Amicus Curiae Brief — Chicago v. Morales

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In The :

Supreme Court of the Hnite States

a

October Term, 1997

CITY OF CHICAGO,

IESUS MORALES, ef a

On Writ of Certiorari to the Supreme Court of Illinois

eee

BRIEF OF CHICAGO ALLIANCE FOR NEIGHBORHOOD

SAFETY, U.S. REPRESENTATIVE JESSE JACKSON, JR..,

COMMUNITY RENEWAL SOCIETY, NATIONAL ASSOCIATION

FOR THE ADVANCEMENT OF COLORED PEOPLE, NATIONAL

COUNCIL OF LA RAZA, MEXICAN-AMERICAN LEGAL

DEFENSE FUND, CHICAGO COUNCIL OF LAWYERS, COOK

COUNTY BAR ASSOCIATION, PUERTO RICAN BAR

ASSOCIATION OF ILLINOIS, THE BLACK LEADERSHIP

FORUM. INC.. CHICAGO CONFERENCE OF BLACK LAWYERS

AND CHICAGO COMMUNITY ORGANIZATIONS

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

RANDALL L. KENNEDY STEPHEN J. SCHULHOFER

1563 Massachusetts Avenue Counsel of Record

Cambridge, MA 02138 RANDOLPH N. STONE

1111 East 60th Street

Chicago. IL 60637

(773) 702

=

9611

vs for Amici Curiae

eS -

: “BEST AVAILAE

2

QUESTIONS PRESENTED

(1) Whether ordinance against loitering “with no apparent

purpose” is impermissibly vague on its face, when state supreme

court has determined that City Council’s legislative intent

precludes a judicial construction narrowing or clarifying the

law’s terms.

(2) Whether ordinance requiring citizens to comply with

a police officer’s order to “disperse and remove themselves

from the area” is impermissibly vague on its face, when neither

the ordinance nor any implementing guidelines indicate the

extent of the “area” that the citizen must leave or how long the

citizen must remain away in order to avoid arrest.

TABLE OF CONTENTS

I. The Ordinance’s Definition Of Loitering Is

Impermissibly Vague On Its Face. ..........

Il. The Indeterminacy Of The Term “Loitering” Is

Not Cured By The Requirement That Police Have

A Reasonable Belief That One Person In The

Group Is A Gang Member. ................

III. The Vagueness Of The Ordinance Is Not Cured

By The Requirement That Police Give Group

Members An Opportunity To Disperse. ......

IV. The Papachristou-Kolender Standard Should Not

Be Diluted Or Discarded. ..................

RS ENS RRS A eR SR dO aR are

18

20

25

29

iti

TABLE OF CITED AUTHORITIES

Page

Cases:

Boos v. Barry, 485 U.S. 312 rE cbbiin eee skckeane 24

California v. LaRue, 409 U.S. 109 RR ee 13

City cf Richmond v. J.A. Croson Co., 488 U.S. 469 (1989)

00 be 000d 06s o6es odHi Ses UNS ee bia decd ce 0Ow 9, 25

Coates v. City of Cincinnati, 402 U.S. 611(1971) ... 12,16

Colten v. Kentucky, 407 U.S. 104 RT etapa 24

Connally v. General Constr. Co., 269 U.S. 385 (1926)

bd hd adhide sLLis il Perit Tee ee 25

Cox v. Louisiana, 379 U.S. 536 SEED olvbseweeus 16, 19, 23

Della Grotta v. Rhode Island, 781 F.2d 343 (1st Cir. 1986)

VET be CC OCU Sd bOUES de Us bad vee ee eels HOLS Se 18

Farber v. Rochford, 407 F. Supp. 529 (N.D. Ill. 1975)

Lpichedletiaceothihil Pe Ce See ee 12

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)

FOV EW EN SUC EUS SLES bo eVewcsweceocvbcewcn 22

Grayned v. City of Rockford, 40 U.S. 104 (1972) .... 24

Iilinois Cent. R. Co. v. Village of South Pekin, 374 Il.

431, 29 N.E. 2d 590 (1940)

iv

Table of Cited Authorities

Page

Kolender v. Lawson, 461 U.S. 352 (1983) ......- 66-0000

whe éebcdbcbscusoseeuaet 8, 9, 10, 12, 18, 21, 24, 25, 26

Lanzetta v. New Jersey, 306 U.S. 451 (1939) ........ 25

McCray v. Illinois, 386 U.S. 300 (1967) ............ 11

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

sigengh bhdnkaocene sete sath 8, 9, 10, 13, 16, 18, 25, 26

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

State v. Richard, 836 P.2d 622 (Nev. 1992) ......... 12

United States v. Cardiff, 344 U.S. 174 (1952) ....... 18

United States v. Reese, 92 U.S. 214 (1875) ......... 13

Winters v. New York, 333 U.S. 507 (1948) .......... 14

Statutes:

Wil. Gant, oh. TAOS SIIS-GA 2 2 coc cvcnceccvcccseses 14

§ FF & ft ! ) rrr reer 10

Til. Sent. ch. 720 § STO/4O0S.2 ... 2... ce cncccccceee 10

United States Constitution:

FO QE cco vicdcccecidecdecieseeustsier 17

Table of Cited Authorities

Berg, “The Troubled Constitutionality of Antigang

Loitering Laws,” 69 Chi. Kent L. Rev. 461 (1993)

William Bratton, Turnaround 312 (1998) ...........

Chicago Community Policing Evaluation Consortium,

Wesley Skogan, et al., eds., Community Policing in

Chicago, Year Three, Nov. 1996, p.32 ..........

Davis, “New Police Arrest Power Lights City Council

Fuse,” Chicago Tribune, June 18, 1992, pp. 1 .....

Davis & Recktenwald, “Angry aldermen target gangs,”

Chicago Tribune, October 24, 1991, p. 1,14 ......

Editorial, “Anti-Gang Law Isn’t the Answer,” Chicago

Tribune, May 20, 1992, p.16 ..................

Editorial, “Put Permanent Hold on Anti-Loitering Law,”

Chicago Sun-Times, May 20, 1992, p.37.........

25

28

vi

Table of Cited Authorities

Page

Editorial, “Supreme Court Should Squash Anti-Gang

Ordinance,” Chicago Defender, April 23, 1998, p. 11

cegececceeecoetecen stab celina eenaeeeees 4

Gillis & Spielman, “City’s Loitering Law Ruled

Unconstitutional,” Chicago Sun-Times, Dec. 19, 1995,

i errr rrr rent rrrrri errr 22

H. Goldstein, Problem-Oriented Policing (1990) ..... 10

Hill & Downey, “Taxis Still Can Be Rare Despite Law,”

Chicago Tribune, May 24, 1998, p.1 .....----++- 8

Johnson, “2 out of 3 Young Black Men in Denver Listed

by Police as Suspected Gangsters,” NY Times, Dec.

11, 1993, p. AB ... 2... cccc cece eee eccceeesences 19, 20

Y. Kamisar, et al., Modern Criminal Procedure 196 (7th

~S. QPrrerrrrrrirr rrr ttt ti 11

G. Kelling & C. Coles, Fixing Broken Windows (1996)

Livingston, “Police Discretion and the Quality of Life in

Public Places,” 97 Colum. L. Rev. 551 (1997) .. 25, 26, 27

D. Massey & N. Denton, American Apartheid 76 (1993)

eeoeann ses ses eseeoae eee eCoa Sees eseeoevurocerovueeer 64

23

Oe he ae geeus ah aie tReet 10

vii

Table of Cited Authorities

sere 3 Journal, City of Chicago, p. 18293 (June 17,

Poulos, “Chicago’s Ban on Gang Loitering,” 83 Cal. L.

Rev. 379 (1995S). ........ ace nah Cadena’ ate

Regini, “Combating Gangs: The Need for Innovation,”

FBI Law Enforcement Bulletin, February 1998, p. 27

W. Skogan, Disorder and Decline 111 (1990) .......

J. Skolnick & D. Bayley, The New Blue Line 199 (1986)

Spielman, “Anti-Gang Law Won't Be Abused, City

Says,” Chicago Sun-Times, June 19, 1992 ........

