Amicus Curiae Brief — Chicago v. Morales

WW ) FILED

No. 97-1121 JUN 17 1998

TE

)

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1997

CITY OF CHICAGO,

Petitioner,

Vv

JESUS MORALES, et ai.,

Respondent.

On Writ of Certiorari to the Illinois Supreme Court

AMICUS CURI4 BRIEF ON THE MERITS

IN SUPPORT OF THE CITY OF CHICAGO BY THE

LOS ANGELES COUNTY DISTRICT ATTORNEY

ON BEHALF OF LOS ANGELES COUNTY

GIL GARCETTI

District Attorney

GEORGE M. PALMER

Head Deputy, Appellate Division

BRENT DAIL RIGGS

Counsel of Record

Deputy District Attorney

Appellate Division

849 South Broadway, Suite 1100

Los Angeles, California 90014-3570

Telephone: (213) 974-1615

Attorney for Amicus Curie

———

I. THE ORDINANCE’S FIRST SENTENCE

ESTABLISHES A POLICE DUTY

Il. THE ORDINANCE CONSTITUTIONALLY

B. The Operational Standards In The Ordinance Are

Constitutionally Drawn

; remaining in a public place (1) with a criminal

street gang member only when done with no

apparent purpose and (2) with no apparent

purpose only when with a criminal street gang

Ill. THE ORDINANCE’S SECOND SENTENCE

PLAINLY CREATES A CRIME RESULTING

FROM REFUSAL TO OBEY A _ POLICE

OFFICER’S ORDER TO DISPERSE

. A POLICE ORDER UNDER THE CHICAGO

ORDINANCE ADDRESSES LOITERING THAT

IS PARTICULARLY PROVOCATIVE OF

V. THE NEED TO ABATE THE GANG MENACE

JUSTIFIES SPECIAL LIMITATIONS ON

LOITERING WITH CRIMINAL STREET

Friis Teee eet VTL PET TE 16

VI. THE CHICAGO ORDINANCE OFFERS

BENEFITS BEYOND THOSE OF ANTI-GANG

PUEREOED oo biecie ewes ew Ubusaceeness 18

eo: = + 6 | PP ryt wire re: fri 20

TABLE OF AUTHORITIES

CASES

Boos v. Barry

485 U.S. 312 (1988)

177 Ill.2d 440 (1997)

City of Houston v. Hill

482 U.S. 451 (1987)

City of Renton v. Playtime Theatres, Inc.

475 U.S. 41 (1986)

City of Richmond v. J.A. Croson Co.

488 U.S. 469 (1989)

Colten v. Kentucky

407 U.S. 104 (1972)

Cax v. Louisiana

379 U.S. 536 (1965)

Coax v. Louisiana

379 U.S. 559 (1965)

Griffin v. Wisconsin

483 U.S. 868 (1987)

i shag a) ae

24 Cal.App.4th 153 (1994)

In re Debs

158 U.S. 564 (1895)

ll

6, 11, 13, 15

13

12, 13

4, 12,13

12

4, 16, 17, 19

15

18

Madsen v. Women’s Health Center, Inc.

512 U.S. 753 (1994)

Michigan Dept. of State Police v. Site

496 U.S. 444 (1990)

Papachmistou v. Cit» -¢ Tacksonville

405 U.S. 156 (: 972)

People ex rel. Gallo v. Acuna

14 Cal.4th 1090 (1997)

People v. Flores

7 Cal.App.4th 1350 (1992)

People v. Franco

24 Cal.App.4th 1528 (1994)

People v. Gamez

235 Cal.App.3d 957 (1991)

People v. Gardeley

14 Cal.4th 605 (1996)

People v. Green

31 Cal_App.4th 1001 (1995)

People v. Lowen

17 Cal.4th 1 (1997)

People v. Magana

17 Cal.App.4th 1371 (1993)

People v. McDaniels

107 Cal.App.3d 898 (1980)

19, 20

11, 17

4, 14, 16, 17

5, 6, 14, 18

17

8, 15

9, 10

8,9

16

10

People v. Muniz

16 Cal.App.4th 1083 (1993) 15

People v. Munoz

157 Cal.App.3d 999 (1984) &

People v. Rand

37 Cal.App.4th 999 (1995) 15

Shuttlesworth v. City of Birmingham

382 U.S. 87 (1965) 13

Veronia School Dist. 47] v. Acton

515 U.S. 646 (1995) 17

Whren v. United States

517 U.S. 806 (1996) 10

.

CONSTITUTIONS, STATUTES AND RULES

United $ Constituti

First Amendment 12

Fourteenth Amendment 12

Chi Municipal Cod

Section 8-4-015 3-5, 8, 10-14, 16, 18

Section 8-4-015(a) 4,5, 11, 12, 18

Section 8-4-015(b) 5, 10, 11, 13, 18

Section 8-4-015(b)(2) 5

Section 8-4-015(b)(3) 5

Section 8-4-015(c)(1) 10

Section 8-4-015(c)(2) | 16

California G Cod

Section 26500 l

Section 26500.5 3

California Penal Cod

Section 13826.11(a)(4) 2

Sections 13826-13826.4, 13826.7 3

Other Statutes and Rules

Los Angeles County Charter section 25 l

Supreme Court Rules, Rule 37.4 l

OTHER SOURCES

California Gangs by the Next Millenium

(California Department of Justice, 1998) 2

General Ordinance number 92-4, section ITI.A.

