First Amendment not a victor in defeat of Chicago anti-gang ordinance

Analysis

By Tony Mauro

06.11.99

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Twenty-seven years ago, the Supreme Court extolled loafing and loitering as "historically part of the amenities of life as we have known them."

These unwritten amenities, the court said in Papachristou v. Jacksonville, "have dignified the right of dissent, and have honored the right to be nonconformists and the right to defy submissiveness." Invoking Walt Whitman and Henry David Thoreau, the court struck down a Florida anti-vagrancy ordinance.

Yesterday, an entirely different Supreme Court struck down a similar Chicago anti-loitering ordinance, but with none of the same lofty language and scant mention of the First Amendment and the Papachristou ruling itself.

The tamped-down rhetoric and the fractured majority — four of the six justices in the majority wrote separately — was a sign that the case of Chicago v. Morales was a difficult one for a Supreme Court that wanted to be supportive of law enforcement officials in their fight against urban gangs.

The six justices in the majority ultimately decided the ordinance was too vague to be constitutional, but they all expressed regret that the Chicago City Council had not tightened its language a little bit or that the Illinois Supreme Court had interpreted the law so broadly that it could not be viewed as constitutional.

Only three justices — John Paul Stevens, David Souter and Ruth Bader Ginsburg — agreed with the notion that "the freedom to loiter for innocent purposes is part of the liberty protected by the Due Process Clause of the Fourteenth Amendment."

Those three justices also agreed that the Chicago ordinance, while unconstitutional, did not violate the First Amendment. Since the other justices did not note disagreement with this finding, it presumably speaks for the entire court.

Under the ordinance passed in 1992, police were authorized to order suspected gang members and others standing with them to disperse, if they were congregating "for no apparent purpose." Anyone who refused to obey the order was arrested. While the law was in effect, it was used to arrest more than 42,000 Chicagoans, and city officials said it was an important tool for breaking the domination of gangs in several of the city's neighborhoods.

"The ordinance does not prohibit speech," the three justices agreed. If gang members were demonstrating or in other ways expressing themselves, that would presumably be an "apparent purpose," the justices said, making the ordinance inapplicable.

The justices also said the ordinance did not implicate the freedom of assembly or association protected by the First Amendment. "Its impact on the social contact between gang members and others does not impair the First Amendment 'right of association' that our cases have recognized."

Because the ordinance did not implicate the First Amendment, the court did not base its decision on the assertion that it was "overbroad," a standard that has struck down many laws on First Amendment grounds.

Instead, the court based its judgment that the law was unconstitutional on general principles it has long used to decide whether criminal laws are too vague, meaning they don't give citizens enough guidance on how to avoid being arrested, and don't give police enough guidance to avoid arbitrary enforcement.

In the part of the court's opinion that commanded six votes, the justices agreed that the phrase "no apparent purpose" in the ordinance was so ill-defined and standardless that police could decide on a whim whether or not to target a group of people for enforcement.

"We recognize the serious and difficult problems testified to by the citizens of Chicago that led to the enactment of this ordinance," Stevens wrote. "We are mindful that the preservation of liberty depends in part on the maintenance of social order. However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the public streets."

Stevens continued, "In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent."

And in the only fanciful rhetoric that crept into the majority opinion Stevens, a Chicago native, added, "It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she (the officer) may — indeed, she 'shall' — order them to disperse."

Both Stevens' opinion and a concurring opinion by Justices Sandra Day O'Connor and Stephen Breyer, strongly suggested that a slightly revised ordinance would pass constitutional muster. Tying the loitering to a specific legal activity or with an intent to intimidate, O'Connor indicated, would be acceptable. Law enforcement officials took solace from O'Connor's concurrence, arguing that it pointed toward several ways in which communities could target gangs without waiting for them to commit crimes.

The only literary allusion in the court's cumulative 79 pages of opinions, concurrences and dissents, came in Justice Antonin Scalia's angry dissent. Trying to counter the majority' s view that the law does not adequately inform the public about what conduct is illegal, Scalia said it is the refusal to obey a police order to move on, not the loitering itself, that triggers arrest.

Borrowing from the 1959 musical West Side Story and transporting it from New York to the streets of Chicago, Scalia sketched a scenario in which it would be clear to potential arrestees why they were being arrested.

"Tony, a member of the Jets criminal street gang, is standing alongside and chatting with fellow gang members while staking out their turf at Promontory Point on the South Side of Chicago," Scalia wrote. "Officer Krupke, applying the ordinance at issue here, orders the group to disperse. After some speculative discussion (probably irrelevant here) over whether the Jets are depraved because they are deprived, Tony and the other gang members break off further conversation with the statement — not entirely coherent, but evidently intended to be rude — 'Gee, Officer Krupke, krup you.'"

Scalia continues, "A tense standoff ensues until Officer Krupke arrests the group for failing to obey his dispersal order. Even assuming (as the justices in the majority do but I do not) that a law requiring obedience to a dispersal order is impermissibly vague unless it is clear to the objects of the order, before its issuance, that their conduct justifies it, I find it hard to believe that the Jets would not have known they had it coming."

The American Civil Liberties Union had emphasized the vagueness argument in its arguments against the ordinance, but also asserted the ordinance violated the First amendment. Officials yesterday were pleased with the victory even though it was not based on the First Amendment.

"We are grateful the justices of the Supreme Court understand what escaped the political leaders of Chicago: namely, that it is not a criminal activity simply to be a young man of color gathered with friends on the streets of Chicago," said ACLU Legal Director Harvey Grossman.

Tony Mauro is a legal correspondent for the First Amendment Center.