Amicus Curiae Brief — Chicago v. Morales

wn

a FILED

No. 97-1121 ~~ 3

11996

_ | _OFFICE OF THE CLERK

In the Supreme Court of the Unitdd Sturres: courr. u.s.

—

OCTOBER TERM, 1997

CiTy OF CHICAGO,

Petitioner,

V.

JESUS MORALES, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

BRIEF OF NATIONAL LAW CENTER ON

HOMELESSNESS & POVERTY, NATIONAL ALLIANCE

TO END HOMELESSNESS, NATIONAL COALITION FOR

THE HOMELESS, CHICAGO COALITION FOR THE

HOMELESS AND NATIONAL NETWORK FOR YOUTH

AS AMICI CURIAE SUPPORTING RESPONDENTS

Robert M. Bruskin* Maria Foscarinis

Alexander B. Berger Kelly A. Cunningham

HOWREY & SIMON NATIONAL LAW CENTER ON

1299 Pennsylvania Avenue, N.\W. HOMELESSNESS & POVERTY

Washington, D.C. 20004 918 F Street, N.W., Suite 412

(202) 783-0800 Washington, D.C. 20004

(202) 638-2535

Counsel for Amicus Curiae Counsel for Amici Curiae

National Law Center on

Homelessness & Poverty

* Counsel of Record

‘BEST AVAILABLE COPY!=

QUESTIONS PRESENTED

Whether a loitering ordinance is

unconstitutionally vague when it prohibits two

or more persons from remaining in a public

place with no apparent purpose after a police

officer, acting under a reasonable belief that

one of the persons is a gang member, asks

them to disperse.

Whether a loitering ordinance prohibiting two

or more persons from remaining in a public

place with no apparent purpose,

impermissibly punishes involuntary conduct

and arbitrarily denies personal liberties of

freedom of movement, in violation of

substantive due process.

TABLE OF CONTENTS

QUESTIONS PRESENTED 0..c.cccsccscccccsccccscsssssssssssssssensssessee I

INTEREST OF AMICI CURIAE oni...cccccccsscssssssssssssessssssssee 2

STATEMENT OF THE CASE ..csccccscsssssssscccssssssssseeeeeeecnse 4

SUMMARY OF THE ARGUMENT .0......cccccccssssesssssssssonsnne 7

po REESE 10

I. INTRODUCTION: THE GROWING

PROBLEM OF HOMELESSNESS ..........cccccoossosoeeeee 10

Il. THE ORDINANCE IS IMPERMISSIBLY

VAGUE IN VIOLATION OF DUE PROCESS

Ill. THE ORDINANCE VIOLATES

SUBSTANTIVE DUE PROCESS

B. The Ordinance abridges the liberty interest in

freedom of movement under the Due Process

ET ETRE A SRE LC Te Reo OC ee 25

CONCLUSION

TABLE OF AUTHORITIES

CASES

Page(s)

Bell v. Wolfish, 441 U.S. 520 (1979) ..........cccccceeceeseeereeseeeees 22

City of Chicago v. Morales, 687 N.E.2d 53 (Ill.

1997), cert. granted, 118 S. Ct. 1510 (1998) ............ 7,14

City of Chicago v. Youkhana, 660 N.E.2d 34 (Ill.

A 6

Ingraham v. Wright, 430 U.S. 651 (1977) ..........cceccecceeeeeees 22

Kolender v. Lawson, 461 U.S. 352 (1983) ........ 13, 14, 18, 26

Lanzetta v. New Jersey, 306 U.S. 451 (1939) .........ccceccce00ee 17

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

Re ae eee a eee 13, 19, 26

Posters 'N' Things v. United States, 511 U.S. 513

gd SA NRE RRS I len OE ee 14

Pottinger v. City of Miami, 810 F. Supp. 1551 (S.D.

MRIS ARIES 2 25, 26

Powell v. Texas, 392 U.S. 514 (1968) ............0..00000 23, 24, 25

Robinson v. California, 370 U.S. 660 (1962) ................-00+. 23

Shuttlesworth v. City of Birmingham, 382 U.S. 87

RT CN RATE ee ee 15, 16, 17, 18

v

United States v. Harriss, 347 U.S. 612 (1954) ......-...sese0es 13

United States v. Moore, 486 F.2d 1139 (D.C. Cir.),

cert. denied, 414 U.S. 980 (1973) .........cccceceesereerensenennes 22

United States v. Reese, 92 U.S. 214 (1876)............--eseceeseeees 19

Wheeler v. Goodman, 306 F . Supp. 58 (W.D.N.C.

