law. Pet. App. 16a. This was error. As

this Court has made clear, courts can and should look to administrative

constructions to determine, as a matter of federal constitutional law, whether a

state statute is susceptible of valid applications sufficient to defeat a facial

challenge. See, ¢.g., Village of Hoffman Estates v. The Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 494 n.5 (1982) (“In evaluating a facial challenge to

a state law, a federal court must, of course, consider any limiting construction

that a state court or enforcement agency has proffered”) (emphasis added).

-30-

CONCLUSION

Chicago’s gang loitering ordinance represents a modest

attempt to restore order to the city’s streets while preserving the

liberty of those most likely to bear the brunt of criminal law

enforcement. The Ordinance enjoys the broad support of the

communities where it is enforced, enhances the liberty of residents

who lack other effective means oi combating gang intimidation,

and is responsibly crafted to constrain police discretion in its

enforcement. To strike the Ordinance down on the basis that it is

unduly “vague” or somehow interferes with Respondents’

“fundamental right to loiter,” as did the Illinois Supreme Court,

would disserve the very communities the Due Process Clause of

the Fourteenth Amendment was designed to serve.

The judgment of the Illinois Supreme Court should be

reversed.

Respectfully submitted.

DAN M. KAHAN MICHELE L. ODORIZZI

TRACEY L. MEARES Counsel of Record

University of Chicago JEFFREY W. SARLES

Law School STEFFEN N. JOHNSON

1111 East 60th Street Mayer, Brown & Platt

Chicago, Illinois 60637 190 South LaSalle Street

(773) 702-9566 Chicago, Illinois 60603

(312) 782-0600

JUNE 1998

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.