(Chicago Police Department, 1992) 8

GREAT Computer Database maintained by Captain James

Mulvihill, LASD Operation Safe Streets

(Los Angeles County Sheriffs Department, 1998) 2

J. Howell, Youth Gang Drug Trafficking and Homicide: Policy

and Program Implications, 4 Juvenile Justice Number 2

(United States Department of Justice, 1997) 9, 15

J. Katz, Seductions of Crime

(Basic Books, 1988) 8-10

Legal Policies Manual, Mission Statement of the District Attorney’s

Office

(Los Angeles County District Attorney, 1998) 3

Records maintained by Detective Paul Glasgow for the LAPD

Detective S Divisi

(Los Angeles Police Department, 1998) - 6

No. 97-1121

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1997

CITY OF CHICAGO,

Positioner,

Vv.

JESUS MORALES, et al.,

Respondent.

On Writ of Certiorari to the Illinois Supreme Court

AMICUS CURI4 BRIEF ON THE MERITS

IN SUPPORT OF THE CITY OF CHICAGO BY THE

LOS ANGELES COUNTY DISTRICT ATTORNEY

ON BEHALF OF LOS ANGELES COUNTY

Amicus curia, Gil Garcetti, District Attorney for the County

of Los Angeles, State of California, files this brief as the

authorized law officer of the county, pursuant to the Court’s

Rule 37.4.

1. Los Angeles County Charter § 25 (1995) states:

"Each County officer, Board or Commission shall have the powers

and perform the duties now or hereafter prescribed by general law, and

by this Charter, as to such officer, Board or Commission.”

It is provided in the California general law that:

"The district attorney is the public prosecutor, except as otherwise

provided by law.

"The public prosecutor shall attend the courts, and within his or her

discretion shall initiate and conduct on behalf of the people all

prosecutions for public offenses." Cal. Government Code, § 26500

(West 1988).

2

INTEREST OF AMICUS CURL

Nearly one fourth of the murders recently committed in

California have been blamed on members of criminal street

gangs. Cal. Gangs by the Next Millenium, at 7 (Cal. Dept. of

Just., 1998). Figures maintained by the Los Angeles Police

Department reflect that, in 1997 in the City of Los Angeles,

more than a third of the criminal homicides were committed by

members of criminal street gangs.? County-wide in Los Angeles

County, the figures are even more alarming.* In 1990, the

California Legislature declared that Los Angeles County led the

nation in number of gang members.* Figures compiled by the

Los Angeles County Sheriff now show that the county popula-

tion includes more than 150,000 members of 1350 criminal

street gangs.» The District Attorney bears the major

2. See footnote 8, post.

3. Figures provided through the Hardcore Gang Division of the Los

Angeles County District Attorney's Office from Captain James Mulvihill of

Operation Safe Streets (OSS), the gang enforcement unit of the Los Angeles

County SherifPs Department, show that, in 1997, 42% of homicides in Los

Angeles County were gang-related. Captain Mulvihill obtained the figures

from GREAT, a Los Angeles County-wide computer database maintained by

OSS under Captain Mulvihill’s supervision. All police agencies in Los Angeles

County input information into GREAT. The database is maintained for the

use of law enforcement agencies.

4. Chapter 3.5, entitled "Gang Violence Suppression," of part 4, title 6 of

the California Penal Code (West 1992), contains a number of findings,

including this statement:

"The Legislature hereby finds and declares the following:

* (4) Los Angeles currently leads the nation i. the number of gang

members and gang sites, the consumption of drugs, the amount of

drugs confiscated, drug-related violent crimes, and has the greatest

number of young people between 6 and 18 years of age who are ‘at

risk.” Cal. Penal Code, § 13826.11(a)(4) (West 1992).

5. These figures were also obtained through GREAT. See fin. 3, ante.

3

responsibility in prosecuting gang members for crimes they

commit in Los Angeles County.®

The District Attorney employs a special unit, with partial

federal funding, designated to prosecute only crimes committed

by hardcore gang members. See Cal. Penal Code,

§§ 13826-13826.4, 13826.7 (West 1992, West Supp. 1998).

Under California general law:”

"The district attorney may sponsor, supervise, or partici-

pate in any project or program to improve the administra-

tion of justice." Cal. Government Code, § 26500.5 (West

1988).

Under this power, the district attorney has initiated and actively

pursues county programs to reduce crime and turn youngsters

from criminal careers. Thus, the district attorney has a special

interest in an ordinance that requires the police to disperse

loitering groups that include gang members likely to be involved

in criminal activity.

The district attorney’s mission includes an “obligation to

enhance the fundamental right of the people of Los Angeles

County to a safe and just society." Legal Policies Manual, Mission

Statement of the District Attorney’s Office (Los Angeles Co. Dist.

Atty., 1998). Ordinances similar to § 8-4-015 of the Municipal

Code of Chicago (added June 17, 19$2) would, if adopted by

municipalities in Los Angeles County, enhance this right of the

people of the county by reducing more serious criminal activity.

The district attorney believes the Constitution permits imple-

mentation of the Chicago ordinance and has an interest in a

decision from the Court upholding the ordinance.