Spielman, “Loitering Ban Passes,” Chicago Sun-Times,

June 18, 1992, p. 16 (remarks of Ald. John Steele) .

Stolberg, “150,000 Are in Gangs, Report by D.A. Says

Half of Young Blacks Are Members,” Los Angeles

Pe a LAD: © Suinccekcs voces Neeser

Hubert Williams & Patrick V. Murphy, The Evolving

Strategy of Police: A Minority View, in Perspectives

on Policing, No. 13 (U.S. Dept. of Justice, Nat’!

Institute of Justice, Jan. 1990)

i ee ee ee ee ee ee |

James Q. Wilson, “The Closing of the American City,”

The New Republic, May 11, 1998, pp. 30,38 .....

Page

5, 10

19

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INTEREST OF AMICI CURIAE'

Amici are grass-roots membership groups, and other Chicago and

national organizations dedicated to serving the needs of inner-city

residents. Amici’s members live with the reality of gang violence and

understand the need for thoughtful police initiatives, as well as the

dangers to public safety and civil liberties that can result from

insufficiently careful responses to public frustration, impatience and

understandable demands for law and order.

The Chicago Alliance for Neighborhood Safety (CANS) has been

one of the leading community organizations working to implement

community policing at the grass-roots level, in direct partnership with

the Chicago Police Department (CPD). CANS “worked for years to

encourage the adoption of community policing in Chicago,” and has

played a major role in community policing initiatives, often under

contract with the City and the U.S. Department of Justice.’ CANS

does not lightly disagree publicly with the City and the CPD, but

CANS believes it essential to advise this Court of its view that the

gang loitering ordinance is unconstitutional, divisive of communities

along racial and generational lines, destructive of genuine community

policing and ultimately likely to make Chicago neighborhoods less

safe.*

1. Pursuant to this Court's Rule 37.2(a), letters of consent from all parties

to the filing of this brief have been filed with the Clerk. Pursuant to this Court's

Rule 37.6, amici state that this brief was not authored in whole or in part by

counsel for any party, and that no person or entity other than amici, their

members or their counsel made a monetary contribution to the preparation or

submission of this brief.

2. Chicago Community Policing Evaluation Consortium, Wesley Skogan,

et al., eds., Community Policing in Chicago, Year Three, Nov. 1996, p. 32.

3. CANS proposals in the gang area have included the 6th District Anti-

Gang Initiative, “an intensive problem-solving partnership between the CPD

and the Chicago Alliance for Neighborhood Safety, funded by the US

Department of Justice.” /d., Year Four, Nov. 1997, p. 145.

4. CANS’ board of directors includes representatives from Chicago's

major neighborhood-safety organizations. All but one of these representatives

(Cont'd)

2

Rep. Jesse Jackson, Jr. is a Member of the U.S. House of

Representatives, representing Illinois’ 2nd District.

Community Renewal Society, founded in 1883, is a metropolitan

Chicago faith-based organization, affiliated with the United Church

of Christ, that works with churches and other community organizations

to achieve economic and racial justice through programs that rebuild

communities from within.

The National Association for the Advancement of Co'ored People,

Inc. is the oldest and largest civil rights organization in the United

States with a membership of over 500,000 and a network of more

than 2,200 branches covering all 50 states and the District of

Columbia. In addition to the national office, the NAACP’s Illinois

State Conference, the State umbrella organization of local chapters,

and the Chicago Southside, the Chicago Westside and the Evanston/

Northshore branches support the Responsents as amicus curiae. The

Black Leadership Forum, Inc. is a confederation of national civil rights

and service organizations designed to promote creative leadership on

civil rights and major public policy issues of significance to African-

Americans. The National Council of La Raza represents more than

200 community-based organizations dedicated to reducing poverty

and discrimination for Americans of Hispanic descent; its afiiliates

provide social services for more than two million persons throughout

the United States each year. The Mexican-American Legal Defense

Fund is a national nonprofit organization whose mission is to protect

the civil rights of the more than 28 million Latinos living in the United

States.

The Chicago Council of Lawyers is a public interest bar

association, composed of approximately 1,200 lawyers, that has long

been concerned with the fair and equal administration of justice. The

Cook County Bar Association, the oldest bar association of lawyers

of African-American heritage in the United States, has been delivering

legal services to the black community since 1919. The Puerto Rican

Bar Association of Illinois consists primarily of attorneys of Puerto

Rican and Hispanic descent, committed to serving the legal needs of

(Cont'd)

voted to join respondents in opposing the loitering ordinance in this Court;

the Northwest Neighborhood Federation dissented.

3

the Hispanic community. The Chicago Conference of Black Lawyers

works directly with community organizers dedicated to protecting

the rights of black people in the Chicago area.

The groups listed in the margin, identified collectively as the

Chicago Community Organizations, are likewise engaged directly in

the effort to afford Chicago residents equal justice and safety from

gangs and violence. They share in the conviction that the anti-loitering

ordinance is an ill-considered, counterproductive and unconstitutional

response to Chicago’s serious problems of gang activity and violence.°

STATEMENT OF THE CASE

1. Chicago’s citizens are united in their determination to combat

gangs. Yet the means at issue in this case, the city’s anti-loitering

ordinance, has evoked substantial community opposition. The

ordinance applies to any group of two or more individuals who gather

“with no apparent purpose” in any public place, including streets,

parks, restaurants, and any other location open to the public. Pet.

App. 63a. The ordinance mandates that if a police officer reasonably

believes any of the individuals to be a gang member, he shall order

all of the individuals, including those not suspected of gang

membership, to “disperse and remove themselves from the area”; the

officer may then arrest any individual he believes to be disobeying

the order. Pet. App. 61a.

City Council consideration of the ordinance was marked by

intense disagreement. The Chicago Tribune described the proceedings

as “one of the most heated and emotional council debates in recent

memory.”® Concern focused on the fact that the ordinance permits

the arrest of those not suspected of gang involvement; that it could be

5. The groups are Centro Sin Fronteras and the Sin Fronteras Law

Program of Chicago’s West Town Neighborhood, the Chicago Coalition for

the Homeless, Citizens Alert (police accountability organization), the

Community Action Group of North Lawndale, the First Unitarian Society of

Chicago, Illinois Caucus for Adolescent Health, PACT- Positive Anit-Crime

Thrust, Inc., and the Prison Action Committee.

6. Davis, “New Police Arrest Power Lights City Council Fuse,” Chicago

Tribune, June 18, 1992, pp. 1, 14.

4

read to require minority youth to leave any neighborhood where police

think they do not belong; that it limits gatherings not jus\ on street

corners but in a wide range of public and privately owned locations;

that it restricts groups as small as two or three people; and that it

applies regardless of whether any of the individuals is engaged in

loud, intimidating or obstructive behavior.

The ordinance drew both support and opposition from Chicago

citizens of all backgrounds. The Chicago chapter of the NAACP

denounced the proposal,’ as did the editorial page of Chicago’s leading

African-American newspaper, the Chicago Defender.* The city’s

largest newspapers likewise condemned the proposal. The Chicago

Tribune noted that the ordinance would “invite police abuses,” and

concluded, “if [residents] expect that this new ordinance will make

their streets safe, they are bound to be disappointed.”” The Chicago

Sun-Times compared supporters of the ordinance to “the likes of

George III and the tyrants of Beijing” and concluded that “[t}he

proposed city ordinance to ban loitering by ‘known gang members’

is too vague, too unworkable and, above all, too unconstitutional.”"°

Opposition to the ordinance was especially intense in the African-

American community. African-American aldermen opposed to the

ordinance said it was “‘drafted to protect the downtown area and the

white community’ at the expense of innocent blacks,”"' and that under

7. Davis & Recktenwald, “Angry aldermen target gangs,” Chicago

Tribune, October 24, 1991, p. 1.

8. Editorial, “Supreme Court Should Squash Anti-Gang Ordinance,”

Chicago Defender, April 23, 1998, p. 11 (condemning the ordinance and noting

the paper’s earlier editorial stands against it). The Chicago Defender is a general

circulation daily newspaper; it has no affiliation with the Cook County Public

Defender, counsel to several respondents in this case.

