Amicus Curiae Brief — Chicago v. Morales

1 ) Supreme Court, U.S.

j

pra FILED

No. 97-1121 al 19 1998

In The

SUPREME EBURT OF THE UNITED STATES”

© October Term, 1997

PA City of Chicago,

¥ Petitioner,

ge

v.

Jesus Morales, et al.,

Respondents.

On Writ Of Certiorari

To The Supreme Court of Illinois

BRIEF AMICUS CURIAE OF OHIO, ALABAMA,

ALASKA, ARIZONA, CALIFORNIA, COLORADO,

CONNECTICUT, DELAWARE, FLORIDA, GEORGIA,

ILLINOIS, INDIANA, KANSAS, LOUISIANA,

MARYLAND, MICHIGAN, MINNESOTA,

MISSISSIPPI, MISSOURI, MONTANA, NEBRASKA,

NEVADA, NEW YORK, NORTH CAROLINA,

RHODE ISLAND, SOUTH CAROLINA, SOUTH

DAKOTA, UTAH, COMMONWEALTHS OF

KENTUCKY, PENNSYLVANIA, PUERTO RICO AND VIRGINIA

AND TERRITORY OF VIRGIN ISLANDS

IN SUPPORT OF THE PETITIONER

BETTY D. MONTGOMERY

we Attorney General of Ohio

<* JEFFREY S. SUTTON

> State Solicitor

xy Counsel of Record

ROBERT C. MAIER

EN DAVID M. GORMLEY

fe LEW A. BECHTOL, I

és STEPHEN P. CARNEY

& Assistant Attorneys General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215-3428

(614) 466-8980

COUNSEL FOR AMICI STATES

WILLIAM H. PRYOR, JR.

Attorney General

State of Alabama

BRUCE M. BOTELHO

Attorney General

State of Alaska

GRANT WOODS

Attorney General

State of Arizona

DANIEL E. LUNGREN

Attorney General

State of California

GALE A. NORTON

Attorney General

State of Colorado

JOHN M. BAILEY

Attorney General

State of Connecticut

M. JANE BRADY

Attorney General

State of Delaware

ROBERT A. BUTTERWORTH

Attorney General

State of Florida

THURBERT E. BAKER

Attorney General

State of Georgia

JAMES E. RYAN

Attorney General

State of Illinois

JEFFREY A. MODISETT

Attorney General

State of Indiana

CARLA J. STOVALL

RICHARD P. IEYOUB

Attorney General

State of Louisiana

J. JOSEPH CURRAN, JR.

Attorney General

State of Maryland

FRANK J. KELLEY

Attorney General

State of Michigan

HUBERT H. HUMPHREY III

Attorney General

State of Minnesota

MICHAEL C. MOORE

Attorney General

State of Mississippi

JEREMIAH W. (JAY) NIXON

DON STENBERG

Attorney General

State of Nebraska

FRANKIE SUE DEL PAPA

Attorney General

State of Nevada

DENNIS C. VACCO

Attorney General

State of New York

MICHAEL F. EASLEY

Attorney General

State of North Carolina

D. MICHAEL FISHER

Attorney General

Commonwealth of Pennsylvania

CARLOS LUGO-FIOL

Attorney General

Commonwealth of Puerto Rico

JEFFREY B. PINE

Attorney General

State of Rhode Island

CHARLES M. CONDON

Attorney General

State of South Carolina

JULIO A. BRADY

Attorney General

Virgin Islands

MARK L. EARLEY

Attorney General

Commonwealth of of Virginia

TABLE OF CONTENTS li

Ii OTHER SAFEGUARDS PROVIDE AMPLE

Page SECURITY AGAINST IMPROPER

APPLICATIONS OF THIS AND OTHER

STATEMENT OF AMICI] INTEREST ............... l i 22. 64 ve Gow adduce esc aOt

SUMMARY OF ARGUMENT ..................... 5 EN Cola Sbuus coded cdekerteocbiccts

So wd'ie Wikis Chics ab ddgion da veabdeeeees 6 ES Swati eid Gunde sake ok 06s 8OTe i deka

L THE ORDINANCE DOES NOT VIOLATE A. States That Penalize Gang-Related

SUBSTANTIVE DUE PROCESS ............. 7 eS Sy re eee

A The Chicago Ordinance Satisfies The B. Early Loitering And Vagrancy Laws ... .

Minimal Requirements Of Rational-Basis

dn aaa ek ete. 5 7 Cc Modern Loitering Laws .............

B. Neither The Text Of The Constitution, D. State Dispersal Laws ...............

History Nor Case Law Establishes A

Fundamental Right To Loiter .......... 11

IL. THE CHICAGO ORDINANCE IS NOT

IMPERMISSIBLY VAGUE ................ 14

A. The Chicago Ordinance Gives Ample

Notice Of The Conduct It Prohibits ..... 14

B The Chicago Ordinance Supplies

Reasonable Standards For Enforcement

TABLE OF AUTHORITIES

Cases Page

Adams Fruit Co. v. Barrett,

<5 ds ones bodes deme 23

Agostini v. Felton,

ED oo vee vécodcteosdeusiar 21

American Communications Assn. v. Douds,

Rs 15

Barr v. City of Columbia,

eT Te er reer. Cee 27

Boos v. Barry,

eo eee 16,20

Broadrick v. Oklahoma, :

Ee eee ere 24

Brown v. Board of Education,

he coe tanwdeh bene es 10

City of Dallas v. Stanglin,

ED ve cowecvcskenwavbueyesce 23

Clark v. Community for Creative Non-Violence,

— . & errr rrr 24

Coates v. Cincinnati,

EE re ree ae 19,25

Colten v. Kentucky,

407 U.S. 104(1972) ............... 15,16,21,24

Cox v. Louisiana,

ED os diy bop oles as } oh 18,25

Cox v. New Hampshire,

Eas occu bonne ends 18,28

Dawson v. Delaware,

ED od cccesdavavectiseceud 26

Edwards v. South Carolina,

EY on coca vneewenenee ews 26

iv

Fort Wayne Books, Inc. v. Indiana,

ES Cy « ce dade lou o oR tere wk 9

Garner v. Louisiana,

I td Je bu bie Suwa 27

General Motors v. Tracy,

I. Wid ule ou ve beedecse 25

Grayned v. City of Rockford,

406 U.S. 104 (1972) ................... passim

Gregory v. City of Chicago,

oo I PE Pe ee 27

Harper v. Virginia State Bd. of Elections,

EE oe EL UN Gab vp wbies babes ee 10

Johnson y. Florida,

ED 5 Ve Vewie we Ube ee heey 27

Kelley v. Johnson,

I Sos oy 12

Kolender v. Lawson,

ED no Give i cdc evvevceke passim

Lanzetia v. New Jersey,

a ae I ck coe ees 9

Lincoln Federal Labor Union No. 19129 v.

Northwestern Iron & Metal Co.,

er er OP ee Terre 12

Members of City Council v. Taxpayers for Vincent,

EIFS pred ae ae 24

Memphis v. Greene,

SEs ee 22

Moore v. City of East Cleveland,

pe ED 05S bec tes cs ccsesecocds 11

Ornelas v. United States,

ED Sa owe bi wale coe eW et 17

Palko v. Connecticut,

I CR Sue cUU Awe babes owe 11

Palmer v. City of Euclid,

GPG PEUENEOED cocdabipebedcecaddducs 27

Vv

Papachristou v. City of Jacksonville,

Ge Se PEED oc obnbecdds coeudbe passim

Pennsylvania v. Mimms,

CPM TOD. onc odds dcdccdewelidace™ 21

Powell v. Texas,

SE ED odo Willuciocbosbduerebene 26

Reno v. Flores,

ED «5 ion a wcebhae de ee Cebus 24

Robinson v. California,

IIE. DG o's Gibsons oo ade O00. 26

Scales v. United States,

I 6's Sib dro'a's Wb do ba Uo vai 26

Shuttlesworth v. City of Birmingham,

EDs o's in a-wib'v c's din we bee he passim

Terry v. Ohio,

is 4 ba sv ania vie db aan ed 17,20

Thompson vy. City of Louisville,

ED sso vad bac wevcrecretocs 27

United States v. Armstrong,

116 S. Ce. 14BO (1996) . 0... cee cee e ees 26

United States v. Montoya de Hernandez,

og A are re 17

United States v. Salerno,

481 U.S. 739 (1987) ..................,. 12,24

United States v. Sokolow,

I ois. dn 0 bus obibinvsy We Reus 17

United States v. Turkette,

sete ctbecedkpes oebb 9

Village of Belle Terre v. Boraas,

CD 0s Lbs ous kebde bodies cover 22

Village of Euclid, Ohio v. Ambler Realty Co.,

OE ED i's vols taco tosioWis oobi 10

Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc.,

455 U.S. 489 (1982) ....... 0.0... 24

Washington v. Glucksberg,

117 S. Ct. 2258 (1997) ..............., 5,7,11,13

Williamson v. Lee Optical of Okla, Inc.,

348 U.S. 483 (1955) ...................... 22

Young v. American Mini Theatres, Inc.,

Pe ae 12

Statutory Provisions Page

Cal. Penal Code §§186.20 ......................... 3

Other Authorities Page

D. Curry, et al., Estimating the National

Scope of Gang Crime from Law

Enforcement Data (Nat’| Institute

of Justice, Aug. 1996) ....................., 2

J. Howell, Youth Gangs (U.S. Dep’t of Justice,

Office of Juvenile Justice and Delinquency

Prevention Fact Sheet #72, December 1997) _... . 3

R. Jackson & W. McBride,

Understanding Street Gangs (1984)........... 2,3

Jeffries, Legality, Vagueness, and the

Construction of Penal Statutes,

71 Va. L. Rev. 189(1985).................. 25

G. Kelling & C. Coles, Disorder and the Court,

116 Pub. Interest 57(1994) ................. 10

George L. Kelling & Catherine M. Coles,

Fixing Broken Windows (1996)............... 4

D. Livingston, Police Discretion and the

Quality of Life in Public Places: Courts,

Communities, and the New Policing,

97 Colum. L.Rev. 551(1997) .............. 9,25

vii

1995 National Youth Gang Survey,

(U.S. Dep’t of Justice, Office of

Juvenile Justice and Delinquency

Prevention August 1997) ...............-555.