6. See foornote 1, ante.

7. See footnote 1, ante.

4

SUMMARY OF ARGUMENT

The Chicago ordinance is a constitutionally enforceable statute

aimed at a particular evil, namely, loitering criminal street gangs--

gangs that suck the vitality from the city’s neighborhoods and

public places and personally intimidate its citizens. In Griffin v.

Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709

(1987), the Court recognized the existence of “special needs’

beyond normal law enforcement," id., 483 U.S. at 873-874, that

may constitutionally impinge upon rights normally given greater

protection by the Court. But the threat that criminal street

gangs present to public safety and the quality of life in neighbor-

hoods in Chicago necessitates dispersal of loitering gangs of

street criminals in situations only where the Court has otherwise

been protective of rights "not mentioned in the Constitution or

in the Bill of Rights." Papachristou v. City of Jacksonville,

405 U.S. 156, 164, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).

Despite the Illinois Supreme Court’s contrary pronouncement,

the Chicago ordinance does not make loitering a crime; the

operative paragraph of the ordinance consists of a sentence

imposing upon a police officer a duty to issue an order dispersing

loitering gang members and associates, and a second sentence

making a crime only of failure to obey the police order. See

Chicago Muni. Code, § 8-4-015(a). The Constitution permits

prosecution under the second sentence, assuming the lawfulness

of the order, see Cox v. Louisiana, 379 U.S. 536, 551, 85 S.Ct.

453, 13 L.Ed.2d 417 (1965); and the special need to preserve

public safety and improve the quality of life for the community

justifies imposing such a duty upon the police. No person

subject to such an order need fret over the meaning of the word

lowter--prosecution results only from failure to disperse on order

of the police. And no police officer initiating such an order will

have a very difficult time identifying a group subject to such an

order--members of criminal street gangs notoriously advertise

their membership to effect the gang’s purposes. See, ¢g., People

5

v. Gardeley, 14 Cal.4th 605, 613, 59 Cal.Rptr. 356, 927 P.2d

713 (1996).

The Chicago ordinance provides an attractive alternative to the

injunctive process currently utilized by some California munici-

palities as a means of curbing the criminal street gang menace.

See, ¢.g., People ex rel. Gallo v. Acuna, 14 Cal.4th 1090, 60

Cal.Rptr.2d 277, 929 P.2d 596 (1997). Such an ordinance and

anti-gang injunctions may also usefully supplement one another.

ARGUMENT

I. THE ORDINANCE’S FIRST SENTENCE

ESTABLISHES A POLICE DUTY

The operative subsection of the Chicago ordinance contains

but two sentences. The first states:

"Whenever a police officer observes a person whom he

reasonably believes to be a criminal street gang member

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

shall order all such persons to disperse and remove them-

selves frora the area." Chicago Muni. Code, § 8-4-015(a).

Another subsection defines criminal street gang:

"[It] means any ongoing organization, association in fact or

group of three or more persons, whether formal or infor-

mal, having as one of its substantial activities the commis-

sion of one or more of the criminal acts enumerated in

paragraph (3), and whose members individually or collec-

tively engage in or have engaged in a pattern of criminal

gang activity.” Id., § 8-4-015(b)(2).

Subsection 8-4-015(b)(3) contains a list of crimes mostly involv-

ing violence and narcotics trafficking. Thus, the ordinance

imposes a duty upon Chicago police officers, who shall order

dispersal and removal of certain loitering persons reasonably

likely to be involved in serious criminal activity, i.c., any person

loitering in a group reasonably believed to include a criminal

street gang member.

6

Il. THE ORDINANCE CONSTITUTIONALLY

IMPOSES AND DEFINES THE DUTY

A. The Evil Is Real

As the Illinois Supreme Court here observed:

"Criminal street gangs are an expanding cancer in our

society and their illegal activities endanger the safety of

many law-abiding citizens." City of Chicago v. Morales, 177

Ill.2d 440, 227 Ill. Dec. 130, 687 N.E.2d 53, 64 (1997).

That court agreed the "problem" requires abatement. /I2.,

687 N.E.2d at 64. Clearly, it does when one considers figures,

such as those supplied by the Los Angeles Police Department,

indicating that in 1997, members of criminal street gangs were

responsible for more than a third of the criminal homicides

committed in the City of Los Angeles.*

But the issue is not solely public safety; it includes the com-

munity’s quality of life--the activities of criminal street gangs in

a neighborhood can result in the residents becoming "prisoners

in their own homes." People ex rel. Gallo v. Acuna, supra, 14

Cal.4th at 1100. Such was the case, as recently described by the

California Supreme Court, in the San Jose neighborhood of

Rocksprings:

“Gang members, all of whom live elsewhere, congregate on

lawns, on sidewalks, and in front of apartment complexes at

all hours of the day and night. They display a casual

contempt for notions of law, order, and decency--openly

drinking, smoking dope, sniffing toluene, and even snorting

cocaine laid out in neat lines on the hoods of residents’cars.

The people who live in Rocksprings are subjected to loud

talk, loud music, vulgarity, profanity, brutality, fistfights

8. The actual percentage for 1997 was 33.6. Detective Paul Glasgow of

the Los Angeles Police Department provided this percentage based upon

official records he maintains for that department’s Detective Support Division.

The same records show that in 1996, gang members committed 37.7% of that

city’s homicides and, in 1995, 45.2%.