9. Editorial, “Anti-Gang Law Isn't the Answer,” Chicago Tribune, May

20, 1992, p. 16.

10. Editorial, “Put Permanent Hold on Anti-Loitering Law,” Chicago

Sun-Times, May 20, 1992, p. 37.

11. Spielman, “Loitering Ban Passes,” Chicago Sun-Times, June 18, 1992,

p. 16 (remarks of Ald. John Steele).

5

the ordinance “you're guilty until proven innocent.”"? One African-

American alderman denounced the law as “anti-American and anti-

African American” and argued that the ordinance would “restrict the

movement of young blacks in a manner similar to the pass laws of

South Africa.”"’ In the final vote, the ordinance passed with support

from most of the city’s white aldermen but only six of the city’s

eighteen African-American aldermen."

The City Council hearings established community concern about

gangs but also cast doubt on the need for a new ordinance to respond

to them. Numerous residents had described the ability of gang

members to control street corners and intimidate residents. But Deputy

Superintendent Cooper, the CPD representative at the hearings,

testified:

there are already enough laws on the books at this

point. . . . [I}n the examples that people have been giving,

.. + 90 percent of those instances are actually criminal

offenses where people, in fact, can be arrested.

Supp. R. II 181-82 (emphasis added).

Cooper’s testimony supporting the ordinance was so tepid that

one alderman finally asked him, “Bottomline, what is the CPD’s

position on this ordinance? Do you folks want it or would you just

prefer that it not be on the books?” Supp. R. II 185. Although the

CPD, as part of the City administration, was officially committed to

the proposal, Cooper replied:

Under the appropriate circumstances, the ordinance can

12. Id. at. 1 (remarks of Ald. Dorothy Tillman).

13. Id. at 1, 16 (remarks of Ald. Dorothy Tillman). Reflecting the highly

emotional character of the debate, one African-American alderman even

objected, “What did Hitler do to the Jews? The same thing.” Id. at 1 (remarks

of Ald. Allan Streeter). shecetgs

14. Official Journal, City of Chicago, p. 18293 (June 17, 1992). Eight

African-American aldermen voted no, and four did not vote. The racial identity

of the opponents is noted in Spielman, “Anti-Gang Law Won't Be Abused

City Says,” Chicago Sun-Times, June 19, 1992.

6

be a viable tool for the police. What I am suggesting,

however, is that there is much more that can be done rather

than an additional law on the books, and I would prefer

that the — or I would rather suggest or request the City

Council, in its infinite wisdom, begin to look at the totality

of the problem as opposed to looking at it from a one-

dimensional point of view. .

Supp. R. II 185-86 (emphasis added)."°

2. In a series of court proceedings, thirteen trial judges passed

on the ordinance. Ten trial judges held the ordinance unconstitutionally

vague on its face, and one held it unconstitutional as applied; only

two of the trial judges upheld the ordinance.'® On appeal, the Illinois

court of appeals unanimously held the ordinance unconstitutionally

vague on its face, in violation of both the Illinois and federal!

constitutions.

The Illinois Supreme Court unanimously affirmed. The Court

noted that the ordinance, as written, would apply to many innocent

activities that the City Council could not have intended to restrict,

e.g. waiting to hail a taxi. Pet. App. 10a. The Court accordingly

assumed that the ordinance’s definition of “loitering” was not intended

to restrain all activity falling literally within its terms. Rather, the

Court held that “[{tJ}he definition of loitering . .. provides absolute

discretion to police officers to decide what activities constitute

loitering.” Pet. App. 15a. The Court further found that because the

City Council’s intent was to “craft[] an exceptionally broad ordinance

which could be used to sweep these intolerable and objectionable

gang members from the city streets,” the ordinance was not susceptible

to a limiting construction. Pet. App. 16a. The Court concluded that

the ordinance was “impermissibly vague in all of its applications”

(Pet. App. 7a) in violation of the due process requirements of both

the Illinois (Pet. App. 6a) and federal constitutions.

15. In light of Cooper’s testimony, petitioner errs in asserting that “this

record contains no evidence . . . that there were [other] means available to the

City to address the problems engendered by gang loitering.” Br. 27.

16. Poulos, “Chicago’s Ban on Gang Loitering,” 83 Cal. L. Rev. 379,

384 n. 26 (1995).

7

SUMMARY OF ARGUMENT

1. The Illinois Supreme Court ascertained the legislative purpose

of City Council and determined that the ordinance was intentionally

cast in “exceptionally broad” terms, Pet. App. 16a, so that police

officers would have the power to disperse and, if necessary, arrest

citizens whose behavior they consider objectionable. The Court then

held that the ordinance, so construed, violates federal due process

requirements. This Court has never overturned a state supreme court's

judgment finding its own law impermissibly vague under these

circumstances.

There is no reason to believe that the Illinois trial and appellate

judges who ruled in this case are insensitive to the dangers of gang

violence or unaware of practical problems that arise in prosecuting

gang members under already-existing laws. Nor is there any reason

to believe that these state judges felt constrained by federal precedent

to invalidate an ordinance that they preferred to uphold. On the

contrary, both Illinois appellate courts ruled unanimously that the

ordinance violates the Illinois constitution as well.

Faced with a poorly drafted and largely incoherent legislative

pronouncement, the Illinois Supreme Court made a reasonable effort

to give it an intelligible meaning. The ordinance applies only to those

who gather with “no apparent purpose.” But if an intent to get fresh

air or to observe the passing scene is a “purpose” within the meaning

of the ordinance — if no interpretative gloss restricts the kinds of

purposes that can qualify — then, as the Solicitor General concedes,

“the ordinance would prohibit nothing at all.” Br. U.S. 13. To avoid

this result, petitioner suggests that an individual’s “apparent purpose”

must be “immediately discernible to a police officer.” Br. 38. Yet, if

given this gloss, the ordinance would constrain many varieties of

constitutionally protected religious activity, political organizing, and

other acts (e.g., waiting for the chance to hail a taxi) that the City

Council could not have intended to restrict.” And even with this gloss,

17. Contrary to the claim of the Solicitor General (Br. U.S. 13 n.6), the

Illinois Supreme Court was not ill-informed about the realities of hailing a

cab in the city where it sits. On Chicago streets, many minutes can go by

(Cont'd)

the ordinance would remain unavailable against its principal targets

— known gang members who congregate to assert control over turf

or to recruit new members — because these individuals have a readily

discernible purpose. With or without petitioner's suggested gloss, the

“no apparent purpose” language simultaneously prohibits much more

and much less than the City Council could have intended. The Illinois

Supreme Court accordingly concluded the “no apparent purpose”

language simply served to cast a wide net, so that police officers

would have discretion to decide on the spot which activities constitute

the restricted kind of “loitering.”

This was the correct interpretation of the ordinance and certainly

not an unreasonable one. But even if this Court believes that the

ordinance should have been given a narrower or more specific

interpretation, that question is not one of federal law. Ascertaining

legislative intent and making the prudential judgment whether to

impose a narrowing construction on poorly drafted state legislation

are quintessential matters of state law, on which the decision of a

state supreme court is final.

The only federal question presented is whether the ordinance, so

construed, is unconstitutional. Unless this Court is prepared to

abandon the familiar Papachristou-Kolender standard,"* there can be

no doubt that a law is impermissibly vague when its terms leave police

officers with substantive discretion to determine, without legislative

or administrative guidance, which kinds of public behavior the law

restricts.

2. Petitioner argues that vagueness problems are cured because

(Cont'd)

without a taxi passing. See Hill & Downey, “Taxis Still Can Be Rare Despite

Law,” Chicago Tribune, May 24, 1998, p.i. Persons waiting to hail a cab do

not constantly wave their arms in a way that would make their purpose apparent.

Other amici make the same error, dismissing the Illinois Supreme Court's

example as “nonsensical.” Br. Nat’! Dist. Attorneys Ass'n 16. There is nothing

nonsensical about waiting until a taxi is within sight before attempting to hail

it.