1969), vacated on other grounds, 401 U.S. 987

CRUE cncansuitnitstuiladiinisseiclatietipeniiiimnmmenipenincenenn 22

STATUTES

te Ge FO Re ee SS ee 21

Munic. Code of Chicago § 8-4-015 (1992).............. 4, 5,6, 14

OTHER AUTHORITIES

Anthony G. Amsterdam, Federal Constitutional

Restrictions on the Punishment of Crimes of

Status, Crimes of General Obnoxiousness, Crimes

of Displeasing Police Officers, and the Like,

Criminal Law Bulletin, Vol. 3, no. 4 (1967) ...........+-00+- 13

Martha R. Burt, Critical Factors in Counting the

Homeless, 65 Am. J. Orthopsychiatry 334, 335

CRT, ccncscstricnsccscittaganamansinsidbaliemaiatiimeieeenga 7, 10

The Causes and Facts (1996) .............cccseeeseeeerseeeeeenees 12

Richard M. Daley & Terry G. Hilliard, Gang and

Narcotic Related Violent Crime, City of Chicago

1993-1997 (Jume 19, 1998)..............ccccscerseerseneeees 9, 12, 20

Jennifer Daskal, Center in Budget and Policy

Priorities, In Search of Shelter: The Growing

Shortage of Affordable Rental Housing (June 15,

Maria Foscarinis, Downward Spiral: Homelessness

and its Criminalization, 14 Yale Law & Policy

eee eee 10

Paul Leavitt, Food-Shelter Requests On The Rise,

Mayors Say, USA Today, Dec. 20, 1995, at 3A............. 20

Bruce Link, Lifetime and Five-Year Prevalence of

Homelessness in the United States, American

Journal of Public Health, Vol. 84, No. 12 (Dec.

National Law Center on Homelessness & Poverty,

Access Delayed, Access Denied: Local Opposition

to Housing and Services for Homeless People

Across the United States (Dec. 1997) ...........c000-000e0 12, 23

U.S. Department of Housing and Urban

Development, Office of Policy Development and

Research, Rental Housing Assistance--The Crisis

Continues: The 1997 Report to Congress on

Worst Case Housing Needs (Apr. 1998) ................00000+- 11

U.S. Department of Housing and Urban

Development, Office of Policy Development and

Vii

Research, A Report to the Secretary on the

Homeless and Emergency Shelters (1988) .......-..-.--+-+++ 12

Charles A. Reich, Police Questioning of Law Abiding

Citizens, 75 Yale L.J. 1161 (1966).........ccecceeceereneeenens 26

James D. Wright & Joel A. Devine, Housing

Dynamics of the Homeless: Implications for a

Count, 65 Am. J. of Orthopsychiatry 320, 323

RR A: EE I ree 7,11

In the Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-1121

CITY OF CHICAGO,

Petitioner,

v.

JESUS MORALES, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ILLINOIS

BRIEF OF NATIONAL LAW CENTER ON

HOMELESSNESS & POVERTY, NATIONAL

ALLIANCE TO END HOMELESSNESS, NATIONAL

COALITION FOR THE HOMELESS, CHICAGO

COALITION FOR THE HOMELESS AND NATIONAL

NETWORK FOR YOUTH AS AMICI CURIAE

SUPPORTING RESPONDENTS

Pursuant to Rule 37.3 of this Court, amici curiae

National Law Center on Homelessness & Poverty (“National

Law Center”), National Alliance to End Homelessness

(“NAEH”), National Coalition for the Homeless (“NCH”),

Chicago Coalition for the Homeless (“CCH”) and National

Network for Youth (“NNY”) respectfully submit this brief

requesting that the Court affirm the decision of the Supreme

Court of Illinois holding that Chicago’s anti-gang loitering

ordinance, Municipal Code of Chicago § 8-4-015, is

2

INTEREST OF AMICI CURIAE!

The National Law Center is a not-for ,ofit

organization established in 1989 to address issues relaung to

homelessness and poverty at the national level. Working

with groups across the country, the National Law Center

seeks to protect constitutional and other legal rights of poor

and homeless people. The National Law Center has

extensive experience with federal constitutional issues

affecting homeless persons and regularly participates in

legislation, public education and litigation, including as

amicus curiae, to address such issues. These issues arise in

many forms including: laws and policies aimed specifically

not specifically aimed at homeless people that are facially

unconstitutional and pose a significant threat to homeless

people, as in this case. The National Law Center’s purpose

here as Amicus Curiae is to protect the thousands of

involuntarily homeless Chicagoans from the unconstitutional

deprivation of their liberties.

The National Alliance to End Homelessness

(“NAEH”) is a non-profit membership organization working

with the public, private and non-profit sectors to solve the

problem of homelessness. NAEH’s mission is to address the

long-term solutions to homelessness. NAEH accomplishes

this by working to direct national policy on homelessness and

to increase the capacity of local organizations to deliver

effective assistance.

| This brief is filed with the written consent of all parties. The written

consents are on file with the Clerk of the Court. This brief was not

authored in whole or in part by counsel for either party and no person or

entity, other than the amici curiae, their members, or their counsel, made

any monetary contribution to the preparation or submission of this brief.