1996 Ohio Gang Survey,

(Ohio Attorney General Office

po eee

A. Valdez, Gangs: A Guide To Understanding

po See 2 ee eee eee

James Q. Wilson & George L. Kelling,

Broken Windows, Atlantic Monthly,

ES cee re a se ane ety. ee

STATEMENT OF AMICI INTEREST

The State of Ohio, together with 32 other amici States

and Territories, join the City of Chicago in urging the Court to

reverse the decision of the Supreme Court of Illinois. The amici

States and Territories share Chicago’s concerns about the urban

violence and community dysfunction spawned by criminal gangs

and share responsibility with their political subdivisions for

rooting out these problems. For these reasons and those

elaborated below, we offer this brief to urge the Court to uphold

the Chicago gang loitering ordinance and to confirm that the

Constitution tolerates measured law-enforcement steps in this

area.

The problems associated with youth gangs are new in

kind -- so new that they would have surprised most prior

generations of Americans. Whether it be the random violence

associated with such gangs, their aggressive recruitment of new

members, their public intimidation of law-abiding citizens or

their disproportionate contribution to the palpable sense of

lawlessness dominating many American neighborhoods, history

offers few examples of this phenomenon. Still less does it trace

teenagers as the primary source of such activity.

National statistics regarding gang membership illustrate

the point. Not until 1975 did national organizations even begin

meaningfully to compile such data. At that point, there were a

total of 55,000 gang members. See 1995 National Youth Gang

Survey (U.S. Dep’t of Justice, Office of Juvenile Justice and

Delinquency Prevention August 1997) (“Survey”), at 2. During

the next 20 years, the figure increased to 97,940 gang members

in 1982, to 120,636 in 1988, to 249,324 in 1992, and to

378,807 in 1994. Id. By 1995, the estimated number of gang

members nationwide was at least 664,906. /d Other

researchers confirm similar trends. Survey, at 2.

2

Nor has any pocket of the country managed to insulate

itself from these disturbing trends. A recent survey confirms the

pervasive scope of gang influence in modern America: It reveals

gang activity in all fifty states; it demonstrates a gang presence

in rural as well as urban counties; and it shows a total of 23,388

youth gangs. Survey, at xi. The increase in gang membership

extends to all racial groups, be they Hispanic, Caucasian,

African-American or Asian. A. Valdez, Gangs: A Guide To

Understanding Street Gangs (1997), at 356-57; R. Jackson &

W. McBridge, Understanding Street Gangs (1984), at 31.

Along with the widespread expansion of gang

membership has come an all-too-familiar pattern of increased

criminal activity. In 1993, there were an estimated 580,331

gang-related crimes nationwide, a number that reflects an eight

to eleven fold increase from 1991. D. Curry, et al., Estimating

the National Scope of Gang Crime from Law Enforcement Data

(Nat’l Institute of Justice, Aug. 1996), at 3-4. Most law

enforcement agencies report that gang problems have yet to

abate, with some reporting that they are the same and almost

half reporting that they continue to get worse. Survey, at xi..

A 1996 Ohio study, for example, identified 1,884 gangs in the

State with a total membership of 20,443. 1996 Ohio Gang

Survey (Ohio Attorney General Office Anti-Gang Unit, 1996).

According to the study, gang-related homicides grew from | per

year in 1980 to 69 per year in 1990 to 86 per year in 1995. /d.

One of the defining characteristics of street gangs is their

desire to assert control over territory and to protect it from rival

gangs. See Jackson & McBride, at 19. By “claim{ing] a turf or

neighborhood as theirs” and by monopolizing street corners

through their overwhelming presence, Valdez, at 25, gangs “can

literally take control of neighborhoods and cities,” id. Group

loitering thus facilitates efforts to control territory, aids in

recruitment, and most conspicuously causes much of the random

violence associated with gang activity. From the gang member’s

3

perspective, the fact that “some neighborhoods are continually

terrorized by gang attacks,” Jackson & McBride, at 20, is

simply a necessary evil associated with each gang member acting

“as a soldier protecting his turf in an ongoing war with rival

gangs,” id. at 26. From the perspective of other members of the

community, of course, the gangs’ efforts to control territory by

group loitering is a leading cause of random violence. “In 1991,

there were 771 gang-related deaths in Los Angeles alone.

About 25% of those killed were innocent bystanders, people

who had nothing to do with gangs .... They simply were in the

wrong place at the wrong time.” Valdez, at 41. Similar

statistics exist for other cities. See J. Howell, Youth Gangs

(U.S. Dep’t of Justice, Office of Juvenile Justice and

Delinquency Prevention Fact Sheet #72, December 1997).

To their credit, State and local governments have

responded to these developments through a number of different

strategies. At the State level, many legislatures have targeted

enacted legislation making it a second degree felony to “actively

participate” in a criminal gang and to promote or assist in the

commission of specified crimes, while also enhancing the

penalties for violent offenders convicted under a specification of

gang participation. Sub. H.B. 2 (5/11/98). The Ohio legislation

follows the lead of California’s “STEP” legislation (“street

terrorism enforcement and prevention”), first enacted in 1988

and amended several times since then. See Cal. Penal Code

§§186.20, 186.21 (legislative findings), 186.22(a) (prohibiting

active participation as well as promoting or assisting certain

predicate offenses), 186.22(c), (f) (definitions), 186.26 (offense

of coercing a minor to participate in a gang), 186.28 (offense of

supplying firearms to gang). In like manner most other States

on the gang-related nature of criminal acts. See Appendix A.

4

Continuity and change mark Chicago’s response to the

problems associated with street gangs. On the one hand, the

city has followed the traditional approach of using membership

in a criminal gang as a relevant criterion for law enforcement

activity. But, in contrast to these other laws, the Chicago

ordinance takes a more proactive stance toward law

enforcement. Instead of predictably increasing the sentences

imposed for gang-related crimes, instead of building still-larger

prisons to house the youths responsible for these actions,

Chicago has tried to alter the community climate that allows

gang activity to fester. In curbing gang loitering, in other

words, the city has targeted the environment that allows criminal

activity to occur at all. The idea is this: If law-abiding citizens

can reclaim the streets, if youths believe they need not join a

gang for their own safety, if in short the community no longer

tolerates this and other forms of outward lawlessness, gang

intimidation and gang crimes will diminish. See, e.g., James Q.

Wilson & George L. Kelling, Broken Windows, Atlantic

Monthly, Mar. 1982, 33-38; George L. Kelling & Catherine M.

Coles, Fixing Broken Windows (1996).

The Illinois Supreme Court did not appear to doubt any

of this. Yet under its holding society’s power to defend itself

against these acknowledged evils was sharply curtailed. It

would seem to be an essential function of State and local

government to determine the proper balance between rights and

regulations concerning access to and enjoyment of a

community’s streets, above all to ensure equal access to this

basic component of urban life and to curb the kind of urban

environment that allows criminal activity to proliferate. Because

the amici States respectfully believe that the Constitution does

not disable them from taking reasoned steps toward criminal

gang control and community policing, we submit this brief for

the Court’s consideration.

5

SUMMARY OF ARGUMENT

I. The Chicago ordinance does not violate substantive due

process. The law as an initial matter meets the minimal

requirement of coupling a “rational” measure to “legitimate state

interests.” Washington v. Glucksberg, 117 S. Ct. 2258, 2271

(1997). The thorough fact findings of the Chicago City Council

by themselves adequately unite the sensible means of regulating

gang loitering to the ends of public safety 2nd public-order

cabanas Neither Papachristou v. City of Jacksonville, 405

U.S. 156 (1972), nor any other case holds to the contrary. No

doubt the Papachristou laws were “archaic,” id. at 161, “no

longer fit the facts,” id. at 162, and were “too generalized,” id.

at 171, properly making them susceptible to attack even on

rational-basis grounds. But the up-to-date, carefully-calibrated

Chicago ordinance contains no such flaw.

Nor does the ordinance warrant heightened review. By

any measure of fundamental rights, loitering comes up short.

The text of the Constitution offers no indication that loitering

deserves special protection. History also fails to sustain this

claim, as most States regulated a wide range of loitering

activities in 1868, and still do so today. The case law,

Papachristou included, also fails to establish a constitutional

safe harbor for loiterers, much less for those who are members

of a criminal gang that has been found to use loitering as a cover

for criminal activity, intimidation of law-abiding citizens, and as

a method of recruitment.

