A Plurality of the Supreme Court Asserts a Due Process Right to Do Absolutely Nothing in City of Chicago v. Morales

• Publication year: 2022

33 Creighton L. Rev. 579. A PLURALITY OF THE SUPREME COURT ASSERTS A DUE PROCESS RIGHT TO DO ABSOLUTELY NOTHING IN CITY OF CHICAGO V. MORALES

Creighton Law Review

Vol. 33

INTRODUCTION

Anti-loitering statutes have long been a part of the United States' criminal legal system.(fn1) However, in the past 30 years, such laws have come under attack in the United States Supreme Court.(fn2) These anti-loitering laws have most commonly been challenged under the doctrine of vagueness, which falls under the purview of the Due Process Clause of the United States Constitution.(fn3) The current two-pronged test for vagueness ("Kolender test"), used by the Supreme Court in recent decisions, requires a statute to be defined so that it: (1) provides persons of ordinary intelligence with adequate notice of what conduct is prohibited and (2) provides minimal guidelines for police officers to discourage arbitrary or discriminatory enforcement.(fn4) Because the prongs of the Kolender test are independent, they must both be satisfied for a statute to be constitutional.(fn5)

Recently, in the case of City of Chicago v. Morales,(fn6) the United States Supreme Court applied this two-pronged test to a Chicago anti-loitering ordinance ("Chicago Ordinance").(fn7) In Morales, a plurality of the Supreme Court determined that the Chicago Ordinance was vague because it violated both prongs of the Kolender test.(fn8) The plurality held that the Chicago Ordinance's definition of loitering: (1) failed to provide adequate notice to persons of ordinary intelligence as to what conduct is prohibited; and (2) failed to provide minimal guidelines to limit police discretion.(fn9) In addition, the plurality asserted a new substantive due process right to "loiter for innocent purposes."(fn10)

This Note will first review the facts and holding of Morales.(fn11) This Note will then examine the evolution of the constitutional test for vagueness, federal interpretation of state statutes when the state's highest court has issued an interpretation, the constitutional right to travel, and the doctrine of judicial restraint.(fn12) Next, this Note will contend that the plurality in Morales correctly held the Chicago Ordinance to be unconstitutionally vague because it: (1) failed to provide adequate notice to persons of ordinary intelligence as to what conduct is prohibited; and (2) failed to provide minimal guidelines to limit police discretion.(fn13) This Note will further contend that the plurality properly dismissed Justice Clarence Thomas' argument that police officers have traditionally been vested with the power to arbitrarily issue dispersal orders.(fn14) Finally, this Note will criticize the Morales plurality for asserting a new substantive due process right to loiter in contravention of precedent and in violation of judicial restraint.(fn15)

FACTS AND HOLDING

In 1992, the City Council of Chicago, Illinois ("City Council") held hearings regarding gang-related crime.(fn16) Based on the hearings, the City Council determined that the City of Chicago's ("City") increasing murder rate was largely due to the activities of criminal street-gangs and that the public presence of gang members intimidated law-abiding citizens.(fn17) The City Council concluded that one way gangs established control over areas was through loitering and intimidation, using these techniques to keep others from entering their territory.(fn18) However, these gang members avoided arrest by ceasing illegal activity when in the presence of police officers.(fn19) By doing so, they still maintained control of their territory for illicit purposes without facing arrest.(fn20) The City Council was prompted by the connection between loitering and crime to enact Chicago Municipal Code § 8-4-015 ("Chicago Ordinance").(fn21) This Chicago Ordinance, formally known as the "Anti-Gang Loitering Ordinance," stated in its relevant part:

(a) Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section.

(b) It shall be an affirmative defense to an alleged violation of this section that no person who was observed loitering was in fact a member of a criminal street gang.

(c) As used in this section:

(1) "Loiter" means to remain in any one place with no apparent purpose.

(2) "Criminal street gang" means any ongoing organization, association in fact or group of three or more persons, whether formal or informal, having as one of its substantial activities the commission of one or more of the criminal acts enumerated in paragraph (3), and whose members individually or collectively engage in or have engaged in a pattern of criminal gang activity . . .

