Chicago v. Morales Brief of Amici Curiae in Support of Respondents

    No. 97-1121

3n Zi)t
S u p re m e  C o u r t of tfje U n ite ti S t a t e s

October Term 1997 

CITY OF CHICAGO,
Petitioner.

v.

JESUS MORALES, et a i ,

Respondents.

On Writ o f Certiorari to the 
Supreme Court o f Illinois

BRIEF OF AMICI CURIAE NATIONAL BLACK 
POLICE ASSOCIATION, CHICAGO NBPA, HISP ANIC 
NATIONAL LAW ENFORCEMENT ASSOCIATION, and 

NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 
IN SUPPORT OF RESPONDENTS

Mar c  O. B eem

(Co u n sel  of Rec o r d ) 
D iane F. K lotnia  
M ichael  S. D ’O rsi 
M iller , S h a k m a n , Ha m ilto n , 

K urtzon  & Schlifke  
208 South  La Salle  Street  
S uite 1100 
C h ica g o , IL 60604  
T eleph o n e : (312) 263-3700  
Fa c sim il e : (312)263-3270

E laine R. Jones 
D irecto r-Counsel 
T heodore  M. Shaw  
A ssociate  D irector-Co un sel  
G eorge  H. K endall 
Laura  E. Hankins 
NAACP L egal D efense  and  

E ducational  F und , In c . 
99 H udson  St . - S uite 1600 
N ew  Yo r k , NY 10013-2897 
T eleph o n e : (212)965-2200

Attorneys fo r  Am ici Curiae



TABLE OF CONTENTS

TABLE OF A U TH O RITIES.......................................................  1V

STATEMENT OF INTERESTS OF A M IC I ..................................1

SUMMARY OF A R G U M EN T....................................................... 5

A R G U M EN T...................................................................................... 7

I. THE GANG LOITERING ORDINANCE
IS UNCONSTITUTIONALLY VAGUE .......................... 7

A. The Ordinance Impermissibly Leaves
Enforcement To The Unconstrained 
Predilections O f The Police ......................................9

1. The ordinance vests an officer with
unfettered discretion to conclude that 
a person does not have an “apparent 
purpose” and is therefore “loitering” .........9

2. The ordinance vests an officer with 
unfettered discretion to conclude that
a person is “loitering with” a suspected 
gang member .................................................11

3. The ordinance vests an officer with 
unfettered discretion to conclude that
a person has failed to “move on” ............. 12

B. The Ordinance Fails To Provide Actual
Notice Of What Conduct Is P rohibited..................14

II. THERE IS NO REASON TO ABANDON
THE PAPACHRISTOU-KOLENDER STANDARD . . .  16

ii



III. THE GANG LOITERING ORDINANCE IS 
POOR POLICE PRACTICE AND THERE IS 
NO REASON TO BELIEVE IT WAS OR
WOULD BE EFFECTIVE .................................................22

IV. THERE IS NO REASON TO BELIEVE THAT 
THE GANG LOITERING ORDINANCE WAS 
EFFECTIVE IN REDUCING GANG CRIME
IN C H IC A G O .......................................................................27

CONCLUSION ................................................................................29



TABLE OF AUTHORITIES

Cases

Avene v. North Carolina,
373 U.S. 375 (1963) ............................................................2

Bell v. Bolger,
708 F.2d 1312 (8th Cir. 1983)..........................................  20

Bowen v. Kemp,
769 F.2d 672 (11th Cir. 1985)..........................................  20

Castaneda v. Partida,
430 U.S. 482 (1977) ...................................................  19,20

Chicago v. Morales,
177111. 2d 440 (1997) ................................................. 15, 16

City o f  Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) .......................................................... 17

Coates v. Cincinnati,
402 U.S. 611 (1971) ............................................................ 10

Colten v. Kentucky,
407 U.S. 104(1972) .......................................................... 13

Eccleslon v. Secretary o f  Navy,
700 F. Supp. 67 (D.D.C. 1988) ........................................  20

Garner v. Lousiana,
368 U.S. 157 (1961) ..............................................................2

Kolender v. Lawson,
461 U.S. 352 (1983) ................................................... passim