7

and the sound of gunfire echoing in the streets. Gang

members take over sidewalks, driveways, carports,

apartment parking areas, and impede traffic on the public

thoroughfares to conduct their drive-up drug bazaar.

Murder, attempted murder, drive-by shootings, assault and

battery, vandalism, arson, and theft are commonplace. The

community has become a staging area for gang-related

violence and a dumping ground for the weapons and

instrumentalities of crime once the deed is done. Area

residents have had their garages used as urinals; their

homes commandeered as escape routes; their walls, fences,

garage doors, sidewalks, and even their vehicles turned into

a sullen canvas of gang graffiti. [1] The people of this

community are prisoners in their own homes. Violence

and the threat of violence are constant. Residents remain

indoors, especially at night. They do not allow their

children to play outside. Strangers wearing the wrong

color clothing are at risk. Relatives and friends refuse to

visit. The laundry rooms, the trash dumpsters, the resi-

dents’ vehicles, and their parking spaces are used to deal

and stash drugs. Verbal harassment, physical intimidation,

threats of retaliation, and retaliation are the likely fate of

anyone who complains about the gang’s illegal activities or

tells police where drugs may be hidden." Ibid.

The appendices attached to the petition for certiorari reflect a

concern of the lower Illinois courts that the Chicago ordinance

would apply when a social worker or a family member is talking

to a gang member. (See App. B, at 27a.) But such concerns

pale when, as here (and in, ¢g., Rocksprings, see ante), the

intimidation and control of a neighborhood by criminal street

gangs is the evil sought to be remedied. The presence of a gang

member’s relative or social worker among those loitering outside

a residence or business or in an apartment parking area adds

nothing to the comfort level of law-abiding neighbors. See, ¢g.,

People \.. Green, 31 Cal.App.4th 1001, 1007, 38 Cal.Rptr.2d 401

(1995) (gang members "sprayed a populated intersection with

bullets" in gang retaliation shooting); but see People v. Franco, 24

Cal.App.4th 1528, 1534, 30 Cal.Rptr.2d 478 (1994) (gang

members decide not to shoot rival gang member with his mother

and aunts "because [he] was walking with grown ladies").

Chicago has a vital interest in the quality of the life of its

citizens. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41,

50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Section 8-4-015 of

its municipal code protects that interest.

B. The Operational Standards In The Ordinance Are

Constitutionally Drawn

1. Establishing a reasonable belief that a person belongs to

a criminal street gang is practicable

Generally, members of criminal street gangs are readily

susceptible of identification. The Chicago Police Department's

_ guidelines for enforcement of the instant ordinance demonstrates

maintains a Gang Information File, for the purpose of identifying

gangs and gang members. See Chicago P.D. General Ord. No.

92-4, § III.A. (1992). Gang members are frequently identified

through their own admissions of membership. See, ¢,g., People

v. Lowen, 17 Cal.4th 1, 6, 69 Cal.Rptr.2d 776, 947 P.2d 1313

(1997); People v. Gardeley, supra, 14 Cal.4th at 611, 612, 620.”

Indeed, advertisement of gang membership is a useful part of the

9. However, in a chapter entitled Street Elite, Professor Katz has noted:

"An inside joke that has been shared by field investigators over several

decades is that subjects freely refer to their enemies as members of

gangs bur instruct an observing sociologist that their collective

commitment is to a ‘club,’ an ‘organization,’ a ‘clique,’ a ‘barrio,’ a

‘mob,’ a ‘brotherhood,’ a ‘family,’ an ethnic ‘nation,’ a ‘team,’ or a ‘crew.’

Often, they expressly deny membership in a ‘gang.” J. Katz, Seductions

of Crime, at 115 (Basic Books, 1988).

See also People v. Munoz, 157 Cal.App.3d 999, 1010-1012, 204 Cal. Rprr. 271

(1984) (trial court requires prosecutor’s cross-examination on gang member-

ship to omit use of the word gang).

9

intimidation involved in controlling a neighborhood, or may

assist in maintaining gang membership. See Gardeley, 14 Cal.4th

at 613.%°

"[T]}he ‘expressive’ aspect of gang violence involves impul-

sive and emotional defense of one’s identity as a gang

member, defense of the gang and gang members, defense

and glorification of the gang’s reputation, and recruitment

of gang members." J. Howell, Youth Gang Drug Traffick-

ing and Homicide: Policy and Program Implications, 4 Juv.

Just. No. 2, p. 14 (Dept. of Just., 1997).

Clothing, tatoos or other markings are often gang-specific, as

are signals between members.’ See, ¢g., People v. Lowen,

10. In Gardeley, the California Supreme Court summarized a portion of

the testimony of a police gang expert, as follows:

"Detective Boyd explained: It is common practice for several gang

members acting in concert to assault a person in full view of residents

of an area where the gang sells drugs. Such attacks serve to intimidate

dealing activities to police. members typically view a or

coca Cl adie ant aa'6 ote itn gn © ©

‘challenge’ to the gang’s authority, and they respond by trying to

‘dominate’ the person physically, that is, they might ‘beat the person

senseless, throw rocks over his head, kick him’ and do this ‘where a lot

of people can witness it.’ When gang members ‘terrorize people . . .

