Chicago Gang Loitering Ordinance Case
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<!-- field: HtmlTitle -->Chicago Gang Loitering Ordinance Case
Court Cases;

OLR Research Report OLR Research Report

July 14, 1999



By: Christopher Reinhart, Research Attorney

You asked for a summary of Chicago v. Morales, 67 U. S. L. W. 4415 (June 10, 1999).


On June 10, 1999, the U. S. Supreme Court, in a split decision, struck down a Chicago ordinance designed to prevent loitering by gang members. Justice Stevens, writing for the majority in Chicago v. Morales, 67 U. S. L. W. 4415 (June 10, 1999), declared the ordinance unconstitutionally vague because of its broad sweep and the vast discretion it gave to police. Justices Souter and Ginsburg joined Justice Stevens in a plurality opinion stating that vagueness pervaded the ordinance and it gave too little notice to citizens and too much discretion to police. Justices O'Connor, Kennedy, and Breyer wrote separate opinions supporting the Court's conclusion. Justices Scalia and Thomas wrote separately in dissent.

The Chicago City Council adopted the Gang Congregation Ordinance in 1992. Under the law, (1) a police officer must reasonably believe that at least one person in a group present in a public place is a criminal street gang member, (2) the person must be loitering by remaining in one place with no apparent purpose, and (3) the officer must order the group to disperse and leave the area. Anyone who disobeys the order is subject to a fine of $ 100 to $ 500, up to six months in prison, up to 120 hours of community service, or all three. It is a defense that no person in the group was actually a gang member.

In addition, the police department adopted an order providing guidelines for enforcement and limiting the discretion of officers. The order (1) gave arrest authority only to designated officers, (2) set criteria for defining street gangs and their membership, and (3) designated enforcement areas.

We have attached a copy of the case.


Justice Stevens wrote the opinion of the Court, supported by Justices O'Connor, Kennedy, Souter, Ginsburg, and Breyer. They reasoned as follows.

1. The ordinance is unconstitutionally vague. Its broad sweep violates the requirement that a legislature establish minimal guidelines to govern law enforcement.

2. The ordinance addresses any public place in Chicago and allows any person in the company of a gang member to be ordered to disperse unless his purpose is apparent. The police do not inquire about someone's purpose before ordering a group to disperse. The ordinance reaches a substantial amount of innocent conduct.

3. The police have vast discretion because loitering is defined as "remain[ing] in any one place with no apparent purpose. " The Illinois Supreme Court interpreted this as giving the police absolute discretion to determine what activities are loitering. This Court cannot construe a state statute more narrowly than the state's highest court.

4. The fact that the police must order a group to disperse before making an arrest does not address the fact that an officer's decision about when a person lacks an apparent purpose is inherently subjective.

5. The ordinance does not require a harmful purpose. The limitation that an officer must reasonably believe that a group contains a gang member is not sufficient. The ordinance applies to anyone who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them. It includes harmless conduct and also excludes much of the intimidating conduct that motivated its enactment. The most harmful gang loitering is motivated either by an apparent purpose to publicize the gang's dominance or to conceal illegal drug transactions.

6. The police department did not sufficiently limit this vast discretion in its order. The order defining areas of enforcement does not give a loiterer a defense if he is arrested elsewhere. In addition, the enforcement areas were not revealed to the public. A person knowingly loitering with a gang member could not assume himself safe anywhere in the city no matter how innocent and harmless their loitering might be.


Justices Souter and Ginsburg joined in the remainder of Justice Stevens' opinion. They reasoned as follows.

1. An ordinance would be constitutional if it directly prohibited intimidating conduct by gangs, the problem Chicago sought to address with the ordinance. But this ordinance covers a significant amount of additional activity.

2. A person can attack an imprecise law on its face if it (a) inhibits First Amendment rights and is overly broad because its impermissible applications are substantial in relation to its plainly legitimate sweep or (b) is vague because it fails to establish standards for the police and public to sufficiently prevent an arbitrary deprivation of liberty.

3. The ordinance is not invalid because of the First Amendment. It does not prohibit speech or conduct intended to convey a message and its impact on the social contact of gang members does not impair any recognized right of association.