Sup. Ct. R. 37.6.

3

The National Coalition for the Homeless (“NCH”),

organized in 1982, is a non-profit organization and

membership network of state and local coalitions committed

to the goal of ending homelessness. Toward this end, NCH

engages in public education, policy advocacy and grassroots

organizing. NCH works to meet the urgent needs and

support the civil rights of people who either are homeless or

at risk of becoming homeless.

The Chicago Coalition for the Homeless (“CCH”) is a

not-for-profit corporation located in Chicago, Illinois, which

researches the causes of homelessness and advocates for

solutions to the problem of homelessness. CCH is comprised

of numerous organizations that serve and advocate for the

needs of homeless individuals and others concerned about the

needs of homeless people. CCH includes a law project

which has substantial experience in protecting and advancing

the rights of homeless persons in Chicago. Much of its work

is targeted on assisting homeless families and their children,

as well as older homeless youths. CCH, acting as amicus

curiae here, shares the goals of protecting the thousands of

involuntarily homeless people from unconstitutional police

practices at issue in this case.

The National Network for Youth (“NNY”), founded

in 1975, is a privately supported membership-based

organization, which serves as an advocate for youth, their

families and communities. With over 500 direct members

and 1,500 constituents involved in its regional and state

networks, NNY monitors key legislation and federal

spending, engages in public policy debate, educates the

public and strengthens the field of youth work. NNY is

dedicated to ensuring that young people can be safe and grow

up to lead healthy and productive lives.

4

STATEMENT OF THE CASE

This case is a constitutional challenge to the City of

Chicago’s anti-gang loitering ordinance, Municipal Code of

Chicago § 8-4-015 (the “Ordinance”).? Section 8-4-015(a) of

the Ordinance provides:

Whenever a police officer observes a person

who he reasonably believes to be a criminal

street gang member loitering in any public

place with one or more other persons, he shall

order all such persons to disperse and remove

themselves from the area. Any person who

does not promptly obey such an order is in

violation of this section.

Municipal Code of Chicago § 8-4-015(a). Section 8-4-

015(c)(1) defines “loiter” as “to remain in any one place with

no apparent purpose.”> Section 8-4-015(c)(5) defines “public

place” to mean “the public way and any other location open

to the public, whether publicly or privately owned.”4 Used in

conjunction, these two definitions are particularly

troublesome for homeless persons, who are often

involuntarily in a “public place” “with no apparent purpose.”

Simply put, in the context of homelessness, there is

often no way to tell whether a myriad of activities have, or do

not have, an apparent purpose. Homeless people often have

no choice but to “remain” in one place for no apparent

purpose. Homeless individuals on the street engage in a wide

range of activities, including eating, sleeping, daydreaming,

2 Munic. Code of Chicago § 8-4-015 (1992).

3 Munic. Code of Chicago § 8-4-015 (c\(1).

4 Munic. Code of Chicago § 8-4-015 (c\(5).

5

begging, searching for food and reading. During a typical

day on the streets, a homeless individual might very well be

observed at various times by strangers, including police, to

have no apparent purpose. After finishing a meal, a homeless

individual who pauses to rest before finding a public

bathroom could be considered by some to have no apparent

purpose. Homeless persons congregating in a public park, or

reading on a park bench, may well be or appear to be

purposeless to other persons.

Section 8-4-015(c)(2) of the Ordinance defines

“criminal street gang” as an organization “whose members

individually or collectively engage in or have engaged in a

pattern of criminal gang activity.”5 A “pattern of criminal

gang activity” is defined as “two or more acts of criminal

gang activity of which at least two such acts were committed

within five years of each other and at least one such act

occurred after the effective date of this Section.”6 Homeless

individuals who are involuntarily in a “public place” “with

no apparent purpose” generally have no means to determine

whether others loitering nearby are members of a “criminal

street gang” and, if so, whether they have committed at least

two acts of “criminal gang activity” within five years of each

other, with at least one such act occurring after June 1992.

Of course, if a homeless individual happens to have a

family member who is a gang member, then that homeless

individual would have reason to know of certain gang

members’ identity. This demonstrates the imprecision of the

definition of “loitering” and the extreme breadth of the

Ordinance. Since virtually all interaction between homeless

family members takes place in public places, a police officer

observing a homeless mother talking to her homeless

5 Munic. Code of Chicago § 8-4-015(c\(2).

© Munic. Code of Chicago § 8-4-015(c)4).

6

daughter, a suspected gang member, might regard the two as

having no apparent purpose and order dispersal of both. Yet

known only to the family members. Even if the couversation

has no real purpose, it can only occur on the street because

that mother and daughter have no place else to be.