[who] have to live there,’ the ‘fear factor’ allows the gang to ‘go nght

back to dope dealing’ day after day in the same area.” People v.

, supra, 14 Cal.4cth at 613. ; :

Professor Katz describes the gang practice of parading as ‘a process of

walking in apparent unison past a relatively stationary public while displaying

‘colors’ or other insignia of membership in a diffusely threatening group, J.

Katz, op. cit. supra, 142, or “when members pace about a public location,

gesturing defiance and shouting insults at will." Id. at 143. Professor Karz

further notes "that the mass media’s coverage of ‘gang activities’ is a powerful

stimulus to members’ involvement." Id. at 144.

1l. The name of a gang on a t-shirt contributed evidence of gang

membership in People v. Gamez, 235 Cal.App.3d 957, 963. 986 Cal. Rptr. 894

(1991), disapproved on a legal issue in People v. Gardeley, s:,_», 14 Cal.4th at

624, fn. 14. Professor Katz states: |

(continued...)

10

supra, 17 Cal.4th at 6. Reliable information from a third party

may also identify a gang member.

Given the wealth of objective criteria, the courts can easily test

a police decision to issue a dispersal order on a case-by-case basis.

Absent the existence of any such objective criteria, the police

could hardly justify such an order; the presence of objective

criteria should justify it. Cf. Whren v. United States, 517 U.S.

806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Of course, upon

consideration of the statutory defense, see Chicago Muni. Code,

§ 8-4-015(b), the final decision on whether a member of the

loitering group actually belongs to a criminal street gang is, as

are similar questions in any criminal prosecution, a question for

the trier of ultimate fact. See, ¢.g., People v. Gamez, supra, 235

Cal.App.3d at 980, opn. of Wallin, J., conc. in the result.

2. The ordinance constitutionally discourages remaining in

a public place (1) with a criminal street gang member

only when done with no apparent purpose and (2) with

no apparent purpose only when with a criminal street

gang member

The ordinance defines /oiter as “to remain in one place with no

apparent purpose.” Chicago Muni. Code, § 8-4-015(c)(1). The

i. (...continued)

. West Coast barrio warriors (and some black groups as well) use

the strikingly simple sartorial device of an upturned bill on a cap to

signify membership in a ‘bad’ group. The barrio name is commonly

painted on the underside of the brim, and circular letters in the barno’s

name frequently are drawn and punctuated to suggest eyes. When

turned up, the bill of the cap has the ‘bad’ youth peering down on

with a collective identity drawn from underneath.” J. Karz,

op. cit. supra, 136-137.

Professor Katz is a sociologist. Presumably, a city police officer could

provide a variety of indicia of gang membership appropriate to local criminal

street gang cultures. Cf, e.g., People v. McDamiels, 107 Cal. App.3d 898, 904,

166 Cal Rper. 12 (1980) (Los Angeles Co. Dep. Sheriff male effort a» part

of his duties “to study the social customs, methods of operation of gangs in

south central Los Angeles").

ll

first sentence of § 8-4-015(a), which creates the police duty, uses

the word /oitering, as thus defined. Accordingly, the ordinance

discourages (1) remaining in a public place with a criminal street

gang member, only when done with no apparent purpose and (2)

remaining in a public place with no apparent purpose only when

with a criminal street gang member. Thus, so far as the Chicago

ordinance is concerned, one can loiter with impunity so long as

not in the company of a member of a criminal street gang. And,

at least under the ordinance, when a purpose is apparent, one can

remain in a public place with a member of a criminal street gang

without police interdiction.

As a practical matter, to avoid a police dispersal order, persons

who wish to remain in a public place with a person whom the police

reasonably believe to be a member of a criminal street gang may

make their purpose apparent upon contact with the police.”

The importance of abating the “expanding cancer," City of

Chicago v. Morales, supra, 687 N.E.2d at 64, justifies that

inconvenience. Cf. Michigan Dept. of State Police v. Sitz, 496

U.S. 444, 450, 455, 110 S.Cr. 2481, 110 L.Ed.2d 412 (1990)

(justifying governmental interference with freedom of movement

vis-a-vis, here, the freedom to loiter). The purpose thus made

known, the ordinance provides no further justification for police

action.

By requiring police to disperse only loiterers who belong to

addresses itself to a narrow group of persons whose loitering,

under the City Council’s findings (and also apart from them),

saps the city’s neighborhoods of vital strength. With this limita-

tion, the Chicago ordinance distinguishes itself from anti-loitering

statutes held unconstitutional by the Court. Cf. Boos v. Barry,

485 U.S. 312, 331-332, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988)

(restriction of anti-congregation statute to “groups posing a

12. In addition, assuming any prosecution after disobedience to an order

to disperse, it is an affirmative defense to the charge that no one in the group

belonged to a criminal street gang. Chicago Muni. Code, § 8-4-015(b).

12

security threat,” 485 U.S. at 331, satisfies lst Amend.); Colten v.

Kentucky, 407 U.S. 104, 110, 92 S.Cr 1953, 32 L.Ed.2d 584

(1972) (conviction under statute punishing disobedience of

dispersal order when congregating in public place with “intent of

causing inconvenience, annoyance or alarm," ibid., withstands 1st

and 14th Amends.).