4. The freedom to loiter for innocent purposes is part of the liberty protected by the due process clause of the Fourteenth Amendment. The right to move from one place to another according to inclination is an attribute of personal liberty protected by the constitution.

5. Whether the impact on the protected liberty alone is enough for a facial challenge is not important because the ordinance's vagueness makes a challenge appropriate. This ordinance is a criminal law without a requirement of wrongful intent and it infringes on constitutionally protected rights.

6. Vagueness invalidates a criminal law that (a) fails to notify ordinary people of prohibited conduct or (b) authorizes and encourages arbitrary and discriminatory enforcement.

7. The ordinance is vague because it is unclear what loitering is covered and what is not. The Illinois Supreme Court's decision followed precedents in state courts upholding laws that criminalize loitering combined with another act or evidence of criminal intent. State courts uniformly invalidate laws that do not join loitering with a second specific element of the crime.

8. The ordinance lacks sufficiently specific limits on police discretion to meet constitutional standards for definiteness and clarity. It affords too much discretion to police and too little notice to citizens.

9. It is difficult to imagine how a person standing in public with a group of people would know if his purpose was apparent to an observer. Loitering has a commonly known meaning but the ordinance's definition does not make it clear what loitering is covered and what is not.

10. Fair notice enables citizens to conform their conduct to the law. Although a person is not subject to arrest until he disobeys a dispersal order, loitering is the conduct the ordinance is designed to prohibit. If the loitering is harmless, the dispersal order is an unjustified impairment of liberty. Because an officer may issue an order only after prohibited conduct has occurred, the order cannot provide advance notice to protect the loiterer from being ordered to disperse. It cannot give adequate warning of the difference between permissible and impermissible applications of the law.

11. The ordinance is also vague because the dispersal order tells a person to disperse and move from the area without defining how long a person must stay away or how far he must move. This adds to the conclusion that the ordinance fails to give adequate notice of forbidden conduct. The ordinance is vague because no standard of conduct is specified at all.


Justice Breyer joined Justice O'Connor's opinion declaring the ordinance unconstitutional. They reasoned as follows.

1. The ordinance is unconstitutionally vague. The legislature must establish minimum guidelines for law enforcement. Gang violence is an important issue and the police need some discretion to perform their duties but a criminal law cannot permit police, prosecutors, and juries to conduct a standardless sweep.

2. The Illinois Supreme Court's construction of the ordinance binds the Court. As construed, it is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforcement. There is no standard for when a person has an apparent purpose and officers can choose what is permissible. Although there is no violation until a person disobeys a dispersal order, an officer cannot issue an order until he decides that a person has no apparent purpose and there is no guidance on how to make this decision.

3. If the ordinance applied only to people reasonably believed to be gang members, it might be valid because it specifies to whom the order may issue.

4. The gang loitering ordinance could have been interpreted narrowly to limit its application to someone remaining without an apparent purpose other than to establish control over an area, to intimidate others, or to conceal illegal activities. This interpretation is consistent with the city council's findings but the Illinois Supreme Court did not limit the ordinance. It also could be limited to only gang members or non-gang members under certain circumstances.

5. The Illinois Supreme Court misapplied this Court's precedents to the extent it read them as requiring the invalidation of the ordinance in all its applications. This Court never held that the intent of the drafters determines whether a law is vague.


1. The ordinance raises concerns about sufficiency of notice. As interpreted by the Illinois Supreme Court, it reaches a broad range of innocent conduct. It is not necessarily saved by the fact that a person does not violate it until he disobeys a police order.

2. Some police commands subject a person to prosecution for disobeying whether or not the person knows why the order is given. This happens when police clear an area for a rescue team or to protect a crime scene.

3. But not every order must be obeyed without notice of the lawfulness of the order. The basis for these dispersal orders is not sufficient to eliminate doubts about the adequacy of notice. A person engaged in innocent conduct is not likely to know when he is subject to a dispersal order under this ordinance because it is based on an officer's knowledge of the people in a group. He also may not know what an officer thinks is a lack of an apparent purpose.


1. Although the ordinance is limited to situations when the police reasonably believe that at least one person is a gang member, many individuals are subject to its prohibitions.