Section 8-4-015(b) of the Ordinance provides that

“[i}t shall be an affirmative defense to an alleged violation of

this section that no person who was observed loitering was in

fact a member of a criminal street gang.””? This section

surely supplies no relief for those individuals who are living

in public in the same general area as a “criminal street gang

member.” Moreover, it provided no relief to those who

received and obeyed one of the approximately 43,000

unconstitutional “move along” orders.®

On September 28, 1993, the trial court granted the

defendants’ motion to dismiss the City of Chicago's action

against them under the Ordinance, finding that the Ordinance

violated the United States and Illinois Constitutions.? The

Illinois Appellate Court affirmed, holding that the Ordinance

was unconstitutional on the grounds that it was substantially

overbroad in violation of the First Amendment,

unconstitutionally vague in violation of the Fourteenth

conduct in violation of the Eighth Amendment, and permits

arrest without probable cause to believe that a crime has been

or will be committed in violation of the Fourth Amendment.

See City of Chicago v. Youkhana, 660 N.E.2d 34 (Ill. App.

7 Munic. Code of Chicago § 8-4-015(b).

8 Brief of Petitioner at 16.

9 See City of Chicago v. Youkhana, 660 N.E.24 34, 36 (Ill. App. Ct.

1995).

7

Ct. 1995). The Supreme Court of Illinois unanimously

affirmed the lower court’s decision on the grounds that the

Ordinance was impermissibly vague and a violation of

substantive due process rights. See City of Chicago v.

Morales, 687 N.E.2d 53, 59 (Ill. 1997), cert. granted, 118 S.

Ct. 1510 (1998). It did not reach the other grounds ruled

upon by the intermediate appellate court. !°

SUMMARY OF THE ARGUMENT

The Supreme Court of Illinois held the Ordinance to

be unconstitutional. That ruling should be affirmed. If not

affirmed, the vast discretionary power given to the police by

this patently unconstitutional Ordinance will pose a threat to

the nation’s homeless community. Two statistical facts about

the homeless population serve to define this threat. First,

over 700,000 Americans are homeless.'! Second, there are

not enough shelter beds to house all of the homeless people

in America.'? Thus, many homeless people have no choice

but to live in public. The homeless community, therefore,

has a particular interest in opposing the City of Chicago’s

misguided efforts to attack the problem of criminal street

gang violence.

10 Jd.

i Martha R. Burt, Critical Factors in Counting the Homeless, 65 Am.

J. Orthopsychiatry 334, 335 (1995).

12 James D. Wright & Joel A. Devine, Housing Dynamics of the

Homeless: Implications for a Count, 65 Am. J. of Orthopsychiatry 320,

323 (1995).

While the problem of gang violence in American

cities is serious, methods to combat the problem should be

found that do not infringe upon the Constitutional rights of

homeless people and others. The challenged Ordinance is

facially unconstitutional because it is impermissibly vague

and a violation of substantive due process.

First, the Ordinance is impermissibly vague in all its

applications and poses a specific threat to homeless

individuals. People of ordinary intelligence have no way to

know whether they may be regarded by the police as being in

a public place with “no apparent purpose” and many

homeless people have no way to avoid such a classification.

There is likewise no way to determine whether a gang

member is nearby and, if so, whether that gang member has

been engaged in a “pattern of criminal activity.”

The Ordinance also fails to describe adequately what

constitutes compliance with a “move along” order, further

increasing the likelihood of arbitrary and discriminatory

enforcement. The decision whether or not a person has

adequately “disperse[d] and removefd]” oneself is

completely at the discretion of the police officer, thus

providing a tool for discrimination against unfavored

individuals. While this applies to all persons, it is

particularly onerous for homeless persons.

In addition to being impermissibly vague, the

Ordinance violates substantive due process in that it infringes

on the well-established rights of all persons. Those who fail

to comply with the “move along” order are arrested--clearly a

restraint on their freedom of movement. Those who do

comply are coerced into moving along in contravention of

their own free will—also a clear restraint on the freedom of

movement. Ultimately, they may be forced out of downtown

areas containing a concentration of necessary social services,

The consequences of a “move along” order from the

police are especially severe for homeless people. Homeless

people often have all their possessions with them and find it

difficult to move. They then must face the difficult choice

between arrest and abandoning their possessions. Even more

fundamentally, for involuntarily homeless people it is

impossible to move out of public places, and thus they will

inevitably have to repeatedly move, or leave the city

altogether, or face arrest. No American should face such

choices.