18. Papachristou v. City of Jacksonville, 405 U.S. 156 (1972); Kolender

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

9

an arrest under the ordinance must be preceded by a police order to

disperse. But the unique terms of this ordinance’s dispersal

requirement aggravate vagueness problems. Contrary to petitioner's

repeated assertions (Br. 11, 29, 30), it is simply not true that citizens

can comply with the dispersal order merely by separating and moving

on. The ordinance requires individuals to disperse and “remove

themselves from the area.” Pet. App. 6la. Even when individuals

disperse and move on, they have no way to know how far they must

go or how long they must remain away to avoid arrest. We have found

no other law granting — and no judicial decision ever sustaining —

any comparable police power to exercise spatial control over

movement within a city.

3. At no time in the past twenty-six years has this Court or any

state supreme court ever countenanced a law granting police the degree

of untrammeled discretion that results from petitioner's concededly

“novel” (Br. U.S. 28 n.19) ordinance. Implicitly recognizing the

unprecedented nature of their claims, petitioner and several of its

amici urge this Court to modify or abandon the Papachristou-Kolender

standard. They argue that new conceptions of community policing

and alleged improvements in the voting power of minorities render

obsolete the traditional due process limits on police discretion to set

substantive standards of behavior. Br. 15; Br. CNO 6, 9-14.

These radical arguments lack both legal and factual foundation.

Due process cannot mean one thing when a minority group opposes

loitering laws and a different thing when such a group allegedly favors

them. Cf. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 494

(1989) (“the standard of review .. . is not dependent on the race of

those burdened or benefited”). In any event, most of Chicago’s

African-American aldermen did not support the ordinance.'’ And the

19. One group of petitioner's amici claims that Chicago's “minority

communities” supported the ordinance and that it was enacted “at the behest

of those very citizens.” Br. Chicago Neighborhood Organizations [hereafter

CNO] pp. 5, 14. Though the identity of supporters and opponents of legislation

is not relevant to the validity of a constitutional challenge, these claims are in

any event incorrect. The Northwest Neighborhood Federation (a diverse group

based in a predominantly white section of the city) initiated the proposal, see

(Cont'd)

10

leading proponents of community policing, including those cited and

selectively quoted by petitioner itself, all stress the continuing

importance of restraints on police discretion, including in particular

the need to restrict police “sweeps” under broad anti-loitering laws.

See Part IV, infra. Petitioner and its amici offer no justification for

abandoning traditional due process principles, and make no showing

that courts could manage the complex inquiries into minority-group

preferences that would be necessary under the sliding-scale

constitutional test that petitioner’s amici propose, Br. CNO 13, as a

replacement for the Papachristou-Kolender standard.

4. The undersigned amici fully share petitioner's objective of

limits, cities have a wide range of workable options, including

traditional law enforcement (stops on founded suspicion and arrests

onieitene reemnerar we ivity, intimidati ,

the public way, and other existing public-order offenses)” as well as

the kind of cooperative neighborhood problem-solving efforts that

constitute genuine community policing.”

Petitioner’s claim that traditional due process limits must be

(Cont'd)

Supp. R. Il 30-32; it was “drawn up by several white aldermen and

enthusiastically endorsed by Mayor Richard Daley.” Davis, supra n. 6.

To demonstrate an alleged preference for the ordinance in the African-

American community, petitioner's amici refer to a recent City Council

resolution that passed with support from aldermen representing eight

predominantly African-American wards. Br. CNO 15. But in the formal vote

enacting the ordinance, the African-American aldermen split 8-6 against it,

and the recent resolution of support was adopted under a suspension of City

Council rules, apparently without notice or debate, with eleven African-

American aldermen opposed, absent or not voting. City of Chicago, Official

Journal, May 20, 1998, pp. 70134-35. The record is clear that support for the

the support of a majority of the city’s African-American aldermen.

20. E.g., Il. Stat. ch. 720 § 5/12-6.2 (intimidation for the purpose of

furthering gang activities); § 570/405.2 (criminal street gang drug conspiracy).

21. See H. Goldstein, Problem-Oriented Policing (1990); G. Kelling &

C. Coles, Fixing Broken Windows (1996).

suspended because neighborhood residents are too intimidated to

testify in court about actual misbehavior, Br. 3, deserves little

comment. In addition to standard police methods of surveillance and

undercover observation, a citizen-witness’s 911 call, stating that he

has observed criminal behavior and describing the perpetrator,

unquestionably is sufficient by itself to establish probable cause for

arrest;” a fortiori, an officer can give a suspect the choice of moving

on or facing arrest for the offense reported, without any need to

consider whether the suspect was “loitering.” And police can assure

citizens of the complete confidentiality of such reports, even when

the issue of probable cause must later be litigated. McCray v. Illinois,

386 U.S. 300 (1967). Nothing in the record or in the legislative

findings of City Council offers support for petitioner’s claim that

police must have unchanneled discretionary authority to disperse and,

if necessary, arrest individuals who have given no grounds for

suspicion of any misbehavior whatever.”

. The legitimate desire to combat gangs and to encourage effective

policing strategy creates no need to suspend settled principles of due

process, and it affords no justification for condemning the Illinois

appellate judges who unanimously concluded that due process was

violated by the unique terms of this Chicago ordinance.

22. Y. Kamisar, et al., Modern Criminal Procedure 196 (7*h ed., 1990).

23. The argument that innocent citizens must be dispersed to protect

them from being caught in gang cross fire (Br. 37, Br. U.S. 29-30 n.20) likewise

deserves little comment. Once police have ordered the suspected gang member

to move on, the other individuals in the group are no safer (and might be less

safe) if they disperse with him than if they simply remain where they are

while he leaves. Neither petitioner nor the City Council has asserted that the

risk of getting caught in gang cross fire creates any need to disperse groups

not containing a suspected gang member.

12

ARGUMENT

I.

THE ORDINANCE’S DEFINITION OF LOITERING IS

IMPERMISSIBLY VAGUE ON ITS FACE.

“The void-for vagueness doctrine requires that a penal statute

define the criminal offense with sufficient definiteness that ordinary

people can understand what conduct is prohibited.” Kolender v.

Lawson, 461 U.S. 352, 357 (1983). In addition, the vagueness doctrine

requires that the offense be defined “in a manner that does not

encourage arbitrary and discriminatory enforcement.” Jd. The Chicago

ordinance is impermissibly vague on both grounds. In none of its

conceivable applications does it provide fair notice to citizens or

sufficient guidance to prevent arbitrary enforcement.

Petitioner insists that the term “loiter” has a readily understood

meaning. Br. 30. Yet courts uniformly hold that when statutes prohibit

loitering, without requiring proof of other elements, they are void for

vagueness.” The reason is that the concept of “loitering” is either too

subjective or too broad to identify prohibited conduct with reasonable

definiteness.

The ordinary meaning of loitering is inherently subjective.

“Loitering” is a pejorative term, signaling disapproval of the activity

or the actor. When two senior citizens spend an evening chatting on a

park bench, their neighbors would not speak of them as “loitering.”

But those neighbors would readily apply that label to teenagers from

outside the neighborhood or other “undesirables” engaging in

precisely the same conduct. A statute is void for vagueness if it

proscribes conduct “annoying” to others (Coates v. City of Cincinnati,

402 U.S. 611 (1971)), even though the word “annoying” has a well

understood meaning. For the same reason, the term loitering, as used

in everyday conversation, is unacceptably vague for penal law

purposes, even if observers of similar age and social background

would agree about which activities deserve that label. The meaning

of the word is determined by the personal sensibilities of the observer.

24. E.g., State v. Richard, $36 P.2d 622 (Nev. 1992); Farber v. Rochford,

407 F. Supp. 529 (N.D. Ill. 1975).

13

Statutes that define loitering as standing or strolling “with no

apparent purpose” seek to eliminate the overtly subjective element,

but they then cover so many innocuous activities that they do not

identify prohibited conduct at all. Courts uniformly and properly

hold such statutes unconstitutional. As a recent FBI publication notes,

“courts routinely have held th: broadly worded vagrancy and loitering

Statutes that do not ‘.:.ct other unlawful conduct are

unconstitutional.”*> Without some additional element or narrowing

construction, loitering — so defined — is inherently overbroad, not

only in the sense that it can apply to constitutionally protected conduct,

but also in the sense that, taken literally, it reaches activity that the

legislature clearly had no desire to condemn. Such breadth of apparent

coverage renders the statute vague, because the statutory terms afford

no basis for distinguishing between conduct that remains permissible

and conduct that the law is intended to proscribe.