Il. The ordinance also avoids the twin shoals of impermissibly

vague laws. First, it supplies all the “fair warning” that due

process requires. Grayned v. City of Rockford, 408 U.S. 104,

108-09 (1972). The law does not trap the unwary because no

prosecution ever occurs unless the police have first asked the

citizen to disperse and the citizen has thereafter refused.

Second, while the ordinance is “marked by flexibility and

6

reasonable breadth, rather than meticulous specificity,” id at

110 (quotation omitted), it contains ample guideposts to

prohibit “arbitrary and discriminatory enforcement,” id. at 108.

The law for example does not cast a large net, but a small one,

because only the citizen who disregards a warning to disperse

falls within it. And the law’s further limitation to loitering by or

among criminal gang members further reduces the risk of wholly

subjective and capricious enforcement.

III. While this carefully-drafted ordinance satisfies the

substantive and procedural dictates of due process on its face,

other constitutional protections prevent Chicago and other

governments from improperly implementing this and other laws

in the future. The distinction between facial and as-applied

challenges ensures that a law, even though once upheld on its

face, may still not be improperly implemented in particular

settings. A wide range of constitutional mandates precludes

discriminatory enforcement of such measures, the manipulation

of such laws to curb free speech, or the use of such laws to

punish individuals for their status rather than their actions.

ARGUMENT

The safeguards afforded by the due process clause,

whether procedural or substantive, whether incorporated or

unincorporated, do not require an across-the-board invalidation

of Chicago’s gang ordinance. In each respect the ordinance

steers clear of the Fourteenth Amendment’s bar against

irrational laws, laws that infringe fundamental rights and laws

that are impermissibly vague. The lower court’s contrary

decision should be reversed.

7

I. THE ORDINANCE DOES NOT VIOLATE

SUBSTANTIVE DUE PROCESS.

The Illinois Supreme Court held (Pet. 15a-17a) that the

Chicago gang ordinance violates substantive due process in two

respects -- because it is “arbitrar[y]” in nature and because it

intrudes upon the fundamental right to “freely walk the streets

and associate with friends.” In each respect, the lower court

was wrong, and indeed every benchmark of constitutionality

points the other way.

A. The Chicago Ordinance Satisfies The

Minimal Requirements Of Rational-

Basis Review.

The Chicago ordinance as an initial matter is “rationally

related to legitimate government interests.” Washington v.

Glucksberg, 117 S. Ct. 2258, 2271 (1997). The prohibition

against arbitrary lawmaking simply does not bar all or even most

findings of the Chicago City Council amply connect the sensible

means of limiting gang loitering to the laudable end of public

relied on Papachristou in reaching a contrary conclusion, that

decision does not bear the heavy weight the court gave it.

The deliberate nature of Chicago’s efforts to regulate

Jacksonville Ordinance (and State-law statutes) invalidated by

Papachristou v. Jacksonville, 405 U.S. 156 (1972) 26 years

ago. The Papachristou laws addressed a problem whose time

had come and gone. As a brief review of the provisions

confirms, see id. at 158, “Jacksonville’s ordinance and Florida’s

statute were derived from early English law, and employ[ed]

archaic language in their definitions of vay, ..1ts,” id at 161

(quotation omitted). Even though “the theory of the

Elizabethan poor laws” that perpetuated and harshened these

laws “no longer fit the facts,” and even though the “conditions

which spawned these laws may be gone,” the “archaic

classifications remain{ed]” in Florida in the early 1970's. /d. at

161-62 (quotations omitted).

Unlike the Papachristou \aws, which after years of

innocuous desuetude were suddenly enforced in Florida, the

Chicago ordinance takes aim at a distinctly modern problem

with a fresh set of legislative facts to support it. The law

represents the culmination of thorough study and consideration.

And it takes on the acute problems of youth gang crime by

carefully regulating criminal gang loitering in the urban setting.

Three specific harms form the basis for the law:

° Intimidation. By occupying a street corner or some

other public place, criminal gang members chill ordinary,

legitimate passage by law-abiding citizens, thereby

securing an area for conducting criminal activity -- most

prominently and most usually, drug-dealing.

° Facilitation. The presence of loitering criminal gang

members provides a context in which crime flourishes.

A drug transaction in a loitering crowd provides cover,

allows perpetrators to evade being caught, and creates

a group dynamic of lawlessness that exceeds the sum of

its individual parts. The conspicuous presence of the

gang also makes it difficult for innocent youths to resist

the temptation (or outright pressure) to join a gang.

a Victimization. A cruel feature of criminal gang activity

is the loss of young lives through gang shootings, be

they the lives of fellow gang members or those of

unfortunate bystanders. Loitering by persons with

identifiable gang membership, the Chicago experience

has shown, creates a frequent target for rival gangs.

9

identified in the extensive hearings before the City Council

plainly establish a rational basis for passing this law. Unlike the

Papachristou ordinances, the Chicago law regulates a current

and serious problem, and does so on the basis of up-to-date

of crime. A “pattern of criminal gang activity” for instance

mirrors the familiar concepts of “enterprise” and “pattern of

racketeering activity” found in federal and state RICO

legislation, see Fort Wayne Books, Inc. v. Indiana, 489 U.S.

46, 57-59 (1989), United States v. Turkette, 452 U.S. 576, 578-

79 (1981), a feature of the law that helps to distinguish it from

Papachristou and other cases as well. See Lanzetia v. New

Jersey, 306 U.S. 451, 453-54 (1939) (finding law vague because

it defined “gang” to mean simply “two or more persons”

without defining impermissible gang conduct).

In further contrast to the Papachristou laws, Chicago’s

delegation of authority to disperse loiterers based on an officer’s

objective determination that one of them is likely to be a

criminal gang member represents an innovation in community

policing. It is typical of other urban initiatives designed to abate

youth gang crime by moving from a crime-solving model of law

enforcement to a preventive, community-policing model. The

new approach turns on the insight that by declining to tolerate

dysfunction. See D. Livingston, Police Discretion and the

Quality of Life in Public Places: Courts, Communities, and the

New Policing, 97 Colum. L.Rev. 551, 581-82 (1997) (citing

empirical research supporting the “broken windows” thesis --

that unremediated disorder leads to greater disorder). Besides

offering a fresh approach to urban crime, this initiative also

addresses the concern of many urban communities that

10

“passivity in the face of outrageous street behavior” constitutes

a critical law-enforcement shortcoming. G. Kelling & C. Coles,

Disorder and the Court, 116 Pub. Interest 57, 70 (1994).

In the final analysis, there is little continuity between the

laws invalidated in Papachristou and the provision challenged

here. The Papachristou laws no doubt failed to meet the bare

rationality standards of substantive due process. The laws were

indeed “archaic,” 405 U.S. at 161, “no longer fit[] the facts,” id.

at 162, and were “too generalized,” id. at 171. Instead of being

a virtue, the age of the Papachristou laws had become a

constitutional vice. From the antiquated language used to

describe the offenses to the unusual targets of the provisions

(e.g., “habitual loafers,” “common night walkers,” “common

by frequenting houses . . . where alcoholic beverages are sold or

served,” or “persons able to work but habitually living upon the

earnings of their wives”), the law lacked even the most modest

relevance to modern Florida. But the same simply is not true

here. The Chicago law takes aim at a quintessentially modern

problem and does so in careful reliance on a set of “new and

different conditions.” Village of Euclid, Ohio v. Ambler Realty

Co., 272 US. 365, 387 (1926) (“while the meaning of

constitutional guaranties never varies, the scope of their

application must expand or contract to meet the new and

different conditions which are constantly coming within the field

of their operation”). See also Harper v. Virginia State Bd. of

Elections, 383 U.S. 663, 669 (1966), Brown v. Board of

Education, 347 U.S. 483, 492-93 (1954). By any measure of

rationality, the Chicago ordinance serves legitimate ends and

does so through reasonable means.

11

B. Neither The Text Of The

Constitution, History Nor Case Law

Establishes A Fundamental Right To

Loiter.

Nor does the ordinance warrant heightened review.

Loitering simply is not one of those fundamental rights that are

(1) “‘deeply rooted in this Nation’s history and tradition,”

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

(quoting Moore v. City of East Cleveland, 431 U.S. 494, 503

(1977) (plurality opinion)), or (2) so “implicit in the concept of

if they were sacrificed,” id (quoting Palko v. Connecticut, 302

U.S. 319, 325 (1937)). Loitering thus has never been -- and

should not be -- added to the short list of elemental rights

substantively protected by due process, e.g., the rights to marry,

to have children, to direct the education and upbringing of one’s

children, to marital privacy, to bodily integrity, and to abortion.

See id. In this setting, there is no justification for overcoming

the “reluctan[ce] to expand” fundamental rights covered by

substantive due process. Giucksberg, 117 S.Ct. at 2267

(quoting Collins v. Harker Heights, 503 U.S. 115, 125 (1992)).