A majority of Chicagoans forced to live in public

places inhabit areas of great poverty that are also frequented

by criminal street gangs. As most gang-related crimes occur

in public,'> homeless people are inevitably subjected to

violence perpetrated by these gangs. While persons who are

not forced to live in public can escape to the relative safety of

13 Richard M. Daley & Terry G. Hilliard, Gang and Narcotic Related

Violent Crime, City of Chicago 1993-1997 (June 19, 1998) (stating that in

1993, 92% of gang-related homicides were committed outdoors, 94% in

1994, 95% in 1995, 93% in 1996, and 93% in 1997) (hereinafter “Gang

and Narcotic Related Violent Crime”).

PROBLEM OF HOMELESSNESS

University study, over a five-year period from 1985 to 1990,

8.5 million people, 4.6% of the U.S. population, were

14 Martha R. Burt, Critical Factors in Counting the Homeless, 65 Am.

J. Orthopsychiatry 334, 335 (1995).

1S Martha R. Burt, Critical Factors in Counting the Homeless, 65 Am.

J. Orthopsychiatry 334, 336 (1995); Maria Foscarinis, Downward Spiral:

Homelessness and its Criminalization, |14 Yale Law & Policy Review 5

(1996).

the day.

16 Bruce Link, Lifetime and Five-Year Prevalence of Homelessness in

the United States, American Journal of Public Health, Vol. 84, No. 12, p.

1909 (Dec. 1994).

17 James D. Wright & Joel A. Devine, Housing Dynamics of the

Homeless: Implications for a Count, 65 Am. J. of Orthopsychiatry 320,

323 (1995).

18 Jennifer Daskal, Center in Budget and Policy Priorities, In Search of

Shelter: The Growing Shortage of Affordable Rental Housing, p. 9 (June

15, 1998) (hereinafter “In Search of Shelter”).

19 U.S. Department of Housing and Urban Development, Office of

Policy Development and Research, Rental Housing Assistance—The

Crisis Continues: The 1997 Report to Congress on Worst Case Housing

Needs, p. 9 (Apr. 1998).

12

conduct ordinary human activities, such as relaxing and

socializing, to a much greater extent than those with adequate

housing. With small, overcrowded rooms, and without air

conditioning on hot summer days, inadequately housed

Americans share many challenges in common with homeless

_ people. In many cases, the Ordinance will affect the two

groups alike.

The City of Chicago alone had a 1995 affordable

housing gap of 130,000 units.2° Chicago currently has a

homeless population of over 9,000 with a combined total of

only 5,180 emergency shelter beds and transitional housing

slots.24_ Therefore, almost 4,000 homeless individuals are

forced involuntarily to live in public during the night, with an

even greater number living in public during the day when

many of the shelters are closed.22 These individuals inhabit

areas of Chicago plagued by gang activity, as street gangs

exist in nearly every community in Chicago, with total gang

membership estimated at 125,000.23 Consequently, on a

daily basis, there are thousands of homeless Chicagoans who

will be found in proximity with gang members in a public

place with “no apparent purpose.” See Municipal Code of

20 Jn Search of Shelter, supra n. 19 at 50.

21 See National Law Center on Homelessness & Poverty, Access

Delayed, Access Denied: Local Opposition to Housing and Services for

Homeless People Across the United States (Dec. 1997), see also Chicago

Coalition for the Homeless, Homelessness: The Causes and Facts, p. |

(1996) (placing the homeless population on any given day at as many as

15,000); see also Chicago Department of Human Services, Homlessness

Services Programs, Annual Report, p. 10, teem waee re-send

shelter beds at approximately 4,000).

22 U.S. Department of Housing and Urban Development, Office of

Policy Development and Research, A Report to the Secretary on the

Homeless and Emergency Shelters, p. 38 (1988).

23 Gang and Narcotic Related Violent Crime at Introduction.

13

OL THE ORDINANCE IS

IMPERMISSIBLY VAGUE IN

VIOLATION OF DUE PROCESS

GUARANTEES

A criminal statute is unconstitutionally void for

vagueness when it “fails to give a person of ordinary

intelligence fair notice that his contemplated conduct is

forbidden by the statute.”24 Stated another way, “the void-

potentially subject

assurance how to act in order to avoid liabiiity.”26 The

Ordinance is also overbroad in that it sweeps in clearly

24 United States v. Harriss, 347 U.S. 612, 617 (1954).

25 Kolender v. Lawson, 461 U.S. 352, 357 (1983); Papachristou v. City

of Jacksonville, 405 U.S. 156, 162 (1972).

Bulletin, vol. 3., no. 4, at 205, 217 (1967); see Kolender v. Lawson, 461

U.S. 352, 357 (1983).