(5) "Public place" means the public way and any other location open to the public, whether publicly or privately owned.(fn22)

After the adoption of the Chicago Ordinance, the Chicago Police Department issued General Order 92-4 ("General Order"), which defined the circumstances necessary for enforcement of the Chicago Ordinance.(fn23) This General Order required the arresting officer to rely on his or her knowledge and experience in determining whether the alleged offender was a gang member.(fn24) Such knowledge and experience could include known admissions of membership or an alleged offender's use of gang symbols.(fn25) Recognition of this information allowed the officer to issue a dispersal order.(fn26) In addition, according to the internal General Order, officers could only enforce the Chicago Or-dinance within parts of the City "where loitering by street gangs has posed a demonstrable problem for the surrounding community."(fn27) The Chicago Ordinance was enforced for three years before it was declared unconstitutionally vague and enforcement was enjoined by an Illinois circuit court judge.(fn28) In those three years over 89,000 dispersal orders were given, and over 42,000 people were arrested for violations of the Chicago Ordinance.(fn29) Among those 42,000 arrested were Jesus Morales, James Youkhana, Ramsey, and sixty-seven other co-defendants.(fn30)

A. COOK COUNTY CIRCUIT COURT

City of Chicago v. Morales(fn31) involved seventy defendants, all of which were charged with violating the Chicago Ordinance.(fn32) In each case, the defendants were alleged to be in the presence of at least one gang member and ignored the dispersal order given by the arresting officer.(fn33) In Cause No. 80668, James Youkhana and thirteen co-defendants (collectively "Youkhana") were charged in Cook County with violating the Chicago Ordinance.(fn34) Youkhana moved to dismiss the charge, arguing that the Chicago Ordinance was unconstitutionally vague, and the county circuit court granted his motion, stating that the Chicago Ordinance was unconstitutionally vague.(fn35) In Cause No. 80485, the same court found the Chicago Ordinance unconstitutional and granted Ramsey's motion to dismiss the charge due to the vagueness of the Chicago Ordinance.(fn36) However, in Cause No. 80479, the same county circuit court convicted Jesus Morales, as well as five other defendants, of violating the Chicago Ordinance.(fn37) Morales and the other defendants (collectively "Morales") were sentenced to serve jail terms ranging from one to twenty-seven days.(fn38)

B. ILLINOIS COURT OF APPEALS

After Youkhana's dismissal, the City appealed to the Illinois Court of Appeals, arguing that the circuit court incorrectly granted Youkhana's motion to dismiss and incorrectly determined that the Chicago Ordinance was unconstitutionally vague.(fn39) The City further argued that the Chicago Ordinance was not overbroad because expressive activity, such as protesting, was not implicated.(fn40) In addition, the City asserted that such activities have an apparent purpose and, therefore, would not be proscribed by the Chicago Ordinance.(fn41) In contrast, Youkhana argued that the Chicago Ordinance clearly implicated the rights of congregation, association, and expression.(fn42)

The court of appeals affirmed the circuit court, holding that the Chicago Ordinance violated freedoms of association, congregation, and expression, all of which are protected by the First Amendment.(fn43) In addition, the court of appeals stated that the Chicago Ordinance was unconstitutionally vague, that it unconstitutionally criminalized a suspect's status and it permitted arrests without requiring probable cause.(fn44) The court found the Chicago Ordinance unconstitutionally vague under the United States Constitution as well as unconstitutional under the Illinois Constitution, Article I, section 5 which ensured the "right to assemble in a peaceable manner."(fn45)

In finding that the Chicago Ordinance violated First Amendment rights, the court explained that the Chicago Ordinance was triggered by the behavior of gang members only.(fn46) As a result of this, an innocent bystander could be convicted even though his or her behavior was irrelevant.(fn47) The court stated that the Chicago Ordinance "smacks of a police-state tactic and clearly violates the [F]irst [A]mendment rights of the innocent persons."(fn48)

The Illinois Court of Appeals also found the Chicago Ordinance to be unconstitutionally...