In reaching a different conclusion, the Illinois Supreme

Court did not rely on the text of the Constitution. Nor could it

have done so. In simultaneously empowering the people to

retain and in some instances resist the authority of their local

governments, the Constitution nowhere carves out a safe haven

for loiterers. Neither the liberty guarantees in Article I (e.g., ex

post facto, impairment of contracts, bill of attainder), Article IV

(e.g., privileges and immunities), the Bill of Rights nor the

Fourteenth Amendment establishes any such broad libertarian

principle. And perhaps the most important liberty safeguard --

the separation of powers within and without the national

government created by the structure of the Constitution -- does

not do so either.

including their “interest in attempting to preserve the quality of

urban life.” Young v. American Mini Theatres, Inc., 427 U.S.

50, 71 (1976). The local police power would mean little if it did

not permit prophylactic regulations in the name of a greater

good, or put differently if the due process clause were “so

broadly construed that the Congress and state legislatures

[were] put in a strait jacket when they attempt[ed]” to remedy

“conditions which they regard[ed] as offensive to the public

welfare.” Lincoln Federal Labor Union No. 19129 v.

Northwestern Iron & Metal Co., 335 U.S. 525, 536-37 (1949).

The “promotion of safety of persons and property is

unquestionably at the core of the State’s police power,” Kelley

v. Johnson, 425 U.S. 238, 247 (1976), and“[t]here is no doubt

that preventing danger to the community is a legitimate

regulatory goal,” United States v. Salerno, 481 U.S. 739, 747

(1987). In the end, any fair reading of the text and structure of

the Constitution confirms that the States that imposed the liberty

protections of the Constitution upon themselves did not

relinquish the basic rights to preserve the safety of their

communities and to experiment with new ways for doing so.

Nor do the lessons of history lend support to the claim

that loitering is a fundamental right. In neither 1791 nor 1868

is there the slightest indication that the framers of the due

process clause, to say nothing of the citizens who ratified the

clause, thought that they were outlawing anti-loitering

ordinances. Much the opposite is true. State and local

governments customarily placed limits on public loitering and

vagrancy both before and after ratifying the Fifth and Fourteenth

Amendments. See Appendix B. And today most States as well

as the federal government continue to prohibit loitering in a

wide range of settings. See Appendix C.

13

No more helpful to the opponents of this carefully-

enacted ordinance are the teachings of precedent. The Court to

be sure has been careful to insist that anti-loitering laws comply

But no holding of the Court has ever found a constitutional

right to loiter or what comes to the same thing -- the view that

loitering laws are by their nature inherently arbitrary exercises

of government power.

Like many other lower courts during the past 26 years,

the Illinois Supreme Court relied on the following passage from

Papachristou in reaching a different conclusion:

The difficulty is that these [types of loitering] are

historically part of the amenities of life as we

have known them. They are not mentioned in

the Constitution or in the Bill of Rights. These

unwritten amenities have been in part

responsible for giving our people the feeling of

independence and self-confidence, the feeling of

right of dissent and have honored the right to be

nonconformists and the right to defy

submissiveness. They have encouraged lives of

Id. at 164. Neither this passage nor any other, however,

elevates loitering to a fundamental right. The excerpt simply

makes the observation -- wholly unnecessary to the result in the

case -- that anti-loitering laws frequently implicate innocent-

seeming conduct, not that such conduct is forever “outside the

arena of public debate and legislative action.” Glucksberg, 117

S. Ct. at 2268.

14

Il. THE CHICAGO ORDINANCE IS_ NOT

IMPERMISSIBLY VAGUE.

Besides complying, with the requirements of substantive

due process, the Chicago ordinance also satisfies the due

process prohibition against vague criminal laws. The provision

avoids the two flaws that characterize such laws -- either that

they fail to “provid[e] fair warning” of what is prohibited or that

they fail to “provide explicit standards” to limit the discretion of

those who enforce the law. Grayned v. City of Rockford, 408

U.S. 104, 108-09 (1972). In plain terms, the ordinance (1)

authorizes the police to issue a dispersal order when they

reasonably believe that one or more loiterers is a criminal gang

member; (2) gives additional notice to all persons covered by the

law when they are told to disperse; and (3) sanctions only those

who disobey the police orders. These provisions bring the

ordinance well within the requirements of due process.

A. The Chicago Ordinance Gives Ample Notice

Of The Conduct It Prohibits.

The ordinance plainly satisfies the threshold requirement

of “providing fair warning.” Grayned, 408 U.S. at 108. It

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

opportunity to know what is prohibited” and what is not in at

least one dispositive sense. /d. Most notably, Chicago chose

not to regulate loitering in and of itself. It opted only to

regulate loitering when combined with criminal gang activity and

when combined with a refusal to obey a police dispersal order.

Under these circumstances, no one can tenably claim surprise.

Even the citizen who remains ignorant of the law’s existence

(which is never a defense), even the citizen who is not a gang

member, even the citizen who does not know with whom he or

she is loitering, and even the citizen who claims ignorance on all

three fronts can never claim lack of notice. Because a violation

of the ordinance occurs only after the citizen willfully disobeys

15

a dispersal order by the police, even the most “fertile legal

‘imagination’” cannot contrive situations in which the law will

trap the unwary. /d at 108, 110 n.15 (quoting American

Communications Assn. v. Douds, 339 U.S. 382, 412 (1950)).

All told, these features of the law bring it well within the

parameters of other laws the Court has upheld, and eliminate

any specter of unforeseen prosecutions. See, e.g., Grayned, 408

U.S. at 113 (upholding conviction for creating noise near school

where law construed to require showing of interference with

school activities); Colten v. Kentucky, 407 U.S. 104, 108-09

(1972) (upholding conviction under disorderly conduct statute

that required compliance with dispersal order). Cf

Shuttlesworth v. City of Birmingham, 382 U.S. 87, 91 (1965)

(upholding disobedience-to-police-order law when coupled

with element of sidewalk blockage).

Notwithstanding these clear contours of the law and

notwithstanding the Court’s decisions supporting the provision,

the lower court still found a notice problem. It faulted the

ordinance for failing to alert the citizen “whether an approaching

police officer has a reasonable belief that the group contains a

member of a criminal gang.” Pet. 1 la-12a. In the lower court’s

view, in other words, the validity of requiring compliance with

police orders turns on whether the individuals subject to the

order themselves perceive an objective basis for the order, not

whether the officers have an objectively reasonable basis for

issuing the order. This view does not square with traditional

requirements of notice, overlooks contrary vagueness decisions

by the Court and threatens to upset longstanding assumptions

about the authority of the police to enforce the law.

The lower court, to begin with, misapprehended the

constitutional point of notice. It serves not to arm citizens with

sufficient information to attack the legitimacy of an application

of a statute or even to attack the constitutionality of a law itself,

but only to warn citizens of what the law proscribes. Due

16

process has never required citizens to be sure that all elements

of a criminal prosecution have been met before an arrest, only

that they have notice of what those elements are, so they can

shape their conduct to avoid arrest.

The lower court’s analysis also fails to respect

precedent. Several of the Court’s vagueness decisions have

embraced public-order laws that turn on an officer’s reasonable

belief that a public-safety risk exists, and indeed rely on that

belief in upholding the law. See Boos v. Barry, 485 U.S. 312,

331-32 (1988) (plurality) (rejecting vagueness challenge to

ordinance limiting demonstrations at embassies because it was

interpreted to permit dispersal “only when the police

reasonably believe that a threat to the security or peace of the

embassy is present”) (emphasis added); Grayned, 408 U.S. at

114 (ordinance prohibiting noisy interference with school

activity “requires the exercise of some degree of police

judgment, but, as confined, that degree of judgment here is

permissible”) (emphasis added); Colten, 407 U.S. at 109

(upholding conviction for refusal to obey dispersal order where

“police had cause for apprehension .. . [of] the risk of

accident”) (emphasis added). No vagueness case to our

knowledge has ever restricted the enforcement of a public-order

statute on the ground that it provides insufficient notice of the

officer's reasonable belief that the terms of the law apply.

Worse still, the lower court’s position threatens to upset

traditional expectations about the authority of the police to

investigate, ferret out and stop crime. The most pertinent

benchmark for measuring the authority of law enforcement to

stop, seize or question individuals -- the Fourth Amendment --

has long used “reasonable suspicion” and “probable cause” as

objective touchstones for determining when government may

interfere with individual liberty. See Terry v. Ohio, 392 U.S. 1,

20-22 (1968). And the Court has never assessed compliance

with this standard from the perspective of the individual's, as

17

opposed to the officer’s, objective determination of whether

Cause exists to request an accounting of an individual’s conduct.

As in the Court’s vagueness decisions, its Fourth

Amendment decisions have frequently examined the objective

reasonableness of law-enforcement action from the standpoint

of the officer involved, not the individual suspected of crime.

See Ornelas v. United States, 116 S.Ct. 1657, 1661-62 (1996)

(“components of a determination of reasonable suspicion or

probable cause will be the events which occurred leading up to

the stop or search, and then the decision whether those historical

facts, viewed from the standpoint of an objectively reasonable

police officer, amount to reasonable suspicion or to probable

cause”) (emphasis added); 7erry v. Ohio, 392 U.S. 1, 21-22

(1968) (standard of reasonableness is “would the facts available

to the officer at the moment of the seizure or the search warrant

a man of reasonable caution in the belief that the action taken

was appropriate”) (emphasis added) (internal quotation

omitted). Just as Chicago authorizes an officer to stop “a

person whom he [or she] reasonably believes to be a criminal

street gang member,” 8-4-015(a), moreover, so too federal drug

enforcement agents frequently stop travelers in an airport who

fit the profile of a drug courier. In the drug interdiction context,

the Court has frequently permitted such detentions, which (it is

worth adding) pose far more risk of arrest and loss of liberty

than an order to disperse. See United States v. Sokolow, 490

U.S. 1 (1989); United States v. Montoya de Hernandez, 473

U.S. 531 (1985).

