Just Hangin' Around: Gangs and Due Process Vagueness in City of Chicago v. Morales - Jerritt Farrar

• Citation: Vol. 51 No. 3
• Publication year: 2000

Just Hangin' Around: Gangs and Due Process Vagueness in City of Chicago v. Morales

In City of Chicago v. Morales,¹ the Supreme Court revisited the issue of the constitutionality of municipal and state loitering laws. In this case the Court was presented with a Chicago municipal ordinance that prohibited individuals from loitering with known gang members.² The Court struck down the ordinance as overly vague under the Due Process Clause of the Fourteenth Amendment.³ It found that the law gave too much discretion to police officers charged with its enforcement and did not define its crucial terms specifically enough.⁴ The Court was closely divided, however, and both the concurring and dissenting Justices gave cities suggestions for altering their loitering ordinances to make them conform to constitutional requirements.⁵

I. Factual Background

In 1992 the Chicago City Council faced a major problem—gang violence was on the rise, and the police had stated they were unable to combat it under the existing city ordinances. The problem was that gang members simply loitered on corners and on sidewalks while the police were in view. Then they terrorized neighborhood residents and participated in drug deals when the police were out of sight. The city held hearings in which residents, police, and alderpersons could voice their concerns. These hearings led the council to pass the Gang Congregation Ordinance, better known as the "gang-loitering ordinance."⁶

The ordinance established a four-part criminal offense punishable with a $500 fine, imprisonment of 6 months or less, and a 120 hour community service requirement.⁷ First, a police officer must reasonably suspect at least one of a group of two or more individuals in a ' "public place' " to be a "'criminal street gang membe[r].' "⁸ Second, the officer must observe these individuals "loitering,' " which is defined as ' "remain[ing] in any one place with no apparent purpose.' "⁹ Third, the officer must order all the individuals to disperse ' "from the area.' "¹⁰ Finally, at least one person must refuse to comply with the officer's order of dispersal.¹¹ Whether the individuals who refuse to move along are gang members or not is irrelevant to their liability for prosecution under this statute.¹²

During the initial drafting of the ordinance, the Chicago Police Department successfully lobbied the City Council to purposefully leave the wording broad because the police wanted to develop in-house policies to govern the ordinance's enforcement and better meet their needs.¹³ Two months after the City Council adopted the ordinance, the police department set up guidelines for enforcing it by establishing General Order 92-4.¹⁴ The order limited who within the department had the power to arrest under the ordinance, set forth criteria for defining a street gang and what membership in a gang entailed, and outlined the particular high-crime areas of the city where the ordinance would be enforced.¹⁵

Morales was a consolidation of a number of different cases brought before Illinois trial courts. In each of these cases at least one individual was arrested for violating the Gang Congregation Ordinance. During the three years the ordinance was in effect, the police issued in excess of eighty-nine thousand orders for dispersal.¹⁶ These warnings culminated in forty-two thousand arrests. During this time two trial judges held the ordinance to be constitutional while eleven found that it was not.¹⁷

This consolidated appeal involved seventy different defendants charged under the Gang Congregation Ordinance.¹⁸ It included both cases in which the trial court ruled the ordinance was a valid exercise of the city's power and the cases in which it was judged to be invalid.¹⁹ The court of appeals found the ordinance to be invalid.²⁰ The court held that the ordinance violated the First Amendment of the United States Constitution and Article I, Section Five of the Illinois Constitution because it offended the freedoms of association, assembly, and expression.²¹ Likewise, the court held the ordinance was unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment.²² Finally, the court held the ordinance was unconstitutional because it punished a status crime and violated the Fourth Amendment by allowing an officer to arrest a suspect without probable cause.²³ The court sympathized with the city's efforts to eradicate gang violence, but stated that "our constitutional standards, fortunately, do not slide up and down a scale according to the gravity of the crime problem we wish to combat. If it were otherwise, the fundamental ideals on which this country is based would slowly deteriorate."²⁴