IV



McWilliams v. Escambia County School Bd.,
658 F.2d 326 (5th Cir. Unit B 1 9 81 )...............................20

Oncale v. Sundowner Offshore Servs. Inc..
140 L. Ed. 2d 201 (1998)...................................................  20

Papachristou v. City o f  Jacksonville,
405 U.S. 156 (1972) .................................................passim

Peterson v. City o f  Greenville,
373 U .s’ 244(1963) ............................................................2

Shuttlesworth v. City o f  Birmingham,
382 U.S. 87 (1965) ................................................................ i

Smith v. Goguen,
415 U.S. 566(1984) ..............................................................9

Tennessee v. Garner,
471 U.S. 1 (1985) .................................................................. 2

Thompson v. City o f  Louisville,
362 U.S. 199 (1960) ..............................................................2

United States v. Thomas,
787 F. Supp. 663 (E.D. Tex. 1 9 9 2 ) .................................  20

West Virginia State Bd. o f  Educ. v. Barnette,
319 U.S. 624(1943) .......................................................... 21

Winters v. New York,
333 U.S. 507(1948) .............................................................. 8

Wright v. Georgia,
373 U.S. 284 (1963) .............................................................. 2

Statutes and Rules

Supreme Court Rule 37.3(a) ............................................................ 1

v



Supreme Court Rule 3 7 .6 ................................................................... \

Treatises and Other Materials

Associated Press, Black Nashvillians Leery’ o f  Police 
Conduct, Memphis Comm. App., Aug.
28, 1997......................................................................................3

Edward Patrick Boyle, It's Not Easy Bein ’ Green: The
Psychology o f  Racism, Environmental Discrimination, 
and the Argument fo r  Modernizing Equal Protection 
Analysis, 46 Vand. L. Rev. 937 (1 9 9 3 ) ....................  20-21

Sandra Lee Browning, et a l, Race And Getting 
Hassled By The Police: A Research 
Note, 17 Police Studies 1 (1994)......................................  19

Knight Chamberlain, Cooperation Cuts Crime,
Raleigh News & Observer, Jan. 5,
1997 ......................................................  4

Chicago Community Policing Evaluation Consortium, 
Community Policing in Chicago, Year Four:
An Interim Report (Nov. 1997) .......................................  28

James H. Colopy, The Road Less Traveled: Pursuing 
Environmental Justice Through Title VI o f  the 
Civil Rights Act o f  1964, 13 Stan. Envtl. L.J.
125(1994) ...........................................................................  21

Richard M. Daley & Terry G. Hillard,
Gang and Narcotic Related Violent 
Crime: City o f  Chicago 1993-1997 
(1998) ...........................................................................  24,28

Paula Dittnck, Police Chiefs Discuss Race Relations,
United Press Int’l, Sept. 26, 1996 .........................................3

vi



Editorial, More Citizen Involvement Helps Keep Boise 
Streets Safe, Idaho Statesman, June 19,
1998 ............................................................................................

Herman Goldstein. Toward Community - Oriented 
Policing: Potential. Basic Requirements and 
Threshold Questions, 33 Crime & Delinquency 6 
(1987) .................................................................................. 21

Judith A. Green. Zero Tolerance: A Case Studv
o f  Police Policies and Practices in New York
City, Crime & Delinquency (forthcoming
April 1999) .........................................................................  23

Robert Ingrassia, Police Shooting Was Dallas 
Turning Point, Dallas Morning News,
Oct. 27, 1996 ...........................................................................4

Jay Jochnowitz, Arbor Hill Station Hits Roadblock,
Times Union, Oct. 8, 1996 .....................................................4

Dirk Johnson, Two Out o f  Three Young Black 
Men In Denver Listed By Police as 
Suspected Gangsters, N.Y. Times,
Dec. 11, 1993 ................................................................  11-12

George Kelling & Katherine Coles, Fixing Broken
Windows (1996 )................................................................... 26

David Kennedy, Pulling Levers: Getting Deterrence
Right. N at’l Inst. Just. J. (July 1998)................................  23

Leon F. Litwack, Trouble in Mind: Black Southerners
in the Age o f  Jim Crow (1998) .......................................... 3