Papachristou makes this point clear. This Court expressly hel¢

that “[t}he qualification ‘without any lawful purpose or object’ may

be a trap for innocent acts.” 405 U.S. at 164. Similarly, referring to

another provision of the Jacksonville ordinance, this Court said that

persons “‘habitually . . . frequenting . . . places where alcoholic

beverages are sold or served’ would literally embrace many members

of golf clubs and city clubs.” /d. Unconstitutional vagueness resulted

not from lack of meaning in the words themselves but from the

implausible breadth of their coverage. This Court did not hold that a

legislature could not make this conduct a crime;” it simply recognized

that Jacksonville obviously did not. In such cases, the legislature has

impermissibly “set a net large enough to catch all possible offenders.”

United States v. Reese, 92 U.S. 214, 221 (1875). In effect:

Definiteness is designedly avoided so as to allow the net

to be cast at large, to enable men to be caught who are

vaguely undesirable in the eyes of police and prosecution,

although not chargeable with any particular offense. In

25. Regini, “Combating Gangs: The Need for Innovation,” FBI Law

Enforcement Bulletin, February 1998, p. 27.

26. Legislatures have unquestioned power to regulate bars and to prohibit

the consummation of alcohol. E.g., California v. LaRue, 409 U.S. 109 (1972).

14

short, these ‘vagrancy statutes’ and laws against ‘gangs’

are not fenced in by the text of the statute or by the subject

matter so as to give notice of conduct to be avoided.

Winters v. New York, 333 U.S. 507, 540 (1948) (Frankfurter, J.,

dissenting).

The Chicago ordinance suffers from the same flaws; its definition

of loitering offers no basis for distinguishing between conduct that

the City Council intended to restrict and conduct that it intended to

leave unfettered. Indeed, though petitioner and its amici insist that

loitering has a perfectly clear meaning, they are unable to offer a

single internally consistent explanation of what the ordinance covers.

If, as petitioner insists, members of a religious group who gather at a

street corner and wait for a chance to recruit new members cannot be

dispersed, because they have an “apparent purpose” (Br. 20), then

the ordinance is likewise inapplicable to gang members who gather

at a street corner and wait for an opportunity to recruit new members.

A group’s purposes are just as likely to be apparent in one case as in

the other. And neither the state nor the City has made it unlawful for

gang members to noncoercively recruit new associates.’

As written, therefore, the ordinance affords no basis for

distinguishing between the organizational activities of various groups.

Either it requires officers to disperse Jehovah's Witnesses, Jews for

Jesus, and Neighborhood Crime Watch members who gather on street

corners to recruit (when any participant is a suspected gang member),

or it does not permit officers to disperse Gangster ) Disciples who gather

on street corners to recruit. Neither interpretatic. makes much sense

or accords even roughly with the City Council's evident intentions.

Compare Pet. App. 60a-61a.

27. Compare Ill. Stat. ch. 720 § 5/12-6.1, prohibiting the use of unlawful

means to compel a person to join any organization. The behavior that most

concerned the City Council — the “visibly lawless” behavior that petitioner

repeatedly invokes (Br. 9-10, 12, 14, 16, 27, 44) — is left unrestricted by the

ordinance as written, because the purpose of such behavior is apparent. When

gang members obstruct the sidewalk or intimidate residents their conduct is

addressed by other laws, but the loitering ordinance appears inapplicable and

offers no additional tool for prosecuting such cases.

15

These anomalies could be avoided by assuming that the ordinance

contempiates a selective determination of which “apparent purpose(s]”

count. Yet neither the ordinance nor the implementing General Order

offers any standard for making selective judgments about different

“apparent purpose[s].” In fact, petitioner takes flatly contradictory

positions on the question whether the “apparent purpose” inquiry can

be selective. At one point petitioner suggests that persons “‘vho are

merely sitting on a park bench [or]} chatting on a sidewalk” are subject

to the ordinance (Br. 38); apparently, a readily apparent purpose to

sit, chat, or engage in “mere casual social interaction” (Br. 10) does

not count. At another point, however, petitioner appears to insist that

any apparent purpose can qualify, a position that drives it to the

astonishing conclusion that “(uJnder the ordinance, gang members

remain free to . . . solicit contributions for their gangs” because this

conduct “has an ‘apparent purpose.’” Br. 27. Petitioner's view —

that gang members are free to gather at street corners and politely

ask each passing citizen to give five dollars to their gang — would

surely surprise City Council supporters of the law. Indeed petitioner's

interpretation, if sound, renders the ordinance virtually unenforceable

— that interpretation apparently permits gang members congregating

on a street corner to avoid arrest simply by wearing lapel buttons

saying, “This is our turf,” or “Give generously to the Gangster

Disciples.”™

Some of petitioner's examples suggest a different rule of

interpretation: that productive purposes qualify, but that purposes to

remain idle or to talk informally for reasons of rest or recreation do

not.” That interpretation likewise creates untenable anomalies. It

28. No doubt there are cases in which teenagers approached by the police

say they were “doing nothing.” They presumably mean they were doing nothing

wrong, few would realize that this response puts them in jeopardy under the

ordinance. If a teenager's “doing nothing” statement constitutes an admission

of “loitering,” the ordinance sets an especially effective trap for the unwary.

29. See Br. 10, stating that “mere casual social interaction” cannot count

as a qualifying purpose. Partly contradicting this approach, petitioner declares

that not all social purposes will be treated equally; a purpose to play basketball

allegedly qualifies as an “apparent purpose” but a purpose to chat with a friend

does not. Br. 38. One can readily imagine borderline cases — merely watching

(Cont'd)

16

means that the ordinance would not reach conduct that the City

Council surely hoped to cover (e.g., gang efforts to control territory

and recruit new members, see Supp.R.II at 32). At the same time, the

ordinance would cover much conduct that the City Council presumably

did not intend to reach. If casual purposes cannot count, then there is

“loitering” when two sweethearts stand holding hands at a street corner

after school, when three boys stand outside a movie theater discussing

which show to see, when four teenagers stand across the street from

their school waiting until the end of lunch hour, or when two senior

citizens sit on a park bench chatting with their teenaged grandson.

The ordinance, as written, would require a police officer to order

these citizens to separate from one another and leave “the area”

whenever one of them is reasonably believed to belong to a gang.

In observing that such activities are “innocent” (Pet. App. 9a),

the Illinois Supreme Court never suggested that such activities are

immune from regulation. Here, as in Papachristou, the problem is

not that a legislature could not condemn such activities but simply

that it did not — that the legislature could not have intended to restrict

such activities and that the language enacted “fails to distinguish

between innocent conduct and conduct calculated to cause harm.”

Pet. App. 9a (emphasis added).

As a result, the Chicago ordinance simply casts a wide net without

identifying which activities the legislative body intended to reach.

Such an ordinance “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.” Cox v. Louisiana, 379 U.S.

536, 579 (1965) (opinion of Black, J.). By authorizing police action

against whichever kinds of idle behavior police view with disapproval,

the Chicago ordinance is for practical purposes identical to the

ordinance condemned in Coates, providing an “obvious invitation to

discriminatory enforcement against those whose association together

is ‘annoying.’ ” 402 U.S. at 616.

(Cont'd)

the basketball game might not qualify as a permissible purpose, or perhaps

watching the game would qualify but merely talking about basketball would

not. But the fundamental problem is more basic: even in core situations, the

application of the ordinance is inevitably debatable.

