Community, civil liberties activists debate Chicago’s anti-gang law

Wednesday, September 16, 1998

ARLINGTON, Va. – When the First Amendment clashes with a community’s ability to combat gangs and improve the safety and quality of life for neighborhood residents, whose rights take precedence?

Louis Bograd of the American Civil Liberties Union and Roger Conner of the Center for the Community Interest debated that question this week at a seminar in the Paul Miller Washington Reporting Fellowships program, giving reporters a preview of a case that will be decided by the U.S. Supreme Court this term.

The case, Chicago v. Morales, stems from a tough anti-gang ordinance passed by the Chicago City Council after appeals from neighborhood residents terrorized by violent gangs. The ordinance says that if police observe an individual believed to be a member of a criminal street gang loitering in a public place with one or more other persons, they can order the individuals to disperse. Failure to move on can result in arrest.

The ordinance was adopted in 1992 and was used for three years period to arrest more than 40,000 individuals in Chicago before it was challenged. So far, every court that has heard the case has struck down the ordinance as unconstitutional on a variety of grounds, including infringement of the First Amendment guarantees of freedom of assembly, association and free expression. The Supreme Court has agreed to hear the case during the term that begins Oct. 5, with oral arguments expected late this year or early next year.

Although no other communities have a similar ordinance, some have imposed curfews on youth or enacted other restrictions on activities such as loitering, prostitution and panhandling. Conner and Bograd agreed that the high court ruling could have broad implications for those ordinances.

For Conner, the issue is simply the survival of inner-city neighborhoods.

“There is an enormous struggle going on in America right now over what America is going to look like in 25 to 50 years,” he said. “The struggle (is) for civility in central business districts and safety in the neighborhoods surrounding. Order, civility and safety are in an active struggle with predatory forces.”

Conner’s group thinks the police need to be given more authority to go after the purveyors of serious crime, but Bograd of the ACLU said the answer is a greater police presence and the enforcement of existing statutes rather than “creating a statute to criminalize otherwise defensible behavior.”

“The fact that there is a problem doesn’t make every response constitutional,” Bograd said. “I don’t accept the premise that we need to criminalize innocent behavior to deal with this situation.”

He said the Chicago ordinance is “unconstitutional in so many ways.” In addition to violating First Amendment guarantees of assembly, association and free expression, Bograd said the statute also infringes on the “fundamental liberty of freedom of movement.” Also, he said, it is overly broad and vague, it encourages arbitrary police enforcement and it allows the government to make arrests without probable cause.

Conner said his group thinks the Chicago anti-gang ordinance should not have been ruled unconstitutional on its face but that the case should have been decided on whether it was being improperly applied. He conceded that some police departments could misuse the ordinance and “do more harm than good” but argued that those instances should be challenged on a case-by-case basis rather than by taking the tool away from all communities.

Conner dismissed the ACLU position as the vision of a group that is “stuck in the ’60s in the South” where police power must always be restrained lest it be used against poor people and minorities.

“If you live in one of these neighborhoods, the greatest threat to your life is not the misuse of public power but the misuse of private power,” Conner said. “What the ACLU is saying to people in (those) neighborhoods is a four-letter word, ‘M-O-V-E’.”

Bograd said the ACLU’s objections to the statute are not because of problems with police behavior in the 1960s.

“If you’re not engaging in any form of criminal behavior, what gives the police the right to tell you to go and arrest (then) you if you don’t comply?” Bograd said. “One of the reasons we are concerned about governmental abuse is because it wasn’t just in the ’60s that we had arbitrary and unlawful police behavior. The fact is that statutes like this encourage the police to target certain groups” based on stereotypes.

Asked by moderator Tony Mauro of USA TODAY whether there was anything the police or government could do to deal with gang members who are destroying the quality of life in inner-city neighborhoods, Bograd replied, “They can enforce littering ordinances; they can enforce graffiti ordinances; they can increase police presence in a neighborhood where they are watching for activities of criminality. Those are all appropriate responses.”