Debra Livingston, Police Discretion and the Quality o f  Life 
in Public Places: Courts, Communities and the 
New Policing, 97 Colum. L. Rev. 551 (1 9 9 7 )......... 21, 26

vii



Tracey L. Meares, Social Organization and Drug Law
Enforcement, 35 Am. Crim. L. Rev. 191 (1998) . . . . . .  28

Mark H. Moore, Problem-Solving and 
Community Policing in Modem 
Policing 1992 (Crime & Justice:
A Review of Research Senes No.
15, 1992, M.Tonry & N. Morris, eds.) ....................21, 23

Deposition Transcript of Thomas Needham in 
ACLU  v. City o f  Chicago, 98 CH 10054 
(Circuit Court of Cook County, Illino is)........................ 13

David Ogul, White Police and Black Community a 
Mix that Works, Press-Enterprise (Riverside,
CA), Oct. 6, 1996 .................................................................. 4

Robert Olmstead, Cops taking EDGE 
in Crime Battles, Chi. Sun-Times,
July 5, 1994 .........................................................................  16

Colin Poitras, Nominee Plans Visibility in Job,
Hartford Courant, Jan. 30, 1998 ......................................... 4

Ira Reiner, Gangs, Crime and Violence 
in Los Angeles: Findings and 
Proposals from  the District Attorney's 
Office (1 9 9 2 ) .......................................................................  12

Janet Reno, Civil Rights: A Challenge o f  Conscience,
27 Cumb. L. Rev. 381 (1996/1997)..................................... 4

Report o f  the National Commission on Civil Disorders,
(1968) ...........................................................................  23,26

Dennis P. Rosenbaum, et al., The Prevention o f  Crime:
Social and Situational Strategies, (1998)...........  19, 22, 23

viii



Andrew D. Russell, Portland Minorities. Police Try 
to Bridge Deep Cultural Abyss, Portland 
Press Herald, Dec. 9, 1996 .................................................4

Peter M. Shane, School Desegregation Remedies and the 
Fair Governance o f  Schools, 132 U. Pa. L. Rev.
1041 (1 9 8 4 ) .......................................   20

Fran Spielman. Daley to Simon: Quit 
"Nitpicking ” Over Crime Bill,
Chi. Sun-Times, Sept. 1, 1994 ..........................................  16

Fran Spielman, Loitering Ban Passes; Alderman 
Bitterly Split on Anti-Gang Measure,
Chi. Sun-Times, June 18, 1992 .......................................... 14

Sweep Nets 100 Arrests, Chi. Sun-Times, Feb. 6, 1994 ........... 6

Randy Tucker & Jena Janovy, Little Police. Minority 
Trust Seen Police-Community Relations 
Problems, Omaha World-Herald, Sept. 1,
1998 ...........................................................................................4

Matthew Waite, Kids Learn Cops ‘Do More than Shoot. ’
Ark. Democrat-Gazette, Aug. 14, 1997 ...............................4

Hubert Williams & Patrick V. Murphy, The Evolving
Strategy o f  Police: A Minority View, in Perspectives
on Policing (U.S. Dept, o f Justice, N at’l
Inst, of Justice No. 13, Jan. 1 9 9 0 )...................................... 18

IX



STATEMENT OF INTERESTS OF AMICI'-

Amici, a unique coalition of a national civil rights legal 
organization and law enforcement professionals, are brought 
together by their mutual interest in building strong relationships 
between the police and the communities they serve, in minimizing 
the traditionally adversarial and antagonistic interactions between 
police and community residents, and in eliminating discriminatory 
enforcement of criminal laws.

The National Black Police Association (“NBPA”) is an 
organization of minority law enforcement professionals. NBPA 
has more than 34,000 individual members and more than 140 
chapters in police departments in 34 states and the District of 
Columbia. The Chicago chapter ofNBPA joins this coalition as an 
amicus. NBPA and its members support the philosophy of 
community policing that calls for a true, cooperative partnership 
between the community and the police for safer communities.

