Chicago’s anti-gang law to face Supreme Court scrutiny

Tuesday, April 21, 1998

The Supreme Court has agreed to mediate the growing clash between civil liberties and “quality of life” measures aimed at preventing gang violence and urban decline.


The court on Monday agreed to scrutinize a Chicago anti-gang ordinance that was used to arrest 43,000 people during the three years it was in effect, before Illinois courts struck it down as unconstitutional in 1995.


The case of Chicago v. Jesus Morales, which is scheduled to be argued next fall, could also prompt the court to revisit a 28-year-old decision against vague anti-vagrancy statutes that has been cited in challenges to the new wave of anti-gang laws.


The Chicago law is one of many enacted from New York to California that criminalizes otherwise routine or legal activities in an effort to stop gang violence before it starts. The laws are motivated in part by the “broken window” theory, which states that when seemingly minor disorderly behavior goes unchecked, it leads to greater violence and urban blight.


“No single act of panhandling, loitering or public drunkenness is especially worrisome, but a series of such acts carried on simultaneously by many people is felt by most citizens to be deeply threatening,” UCLA professor James Q. Wilson wrote years ago.


The Chicago law allowed police to tell anyone believed to be a gang member to stop loitering and move on. Anyone who did not obey could be arrested. Loitering was defined as remaining in one place “with no apparent purpose.”


The law was challenged as unconstitutionally vague, and as a violation of First Amendment rights of association and assembly. An Illinois appellate court and the state Supreme Court agreed.


“It is impermissibly vague on its face and an arbitrary restriction on personal liberties,” the state Supreme Court found in a ruling last October.


Among the 66 Chicago residents challenging the law were a man arrested on crutches on his way home from a hospital and two brothers eating sandwiches on a street corner.


“Very mundane activities are criminalized by this law,” says Eileen Pahl, a Chicago public defender representing the challengers.


Pahl says First Amendment issues figure prominently in the case.


“The law penalizes people for engaging in First Amendment activities,” Pahl says. “It is not a crime to be a gang member or associate with one, just as it is not a crime to be a member of the KKK or the Shriners.”


Pahl says she understands the effort to combat gang violence and improve urban life through quality-of-life measures. But she still feels it is inappropriate to criminalize “just being there.” Cities instead should couple loitering with some other offense before calling it a crime–such as loitering with intent to sell drugs. “You should have to do something to violate a criminal law,” Pahl says.


But communitarians and others who support anti-gang measures like Chicago’s say the laws should be upheld. “Individual rights are important, but community needs are important, too,” says Brian Stettin of the Center for the Community Interest. “Allowing gang members to exercise their full rights makes life hell for people in the area who are trying to raise a family.”


This emphasis on community interests as opposed to individual rights may well prompt the Supreme Court to reach a result in the Chicago case that is sharply different from its 1972 decision in Papachristou v. City of Jacksonville.


In that decision the court unanimously struck down a Jacksonville vagrancy ordinance. “The Jacksonville ordinance makes criminal activities which by modern standards are normally innocent,” the court said then, extolling the freedom of Americans to wander and even loiter for any reason or no reason.


“These unwritten amenities have been in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity,” Justice William O. Douglas wrote in Papachristou, invoking the writings of Walt Whitman, Vachel Lindsay and Henry Thoreau. “These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.”


More recently, in 1983, the court in Kolender v. Lawson struck down a California statute that required loiterers to identify themselves and account for their presence when requested by police. While giving greater weight to law enforcement concerns, the court still found the law was too vague and too prone to arbitrary and abusive enforcement.


The current court, which frequently rules in favor of law enforcement, may find it easier to uphold Chicago’s ordinance than the Florida and California laws in the past. The posture of the case the court agreed to consider, in which Chicago is seeking to save its law after lower courts have struck it down, also suggests the court may have greater sympathy for legislative efforts to combat gangs.


Following oral argument this fall, a decision in the case is unlikely before the spring of 1999.