2. The use of the phrase "no apparent purpose" is an open-ended delegation of discretion to the police. It gives them virtually standardless discretion to close off parts of the city to innocent people.

3. It is not a violation of the Court's rules on facial challenges to prohibit the city from applying this ordinance. There is no way to distinguish the ordinance's terms between one application of discretion and another. It is unconstitutional because the police have too much discretion in every case.

4. This case is similar to Coates v. Cincinnati, 402 U. S. 611 (1971) where an ordinance prohibited people from assembling on a sidewalk and conducting themselves in a manner annoying to people passing by. The Court declared it unconstitutionally vague because a violation of the ordinance depended entirely on whether a police officer was annoyed.

5. A different ordinance or this one interpreted differently by the Illinois Supreme Court could be constitutional. But this ordinance cannot constitutionally apply to anyone.


1. Police are authorized to order crowds to disperse at accident scenes and penalties are imposed for refusing to do so. This infringes on freedoms in a manner similar to this ordinance. Under this ordinance, loitering is not unlawful but police are authorized to give a dispersal order under specified circumstances and it is unlawful to disobey. It restricts some freedoms because the city is afflicted with criminal street gangs. The citizens of Chicago considered it worthwhile to restrict some freedom to eliminate the problem.

2. The majority invalidates this reasonable measure by ignoring this Court's rules on facial challenges, elevating loitering to a constitutionally guaranteed right, and finding vagueness where it does not exist under the usual standards.

3. A successful facial challenge invalidates a law in all its applications and not just its particular application to the party in the case. It is highly questionable whether federal courts should make such a declaration. The basis for the Court's power is Marbury v. Madison. The rationale of that case is that the Court must review the legislation to decide whether it can constitutionally apply to that particular party in the circumstances of the case. The Court should not go on to pronounce the statute unconstitutional in all its applications. Such a declaration seems like an advisory opinion which a federal court should never issue, especially when a constitutional issue is involved. But the Court has done this for some of this century.

4. Until recently, a facial challenge (except in certain free speech cases) required a challenger to establish that an act cannot be valid under any circumstances. The Court, without explanation, creates irrational exceptions to this rule in some cases involving "hot-button social issues on which informed opinion was zealously united. " This case does not fit that pattern.

5. The majority reverses the normal criteria for a facial challenge and requires the ordinance to be shown valid in all its applications. It is doubtful that the ordinance is invalid as applied to many of the individuals in this case and it is much more doubtful that it is invalid in all its applications.

6. The plurality seems to base its departure from the usual rules on the fact that the ordinance is a criminal law, which does not require individuals to have a wrongful intent and infringes on constitutionally protected rights. It states that a facial attack is appropriate if vagueness permeates such a law. There is no such formula in the Court's decisions and the plurality made it up for this case. In addition, none of these factors exist.

7. The fundamental freedom to loiter does not exist. It was not an essential attribute of liberty when the Constitution or Fourteenth Amendment was adopted. The practice of using the due process clause to add judicially favored rights to the limitations on democracy in the Bill of Rights is judicial encroachment. The Court recently tried to limit this practice by using objective criteria.

8. In this case, the Court never gathers support for why loitering is a constitutional right and it places the burden on the defendant to prove that it is not a fundamental liberty.

9. The concurring opinions do not attach their ruling on vagueness to a liberty interest. Justices O'Connor and Breyer require more precision in the standards for police issuing dispersal orders. But modern urban society cannot function under such a rule. There are numerous unpredictable reasons why police might need to order people to move on.

10. The majority believes that loitering is part of the offense that must be proven. But loitering is what the police must observe before issuing an order to disperse. It is not defined as what the defendant is actually doing but what he appears to be doing. The only punishable act in the ordinance is failing to obey an order. Willful failure to obey is wrongful intent.

11. The ordinance is not vague. The Court hides behind the interpretation of the Illinois Supreme Court and judicial restraint. But the part of that court's opinion that the majority relies on is not a construction of the ordinance's language but a legal conclusion that does not bind this Court.

12. The criteria for issuing an order is clear and the police policy requires probable cause. Remaining in one place with no apparent purpose may have some ambiguity but it is not difficult for the police to perceive.