.

|

——

nd 0 Muted

17

The ordinance also threatens core First Amendment interests. If

casual social interaction cannot count as an “apparent purpose,” the

ordinance then applies to the politician or would-be politician who

chats casually with neighborhood residents, in periods between formal

campaigns, with the unstated goal of building rapport with potential

voters. Yet if the ordinance does not apply in this situation, it provides

no standard for determining which casual social conversations

constitute loitering and which do not.” And these difficulties of

interpretation do not arise only at the margins. In every imaginable

example, the ordinance requires police to make substantive policy

judgments in order to avoid the odd results that would follow from

applying its terms literally. The Illinois Supreme Court clearly was

correct in holding that the ordinance sets no intelligible standard and

in effect simply delegates “absolute discretion to police officers to

decide what activities constitute loitering.” Pet. App. 15a.

The Illinois Supreme Court also considered narrowing the reach

of the ordinance, but determined that a limiting or clarifying

interpretation would be inconsistent with the legislative purpose

because:

city council’s intent ... is clear and unambiguous. The

city has declared gang members a public menace... .

Accordingly, the city council crafted an exceptionally

broad ordinance which could be used to sweep these

intolerable and objectionable gang members from the city

streets.

Pet. App. 16a.

The court therefore concluded that the ordinance’s broad,

unspecified conception of loitering was “not reasonably susceptible

to a limiting construction.” /d.

Faced with similar situations, this Court has frequently refused

30. In the case of a known politician, police might decide that a casual

social interaction with constituents qualifies as an “apparent purpose,” but

they would be much less likely to reach that conclusion in the case of someone

they do not recognize as a political contender. Discrimination against political

novices and outsiders is inherent in the “apparent purpose” inquiry.

18

to narrow a federal statute by making policy choices that Congress

has ducked. E.g., United States v. Cardiff, 344 U.S. 174 (1952). The

Iilinois Supreme Court chose the same path here, concluding that the

legislative intent precluded judicial efforts to limit the ordinance’s

broad and uncertain reach.*'

Lacking any such limiting construction, the ordinance is clearly

void on its face, because in every situation it requires police to exercise

unguided discretion to determine whether the conduct in question

constitutes loitering. And, as the Illinois Supreme Court recognized,

the General Order promulgated by the CPD does nothing to cure this

problem, because the General Order makes no attempt to clarify what

is meant by “loitering.” See Pet.App. 64a-73a.

THE INDETERMINACY OF THE TERM “LOITERING” IS

NOT CURED BY THE REQUIREMENT THAT POLICE HAVE

A REASONABLE BELIEF THAT ONE PERSON IN THE

GROUP IS A GANG MEMBER.

In the context of Chicago’s ordinance, the gang membership

element does nothing to meet the Papachristou-Kolender requirement

of adequate limits on law enforcement discretion. As we have

discussed, the ordinance and the General Order provide police officers

untrammeled discretion to determine which activities constitute

loitering. And even when limited to groups that include a suspected

gang member, the ordinance requires the exercise of unguided

discretion to determine its scope. It provides no standard for

determining when a probable gang member may stand with others

watching a ball game in a park or wait with his sister for a chance to

31. The Solicitor General dismisses as “incorrect” the Illinois Supreme

Court’s understanding of the City Council's legislative purpose. Br. U.S. 26.

This argument is simply not open for consideration in this Court. “[L]egislative

intent is a matter of state law, on which the highest court of a state speaks with

finality.” Della Grotta v. Rhode Island, 781 F.2d 343, 347 (1st Cir. 1986). The

same error is fatal to another amicus’s claim, in dismissing the Illinois court's

view of the ordinance’s purpose, that “[t}he evident purpose of the Chicago

ordinance may be gleaned from its plain language.” Br. Los Angeles County

14.

19

hail a taxi. It provides no standard for determining whether an aspiring

politician may chat casually with a group in which the probable gang

member is standing, or whether the gang member’s own mother may

sit with him on a park bench or stand outside with him on a hot night.

Plainly, as the Illinois Supreme Court held, the ordinance contemplates

the need for police discretion to determine on the spot which activities

constitute the restricted kind of loitering.

It is true that this discretion can be deployed only in certain areas

(undisclosed areas) of the city, and only against some of the

population — those who come in contact with suspected gang

members. Pctitioner in effect argues that discretion to determine

allowable forms of public behavior is sufficiently limited if it can be

deployed only in certain neighborhoods or only against certain classes

of innocent people, people who are not themselves suspected of gang

membership or any misbehavior. Yet this Court has never before

suggested that it would uphold an ordinance that “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,” Cox,

379 U.S. at 579 (opinion of Black, J.), on condition that this form of

government be placed in effect only in designated but undisclosed

sections of a city.** The Illinois Supreme Court should not be faulted

32. Letter dated July 8, 1998, from Counsel for Petitioner to Counsel

for Respondents, indicating that areas designated for enforcement of the

ordinance are not publicly available and will be disclosed, if at all, only in

response to a party’s discovery demand in litigation. The Solicitor General

appears to be misinformed on this point. The Solicitor General asserts that

citizens “may stand wherever they wish in areas of the city not designated by

the general order.” Br. U.S. 24. The designation procedure affords no such

opportunity, because the location of the designated areas remains a closely

guarded secret.

33. It is not amiss to mention the implications of this view for the

minority youth of our nation. In cities where police lists of probable gang

members have been analyzed, substantial portions of the city’s African-

American youth appear on such lists. In Los Angeles, 47% of the city’s African-

American youth, and in Denver 67% have been placed on police lists of

probable gang members. Stolberg, “150,000 Are in Gangs, Report by D.A.

Says Half of Young Blacks Are Members,” Los Angeles Times, May 22, 1992,

p. 1; Johnson, “2 out of 3 Young Black Men in Denver Listed by Police as

(Cont'd)

20

for concluding that all segments of Chicago's law-abiding population

have the same right to be governed by ascertainable law.

THE VAGUENESS OF THE ORDINANCE IS NOT CURED BY

THE REQUIREMENT THAT POLICE GIVE GROUP

MEMBERS AN OPPORTUNITY TO DISPERSE.

Petitioner argues that vagueness problems are cured because an

arrest under the ordinance must be preceded by an order to disperse.

But a dispersal order does nothing to address the danger of arbitrary

enforcement; indeed petitioner concedes as much: “if police officers

are afforded standardless discretion to order individuals to move on,

the mere fact that a police order is given does not serve to sustain the

order.” Br. 32.

Standardless discretion is precisely what the ordinance gives

Chicago’s police, as we have shown. But even if the preconditions

for issuing a dispersal order were precise, the ordinance would still

be vague, because the terms of the dispersal requirement are fatally

ambiguous.

Petitioner asserts repeatedly that under the ordinance “people

are told precisely what they must do to avoid arrest,” and that “no

one could fail to understand what is required of him,” because the

ordinance merely requires individuals to obey a police order to

“disperse” or to “move on.” Br. 11, 29, 30. This characterization of

the ordinance is incorrect. Both the ordinance and the General Order

require an arrest unless the members of the group promptly disperse

and “remove themselves from the area.” Pet. App. 61a, 72a.

(Cont'd) ?

Suspected Gangsters,” NY Times, Dec. 11, 1993, p. A8. As a result, virtually

any group of inner-city minority youth is likely to contain at least one person

whom police consider a gang member. For these youth, the right to stand on

the street will therefore exist “only at the whim of any police officer of the

city,” Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90 (1965) (or

technically, any officer designated to enforce the ordinance), provided only

that the group is considered to be “loitering.”

21

Far from curing the vagueness of the other sections of the

ordinance, the obligation to leave “the area” introduces additional

vagueness. As the Illinois court of appeals noted, “[t]he ordinance

and general order are also completely silent as to exactly how fast

and how far the persons have to disperse in order to avoid arrest.”