The Hispanic National Law Enforcement Association 
(“HNLEA”) is a nationwide organization of Latino American 
police officers. HNLEA has local chapters in all major cities 
throughout the United States, as well as three chapters in Puerto 
Rico. Congress has recognized HNLEA as the only national 
organization representing Latino officers. Members of HNLEA 
are dedicated to the promotion ofjustice, fairness and effectiveness 
in law enforcement. One of its primary missions is to improve the 
relationship between minority communities and the police in order 
to promote the safety of the public and the quality o f life in those 
communities. As part of that mission, HNLEA seeks to eliminate 
police brutality and racial discrimination in law enforcement.

- Pursuant to this Court's Rule 37.3(a), letters of consent from all parties
to the filing of this brief have been filed with the Clerk. Pursuant to this Court’s 
Rule 37.6. amici state that this brief was not authored in whole or in part by 
counsel for any party and that no person or entity other than amici, their members, 
or their counsel made a monetary contribution to the preparation or submission 
of this brief.



The NAACP Legal Defense and Educational Fund, Inc. 
("LDF”) is a non-profit corporation (established in 1940) 
organized to assist African Americans in securing their 
constitutional and civil rights. Its purpose includes rendering legal 
aid without cost to African Americans suffering injustice by reason 
of race who are unable, on account o f poverty, to employ legal 
counsel on their own. For almost sixty years, its attorneys have 
represented parties and have participated as amicus curiae in this 
Court and in the lower state and federal courts.

LDF has a long-standing concern with the in f  uence of racial 
discrimination in the enforcement of loitering ordinances. It has 
successfully challenged ordinances similar to the one at issue here 
when they have been arbitrarily employed against civil rights 
demonstrators; see, e.g., Shuttlesworth v. City o f  Birmingham, 382 
U.S. 87 (1965); Garner v. Lousiana, 368 U.S. 157 (1961); 
Peterson v. City o f  Greenville, 373 U.S. 244 (1963); Avent v. North 
Carolina, 373 U.S. 375 (1963), and against minority citizens 
lawfully enjoying public spaces, Wright v. Georgia, 373 U.S. 284 
(1963); Thompson v. City o f  Louisville, 362 U.S. 199 (1960). 
LDF’s continuing concern over the arbitrary and destructive use of 
police power led it to represent the respondent in Tennessee v. 
Garner, 471 U.S. 1 (1985).

It is not often that amici find ourselves in complete agreement 
about the lawfulness and wisdom of a criminal ordinance. But we 
do in this case. The Chicago Gang Loitering Ordinance is a broad, 
standardless law that invites arbitrary and discriminatory 
enforcement. The Court has seen laws like this before and has 
properly struck them down as unconstitutional.

Amici are concerned about the impact of such laws upon 
effective law enforcement. For much of our history, law 
enforcement has lacked credibility in minority communities 
because of racist and arbitrary enforcement of the law. Scholar 
Leon F. Litwack recalls accurately how many African Americans 
came to view police earlier this century:

2



From the very outset of their lives, young blacks came to 
leam that in the New South the differences between justice 
and injustice, the law and lawlessness, were at best 
ambiguous, at worst senseless, so blurred as to be 
indistinct. The ways in which they experienced the courts 
and police power were hardly calculated to enhance their 
respect for the law or for the white m an’s sense of fair 
play. The very relationship black people bore to 
protective agencies contrasted sharply with that of whites. 
Even as white children were inculcated with the image of 
the policeman as a friend and protector, black children 
learned to fear him as the enemy.

Leon F. Litwack. Trouble in Mind: Black Southerners in the Age 
o f Jim Crow 15 (1998).

And while we have made progress in bridging this divide, it is 
just as clear that we have much work yet to do. An overwhelming 
body of evidence confirms that deep mistrust remains between 
minority communities and the police. In recent years, Minneapolis 
police chief Robert Olsen characterized -relations between his 
department and minority citizens as “a tinder box,”- Nashville 
police chief Emmett Turner acknowledged strained relations 
between police and minority citizens,- and Portland’s police chief, 
Michael Chitwood, noted that “every time the police interact with 
the minority community there’s a perception that they’re being

- Paula Dittrick, Police Chiefs Discuss Race Relations, United Press Int’l, 
Sept. 26, 1996.