13. The fact that the ordinance includes harmless behavior would invalidate it if that behavior were constitutionally protected. But this conduct is not protected. Police discretion and the possibility of abuse with this ordinance is no different than with other criminal laws.

14. The ordinance is entirely clear in its application. It cannot be violated without full knowledge and intent and it vests no more discretion in police than other measures allowing them to preserve public peace and safety. The majority's real problem is that it permits too much harmless conduct by innocent citizens to be prohibited.

15. Deciding how much harmless conduct is prohibited is not a role for the courts. As long as constitutional rights are not affected and there is a rational basis, all sorts of harmless activity can be forbidden. The citizens of Chicago can decide whether the risk of harm justifies abridging their freedom. This Court has no business addressing the degree, necessity, or fairness of the trade-off.


Justice Scalia and Chief Justice Rehnquist joined Justice Thomas' dissent. They reasoned as follows.

1. Gangs fill the daily lives of many of the poorest and most vulnerable citizens with a terror that the Court does not give sufficient consideration.

2. This ordinance does nothing more than confirm the well-established principle that police have the duty and power to maintain the public peace and to disperse individuals who threaten it when necessary.

3. This Court previously ruled that our nation's history, legal traditions, and practices are guideposts for decisions under the due process clause. The plurality asserts that the freedom to loiter for innocent purposes is part of the liberty protected by the due process clause. But anti-loitering ordinances have long existed in this country.

4. Laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law. The American colonists adopted vagrancy laws and state and local governments customarily criminalize loitering and vagrancy. These laws were in effect at the time the nation adopted the constitution and the Fourteenth Amendment and long after.

5. The plurality only cites one case that provides some support for this fundamental right (Papachristou v. Jacksonville, 405 U. S. 156 (1972)). That case did not use the now accepted analysis for due process and did not consider tradition when defining protected rights.

6. This ordinance does not criminalize loitering but punishes loiterers who fail to obey a police officer's order. It does not give police too much discretion but enables officers to fulfill a traditional function. Police are generally given responsibility for preserving the public peace. They have long had the authority and duty to order groups who threaten the public peace to disperse. It is a commonplace and crucial part of police operations, especially in urban areas.

7. In many jurisdictions, the police are peace officers. The law assumes they will exercise discretion responsibly and it cannot rigidly constrain every action. This ordinance strikes an appropriate balance between two extremes. The law trusts officers to rely on their experience and expertise to make spur-of-the-moment decisions about legal standards like probable cause. Determining whether a group of loiterers contains individuals that the city has determined threaten public peace is a similar decision.

8. A police officer can make a mistake or an officer might enforce the ordinance in an arbitrary or discriminatory way but a ruling should not turn on the possibility that such events will not be rare. These problems are best addressed when and if they arise.

9. The dispersal order is not vague. The majority of people ordered to disperse by police will have little difficulty knowing how to comply.

10. To invalidate a law because of insufficient notice, the challenger must prove that the statute is vague in all its applications. But people of ordinary intelligence maintain a common and ordinary meaning of the term loiter.

11. The ordinance does not prohibit constitutionally protected conduct. It is also inappropriate to characterize loitering as innocent when it has been disfavored throughout American history. Loitering has long been used to describe criminal conduct and there is less need to subject it to a stringent vagueness test because there is no risk of a trap for the unwary. We expect people of ordinary intelligence to grasp the meaning of such terms even though they might be imprecise.

12. The claim that the phrase "no apparent purpose" provides insufficient notice is also inappropriate. Persons of ordinary intelligence know how others perceive their conduct. The ability to imagine circumstances in which someone would not know how their actions appear to others is irrelevant. Because this is a facial challenge, the Court must decide if the ordinance is vague in all its applications.

CR: lc

   GENERATOR: HTML Transit 8.0.1 by Avantstar, Inc.
Description: Chicago Gang Loitering Ordinance Case
Subject: 99-R-0732
Author: Christopher Reinhart
Category: Judiciary
Location: JUVENILES;
Scope: Court Cases;
Number: 732
Filename:   D:\virtual\data\ps99\rpt\htm\99-R-0732.htm