Surely, in the light of these precedents, Chicago does not

offend the Constitution when it authorizes officers to impose a

de minimis restriction on individual liberty with a far greater

explanation for doing so than these Fourth Amendment

decisions require. Here, officers observed a group of persons

loitering in a public place. They formed a “reasonable belief”

that the individuals belonged to a criminal gang. They asked

18

them to disperse. Then and only then did the officers arrest

anybody, and even then only for failing to do what all citizens in

a civil society customarily have been expected to do -- obey the

police. See Cox v. New Hampshire, 312 U.S. 569, 574 (1941),

Cox v. Louisiana, 379 U.S. 536, 554 (1965) (maintaining public

order protects liberty itself from being “lost in the excesses of

anarchy”). The authority of law enforcement to intrude upon an

individual’s liberty simply does not turn on -- and has never

turned on -- the suspect’s insight into the reasonableness of the

officer’s action.

Neither do Papachristou or Shuttlesworth v. City of

Birmingham, 382 U.S. 87 (1965), change things. The

Papachristou \aw did not even involve a dispersal order. It thus

did not provide the most explicit form of notice, a requirement

that the police first order a dispersal before being empowered to

arrest anyone.

Also inapt is Shuttlesworth. True, Shuttlesworth

contains dicta criticizing a law construed to permit police to ask

any individual “stand[ing]” on a public sidewalk to leave, then

giving the police permission to arrest objectors. 382 U.S. at 88.

True also, the Shuttlesworth law gave notice to citizens accused

of standing because the police had to ask them to leave before

an arrest could ensue. /d. But this bizarre law, written as

broadly and irrationally as a law could be, represents a far cry

from a law targeting loitering by criminal gang members found

to pose a threat to the health and safety of an urban community.

Even putting to one side the free speech and racial

discrimination concerns lurking beneath the application of the

law, see id. at 91, id. at 102 (Fortas, J., concurring, joined by

Warren, C.J.), the Shuttlesworth provision contained a notice

flaw that the Chicago ordinance does not. While the officer’s

request to move on alerted citizens that they could not remain

standing where they were, it offered no notice of where in the

future they could stand, when or with whom. The citizen of

19

Birmingham truly could “stand on a public sidewalk . . . only at

the whim” of a police officer. /d. at 90. But that is not true in

Chicago. Only those citizens who loiter on a public street, as

opposed to simply standing there, may be asked to move on, and

even then only when they are loitering with members of a

narrowly defined criminal gang. The focused notice provided in

the one encounter has little parallel to the absence of notice

provided in the other. The Chicago ordinance in the end wholly

satisfies the due process requirement of notice.

B. The Chicago Ordinance Supplies Reasonable

Standards For Enforcement That Are

Legitimately Related To Public Safety.

Just as the ordinance provides ample warning of what it

forbids, so also it contains sufficient implementation guidelines.

It thus avoids the pitfalls of “arbitrary and discriminatory

enforcement,” Kolender v. Lawson, 461 U.S. 352, 357 (1983),

and the risks of a law that has an “unascertainable” standard for

enforcement, Coates v. Cincinnati, 402 U.S. 611, 614 (1971),

see Kolender. “As always,” it is true, enforcement of the

Chicago ordinance “requires the exercise of some degree of

police judgment.” Grayned, 408 U.S. at 114. But that

discretion, necessary under any reasoned view of the appropriate

powers of law enforcement, does not cross the line between the

permitted “flexibility and reasonable breadth” all statutes need,

id. at 110 (quotation omitted), and the forbidden territory of a

standardless law. The law ultimately “defines boundaries

sufficiently distinct for citizens, policemen, juries, and appellate

judges.” /d. (internal quotation omitted).

The law cabins police discretion in several important

ways. It applies to public loitering, not to standing. Cf

Shuttlesworth 382 U.S. at 90. It applies only to those

individuals who loiter with members of criminal gangs, not just

to “three or more persons” who “assemble” together in a way

20

that is “annoying” to others. Cf Coates, 402 U.S. at 611 n.1.

It requires the police to have a “reasonable belief” that a gang

member is present, not just a subjective instinct or personal

annoyance. Cf. Coates, 402 U.S. at 614; Kolender, supra. \t

prohibits prosecution when the police are wrong (e.g., when no

criminal gang member is present), a requirement missing from

every one of the vagueness decisions relied on by the lower

court. And it permits arrests only when citizens refuse to

disperse, thereby sharply curtailing the risks of discriminatory

enforcement that existed in Papachristou, Kolender, and

Coates.

The prerequisite of a dispersal order also eliminates

another risk associated with general loitering laws. Because

police may stop individuals reasonably suspected of criminal

activity under Jerry, a general loitering prohibition without

more would allow the police to stop and pat down virtually

anyone standing on a public street. Here, however, no violation

of the law ever occurs until the dispersal order is ignored,

eliminating any such risk of virtually unrestricted Jerry stops.

On several occasions the Court has upheld other public-

order laws that give the police similar discretion and in some

cases even more. For example, Boos v. Barry, 485 U.S. 312

(1988), rejected a challenge to a law that permitted police to

disperse groups near foreign embassies “when the police

reasonably believe that a threat to the security or peace of the

embassy is present.” 485 U.S. at 330. The Court noted that the

law’s “reach is limited to groups posing a security threat,” 485

U.S. at 331, and the law also announced the “prohibited

quantum of disturbance” in “words of common understanding.”

Here, no less, the Chicago ordinance says that citizens may be

asked to disperse when police officers have a reasonable belief

21

that they are loitering with members of a “criminal street gang,”

and does so because the City Council believes that such

congregations pose “a security threat.”

Colten v. Kentucky, 407 U.S. 104 (1972), follows a

similar course. It upheld a conviction for disorderly conduct

when officers ordered a motorist to drive on and he refused to

do so. “The State has a legitimate interest in enforcing its traffic

laws,” the Court observ™ “ad its officers were entitled to

enforce them free frre , ssible interference or interruption

from bystanders, even :' - .< claiming a third-party interest in the

transaction.” /d at 109. Based upon their “cause for

apprehension that a roadside strip, crowded with persons and

automobiles, might expose the entourage, passing motorists, and

police to the risk of accident,” the police therefore could issue

a binding “order to disperse,” and arrest offenders when that

order was not followed. A similar appreciation of the discretion

police officers need explains Fourth Amendment decisions

permitting officers to exercise their discretion in determining

whether to ask a motorist stopped for a traffic violation to leave

the car, Pennsylvania v. Mimms, 434 U.S. 106 (1977) (per

curiam), or to ask the passenger to leave the car as well,

Maryland v. Wilson, 117 S.Ct. 882 (1997). Consistent with

these views most states permit police officers to arrest citizens

who refuse to obey a dispersal order or an order to stay clear of

a traffic hazard. See Appendix D. Because the law presumes

that police officers like all public employees will obey the

Constitution, see Agostini v. Felton, 117 S.Ct. 1997, 2015-16

(1997), the law properly assumes that they will lawfully exercise

discretion in these settings.

In addition to avoiding the ban on standardless laws and

the risk of discriminatory enforcement that comes with them, the

carefully-gauged discretion of the Chicago ordinance also fits

well within the Court’s general guidelines concerning the broad

police powers reserved to the States and their subdivisions. In

22

organizing local communities and establishing local rules of

conduct, the “police power is . . . ample to lay out zones where

family values, youth values, and the blessings of quiet seclusion

and clean air make the area a sanctuary for people.” Village of

Belle Terre v. Boraas, 416 U.S. 1, 9 (1974). The ordinance at

issue of course tries to do just that. It strives to “make the

streets safe” from criminal gang recruitment and street crime.

See Pet. App. 68a (regulation requiring Chicago district

commanders to “designate areas in which the presence of gang

members has a demonstrable effect on the activities of law

abiding persons in the surrounding community” for enforcement

of the ordinance).

The Court, moreover, has frequently acknowledged the

power of States and subdivisions to enact similar types of

prophylactic legislation. E.g., Williamson v. Lee Optical of

Okla, Inc., 348 U.S. 483, 486-88 (1955) (upholding law

prohibiting all lens-fitting except under direct prescription)

(“[T]he legislature might have concluded that [a prescription]

was needed often enough to require one in every case. ... It is

enough that there is an evil at hand for correction, and that it

might be thought that a particular legislative measure was a

rational way to correct it.”), Village of Belle Terre, 416 U.S. at

4 (noting that “historic police power problems need not loom

large or actually be existent in a given case” for a law to be

valid, because “laws may also find their justification in the fact

that, in some fields, the bad fades into the good by . . . insensible

degrees”); Memphis v. Greene, 451 U.S. 100, 126-27 (1981)

(“As a matter of constitutional law a city's power to adopt rules

that will avoid anticipated traffic safety problems is the same as

its power to correct those hazards that have been revealed by

actual events’).

the group goals of public order and community policing while

respecting the constitutional nights of individuals to be free of

23

standardless and arbitrary law enforcement. In many respects,

the legality of this ordinance poses a far less severe risk to

liberty than the customary right of officers to detain individuals

reasonably suspected of crime. Chicago, again, does not

authorize a detention based upon loitering with a gang member,

but only upon refusal to obey the dispersal order. Far from

requiring detention, the police officer’s order assumes detention

will be avoided when the individual complies with the order. At

most, the dispersal order intrudes upon a generalized privilege

of casual association in public places -- a privilege that receives

no special protection under the Constitution. See City of Dallas

v. Stanglin, 490 U.S. 19, 23-25 (1989).

iil. OTHER SAFEGUARDS PROVIDE

AMPLE SECURITY AGAINST

IMPROPER APPLICATIONS OF

THIS AND OTHER LOITERING

LAWS.