The City appealed to the Illinois Supreme Court, which affirmed the ruling of the court of appeals.²⁵ The Illinois Supreme Court found for defendants, but on a narrower ground than that of the court of appeals.²⁶ The court held that the ordinance was unconstitutional under the Due Process Clause because it was vague on its face and because it arbitrarily restricted personal liberties.²⁷ It found that the gang-loitering ordinance violated both the adequate notice and nondiscriminatory enforcement requirements of the Due Process Clause.²⁸ Thus, the court had no need to reach the other issues that the court of appeals examined.²⁹

The City again appealed the case, and the United States Supreme Court granted certiorari.³⁰ A divided Supreme Court affirmed the ruling of the lower courts.³¹ Six Justices agreed with the judgment, and three Justices filed concurring opinions.³² Three Justices dissented.³³

The majority found that the ordinance was unconstitutionally vague on its face because it failed "to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests."³⁴ In doing so the Court held that "the freedom to loiter for innocent purposes is part of the 'liberty' protected by the Due Process Clause of the Fourteenth Amendment."³⁵ However, the Court agreed with the City that the law did not infringe upon the First Amendment interests found by the Illinois Court of Appeals.³⁶ The majority did not comment on the Fourth Amendment and status arguments upon which the court of appeals relied.³⁷

II. Legal Background

Loitering laws predate the founding of America. In fact, laws that deal with criminalizing vagrancy and loitering trace their roots to the breakup of feudalism and to the Black Plague in England over five hundred years ago.³⁸ Initially, vagrancy laws had the economic rationale of establishing a fixed wage by preventing laborers from traveling to neighboring communities where labor was more scarce and wages were higher.³⁹ As time passed, increasingly large numbers of people became poor and unemployed and filled English roads to steal from those who traveled along them.⁴⁰ Loitering laws then became a force for crime prevention.⁴¹ As America became populated by people from England and other parts of Europe, these loitering laws were adopted with a focus on criminal punishment.⁴²

This focus on crime prevention remains the most common reason for passing loitering laws today.⁴³ They are used for a variety of reasons, from stopping drug dealers and prostitutes from frequenting an area, to preventing the obstruction of public passageways, to allowing the police to "control persons who, although not traditionally considered criminals, were nonetheless considered undesirable."⁴⁴

Throughout the twentieth century, the Supreme Court has been asked on numerous occasions to review cases in which a defendant was convicted under a loitering ordinance. Over the years the Court has continuously narrowed what and whom a city or state is allowed to punish under this type of regulation. The following cases are not an exhaustive list of the loitering cases reviewed by the Supreme Court, but they are the most representative of the Court's outlook towards due process vagueness in loitering laws. Vagueness may invalidate a criminal law in one of the two following ways: (1) if the law fails to provide sufficient notice for an ordinary person of reasonable intelligence to comply, or (2) if the law encourages "discriminatory enforcement" by police and prosecution.⁴⁵

The first time the Supreme Court directly addressed a loitering ordinance was in Thornhill v. Alabama.*⁴⁶ Thornhill involved an Alabama statute that prohibited loitering of those who were picketing or protesting in conjunction with union activities.⁴⁷ The majority reversed defendant's conviction on the ground that the statute swept too broadly and prohibited otherwise lawful conduct that would be protected by the First Amendment.⁴⁸ The Court also believed that the statute violated due process by granting the police too much discretion and "readily len[t] itself to harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure."⁴⁹

In 1965 the Court once again visited the area of loitering law. In Shuttlesworth v. City of Birmingham,⁵⁰ the Court found there was no evidence to support defendant's conviction under a Birmingham loitering ordinance.⁵¹ In dicta the Court stated that a literal reading of the second part of the ordinance meant that "a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city."⁵² This type of law, the Court believed, "bears the hallmark of a police state."⁵³ Merely refusing to comply with an officer's request to disperse would not be sufficient to arrest someone for the offense of loitering.⁵⁴

In 1972 the Supreme Court handed down a ruling that set forth the seminal rule in judging all loitering cases. In Papachristou v. City of Jacksonville,⁵⁵ the Court reversed the conviction of eight defendants under a Jacksonville, Florida vagrancy statute, finding the ordinance to be void for vagueness under the Due Process Clause.⁵⁶ The Court relied upon...