Chicago v. Morales, Jesus, et. al. (06/10/1999)

By: Sara Burnett, Medill News Service

Questions presented

May a local government enact an anti-loitering ordinance that targets gang members?

Brief

In 1993 Jesus Morales was arrested for loitering in a Chicago neighborhood after he and six other men ignored police orders to disperse. He was charged under an anti-loitering ordinance passed by the city council in 1992 to deter criminal street gang activity. The police officer who arrested Morales testified that he determined Morales was a gang member because he was wearing black and blue clothing — the colors of the Gangster Disciples street gang. Morales was found guilty and sentenced to one day in the Cook County jail.

The Chicago city council passed the anti-loitering ordinance in response to a growing gang problem and complaints from residents and police, who said gang members congregated as a part of their strategy to claim territory, recruit new members and intimidate rival gangs and community members.

The law allowed police to break up any gathering of people loitering in public if the police believed any of them was a gang member, and arrest violators. Any person convicted of violating the ordinance could be sentenced to up to six months in prison, ordered to do up to 120 hours of community service, and fined up to $500. Loitering was defined in the ordinance as ""to remain in one place with no apparent purpose.""

Morales was one of the 43,000 people charged with violating the ordinance during the three years it was in effect, from 1992 to 1995.

With help from the American Civil Liberties Union, the county's public defender's office and private defense attorneys, Morales and numerous other people convicted under the law challenged the ordinance in Cook County Circuit Court. In most cases, the court found the law unconstitutionally vague and dismissed the charges.

The city appealed to the Illinois appellate court, which in 1995 upheld the lower court's decision, stating that the ordinance ""smacked of a police state."" In October 1997, the Illinois Supreme Court unanimously affirmed.

The court reasoned that the law was unconstitutionally vague, that it violated the public's right to assembly under the First Amendment, and that it gave police too much power to ""arbitrarily"" arrest someone.

""Such laws, aimed at persons based merely on the suspicion that they may commit some future crimeare arbitrary and likely to be enforced in a discriminatory manner,"" the court reasoned.

The city called the ordinance ""the antithesis of vague"" because police can only arrest a person after that person has been warned.

The ordinance restores to police the power to tell people to move along, stopping crime before it starts, an attorney for the city said. The number of gang-related murders in Chicago fell 26 percent in 1995, the last year the ordinance was in effect, while the overall murder rate fell 9 percent, he said. In the first year the law was not in effect, he added, the gang-related homicide rate rose 11 percent.

""Criminal street gangs are menacing and destructive regardless of whether their members are, at a particular moment, violating other laws,"" the city argued in its brief.

Thirteen states and the United States Conference of Mayors have filed briefs in support of the city, whose petition for certiorari to the U.S. Supreme Court was granted on April 20, 1998.

On June 10, 1999, the Court held that the Chicago ordinance was unconstitutionally vague in that it encompassed harmless behavior and gave law enforcement officials too much discretion to decide what activities constitute loitering.

In a 6-3 decision, Justice John Paul Stevens wrote for the majority that the ordinance's definition of loitering as ""to remain in any one place with no apparent purpose"" does not give people adequate notice of what is prohibited and what is permitted, even if a person does not violate the law until he refuses to disperse. ""If the loitering is in fact harmless andinnocent, the dispersal order itself is an unjustified impairment of liberty,"" even if it might reduce crime, wrote Justice Stevens said in the court's main opinion.

The case spawned six opinions and animated disagreement within the Court.

`It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark,"" wrote Justice Stevens who hails from Chicago.

Justices Sandra Day O'Connor, Anthony Kennedy and Stephen Breyer wrote separately to explain their views.

In dissent, Justice Clarence Thomas wrote that he feared the court 'has unnecessarily sentenced law-abiding citizens to lives of terror and misery.

""The people who suffer from our lofty pronouncements are people...who have seen their neighborhoods literally destroyed by gangs and violence and drugs,"" he continued. ""They are good, decent people who must struggle to overcome their desperate situation, against all odds, in order to raise their families, earn a living and remain good citizens.""

In his dissenting opinion Justice Antonin Scalia resorted to West Side Story to get his point across. Anticipating a scene in which Officer Krupke arrests one of the gang members for brusquely failing to obey his order to disperse, Justice Scalia wrote, ""I find it hard to believe that theJets would not have known they had it coming.""