Among the competing principles auditioning to govern

this case, the most essential may be the assurance that other

constitutional doctrines preclude the Chicago ordinance from

being improperly applied in the future or becoming the model

for improper lawmaking efforts in other jurisdictions. In our

view, numerous safeguards exist to prevent improper

ications of the Chicago ordinance or of other provisions like

it

First, this is a facial challenge, which is to say an effort

to strike the law in all of its applications. Such across-the-board

attacks on legislation are by definition the most difficult to

sustain. Because courts have a duty to save, not destroy,

legislation, see Adams Fruit Co. v. Barrett, 494 U.S. 638, 647

(1990), the Court has long respected the presumption of

constitutionality by holding that a facial challenge may succeed

only after the claimants have met their burden of showing “no

24

set of circumstances” in which the law may be constitutionally

applied.” United States v. Salerno, 481 U.S. 739, 745 (1987),

see Reno v. Flores, 507 U.S 292, 301 (1993). A similar rule

governs vagueness challenges. See Village of Hoffman Estates

v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 (1982).

So long as the statute does not substantially infringe the rights

of free speech or assembly, which this does not, see Colten v.

Kentucky, 407 U.S. at 109 (free speech), Clark v. Community

for Creative Non-Violence, 468 U.S. 288, 293 (1984)

(assembly), Stanglin, 490 U.S. at 25 (free speech and assembly),

it must satisfy the rigorous requirements of a facial challenge.

See Members of City Council v. Taxpayers for Vincent, 466

U.S. 789, 796 (1984) (“There are two quite different ways in

which a statute or ordinance may be considered invalid ‘on its

face’: either because it is unconstitutional in every application,

or because it seeks to prohibit such a broad range of protected

conduct that it is unconstitutionally ‘overbroad’”), Kolender,

supra, Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973).

Under these circumstances, a decision upholding the law

would by no means give law-enforcement officers or legislators

a free hand. They would still remain subject to as-applied

challenges in the event the law was improperly applied in a

given setting or with respect to one group or another. Nor do

case-by-case rulings by any means dilute the underlying

constitutional mandate. Take a situation in which a particular

interpretation of a public-order statute were invalidated. What

State would not get the message? State officials who continued

improperly to apply the statute would soon feel the deterrent

sting of section 1988 attorney fees. And after that they would

be sure to see civil rights actions brought against them in their

individual capacity, often with little likelihood of qualified

immunity. The distinction between facial and as-applied

challenges ultimately reflects the benefit of the doubt that federal

presumably will obey, not offend, their duty to uphold the

25

Constitution in implementing a statute. And if a “hypothetical

possibility” of unconstitutional application develops in the

future, General Motors v. Tracy, 117 S. Ct. 811, 830 (1997),

State and federal courts stand prepared to strike it.

Second, while there has been no plausible showing that

any free speech protections have been infringed on this record,

the First Amendment also would restrain improper applications

of the law in the future. Gang members of course remain free

to speak and assemble regarding all manner of subjects. Neither

Chicago nor any other government body thus may manipulate a

public-order statute to the improper end of curbing free speech

or other First Amendment rights.

Third, equal protection precludes such ordinances from

being used as an invidious cover for race discrimination. Many

of the Court’s vagueness decisions involve applications of laws

that “are irresistibly suggestive of racial bias.” Jeffries, Legality,

Vagueness, and the Construction of Penal Statutes, 7\ Va. L.

Rev. 189, 197(1985). Papachristou, for example, involved a

vagrancy prosecution of two white women and two black men

riding together down a city street. 405 U.S. at 158. Coates

arose from an “alleged{ly] discriminatory enforcement” of a

loitering statute that “figured prominently in the background of

the serious civil disturbances that took place in Cincinnati in

June 1967.” 402 U.S. at 616.6. Cox v. Louisiana, 379 U.S.

536 (1965), arose in the context of a demonstration by students

picketing stores with segregated lunch counters. 379 U.S. at

538-39, 551. Kolender involved the prosecution of an African

American disk jockey and rock-music promoter who was

arrested 15 times in less than two years during late-night walks

through a San Diego suburb. 461 U.S. at 354 Livingston;

Police Discretion and the Quality of Life in Public Places:

Courts, Communities, and the New Policing, 97 Colum. L. Rev.

551, 612, n.292 (1997). And Shuttlesworth, some members of

the Court concluded, simply involved the prosecution of civil

26

rights leaders “in the tense racial conflict in Birmingham.” 382

U.S. at 102 (Fortas, J., concurring, joined by Warren, C.J.). But

see id. at 90 n3. To the extent equal-protection concerns

explain these vagueness decisions, equal-protection law offers

a basis for striking these applications of conventional public-

order statutes. See, e.g., Wright v. Georgia, 373 U.S. 284, 292

(1963), (overturning a disorderly conduct conviction “obviously

based, according to the testimony of the arresting officers

themselves, upon their intention to enforce racial segregation in

the park”), United States v. Armstrong, 116 S. Ct. 1480, 1486

(1996).

Fourth,: the Eighth Amendment bars status-based

prosecutions that attempt to punish individuals for who they are,

not for what they have done. It thus violates the provision to

imprison a narcotics addict “even though he has never touched

any narcotic drug within the State or been guilty of any irregular

behavior there.” Robinson v. California, 370 U.S. 660, 666-67

(1962). See Powell v. Texas, 392 U.S. 514, 533 (1968)

(plurality opinion) (“criminal penalties may be inflicted only if

the accused has committed some act .. . which society has an

interest in preventing”); Edwards v. South Carolina, 372 U.S.

229, 236 (1963) (valid convictions are those “resulting from the

evenhanded application of a precise and narrowly drawn

regulatory statute evincing a legislative judgment that certain

specific conduct be limited or proscribed”). Under these cases,

while Chicago may assuredly prosecute actively loitering

criminal gang members who refuse to leave when asked to do

so, see Scales v. United States, 367 U.S. 203, 225-27 (1961), it

may not prosecute them simply for being passive members of a

gang, cf, Dawson v. Delaware, 503 U.S. 159, 166 (1992) (mere

membership in Aryan Brotherhood not relevant “because the

prosecution did not prove that the Aryan Brotherhood had

committed any unlawful or violent acts”). Here, of course, the

dispersal order itself rests on the criminal nature of the gang’s

activities, Pet. App. 61a-62a.

27

Fifth, federal and State courts may invalidate --

frequently have invalidated -- iaainainiateendinaadirten

of evidence, again in an as-applied setting. The Court has

frequently found an absence of evidence to support individual

applications of such statutes. See, e.g., Barr v. City of

Columbia, 378 U.S. 146 (1964); Garner v. Louisiana, 368 U.S.

157 (1961), Gregory v. City of Chicago, 394 U.S. 111 (1969),

Johnson v. Florida, 391 U.S. 596 (1968) (per curiam);

Thompson v. City of Louisville, 362 U.S. 199, 206 (1960);

Palmer v. City of Euclid, 402 U.S. 544, 544-45 (1971) (per

curiam). When justified, the courts should continue to do so in

the future.

Cast in its most sympathetic light, the lower-court

decision reflects a zero-sum view of lawmaking in this area -- a

choice between a prophylactic interpretation of the due process

clause and a prophylactic exercise of the police power. Under

the one, judges may sweep up constitutional and

unconstitutional State action; but under the other, the police

may regulate nefarious and innocent conduct. As between the

two, the lower court concluded, it is better to protect the one

(individual liberty) over the other (public ord er).

But this reading of the court’s predicament states a false

dichotomy. Liberty and security are not mutually exclusive. As

this area of the law well illustrates, liberty’s gain sometimes

becomes liberty’s loss. No one knows this better than the law-

abiding citizens of urban Chicago whose public square has been

overwhelmed by criminal gang members. In overprotecting the

rights of Chicago’s criminal gangs to walk the streets or

congregate on them, the lower court underprotected other

members of the community who share the same interest in

enjoying these “amenities of life as we have known them.”

Papachristou, 405 U.S. at 164. However constitutional these

amenities may be, they surely are rights to be enjoyed by all.

28

When a city like Chicago thus determines that brazen,

intimidating, even coercive, members of its community are

infringing the enjoyment of these amenities by all citizens, it

ought to have the police power to ensure that the allocation of

these amenities is fairly distributed.