Pet. App. 32a-33a. Yet petitioner’s brief offers no defense of the

ordinance’s leave-the-area requirement.™

Kolender v. Lawson, supra, makes clear that a police order to

leave “the area” is fatally vague. Kolender involved a California statute

providing penalties for any person who “loiters or wanders . . . without

apparent reason . . . and refuses to identify himself . . . when requested

to do so... .” 461 U.S. at 353 n.1. In Kolender the California courts

had narrowed the loitering provision by holding that an officer could

request identification only when he had “reasonable suspicion of

criminal activity sufficient to justify a Terry detention.” /d., 356. The

state courts had also ruled that the identification provided by the

suspect had to be “credible and reliable.” This Court assumed that

the Terry suspicion standard adequately guided the officer's discretion

whether to request identification but nonetheless ruled the California

law void on its face, because it “contains no standard for determining

what a suspect has to do in order to satisfy the [identification]

requirement.” Jd. 358.

The same vagueness problem arises in more acute form here.

The Chicago ordinance applies to innocent citizens not suspected of

illegal conduct or gang membership; as we have shown, it contains

no standards for determining when a dispersal order can be issued;

and it contains no standard for determining how far an individual

must go or how long he must remain away in order to comply with

the order. Nor is any such standard to be found elsewhere in Illinois

law. To the contrary, Illinois precedent warns that “[s]tanding alone

the word ‘area’ [in a statute] implies nothing as to size. It may be of

large or small extent.” /llinois Cent. R. Co. v. Village of South Pekin,

34. That requirement is nowhere mentioned in petitioner's brief, except

where the brief sets out the full text of the ordinance. Br. 4. The vagueness of

the leave-the-area requirement was a ground of decision in the Illinois court

of appeals, and respondents expressly argued the issue in the Illinois Supreme

Court, Br. Resp. Ill. S. Ct. 46-47. As one group of petitioner's amici recognizes,

the issue is properly before this Court. Br. Nat'l Dist. Attorneys Ass’n., et al.

24.

22

374 Ill. 431, 435, 29 N.E. 2d 590, 593 (1940). The leave-the-area

requirement thus adds uncertainty for citizens seeking to comply with

the law and provides a layer of added discretion for officers who are

authorized to decide with no guidance whether an individual has left

“the area.” Even when a group has dispersed and begun to move away,

each individual remains subject to arrest if he fails to move far enough,

or returns to “the area” too soon.

The puzzling arrest statistics reported by the CPD seem less

surprising in this light. From 1992 until 1995, police issued 85,197

orders to disperse, and in 49% of these cases, police decided that

individuals were disobeying their orders; 41,740 individuals were

2 vested.** If the order to disperse is as clear and easy to satisfy as

petitioner claims, such a high rate of noncompliance is inexplicable.

It is not likely that so many young gang members were defiantly

defending their “turf” against armed officers, or that they welcomed

the chance to spend time in Cook County Jail. Commen sense suggests

that many of these young persons wanted to avoid arrest but failed in

their efforts to comply. The obligation to leave an unspecified “area”

is so ambiguous that it “creates a trap for the wary as well as the

unwary.” Gentile v. State Bar of Nevada, 501 U.S. 1030, 1051 (1991)

(opinion of Kennedy, J.).

Chicago's leave-the-area requirement appears to be unique. The

great majority of relevant state laws authorize only a police order to

disperse or move on.” A few state laws authorize orders with some

spatial component, such as orders to “depart” or “leave.” But in all

the examples we have found, such orders to leave can be issued only

under narrowly defined circumstances such as riot or accident.’ Such

35. Gillis & Spielman, “City’s Loitering Law Ruled Unconstitutional,”

Chicago Sun-Times, Dec. 19, 1995, p. 3.

36. Among the forty-one “State Dispersal Laws” cited by amici Ohio, et

al. (Br. Ohio A-4 to A-8), thirty-caree authorize only an order to “disperse,”

“move” or “move on”; the only cited laws with a spatial component (“depart,”

“leave” or “withdraw”) are those of Georgia, Illinois, Massachusetts, Michigan,

Minnesota, New Hampshire and Wisconsin, while Ohio's statute requires

obedience to any “lawful order.” See id., and statutes there cited.

37. The Ohio statute, for example, applies only in cases of “fire, ee

on

>.

23

orders automatically acquire content by reference to the emergency

itself; a law-abiding person can readily understand the expectation

that he move out of sight and earshot.

Here, in contrast, there is no indication that moving out of sight

of a particular street corner would constitute leaving “the area.” If

the “area” concept has any content, in the present context, it might

mean leaving “the neighborhood,” a locale that is not only vague but

also, in Chicago, closely tied to race and ethnicity. A law authorizing

police to order strangers back to their own neighborhood would make

all-too-real the concerns of Chicago aldermen who compared this

ordinance to South Africa's pass laws.” In the Chicago setting, such

a law could not easily survive equal protection scrutiny, and petitioner

does not suggest that the “area” concept should be so understood. Yet

if an “area” cannot be equated with a neighborhood, it remains totally

unclear what its limits are or what criteria might be used determine

them.

No decision of this Court, or of any state court we have

discovered, has ever permitted any comparable police power to

exercise spatial control over movement within a city. Cox v. Louisiana,

379 U.S. 559 (1965), where this Court reversed a conviction for

demonstrating “near” a courthouse, offers an instructive contrast. The

Court assumed that the term near “may not [be] unconstitutionally

vague, at least as applied to a demonstration within the sight and

hearing of those in the courthouse.” In reaching that conclusion, the

Court stressed that the statute permitted “a degree of on-the-spot

administrative interpretation” and held that “[{t}his administrative

discretion to construe the term ‘near’ concerns a limited control of

the streets and other areas in the immediate vicinity of the courthouse

(Cont'd)

disaster, riot or emergency.” /d. A-7. Each of the other state statutes authorizing

an order to depart or leave is similarly limited. See id. A-5 to A-8 and statutes

there cited.

38. See D. Massey & N. Denton, American Apartheid 76 (1993) (noting

that by most measures Chicago is the most or second-most highly segregated

city in America).

39. See supra note 13 and accompanying text.

24

and is the type of narrow discretion which this Court has recognized

as .. . proper.” /d. 568-69.“ No comparable measuring rod is implicit

in the Chicago ordinance. It applies at numerous undisclosed locations,

is not limited to the immediate vicinity of any point, and does not

conter.it e any on-the-spot guidance to indicate what the citizen

must dc % comply.

Such an ordinance is void on its face because it is vague in all its

applications. It is true that a citizen who stands his ground cannot

plausibly claim to have left the area. But Kolender presented the same

question. As Justice White argued there in dissent (461 U.S. at 472),

the Kolender statute was clear as applied to the defiant citizen who

refused to provide any identification. This Court considered Justice

White's example irrelevant to a facial challenge. As Kolender holds,

due process requires that laws, however ambiguous at their edges,

offer some safe harbor for the law-abiding citizen who seeks to

comply. In the Kolender setting there were no objective standards the

officer could apply, once identification was offered, to determine

whether it was “credible.”

The Chicago ordinance poses the same problem, in more acute

form. Short of fleeing the jurisdiction, the person who tries to comply

has no way to know how far he must go or how long he must remain

away in order to avoid arrest.*' Independent of every other vagueness

problem, the leave-the-area requirement violates Kolender’s principle

40. All of this Court's decisions emphasize comparable limitations.

Grayned v. City of Rockford, 408 U.S. 104 (1972), held that a law prohibiting

noise in any area “adjacent” to a school was not vague because “there must be

demonstrated interference with school activities.” /d. at 114. Colten v. Kentucky,

407 U.S. 104 (1972), held that a police order was not vague where it required

Colton to leave a place where police were investigating a traffic violation and

where conviction required “the intent of causing inconvenience, annoyance,

or alarm.” /d. at 110. Boos v. Barry, 485 U.S. 312 (1988), upheld a law

prohibiting demonstrations within 500 feet of an cmbassy. In all such cases

the spatial scope of the legal requirement is readily ascertainable.

41. One option would be for him to go home, but if his home is his only

safe harbor, then the ordinance in effect permits the police to impose house

arrest without trial, for an indeterminate period, on any citizen found in public

with a person reasonably believed to be a gang member. Petitioner has not

attempted to defend the ordinance on this basis.

25

that a police officer's order must have ascertainable content and afford

the citizen a reasonable opportunity to comply.

IV.

THE PAPACHRISTOU-KOLENDER STANDARD SHOULD NOT

BE DILUTED OR DISCARDED.