Ill THE ORDINANCE’S SECOND SENTENCE

PLAINLY CREATES A CRIME RESULTING

FROM REFUSAL TO OBEY A_ POLICE

OFFICER’S ORDER TO DISPERSE

"[T]}here is no place for violence in a democratic society

dedicated to liberty under law .. . ." Cox v. Louisiana, 379 U.S.

559, 574, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965).

"The constitutional guarantee of liberty implies the exis-

tence of an organized society maintaining public order,

without which liberty itself would be lost in the excesses of

anarchy.” Cox v. Louisiana, supra, 379 U.S. 536, 554.

The violence inflicted upon society by the presence of criminal

street gangs cannot credibly be denied. It is in part to avert such

violence that the Chicago City Council approved § 8-4-015,

requiring the police to order dispersal of loitering members and

associates of such gangs. But an unenforceable order could

hardly serve the purpose. Accordingly, the second sentence of

the operative portion of the Chicago ordinance states:

“Any person who does not promptly obey such an order is

in violation of this section." Chicago Muni. Code,

§ 8-4-015(a).

Thus, while the first sentence of subsection 8-4-015(a) creates a

police duty to dispel certain loitering, the second generally makes

refusal t obey the order a crime. The elements of the crime are:

(1) a police order to disperse and remove from an area, and (2)

failure to promptly obey. It is in the ordinance, however,

explicitly a defense that none of the disobedient loiterers be-

longed to a criminal street gang. § 8-4-015(b).

13

In Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct.

211, 15 L.Ed.2d 176 (1965), the Court in dicta described an

ordinance that made it an offense "to refuse or fail to comply

with any lawful order, signal or direction of a police officer” as

"so broad as to evoke constitutional doubts of the utmost

gravity.” 382 U.S. at 93. In making this statement, the Court

in Shuttlesworth referred to a portion of its opinion concerning

another part of the same statute, in which the Court cited to the

concurring portion of an opinion of Justice Black in Cox v.

Louisiana, supra, 379 U.S. 536, 559,579. But in Cax, the Court

had under review another ordinance, the violation of which

consisted of two elements, and a majority of the Court described

the second element--consisting of "a refusal to move on after

having been ordered to do so by a law enforcement officer,” id.

at 551--as “narrow and specific,” ibid., and, thus, presumably

constitutionally drawn. See ibid.

While the [Illinois Supreme Court stated below,

"The ordinance seeks to criminalize acts of ‘loitering’ in a public

place," City of Chicago v. Morales, 117 Ill.2d 440, 687 N.E.2d 53,

60 (1997), the ordinance does no such thing; to say that it does

reveals a failure to read fairly its plain language. The ordinance

does not make a crime of loitering; it does make a crime of

the failure to obey the dispersal order of a police officer. While

the Illinois court erroneously felt loiter an inadequate term “to

inform a citizen of its criminal implications," 687 N.E.2d at 61,

any citizen subject to such a police order need not reflect at all

upon the word Joiter or its definition in the ordinance; the

criminal act is in the refusal to obey the order. Cf. City of

Houston v. Hill, 482 U.S. 451, 463, n. 11, 107 S.Ct. 2502, 96

L.Ed.2d 398 (1987); Colten v. Kentucky, supra, 407 U.S. at 110.

13. The "Uinois Supreme Court notes elsewhere in its opinion that,

"literally read, the gang loitering ordinance does not prohibit loitering with a

criminal street gang member," City of Chicago v. Morales, 687 N.E.2d at 62,

although that court uses this statement merely to emphasize that what is at

issue is not actual gang membership, but a police officer’s "reasonable belief

that one person in a group of loiterers is a gang member.” [bid.

14

IV. A POLICE ORDER UNDER THE CHICAGO

ORDINANCE ADDRESJES LOITERING THAT IS

PARTICULARLY PROVOCATIVE OF VIOLENCE

The evident purpose of the Chicago ordinance may be gleaned

from its plain language. The purpose has to do not with

encouraging arrests and prosecutions, but with dispersal of

it from the ordinance under review in Papachristou v. City of

Jacksonville, supra, 405 U.S. 156. The Chicago ordinance secks

prevention by removing a likely source/target (see post) of

criminal activity and neighborhood blight. While the Court in

Papachristou described loafing and loitering, themselves arrestable

and prosecutable under the Jacksonville (but not the Chicago)

ordinance, as “historically part of the amenities of life as we have

known them," id., 405 U.S. at 164, surely those amenities must

be afforded to the law-abiding citizenry and not just to gang

members; but in Los Angeles and San Jose, as in Chicago, the

threatening presence of the latter persuades the remainder of the

citizenry to stay indoors. See, ¢g., People ex rel. Gallo v. Acuna,

supra, 14 Cal.4th at 1100.

The Chicago City Council gave reasons for imposing this

dispersal duty on the police: (1) an increase in the city’s murder

rate and other violent crimes, and in drug-related crimes; (2)

intimidation of law abiding citizens by the expansion of a street

gang presence in public places; (3) control by criminal street

gangs over certain areas of the city through loitering and intimi-

dation in those areas; (4) gang maintenance of such control while

loitering, even in the presence of the police, caused by suspension

of other criminal activity upon arrival of the police; (5) threats

to persons and property in such areas from loitering criminal

street gangs, (6) an interest in discouraging others from loitering

with members of such gangs; and (7) a need for aggressive

action to preserve the city’s streets and public places for the safe

use of the public. See preamble to Substitute Ord. adding

§ 8-4-015 to Chicago Muni. Code.