14

protected activity along with the illicit. Finally, the breadth

and obscurity of critical definitions in the Ordinance offend

due process in that they permit arbitrary and discriminatory

arrests and convictions. The Supreme Court of Illinois

correctly found that the Ordinance violates due process in

that it is both “impermissibly vague on its face and an

arbitrary restriction on personal liberties.”?7

It is well-established that a law or ordinance that is

insufficiently definite will be void for vagueness.2* The

Chicago anti-gang loitering ordinance defines “loitering” as

“remain{ing] in one place with no apparent purpose.”?9 This

definition fails to draw any objective distinction between

innocent conduct and conduct likely to cause harm. As a

result, the definition of “loitering” in the Ordinance does not

sufficiently inform ordinary citizens of what conduct

constitutes the act of loitering. Thus, the Ordinance is void

for vagueness.

The Ordinance fails to give a person of ordinary

intelligence adequate notice of the prohibited conduct. In

27 City of Chicago v. Morales, 687 N.E.2d 53, 59 (Ill. 1997).

28 Posters 'N’ Things v. United States, 511 U.S. 513, 525 (1994), citing

Kolender, 461 U.S. at 357.

29 Munic. Code of Chicago § 8-4-015(c(1).

ascertaining whether one’s conduct is likely to be viewed as

By requiring a dispersal order based simply on a

peep et chy Be Shuttlesworth v. City of

16

or along said street or sidewalk.” Jd. at 90. The ordinance,

like that at issue here, also made it unlawful to stand or loiter

on a city street or sidewalk after having been requested to

move along by a police officer. Jd. “The constitutional vice

of so broad a provision,” said the Court, “needs no

demonstration.” /d. at 90-1.

The Chicago anti-gang loitering Ordinance, as the

Supreme Court of Illinois correctly held, is likewise overly

broad. The problem of overbreadth is particularly

troublesome to homeless persons. When a person is living in

public, all of the daily activities are in public view. When in

the vicinity of a gang member, that individual would be

susceptible to a dispersal order or arrest under the Ordinance.

Anyone who has ever walked down a busy street in a major

U.S. city has seen homeless people engaged in the activities

of their daily lives. Activities such as eating or waiting for a

bus may have a readily apparent purpose. In contrast, for the

typical passerby, a homeless individual sitting in an alley, or

a doorway, or lying on a blanket or a cardboard box, may be

considered not to have an apparent purpose.

It should come as no surprise that homeless people

may in fact not have an apparent purpose to all their

activities. Indeed, at times, almost all people lack a purpose

to their activities, apparent or otherwise. However, most

people have some place private to be when they have no

apparent purpose. When relaxing, daydreaming, pausing to

take a deep breath, gazing up into the sky, or engaging in any

other activity which may have no outwardly (or inwardly)

apparent purpose, most people have the option to do so in

private, out of sight of others. For homeless people, there is

no such luxury. Homeless people must perform all such

activities in public.

For a person living on the streets, the burdens

imposed by the Ordinance are unacceptable. It is difficult, if

17

not impossible, to determine when a homeless person is

“remaining in one place with no apparent purpose.” They do

not have the luxury of being elsewhere. Therefore, whatever

their purpose is, they will be on the streets and at risk of

being chased out of the neighborhood by a police officer

In addition, homeless persons are more likely than the

average person to be found in areas characterized by high

crime rates and gang activity. Thus, as a group, homeless

people are particularly likely to be observed by a police

officer with a member of a criminal street gang.

The City of Chicago argues that the Ordinance is

saved by the requirement of a police order to disperse, prior

to arrest. However, as was the case in Shuttlesworth, this

argument lacks merit. While the order to disperse certainly

gives individuals an opportunity to leave the scene, one’s

failure to do so will result in an arrest without any idea of the

nature of the criminal act that has been committed. The

dispersal order does nothing to inform the subject “what the

State commands or forbids” and so it does not cure the

constitutional infirmity of vagueness.3°

B. The Ordinance permits

arbitrary and _ discriminatory

enforcement by police.

While the underlying rationale of the void-for-

vagueness doctrine requires that a statute be definite enough

to serve as a guide to an individual’s conduct, a more

important aspect of the doctrine “‘is not actual notice, but the

other principal element of the doctrine — the requirement that

a legislature establish minimal guidelines to govern law

30 Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939).

18

enforcement.’”3! Without such guidelines, the Ordinance

unconstitutionally permits a “standardless sweep [that]

allows policeman, prosecutors, and juries to pursue their

personal predilections.”32

As this Court observed in Shuttlesworth v. City of

Birmingham, 382 U.S. at 90-1, an overbroad law is

unconstitutional because it “does not provide for government

by clearly defined laws, but rather for government by the

moment-to-moment opinions of a policeman on his beat.”

[Citation omitted]. Jd. at 90-1. The Court suggested a literal

application of the Birmingham ordinance that is directly

relevant here: “that a person may stand on a public sidewalk

in Birmingham only at the whim of any police officer of that

city.” Jd. at 90. As the Court noted, “that kind of law bears

the hallmark of a police state.” /d. at 91.