- Associated Press. Black Nashvillians Leery o f Police Conduct, Memphis 
Comm. App., Aug. 28, 1997, at A18.

3



picked on.’ - In light of those statements, it is not surprising that 
Attorney General Janet Reno concluded that:

[a] crucial item on the [Department of Justice's] agenda 
. . .  is an effort to build a greater sense of community and 
trust between law enforcement and the minority 
community. There is no other area where the potential for 
misunderstanding and miscommunication can have such 
dangerous consequences. . . .  So it is an absolute 
imperative that we establish better trust, cooperation and 
communication between the community and the police.

Janet Reno, Civil Rights: A Challenge o f  Conscience, 27 Cumb. 
L. Rev. 381, 393-94 (1996/1997).

Andrew D. Russell, Portland Minorities, Police Try to Bridge Deep 
Cultural Abyss, Portland Press Herald, Dec. 9, 1996, at 1A.

From coast to coast, other cities have reported similar tensions. Public 
officials in Albany, New York recently reported that many minority citizens 
“don’t trust the police.” Jay Jochnowitz, Arbor Hill Station Hits Roadblock, 
Times Union, Oct. 8, 1996, at B5. Recent shootings of minority citizens in Boise, 
Charlotte, Little Rock and Lima, Ohio, have strained police-community relations. 
See Editorial, More Citizen Involvement Helps Keep Boise Streets Safe, Idaho 
Statesman, June 19, 1998, at 12a; Knight Chamberlain, Cooperation Cuts Crime, 
Raleigh News & Observer, Jan. 5, 1997, at B l ; Matthew Waite, Kids Learn Cops 
Do More than Shoot,' Ark. Democrat-Gazette, Aug. 14, 1997, at 1A; David 

Ogul, White Police and Black Community a MU that Works, Press-Enterpnse 
(Riverside, CA), Oct. 6, 1996, at A05. Dallas police officers conceded that the 
African American community is repeatedly “bombarded with officers conducting 
illegal searches, approaching black and Hispanic males and placing them on the 
ground." Robert Ingrassia, Police Shooting Was Dallas Turning Point, Dallas 
Morning News, Oct. 27, 1996, at 1A Hartford police chief Edward Brymer noted 
recently that “[tjhere has been resentment toward police officers accused of 
harassing minorities and using excessive force." Colin Poitras, Nominee Plans 
Visibility tn Job, Hanford Courant, Jan. 30, 1998, at Bl. Recently, the Omaha 
Human Relations Board concluded that minorities do not have much trust in the 
police, and “feel mistreated or harassed by the police because of their race.” 
Randy Tucker & Jena Janovy, Little Police, Minority Trust Seen Police- 
Community Relations Problems, Omaha World-Herald, Sept. 1, 1998, at News-1.

4



The Chicago ordinance will only exacerbate traditionally 
strained relations between minority communities and police. 
While amici are well aware of the many problems that gangs can 
visit upon a community, we cannot endorse this particular tool that 
will harm both community-police relations and the detection and 
prevention of crime.

SUMMARY OF ARGUMENT

Chicago's broad Gang Loitering Ordinance (the "ordinance”) 
is unconstitutionally vague under long-established standards of this 
Court. It fails to define in any meaningful way the conduct that is 
prohibited. It leaves to an officer's unfettered discretion the 
decision as to whether to deem conduct an "apparent purpose," or 
"movement” out of the "area” sufficient to satisfy the ordinance. 
As in Kolender v. Lawson, the ordinance "may permit a 
standardless sweep that allows policemen, prosecutors and juries 
to pursue their personal predilections.” 461 U.S. 352, 358 (1983). 
It provides a tool for "harsh and discriminatory enforcement by 
local prosecuting officials against particular groups deemed to 
merit their displeasure.” Id. at 360. The ordinance is simply 
another version of the abusive and discriminatory “street sweeps” 
that have been condemned uniformly by the courts and 
commentators as unconstitutional and ineffective.