15

"The factfinding process of legislative bodies is generally

entitled to a presumption of regularity and deferential review by

the judiciary." City of Richmond v. J.A. Croson Co., 488 U.S.

469, 500, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). No reason

appears for applying any different rule to these findings of the

gang loitering in the public areas of the city. If accepted, these

findings of the city council justify the Illinois Supreme Court's

agreement with the need to abate the problem thus presented.

See City of Chicago v. Morales, supra, 687 N.E.2d at 64. ”

The problem extends beyond the safety of law-abiding citizens

victimized by the gangs. A group that includes a gang member

itself is a prime target for the infliction of violence by a rival

gang. See, ¢,g., Gutierrez v. Superior Court, 24 Cal.App.4th 153,

156, 29 Cal.Rptr.2d 376 (1994); cf. People v. Rand,

37 Cal.App.4th 999, 44 Cal.Rptr.2d 686 (1995); but see People

v. Franco, supra, 24 Cal.App.4th at 1534. Researchers in a 1996

St. Louis study "found most gang violence, including homicides,

to be ‘expressive,’ retaliatory, or situationally spontaneous”:

"Although some violence was related to protecting drug

ingly petty acts--disrespecting gang colors, stepping in front

of another person, flashing gang hand signs, or driving

through a rival neighborhood. ‘Whatever the "purpose of

violence, it often leads to retaliation and revenge creating a

a

itation]." J. Howell, op. cit. supra, 12.

omni eg., - v. Mewia, 16 Cal.App.4th 1083, 1085-1086,

20 Cal.Rptr.2d 460 (1993) (gang member on his way to do pay

back shooting with no particular victim in mind). In a 1996

Chicago study, researchers found "a ‘marauder’ pattern is com-

mon, in which members of rival gangs travel to the hub of their

enemy’s territory in search of potential victims." J. Howell, op.

it. , 14. |

Thus, the Chicago ordinance’s requirement that police disperse

a loitering group that includes a criminal street gang member

16

protects public safety, even where the group also includes a

relative of the gang member, or a social worker assigned to work

with gangs. See, ¢g., People v. Magana, 17 Cal.App.4th 1371,

1374, 22 Cal.Rptr.2d 59 (1993) (killing of gang member’s 7 yr.

old son leads to retaliatory gang shooting of infant and others).

Such a loitering group, and nearby innocent bystanders, will be

at greater risk than a similar group (and bystanders) that includes

no such gang member. In this light, the Chicago City Council’s

legislation rationally attacks the problem recognized by the

Illinois Supreme Court, but which that court evidently felt the

Constitution rendered the city council powerless to address.

Vv. THE NEED TO ABATE THE GANG MENACE

JUSTIFIES SPECIAL LIMITATIONS ON

LOITERING WITH CRIMINAL STREET GANGS

In Griffin v. Wisconsin, supra, 483 U.S. 868, the Court wrote

of “special needs’ beyond normal law enforcement that may

justify departures from the usual warrant and probable-cause

requirements." 483 U.S. at 873-874. Speaking of probation, the

Court said, “Recent research suggests that more intensive

supervision can reduce recidivism,” id. at 875, and that such

supervision "Is a ‘special need? of the State permitting a degree of

impingement upon privacy that would not be constitutional if

applied to the public at large." Ibid. The loitering criminal street

gang, as defined in § 8-4-015(c)(2) of the Chicago ordinance,

also creates a special need, justifying police interdiction before the

ripening of normal probable cause that would validate an arrest.

The special need here is to protect from violence not only the

gang member but innocent bystanders, see pt. IV, ante, and to

encourage law-abiding citizens to retake the city’s public places.

The ordinance requires the police neither to search nor to

arrest, but rather to order dispersal and removal of the loitering

group. The rights implicated in Chicago’s ordinance, if any, are

those “not mentioned in the Constitution or in the Bill of

Rights." Papachristou v. City of Jacksonville, supra, 405 U.S.

17

at 164. The state’s intrusion on protected rights being non-

existent, or at least substantially less than that involved in a

search or arrest, the accompanying burden on the state is

accordingly less to justify the officer’s order. Cf., ¢.g., Michigan

Dept. of State Police v. Sitz, supra, 496 U.S. at 450, 455; Veronia

School Dist. 47] v. Acton, 515 U.S. 646, 673, 115 S.Ct. 2386,

132 L.Ed.2d 564, (1995), dis. opn. of O’Connor, J. (police

cannot "subject to drug testing every person entering or leaving

a certain drug-ridden neighborhood in order to find evidence of

crime"). Chicago has a compelling interest in intervention before

the publicly loitering gang further damages the neighborhood or

becomes itself a target of violent criminal activity (as in, ¢g.,

People v. Flores, 7 Cal.App.4th 1350, 1354-1355, 9 Cal.Rptr.2d

754 (1992) (gang shooting of "some guys" from a rival gang

standing by a house). Cf. Griffin v. Wisconsin, supra, 483 U.S.

at 879 (normal constitutional requirements yield to need to

prevent damage to probationer or society).

