# Amicus Curiae Brief — Chicago v. Morales > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0150%3A16 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1999 - **Citation:** 527 U.S. 41 ## Text No. 97-1121 Iu the Supreme Court of the United States OCTOBER TERM, 1997 CITY OF CHICAGO, Petitioner, v. 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 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 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. 7 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0150%3A16. Public record. Not legal advice.