In the final analysis, the distinction between facial and

as-applied challenges, together with the presumption that the

police will obey the constitution or face a host of alternative

sanctions if they do not, corrects the misperception that this area

of the law is haunted by all-or-nothing-at-all extremes. To

respect a community’s collective security concerns simply does

not slight the liberty of individuals. “Civil liberties, as

guaranteed by the Constitution, imply the existence of an

organized society maintaining public order without which liberty

itself would be lost in the excesses of unrestrained abuses.” Cox

v. New Hampshire, 312 U.S. 569, 574 (1941). Chicago has

adopted a measured and eminently reasonable mechanism for

improving the individual rights of all while improving the

collective security of the community when doing so. The

innovation should be upheld.

29

CONCLUSION

For the foregoing reasons, the amici States respectfully

urge the Court to reverse the lower-court decision.

Respectfully submitted,

BETTY D. MONTGOMERY

Attorney General

JEFFREY S. SUTTON

State Solicitor

Counsel of Record

ROBERT C. MAIER

DAVID M. GORMLEY

LEW A. BECHTOL, Il

STEPHEN P. CARNEY

Assistant Attorneys General

30 E. Broad Street, 17th Floor

Columbus, Ohio 43215

(614) 466-8980

June 19, 1998

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APPENDIX

A. States That Penalize Gang-Related

Criminal Activity.

Alaska Stat. §11.41.110(4) (Michie 1996) (gang-

participation as an element of crime, e.g., murder);

§12.55.155(29) (identifying gang participation as an aggravating

factor in sentencing); §11.61.160, 165 (outlawing gang

recruitment); Ariz. Rev. Stat. Ann. §§ 13-105(77) (definitions),

13-2308(G) (class 2 felony offense of criminal gang

participation) (West Supp. 1997); Ark. Code Ann. §§ 5-74-102

(legislative findings), 5-74-103 (definitions), 5-74-104 (defining

first and second degree gang participation offenses), 5-74-203

(gang recruitment offenses), 5-74-105 (offense of using

another’s property for gang activity), 5-74-107 (unlawful

discharging of firearms from vehicle) 5-74-108 (enhancement of

penalties acting in concert), 5-74-201 (findings), 5-74-202

(definitions), 5-74-203 (offense of soliciting gang membership)

(Michie 1997); Fla. Stat. ch. 874.02 (legislative findings),

874.03 (definitions), 874.04 (enhancement of felonies

committed as part of pattern of gang activity) (1993); Ga. Code

Ann. §§ 16-15-2 (legislative findings), 16-15-3 (definitions), 16-

15-4 (enhancement of gang-related misconduct) (Michie 1996);

Ind. Code §§ 35-45-9-1, 2 (definitions), 35-45-9-3 (gang

participation offense), 35-45-9-4 (compelling membership in

gang) (1993); 720 Ill. Comp. Stat. Ann. 570/405.2 (offense of

street criminal drug conspiracy) (West Supp. 1997); lowa Code

Ann. §§ 723A.1 (definitions), 723A.2 (gang participation

offense) (West 1993 & Supp. 1997); Kan. Stat. Ann. § 21-

4704(k) (sentencing guidelines presume imprisonment for gang

offense) (Supp. 1996); La. Rev. Stat. Ann. §§ 15:1402

(legislative findings), 15:1403 (gang participation offense),

15: 1404 (definitions) (West 1992 & Supp. 1998); Mass. Gen.

Laws Ann. ch. 265, § 44 (offense of coercing minor to join

gang) (West Supp. 1997); Minn. Stat. § 609.229 subd. (1)

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(definitions), subd. (2) (participation offense) (1992 & Supp.

1993); Mo. Ann. Stat. §§ 578.421 (definitions), 578.423

(participation offense), 578.425 (enhancements), 578.435

(offense of possessing weapons for gang crime) (West 1995);

Mont. Code Ann. §§ 45-8-402, 405 (definitions), 45-8-403

(offense of coercing membership), 45-8-404 (enhancement of

sentence for gang-related felony), 45-8-406 (offense of

supplying firearms to gang) (1997); Nev. Rev. Stat. § 193.168

(doubling prison term for gang-related crime) (1997); Okla.

Stat. Ann. §§ 21-856(D) (offense of willfully recruiting minor

into gang) (West Supp. 1998); S.D. Codified Laws §§ 22-10-14

(definitions), 22-10-15 (enhancements) (Michie Supp. 1997);

Tex. Penal Code Ann. §§71-01(d) (definition), 71-02

(participation offense) (West Supp. 1998).

B. Early Loitering And Vagrancy Laws.

Ark. Rev. Stat. Ch. 154, §1 (1837); Act of March 5,

1861, Del. Rev. Stat. 1852 [As Amended] (1874), at 787, and

Del. Rev. Stat. 1852 [As Amended] (1893), at 962; Mass. Gen.

Stat. Ch. 165, §28 (1986); 1 Md. Code/Public Gen. Laws art.

30, §173 (Scott & M’Cullough ed. 1860); 2 Md. Code/Local

Laws art. §§4, 908, 909, 910 (Scott & M’Cullough ed. 1860);

Acts of Feb. 15, 1791, 5 N.H. Laws: First Constitutional Period

(Metcalf ed. 1916), at 691-92; Act of June 10, 1799, N.J. Laws

Digest (Elmer ed. 1868), at 1007; Act of January 10, 1857, §I,

Third, pamphlet at 19; N.M. Rev. Stat. & Laws (1865); 1 N.J.

Stat/Rev. Stat. Ch. 20, tit. 2, §1 (1869); Act of June 13, 1836

(P.L. 548), Pa. Stat. Law Digest (Purdon 1910), at 5017-19;

R.I. Gen. Stat. Ch. 232, §24 (1872), at 555, Tenn. Code ch.

105, §§1-3 (1875); Tex. Penal Code tit., iv, art. 891-900 (1875);

Va. Stat. Ch. 23, §§I-IV (1776).

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Cc. Modern Loitering Laws

State: Ala. Code §13A-11-9 (Michie 1994) (offense of

loitering for various purposes, including the purposes of

begging, gambling, soliciting sex, or drug use); Ariz. Rev. Stat.

§13-2905 (West 1989 & Supp. 1997) (misdemeanor offense of

loitering in a manner that disturbs public peace or for purposes

such as begging, soliciting sex, gambling); Ark. Code Ann. §5-

71-213 (Michie 1997) (misdemeanor offense of loitering under

circumstances warranting alarm or concern for safety or

loitering in specified places); Cal. Penal Code §647(d) and (e)

(offense of disorderly conduct for loitering near public toilet

with lascivious purpose, or for loitering and wandering withouit

identifying legitimate purpose); Del. Code Ann. tit. 11, §1321

(Michie 1995) (offense of loitering where obstructing public

passage, or loitering in specified places, or loitering for purpose

of begging or soliciting sex, or loitering under circumstances

warranting alarm for safety); Ga. Code Ann. §16-11-36 (1996)

(misdemeanor offense of loitering under circumstances justifying

alarm or concern for safety); 9 Guam Code Ann. §61.30 (1996)

(offense of loitering or prowling in a manner warranting alarm

for safety); Ky. Rev. Stat. Ann. §525.090 (Michie 1990)(offense

of loitering for drug use or in specified places); La. Rev. Stat.

Ann. tit. 14, §107(7) (vagrancy offense for persons “who loiter

around any public place of assembly”); Mich. Comp. Laws Ann.

§750.167(j) and (k) (West 1991 & Supp. 1998) (“disorderly

person” offense where one loiters “about a place where an

illegal occupation or business is being conducted,” or for

loitering in specified places); Minn. Stat. Ann. §609.725(2)

(West 1987 & Supp. 1998) (vagrancy offense of loitering); Nev.

Rev. Stat. Ann. §207.270 (Michie 1997) (misdemeanor offense

of loitering in public place near children); N.H. Rev. Stat. Ann.

§644:6 (1996 & Supp. 1997) (offense of loitering under

circumstances warranting alarm for safety); N.J. Stat. Snn. §2C.

33-2.1 (West 1996 & Supp. 1997) (offense of loitering for drug-

related purposes); N.M. Stat. Ann. §30-20-10 (Michie 1997)

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(offense of saloon owner permitting minors to loiter); N.Y.

Penal Law §240.35 (McKinney 1989 & Supp. 1998) (offense of

loitering for specified purposes such as begging, drug use,

sexual solicitation, or in specified places such as school

grounds); N.C. Gen. Stat. §14-275.1 (1997) (offense of loitering

at public transportation facilities after request by officer to

leave); N.D. Cent. Code §12.1-31-01(f) (1997) (offense of sex

solicitation while loitering); Ohio Rev. Code Ann. §§2907.241,

3599.24(A)(5) (Anderson 1996) (misdemeanor offense of

loitering to engage in [sexual] solicitation, and misdemeanor

offense of loitering at polling place during election); Okl. Stat.

Ann. tit. 21, §§1171, 1202 (West 1983 & Supp. 1998) (loitering

as element of “peeping Tom” offenses); 18 Pa. Cons. Stat. Ann.

§ 5506 (1983 & Supp. 1997) (misdemeanor offense of loitering

or prowling about others’ houses); R.I. Gen. Laws §11-34-8

(1994 & Supp. 1997) (offense of loitering for purposes of sexual

solicitation); S.C. Code Ann. §16-17-420(b) (Law. Co-op. 1985

& Supp. 1997) (offense of school loitering); Utah Code Ann.