Similarly, in Kolender v. Lawson, the Court found a

California loitering statute to be unconstitutionally vague

because it “vests virtually complete discretion in the hands of

the police to determine whether the suspect has satisfied the

statute and must be permitted to go on his way in the absence

of probable cause to arrest.” Kolender, 461 U.S. at 358.

Just as in Kolender, the Ordinance here gives police

too much authority and unfettered discretion, creating the

“potential for arbitrarily suppressing First Amendment

liberties...” Kolender, 461 U.S. at 358, quoting

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

Because the Ordinance fails to establish clear minimal

guidelines to govern the Ordinance’s enforcement, the

Ordinance leaves police officers to enforce the Ordinance

31 Kolender v. Lawson, 461 U.S. 352, 358 (1983), quoting Smith v.

Goguen, 415 U.S. 566, 574 (1974).

32 Id., quoting 415 U.S. at 575.

19

according to their own personal conceptions of what

constitutes “remainfing] in one place with no apparent

purpose.”

An example illustrates the dangers of this Ordinance:

an individual sits on a park bench, near a suspected gang

member (to the eye of a police officer). The police officer

believes that the individual is doing nothing. In the case of a

homeless person, however, the person doing “nothing” may

be holding an empty paper cup used for panhandling. The

Ordinance leaves it to the whim of the police officer to try to

make the fine distinction between truly “doing nothing” and

waiting for a passing stranger to throw a quarter in the paper

cup. This example also highlights the absurdity, as well as

the constitutional infirmity, of making “doing nothing” a

criminal act. Furthermore, allowing a police officer to decide

whether to ask this individual to move on clearly vests that

officer with the unconstitutional discretion to punish innocent

conduct. And, giving police officers such unfettered

discretion leaves the courts with the task that is properly left

to the Legislature—determining the limits of the law’s

application.

The existence of such discretion has been held by this

Court as a reason to declare a law unconstitutionally vague

and overbroad. In United States v. Reese, this Court said

that:

[i]t would certainly be dangerous if the

legislature could set a net large enough to

catch all possible offenders, and leave it to the

courts to step inside and say who could be

rightfully devained, and who should be set at

large.

United States v. Reese, 92 U.S. 214, 221 (1876); see

Papachristou v. City of Jacksonville, 405 U.S. 156, 165

20

(1972) (“{hjere the net cast is large, not to give the courts the

power to pick and choose but to increase the arsenal of the

police”). The Chicago Ordinance is indeed dangerous to

many innocent citizens whose only “crime” is that they have

no place to go but the streets.

Other circumstances combine to heighten the risk of

arbitrary application of the Ordinance to the homeless

community. First, approximately 25% of the homeless

population consists of children.*? Criminal street gangs in

Chicago are composed of a high percentage of teenage

children.34 Because a significant portion of both the

homeless population and the gang population are teenage

children, there is a likelihood for confusion between the two

groups.

Second, homeless individuals often congregate for

purposes of receiving social services, such as meals and

healthcare. Seeking safety in numbers, they also frequently

congregate at night. Their tendency to congregate in groups

increases the chance that a police officer will apply the

Ordinance to homeless individuals.

Third, since homeless people often have all of their

possessions with them or nearby, they may be particularly

reluctant to move on, making arrest far more likely than for

those who are more mobile. Also, homeless persons may

move along, only to be ordered later to disperse again.

33 Paul Leavitt, Food-Shelter Requests On The Rise, Mayors Say, USA

Today, Dec. 20, 1995, at 3A.

34 In 1997, 21% of offenders arrested for gang related homicides were

younger than age 17, and 69% were younger than age 21. Gang and

Narcotic Related Violent Crime at 2.

21

The Ordinance also has a harmful chilling effect on

humanitarian efforts designed to help homeless persons.

likely to affect volunteers and workers in the business of

providing services to homeless persons. For example, certain

individuals and organizations provide essential social

services to homeless persons, including medical and

psychiatric treatment. Others are involved in valuable

outreach programs, designed to reconnect homeless people

with the world around them. Still others seek to engage the

homeless for religious purposes or for voter registration.

Providers of such services, which benefit society in general

by fighting to end the despair of homeless persons, are placed

at risk by the Ordinance and their services may be

diminished. Ultimately, the chilling effect created by the

Ordinance takes it greatest toll on the homeless themselves,

who lose the vital services on which they depend.

The unique circumstances of homeless individuals

and their non-profit support network serve to highlight the

constitutional vagueness of the Ordinance, which both fails

to distinguish between permissible and impermissible

enforcement by police.

Il. THE ORDINANCE VIOLATES

SUBSTANTIVE DUE PROCESS

GUARANTEES

The Ordinance is also constitutionally inadequate

because it violates due process guarantees. First, because

they have no place else to be but on the streets, homeless

persons face criminc! penalties under the Ordinance for their

22

involuntary condition of homelessness. Such a penalty

constitutes cruel and unusual punishment in violation of the

Eighth Amendment and the Due Process clause. Second, the

Ordinance abridges the freedom of movement.