In Papachristou v. City of Jacksonville, supra, 405 U.S. at 171,

the Court described as too extravagant an implicit presumption,

resulting from enforcement of the Jacksonville vagrancy ordi-

nance there under consideration, "that crime is being nipped in

the bud." Ibid. The ordinance, as described by the Court,

allowed arrest and prosecution merely of "people who might

walk or loaf or loiter or stroll or frequent houses where liquor is

sold, or who are supported by their wives or who look suspicious

to the police." Ibid. The Court’s concern appears to have been

that the Jacksonville ordinance was incapable of "even-handed

administration,” ibid., such that minorities and the poor would

bear the brunt of its enforcement. See sid.

But while the Court described the implicit presumption

associated with the Jacksonville ordinance as “too extravagant to

deserve extended treatment," Papachristou v. City of Jacksonville,

supra, 405 U.S. at 171, the presumption underlying the Chicago

ordinance--that loitering members of criminal street gangs and

their associates create a serious social problem that encourages

and depends upon public criminality--is too clear "to deserve

18

extended treatment." Ibid. A successful prosecution under the

ordinance depends upon (1) the actual presence of a member of

a criminal street gang in the loitering group, see Chicago Muni.

Code, § 8-4-015(b); and (2) the refissal to obey a police dispersal

order, see id., § 8-4-015(a). While under the Jacksonville

ordinance, the target’s choice of an idle etc. (but non-criminal)

lifestyle may have affected police enforcement, recognition of (1)

the criminal lifestyle of the Chicago ordinance’s primary targets,

that is, those whom the police must reasonably believe to be

a oe street gangs; (2) the constitutionally

unprotected purposes for which they congregate in i es,

and (3) the violence their loitering provokes ee

constitutionally justify enforcement of the Chicago ordinance.

VI. THE CHICAGO ORDINANCE OFFERS

BENEFITS BEYOND THOSE OF ANTI-GANG

INJUNCTIONS

3 The California Supreme Court has approved the use of

injunctions to curb certain ostensibly non-criminal activities of

criminal street gangs as public nuisances. People ex rel. Gallo v.

Acuna, supra, | : Cal.4th 1090. The use of such power depends

upon a showing of a particular actual or threatened interference

with property or rights. See id., at 1107, discussing In re Debs,

==158-U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 (1895).

“Acts or conduct which qualify as public nuisances are

enjoinable as civil wrongs or prosecutable as criminal

misdemeanors, a characteristic that derives not from their

status as independent crimes, but from their inherent

tendency to injure or interfere with the community’s

exercise and enjoyment of rights common to the public.”

People ex rel. Gallo v. Acuna, supra, 14 Cal.4th at

1108-1109.

A judicial injunction "does not embody the broad and abstract

commands of a statute." People ex rel. Gallo v. Acuna, supra,

14 Cal.4th at 1114. “Instead, it is the product of a concrete

19

judicial proceeding prompted by particular events,” ibid., usually

requiring aggressive litigation and issuing thereafter. Ibid. The

California Supreme Court related some of the evidence in Gallo,

as follows:

"One Rocksprings resident recounted an incident in which

gang members had threatened to cut out the tongue of her

nine-year-old daughter if she talked to the police; she stated

that other residents had been threatened as well. Another

resident reported her neighbor’s property had been vandal-

ized and the resident threatened after complaining to police

that gang members had urinated in her garage. A police

officer declared Rocksprings residents had told him gang

members confront and threaten them with physical violence

when asked to leave residential property. Others refused to

furnish declarations, fearing for their lives if any gang

member should discover their identities.” Id. at 1118-1119.

These recitations illustrate an obvious weakness of the

injunctive process in comparison with the Chicago ordinance. In

California, the residents of the Rocksprings neighborhood had to

suffer without relief before and while San Jose authorities

litigated injunctive relief against the gang. San Jose will have to

seek a new injunction if the enjoined gang merely moves its

activities to the streets of another neighborhood. Even within a

neighborhood, new recruits to a gang or gang members other-

wise unidentified in the injunction may take the place of the

enjoined members.

Furthermore, just as the delay inherent in obtaining a probable

cause warrant contributed to departure from the usual warrant

requirement in the search situation described in Griffin v.

Wisconsin, supra, 483 U.S. at 876, so also the injunction process

falls short in the need to promptly disperse an already menacing

criminal street gang. Finally, this Court (and, hence, also lower

courts) may scrutinize an injunction more closely than an

ordinance. Madsen v. Women’s Health Center, Inc., 512 U.S.

753, 764-766, 114 S.Ct. 2516, 129 L.Ed.2d 593 (1994).

However, the injunction can supplement the effect of an

ordinance like Chicago’s. For example, while a police order

under the ordinance might disperse a loitering group of gang

members and associates, violation of an injunction might justify

an arrest of a dispersing gang member. An injunction may

“afford more precise relief." Madsen v. Women’s Health Center,

Inc., supra, 512 U.S. at 765. No reason appears why the

government should be limited to one or the other.

CONCLUSION

The Ghinge aoa MeN: See oe

targets; gang violence is not. The Court should reverse the

lgmen of the Tics Supreme Cou ing the Chic

3

E

BRENT DAIL RIGGS (Counsel of Record) Pi

Deputy District Attorney : e

849 South Broadway, Suite 1100 f

Los Angeles, California 90014-3570

Attorneys for Amicus Curia

a5 POT OF