Te date, judicial and scholarly opinion has been virtually

unanimous in concluding that the Chicago ordinance is

unconstitutional under existing precedent.“ Accordingly, one group

of petitioner's amici seek to win reversal by convincing this Court to

“reserve” the Papachristou-Kolender standard for cases in which a

court finds a law’s impact to be “concentrated on a politically

disempowered minority.” Br. CNO 6. In other cases, they argue, this

Court should replace existing principles with a sliding scale of review

that would depend on how widely the burden of that law is likely to

be felt” (id. 9), taking into account such factors as “the relationship

between the supporters of the law and those to whom it is being

applied.” Jd. 13.

This approach is unsound both in theory and practice. The due

process right to be governed by comprehensible law is a privilege of

all citizens, regardless of race; standards of constitutional review

are “not dependent on the race of those burdened or benefited.” City

of Richmond v. J.A. Croson Co., 488 U.S. at 494. And these amici do

not indicate how courts could manage the elaborate factual and

political inquiries that their sliding-scale approach would require.“

42. Berg, “The Troubled Constitutionality of Antigang Loitering Laws,”

69 Chi. Kent L. Rev. 461, 485 (1993); Poulos, supra n.16, at 409; Livingston,

“Police Discretion and the Quality of Life in Public Places,” 97 Colum. L.

Rev. 551, 622 (1997).

43. Connally v. General Constr. Co., 269 U.S. 385 (1926); Lanzetta v.

New Jersey, 306 U.S. 451 (1939).

“4. These amici also fail to explain why their own test would not require

especially strict scrutiny in the present case, given the level of opposition to

the ordinance among Chicago's African-American aldermen. See supra notes

13-15 and accompanying text.

26

Petitioner is less specific in describing the new constitutional

test it seeks, but it nonetheless urges this Court to relax the

Papachristou-Kolender standard on the ground that “commentators

have repeatedly called for courts to provide greater leeway for state

and local governments to address signs of chronic disorder on the

streets.” Br. 15.

Petitioner misapprehends the thrust of this academic literature;

the critique of state caselaw that these commentators voice is important

but narrow. These commentators condemn broad laws against loitering

and reserve their criticism for judicial decisions that sometimes

misapply Papachristou-Kolender by requiring overly strict proof of

criminal intent or other elements that modern laws use to ensure clarity

in laws against loitering.** Far from questioning the Papachristou-

Kolender standard, the leading proponents of community policing all

emphasize the importance of continuing to limit police discretion to

set substantive standards of acceptable public behavior.

Professors Kelling and Coles make this point emphatically. They

note that their “broken windows” thesis was often misinterpreted as

an invitation to sweep unwanted persons from the streets:

In fact, the ideas presented in ‘Broken Windows’ were

antithetical to the use of ‘streetsweeping’ tactics targeted

on ‘undesirables’; rather, they advocated close

collaboration between police and citizens, including street

people, in the development of neighborhood standards. . . .

[Yet] the distinction between order maintenance and

‘streetsweeping’ was not always apparent to police ....

One attempt at implementing an order-maintenance

approach conducted in Chicago in 1982 used police

officers brought in on overtime assignments to sweep

through troubled areas and arrest youths congregating on

streets. While these sweeps may have been directed against

disorder, they did not constitute order maintenance of the

ilk Wilson and Kelling had in mind in ‘Broken Windows’

.... Clearly, all police actions involved in order

maintenance would have to be grounded in law and subject

45. See Livingston, supra n.42, at 612-13, 621-26.

27

to clear constitutional constraints against infringement of

individual liberties.”

The other proponents of community policing cited by petitioner

Stress similar concerns. Wesley Skogen specifically criticizes a

Newark police operation in which:

groups of four or more persons ‘congregating to create a

public hazard’ (in the words of the state statute) were first

warned by officers . . . that they were required to disperse.

A few minutes later, vans and squad cars descended on

the area to search and arrest those who failed to heed the

warning.”

Though Newark’s law was notably narrower than Chicago's (requiring

proof of a purpose “to create a public hazard”), Skogan nonetheless

concludes that Newark’s sweeps were “of doubtful legality” and

stresses that “[nJo lawyer committed to traditional constitutional

0 V+ — amt tae ccaecarinaaes eae

This continuing consensus against broad anti-loitering laws

reflects, among other concerns, an awareness that tension in

relationships between police and segments of minority communities

46. Kelling & Coles, supra n.21, at 22-23.

47. W. Skogan, Disorder and Decline 111 (1990).

48. Id.

49. P. 165, quoting J. Skolnick & D. Bayley, The New Blue Line 199

(1986). Livingston likewise condemns loitering laws that “devolve{ ] law-

making authority on the police” (Livingston, supra n.42, at 628), and argues

only that courts should uphold laws that regulate “loitering without legitimate

purpose about certain narrowly specified and especially vulnerable places of

generally restricted access (like schools .. .)” Jd. at 639. She insists that

loitering laws must not be “aimed at excluding outsiders from full participation

in the community” (id. at 647), and must provide for continuous monitoring

of the ae impact yes disfavored groups. /d. at 653-67. Even under her

approach, Chicago's ordinance must fall, as Livin appears

acknowledge. /d. at 622, 667-68. yocopnengs “

28

remains acute. James Q. Wilson, who with Kelling originated the

“broken windows” thesis, cautions:

We are at mid-stream in our efforts to produce a society

in which whites and blacks can live together decently well.

Such a transformation is still decades away, and in this

time there will be more riots, more suspicion, and more

political manipulation. The vast gains that African

Americans have made . .. coexist with a deep layer of

anger, distrust, and confusion.”

Similarly, police experts Hubert Williams and Patrick Murphy note:

[A]}ithough the police are better prepared to deal with the

residents of the inner city than they were twenty years

ago, they are far from having totally bridged the chasm

that had separated them from minorities — especially

blacks — for over 200 years. There are still too few black

officers, at all levels. Racism still persists.”

Progress in race relations, though undeniable, is simply not relevant

to the allowable vagueness of statutory language, nor in any case is it

sufficient to support the radical change in constitutional doctrine that

petitioner and its amici seek.

* * * *

Like all Chicago residents, the undersigned amici and their

members live with crime on a daily basis and want effective protection

from gang intimidation and violence. But all citizens have the right

50. James Q. Wilson, “The Closing of the American City,” The New

Republic, May 11, 1998, pp. 30, 38.

51. Hubert Williams & Patrick V. Murphy, The Evolving Strategy of

Police: A Minority View, in Perspectives on Policing, No. 13 (U.S. Dept. of

Justice, Nat'l Institute of Justice, Jan. 1990). Similarly, former New York City

Police Commissioner William Bratton warns: “As police leadership has

accepted responsibility for reducing crime and fear, so too must it accept

responsibility for dealing with racism, brutality, and inappropriate attitudes

in the ranks. The first step is to admit there is a problem.” William Bratton,

Turnaround 312 (1998).

29

to be governed by understandable laws that include reasonable

standards to prevent arbitrary enforcement. Petitioner has made no

showing that its laudible goals cannot be achieved by a number of

straightforward expedients — including enforcing existing laws, as

Deputy Superintendent Cooper urged from the outset, or, if need be,

authorizing police officers to order individuals to move on, regardless

of whether they are “loitering,” whenever there is probable cause to

believe that they are obstructing sidewalks, intimidating others, or

conspiring to advance criminal activities. Petitioner has offered no

convincing reason why its police must be permitted broad discretion

to control the “casual social interaction” (Br. 10) of law-abiding

citizens, including those not remotely suspected of gang involvement.

Petitioner has established no need to suspend the settled due process

principles which clearly render its vague regulation of “loitering”

unconstitutional.

CONCLUSION

The judgment of the Illinois Supreme Court should be affirmed.

Respectfully submitted,

STEPHEN J. SCHULHOFER

Counsel of Record

RANDOLPH N. STONE

1111 East 60th Street

Chicago, IL 60637

(773) 702-9611

RANDALL L. KENNEDY

1563 Massachusetts Avenue

Cambridge, MA 02138

Attorneys for Amici Curiae