A. The Ordinance impermissibly

punishes involuntary conduct.

Chicago’s anti-gang loitering ordinance

unconstitutionally criminalizes status by permitting arrest

and conviction in the absence of any criminal conduct. The

Eighth Amendment “imposes substantive limits on what can

be made criminal and punished as such.”35 The loitering

statute inflicts a “cruel and unusual punishment” in violation

of the Eighth Amendment, made applicable to the States by

the Due Process Clause of the Fourteenth Amendment.

For many homeless Americans, living on the streets is

an unfortunate and unavoidable way of life. Stated in the

simplest of terms, they have no place else to be. To

criminally sanction homeless individuals for “remain[ing] in

one place with no apparent purpose” is to punish those

individuals for existing. Homeless people are on the streets

35 Bell v. Wolfish, 441 U.S. 520, 535, n. 16 (1979) (applying Eighth

Amendment standards through the Due Process Clause to pretrial

detainees); /ngraham v. Wright, 430 U.S. 651, 667 (1977), see U.S.

Const. amend. VIII. Challenges to police action under the element of the

I en eee ee on ee ae

criminal” do not require conviction or punishment as a

constitutional review. See Wheeler v. Goodman, 306 F. Supp. 8, 60

(W.D.N.C. 1969) (holding vagrancy law violative of Eighth Amendment

although complaining parties were not convicted), vacated on other

grounds, 401 U.S. 987 (1971); United States v. Moore, 486 F.2d 1139

(D.C. Cir.) (Court considered Eighth Amendment argument in motion to

dismiss indictment prior to conviction, rejected on other grounds), cert.

denied, 414 U.S. 980 (1973).

area of Constitutional protection. First, in Robinson v.

a statute thet criminalized “being addicted to narcotics” with

(1968), the Cout distinguished the punishment of” act

noted that, for certain persons, being in public may not be

voluntary:

Although many chronics have homes, many

others do not. For all practical purposes the

public streets may be home for these

36 See supra note 21.

Powell, 392 U.S. at 551 (White, J., concurring).

What Justice White raised as a hypothetical in Powell

is squarely at issue here. Even more clearly than a law

penalizing a chronic alcoholic for the act of getting drunk, or

a gang member for merely sitting with friends in public, a

statute that penalizes a person for simply occupying the only

space he or she is able to occupy must be cruel and unusual.

No act of will can overcome a person’s ongoing need to be

somewhere--to take up space as long as he exists.

Whether engaged in some life-sustaining act such as

eating or sleeping, or simply being on the street with no

apparent purpose, homeless people have to be somewhere.

For homeless individuals and families, living in public is an

unavoidable and involuntary way of life. Homeless people in

Chicago and the nation’s other urban centers have no other

place to be but in public.>’ To impose criminal penalties on

37 The plurality in Powed/ rejected the claim that the punishment of acts

committed under a “strong compulsion” arising from one’s status violated

; homeless or otherwise, to arrest and criminal

prosecution for moving about in public places or staying in

one public place also offends basic principles of liberty

to take an evening walk to see if Andromeda

has come up on schedule, I think I am entitled

to look for the distant light of Almach and

26

blinding light of a police flashlight.

Charles A. Reich, Police Questioning of Law Abiding

Citizens, 75 Yale L. J. 1161, 1172 (1966). Professor Reich’s

comments embody a belief that all Americans enjoy a liberty

interest in wandering about aimlessly with no apparent

purpose, in loafing, in wandering freely, or standing still

freely, all activities that this Court describes as “historically

part of the amenities of life as we have known them.”

Papachristou v. City of Jacksonville, 405 U.S. 156, 164

(1972).

This Court has found that “arresting individuals for

loitering or wandering on public streets without identification

‘implicates consideration of the constitutional right to

freedom of movement.”38

In addition to judicial sources, the liberty interest in

freedom of movement is well documented as part of a

longstanding American literary tradition? Furthermore, its

importance has increased with the growth of large urban

residential communities and the simultaneous shrinking in

the amount of personal space for the residents of those

Ordinance infringes on the liberty of movement enjoyed by

all Americans under the Due Process Clause of the Fifth

Amendment.

38 Pottinger v. City of Miami, $10 F. Supp. 1551, 1579 (S.D. Fla.

1992), quoting Kolender v. Lawson, 461 U.S. 352, 358 (1983).

39 See Papachristou, 405 U.S. at 164 and n. 7.

SEPTEMBER 11, 1998

918 F Street, N.W., Suite 412

Washington, D.C. 20004

(202) 638-2535

Counsel for Amici Curiae

* Counsel of Record