Quality-of-life advocacy group weighs in on Chicago’s gang ordinance

Wednesday, July 1, 1998

A Washington, D.C.-based advocacy group for public safety and urban quality-of-life issues recently filed a friend-of-the-court brief supporting Chicago's controversial gang-loitering ordinance in a case currently pending before the Supreme Court.

Roger Conner, executive director of the Center for the Community Interest, said: “What this is, is a community-policing ordinance. It's the kind that ordinance that encourages community policing, and it's that very flexibility that's being challenged on constitutional grounds.

“This is just another version of the clash between [American Civil Liberties Union] dogma and a community's need for basic safety,” Conner said. “The ACLU and others say that criminal gang members and their friends have constitutional right to hang out together in a public place as long as they do not commit crimes, but their presence intimidates the community. Without this kind of ordinance, the community is effectively powerless to make their public spaces safe and civil.”

The city of Chicago adopted the law in 1992 in response to increased street crime. It authorizes police to arrest anyone believed to be “a criminal street-gang member loitering in any public place with one or more other persons.”

Quality-of-life activists and others support the ordinance, but some residents and civil liberty advocates say the measure infringes on First Amendment free-speech, assembly and associational rights.

The city arrested more than 43,000 people under its Gang Congregation Ordinance until an appeals court struck it down on First Amendment grounds in 1995.

The ruling was a victory for 66 Chicago residents who had challenged the law's constitutionality, including Jesus Morales, who was arrested while on crutches on his way home from a hospital. An officer suspected that he was affiliated with a gang because of his bright blue clothing.

The Illinois Supreme Court found Chicago's law unconstitutional last October.

Justice John L. Nickels, who wrote the high court ruling, called the ordinance's language too broad, unreasonable, discriminatory and a violation of free assembly.

“Persons suspected of being in criminal street gangs are deprived of the personal liberty of being able to freely walk the streets and associate with friends, regardless of whether they are actually gang members or have committed any crime,” Nickels wrote.

“Such laws, arbitrarily aimed at persons based merely on the suspicion that they may commit some future crime, are arbitrary and likely to be enforced in a discriminatory manner.”

In April, the U.S. Supreme Court agreed to hear Chicago v. Jesus Morales.

“I was surprised that [the Supreme Court] decided to hear it. I didn't think they were ready to take this up,” Conner said. “We can't predict the outcome, but I think it will be closely divided in court.”

William Spain, public information director for the American Civil Liberties Union of Illinois said that based on previous court rulings—including the unanimous decision by the state Supreme Court—he remains hopeful that the U.S. Supreme Court “will do the right thing.”

“All of the courts that we've beat them in so far have said that there are already plenty of laws in the books that can be used to combat gang violence,” Spain said. “We certainly hope that our streak continues.”

This marks the fifth time in the last 50 years in which the ACLU of Illinois goes against the city of Chicago before the U.S. Supreme Court. All of the cases have involved First Amendment issues such as political speech, assembly rights, labor picketing and film censorship.

“We welcome the chance to set a national precedent against these vague and unconstitutional laws,” Spain said.

The gang-loitering law is “an unnecessary and unconstitutional gimmick,” Spain said.

“The city has exaggerated the level of community support that it enjoys. This is a battle against arbitrary police power.”

Oral arguments are likely to be heard this fall.