§76-10-1302(c) (1995 & Supp. 1997) (loitering as element of

prostitution offense); V.I. Code Ann. tit. 14, §§1191,

2221(a)(15, (16), (17) (1997) (offense of loitering under

specified circumstances, and vagrancy offense of loitering \i

specified places); Wis. Stat. Ann. §947.02(3) (West 1996 &

Supp. 1997) (offense of loitering for prostitution purposes).

Federal: 4 C.F.R. 25.6 (prohibiting “[l]oitering . . . in

the GAO Building or on its grounds which creates... a

nuisance”); 7 C.F.R. 500.5 (prohibiting “unwarranted loitering”

on National Arboretum Property).

D. State Dispersal Laws.

Ala. Code §13A-11-6 (Michie 1994) (misdemeanor

offense of “failure to disperse” where a person “participates with

five or more other persons in a course of disorderly conduct

likely to cause substantial harm or serious inconvenience,

A-5

annoyance or alarm, and intentionally refuses or fails to disperse

when ordered to do so by a peace officer or other public servant

lawfully engaged in execution or enforcing the law’); Ariz. Rev.

Stat. Ann. §13-2902(A)(2) (West 1989 & Supp. 1997)

(misdemeanor offense of unlawful assembly where a person

“being present at an assembly of two or more other persons who

are engaged in or who have the readily apparent intent to engage

in conduct constituting a riot [defined elsewhere] knowingly

remain{s] there and refus[es] to obey an official order to

disperse”); Ark. Code Ann. §5-71-207 (a)(6) (Michie 1997)

(misdemeanor offense of disorderly conduct where a person

“with the purpose to cause public inconvenience, annoynance,

or alarm or recklessly creating a risk thereof ... [c]ongregates

with two (2) or more other persons in a public place and refuses

to comply with a lawful order to disperse of a law enforcement

officer or other person engaged in enforcing or executing the

law”); Cal. Penal Code §727 (West 1985) (offense of failing to

disperse under riot conditions); Colo. Rev. Stat. Ann. §18-9-

107(b) (West 1997) (misdemeanor offense of “obstructing

highway or passageway” where individual “without legal

privilege intentionally, knowingly or recklessly [d]isobeys a

reasonable request or order to move issued by a person he

knows to be a peace officer, a fireman, or a person with

authority to control the use of the premises, to prevent

obstruction of a highway or passageway or to maintain public

safety by dispersing those gathered in a danagerous proximity to

a fire, riot, or other hazard”), Del. Code Ann. tit. 11, §1321

(Michie 1995) (offense of loitering where “[t]he person fails or

refuses to move on when lawfully ordered to do so by any police

officer”); Ga. Code Ann. §26-2604 (1996) (misdemeanor

offense of unlawful assembly where a person “knowingly

participates” in an “assembly of two or more persons for the

purpose of commiting an unlawful act and the failure to

withdraw from the assembly on being lawfully commanded to do

so by a peace officer”); 9 Guam Code Ann. §61.10(b) (1996)

(misdemeanor offense of 4 or more persons participating in

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course of disorderly conduct and failing to disperse upon order

to do so); Haw. Rev. Stat. Ann. §711-1102 (Michie 1994)

(misdemeanor offense of “failure to disperse” where a person

who is participating with “six or more persons .. in a course of

disorderly conduct likely to cause substantial harm or serious

inconvenience, annoyance, or alarm” knowingly fails to comply

with a dispersal order by a peace officer); Idaho Code §18-6410

(1997) (misdemeanor offense of “refusal to disperse” where

“two or more persons assemble for the purpose of disturbing the

public peace, or committing any unlawful act, and do not

disperse on being desired or commanded so to do by a public

officer”); 720 Ill. Comp. Stat. Ann. §5/25-1(e) (West 1993)

(misdemeanor offense of “mob action” where “any participant”

in an assembly of 2 or more persons uses force or violence to

disturb the public peace, or to do an unlawful act, “does not

withdraw on being commanded to do so by a peace officer”);

Ky. Rev. Stat. Ann. §§525.060, 525.160 (Michie 1990 & Supp.

1998) (misdemeanor offense of refusing to obey dispersal order

in proximity to emergency, and misdemeanor offense where

participant in course of disorderly conduct refuses to disperse

when ordered to do so); Me. Rev. Stat. Ann. 17A §502, (West

1983 & Supp. 1997) (offense of failure to disperse where

persons in participating in, or located in vicinity of, disorderly

conduct refuse to disperse); Mass. Gen. L. ch. 269, §2 (1993 &

Supp. 1998) (offense of failing to depart from riot when ordered

to do so); Mich. Comp. Laws Ann. §750.523 (West 1991 &

Supp. 1998) (offense of failing to depart from riot or unlawful

assembly on order); Minn. Stat. Ann. §609.715 (West 1987 &

Supp. 1998); Miss. Code Ann. §97-35-7(1) (1994 & Supp.

1997) (misdemeanor offense of disobeying various types of

police orders); Mo. Ann. Stat. §574.060 (Vernon 1995 & Supp.

1998) (misdemeanor offense of refusing to disperse from riot),

Mont. Code Ann. §45-8-102 (1996) (offense of failure of

disorderly persons to disperse on order), Nev. Rev. Stat. Ann.

§203.020 (Michie 1997) (misdemeanor offense of persons

assembling to disturb public peace or do unlawful act and failing

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to disperse when ordered to do so); N.H. Rev. Stat. Ann.

§§644:1, 644:2(11)9e) (1996 & Supp. 1997) (offense of faling

to disperse from riot and offense of disorderly conduct for

“knowing refus[al] to comply with a lawful order of a peace

officer to move from any public place”), N.J. stat. Ann. §2C:

33-1(b) (West 1995 & Supp. 1998) (offense of persons

participating in course of disorderly conduct failing to disperse

when ordered to do so); N.Y. Penal Law §240.20(6) (McKinney

1989 & Supp. 1998) (offense of disorderly conduct where one

who congregates with others in a public place refuses to comply

with order to disperse); N.C. Gen. Stat. §14-288.5(a) (1997)

(misdemeanor offense of failing to disperse upon order by a law

enforcement officer who has a reasonable belief that a riot or

disorderly assemblage of 3 or more persons is occurring); N.D.

Cent. Code §12. 1-25-04 (1997) (misdemeanor offense of failing

to disperse when ordered under riotous circumstances); Ohio

Rev. Code Ann §2917.13(A)(2) (Anderson 1996)

(misdemeanor offense for “knowing[] [fJail[ure] to obey the

lawful order of any law enforcement officer engaged in his

duties at the scene of or in connection with a fire, accident,

disaster, riot or emergency of any kind”); Okl. Stat. Ann. tit. 21,

§1316 (West 1983 & Supp. 1998) (misdemeanor offense for

failure to disperse on order from scene of riot, rout or unlawful

assembly), Or. Rev. Stat. §166.025(1)(e) (1990) (misdemeanor

offense of disorderly conduct where one “congregates with

persons in a public place and refuses to comply with a lawful

police order to disperse”), 18 Pa. Cons. Stat. Ann. §5502 (1983

& Supp. 1998) (misdemeanor offense of 3 or more persons

participating in course of disorderly conduct causing or

expected to cause harm or serious inconvenience refusing to

disperse upon officer’s order to do so); R.I. Gen. Laws §11-38-

2 (1994 & Supp. 1997) (offense of refusing to disperse during

declared emergency); S.C. Code Ann. §16-7-10(a) (Law. Co-

op. 1985 & Supp. 1997) (offense of refusing to disperse during

declared emergency), S.D. Codified Laws Ann. §22-10-11

(1988 & Supp. 1997) (misdemeanor offense of refusing

A-8

dispersal order during riot or unlawful assembly); Tenn. Code

Ann. §39-17-305(2) (1997) (misdemeanor offense for refusing

to obey official order to disperse “issued to maintain public

safety in dangerous proximity to a fire, hazard, or other

emergency”), Tex. Penal Code Ann. §42.03(a)(2) (West 1994

& Supp. 1998) (misdemeanor offense of failing to move when

ordered to do so to prevent obstruction or “to maintain public

safety by dispersing those gathered in dangerous proximity to a

fire, riot, or other hazard”); Utah Code Ann. §76-9-104 (1995

& Supp. 1997) (misdemeanor offense of failing to disperse on

order at scene of riot, disorderly conduct or unlawful assembly),

V.1. Code Ann. tit. 5, §4022 (1997) (offense of failing to

disperse upon order to do so), Vt. Stat. Ann. tit. 13, §901 (1974

& Supp. 1998) (offense of failing to disperse upon order from

riotous or tumultuous assembly); Va. Code Ann. §18.2-407

(Michie 1996 & Supp. 1997) (misdemeanor offense of failing to

disperse on order from place of riot or unlawful assembly),

Wash. Rev. Code Ann. §9A.84.020 (West 1988 & Supp. 1998)

(misdemeanor offense of failing to disperse on order from

congregation of 3 or more persons, where actions of the group

create a substantial risk of injury to persons or substantial harm

to property); W.Va. Code §61-6-1 (1997) (offense of failing to

depart from scene of riot or unlawful assemblage), Wis. Stat.

Ann. §947.06(3) (West 1996 & Supp. 1997) (misdemeanor

offense for failure to disperse on order where congregation of

3 or more persons creates such disturbance “that it is reasonable

to believe that the assembly will cause injury to persons or

damage to property”).