High court questions police discretion under anti-loitering law

Wednesday, December 9, 1998

The Supreme Court appeared troubled today by the amount of discretion a Chicago anti-loitering ordinance gives to police to arrest people who have committed no crime.

The ordinance, struck down by the Illinois Supreme Court last year, allows police to tell groups of loiterers that include gang members to disperse. If they don’t disperse, they can be arrested. Loitering is defined as remaining in one place without an “apparent purpose.” The law was vigorously defended as an effective way to stop gang violence before it starts.

But a majority of justices expressed doubt that the court’s own precedents would allow the ordinance to stand. The court has struck down several loitering ordinances citing vagueness, meaning that the laws are not clear enough to give individuals fair warning of how to avoid violating them, and lead to arbitrary enforcement. That appeared to be a major concern for the justices again today in the case of Chicago v. Jesus Morales. “There is a concern here about the arbitrariness of police,” said Justice Sandra Day O’Connor.

Noting that the law could lead to the arrest of non-gang members who are conversing with gang members, Justice Anthony Kennedy asked, “How does a non-gang member know” what is required.

“There is usually an apparent purpose for most of what is called loitering,” said Justice David Souter, who noted that many people “like to watch cars go by.” Souter seemed to be saying that the ordinance’s definition would give police wide discretion to determine which purposes for loitering were “worthy” and which were not.

These concerns appear surprising, coming from justices who are ordinarily comfortable with giving police discretion. Only Chief Justice William Rehnquist and Justice Antonin Scalia, both strong conservatives, appeared to sympathize with Chicago’s ordinance. “Gangs perpetuate themselves by showing off,” said Scalia. “That’s how gang violence occurs. Don’t they (Chicago) have the right to stop that activity?”

Chicago lawyer Lawrence Rosenthal, who defended the ordinance, insisted it was not vague. Loitering alone would not violate the law, he said, but refusing to obey a clear order to disperse would be the violation.

“When people are told to move on, they are given notice,” Rosenthal said. He added that being told to move on is a “minor inconvenience.” But most justices did not appear to accept that distinction, raising objections to the discretion the law gives police to target individuals in the first place.

Justice Stephen Breyer suggested the law swept so broadly that it could virtually make a criminal out of anyone who stood on a Chicago street where a gang member also was standing.

The First Amendment arguments that have been made against the ordinance did not figure prominently in the oral argument. Harvey Grossman, the ACLU lawyer who argued against the ordinance, did assert that the broad arrest power granted by the ordinance could restrict “all kinds of communication and protected activities” between gang members and others who might be having legitimate discussions about a variety of subjects.

When Scalia asked Grossman, “Is this case a First Amendment case?,” Grossman indicated the ordinance gave the city too much discretion to regulate unpopular expression. Scalia dismissed the argument, saying, “Any law affects the First Amendment.” As an example, he said, an anti-smoking ordinance might prevent a smoker from having a First Amendment-protected discussion in a bar with the bartender.

The comment by Scalia, who is a smoker, drew laughter, but it ended the discussion about First Amendment issues.

A decision in the case could come anytime before the court term ends next summer.