First Amendment freedoms, anti-gang efforts to face off before high court

Tuesday, December 8, 1998

The Supreme Court hears debate tomorrow over the constitutionality of a Chicago anti-gang ordinance that has been challenged on First Amendment grounds.

The ordinance, which was used to arrest 45,000 people in Chicago while it was in effect, allows police to tell loitering gang members and others to move on and arrest them if they don’t. It has been touted as an innovative policing technique that allows law enforcement officials to control low-level disorder before it becomes violent crime. But it has also been attacked as a measure that criminalizes ordinary behavior and seriously restricts personal freedom.

“Laws that interfere with citizens’ peaceful enjoyment of public streets, sidewalks and parks directly implicate all of the closely allied First Amendment rights of speech, assembly and association,” says a brief for Chicagoans challenging the law.

The outcome of the case could determine the fate of a whole range of community policing techniques that have been developed in recent years to combat urban gangs and crime. Under the so-called “broken windows” theory in vogue in many cities, attacking signs of disorder such as loitering, aggressive panhandling, graffiti and minor property damage, helps to sustain a community and prevent more violent crime.

“This is not just a case about giving police more discretion,” says Jeffrey Sutton, who wrote a brief supporting the Chicago law on behalf of Ohio and 30 other states. “The public square is being dominated by these gangs. A lot of other state laws will be implicated by this case.”

The case, Chicago v. Jesus Morales, will also be an important barometer for the current Supreme Court’s views on individual liberties. In a decades-old line of cases, the court struck down several anti-loitering ordinances as infringements on the uniquely American right to be in public for any reason or no reason. The anti-loitering ordinances were also attacked as a tool for white-dominated police departments to control and regulate the movement of minority residents. In the 1972 case Papachristou v. City of Jacksonville, the court said an anti-loitering ordinance set “a trap for innocent acts.”

But the current court is considerably more conservative and may view the Chicago ordinance differently. It is much more likely to take into account the interests of the community and of crime victims, says University of Chicago law professor Dan Kahan, in weighing whether the law imposes undue burden on personal liberties.

Kahan, who wrote a brief for Chicago neighborhood organizations supporting the ordinance, also points out the city’s ordinance plays a far different role in the lives of minorities than did the anti-loitering ordinances of years ago. Then, minorities were the targets of the ordinances and the laws were unpopular in minority communities. Now, though some in Chicago dispute this, minority groups have been supportive of the ordinances as a way of combating gangs. That shift, says Kahan, will have a “significant impact” on how the court views the laws.

But Harvey Grossman, the ACLU lawyer who will argue against the ordinance in court, disagrees. He says minorities in Chicago are not uniformly in favor of the ordinance, and even if they were, that would not be sufficient justification for it. Grossman will likely focus his arguments on classic objections to such ordinances: that they are vague and overly broad. In other words, the ordinance does not fairly warn Chicago residents which activities will violate the ordinance and which will not.

“The major vice of loitering laws is the arbitrary enforcement,” says Grossman. He calls Chicago’s ordinance a “street-sweeping” law that bears resemblance to many of the objectionable ordinances the court struck down years ago.

“Even if you put a city attorney behind every cop on the streets of Chicago, you would still get enormous disagreement about which people should be arrested,” says Grossman. He says that while the ordinance was in effect from 1992 until the Supreme Court of Illinois struck it down in 1997, there were numerous examples of non-gang members being arrested, then freed.

Defenders of the ordinance say there are adequate safeguards against arbitrary enforcement. In addition, some say, more discretion is an important component of community policing.

“It is hardly arbitrary or unreasonable for a community to regulate an activity — even when the activity is engaged in by entirely innocent people — when that activity frequently leads to harmful consequences for others,” says Roger Conner of the Center for the Community Interest, which supports the Chicago law. “Not allowing the police to do this means the gangs will win and the communities will lose.”

Following tomorrow’s arguments, the court could issue an opinion anytime before the court term ends next June or July.

Tony Mauro covers the Supreme Court for USA TODAY and is a legal correspondent for the First Amendment Center.