There is nothing about the ordinance, contemporary law 
enforcement or current circumstances that warrants departure from 
the well-settled body of law applied by the Illinois Supreme Court 
in finding the ordinance unconstitutionally vague. Contrary to the 
assertions of certain amici for Chicago, discrimination in law 
enforcement remains a matter of real and grave concern. 
Standardless laws such as the ordinance, which leave enforcement 
to the unguided discretion of the police, exacerbate the risks of 
discriminatory enforcement. They also heighten the risk of 
damaging relations between the police and the community 
resulting from the perception of discriminatory enforcement.

5



Chicago and certain of its amici assert that the potential for 
abuse ot the ordinance need not concern the Court because the 
ordinance enjoys some community support and is a manifestation 
of “community policing." Pet. Br. 14-15. They contend that 
effective community policing requires that the courts “provide 
greater leeway for state and local governments to address “sicns 
of chronic disorder on the streets.” Pet. Br. 15; Amicus Brief of 20 
Neighborhood Organizations (“CNO Br.”), passim. Chicago and 
its amici further assert that Chicago’s experience with the 
enforcement of the ordinance from 1992 to 1995 "validated” its 
effectiveness. Pet. Br. 16. Each of those propositions is incorrect.

The ordinance is, in fact, the antithesis of community policing 
and of sound law enforcement practice. Two of the most important 
pillars of community policing are the strengthening of 
relationships between police and community residents, and the 
employment by police of a wide range of alternatives to the 
traditional law enforcement strategies of arrest and prosecution, 
saving traditional law enforcement for those cases in which it can 
do the greatest good. The ordinance is contrary to both principles.

Rather than eschew traditional law enforcement strategies in 
favor of more innovative, flexible approaches to the community’s 
problems, the ordinance directs the police to arrest and prosecute 
thousands. The City’s statistics show that there were in excess of 
41.000 arrests under the ordinance during the three years o f its 
enforcement. Contrary to Chicago’s repeated suggestion that the 
ordinance targets only “visibly lawless” behavior (Pet. Br., 
passim), in fact, the ordinance targets otherwise innocent behavior. 
The net cast by the ordinance is extremely wide, sweeping into the 
criminal justice system large numbers of people who are guilty of 
no crime other than standing, sitting or remaining in one place on 
the public sidewalks, in public parks, or in other public places, in 
the vicinity of a suspected gang member and in a manner that 
piques an officer’s antipathy. The ordinance thus significantly 
multiplies the number of hostile, adversarial interactions between 
the police and citizens, principally minority citizens. Rather than

6



strengthening relations, the ordinance widens the gulf between 
police and community.

Nor does Chicago’s experience “validate" the efficacy of the 
ordinance. The crime statistics for the City of Chicago for the 
relevant periods do not show that enforcement of the ordinance 
reduced crime. Since 1992, there has been a nationwide decrease 
in crime in communities of all types and sizes using all sorts of 
law enforcement techniques. This decline has been attributed to a 
variety of factors, none of which is precisely understood. What is 
clear, though, is that there is no empirical basis for concluding that 
enforcement of the ordinance had any effect on crime. The drop in 
the crime rate began before Chicago enforced the ordinance and 
continued after it ceased enforcement.

While gang crime is unquestionably a serious problem, it is not 
necessary to suspend constitutional principles to address it. The 
Chicago Police Department’s representative at City Council 
hearings on the ordinance acknowledged that fact, and the 
experience of cities, like San Diego and Boston, confirms it. 
Those cities have achieved substantial reductions in crime without 
the use of extreme measures like the Gang Loitering Ordinance.

ARGUMENT

I.
THE GANG LOITERING ORDINANCE 
IS UNCONSTITUTIONALLY VAGUE

A consistent theme throughout the briefs o f Chicago and its 
amici is their concern about gang-related crime and the detrimental 
effect criminal gang activity has on the surrounding community. 
These amici, as law enforcement professionals and members of 
communities that are disproportionately affected by gang crime, 
share those concerns. Unfortunately, those concerns are not new, 
and neither is Chicago’s approach to them. The desire to prevent 
and combat crime has been the articulated rationale for other 
loitering and vagrancy laws previously considered by the Court,

7



including the statute at issue in Kolender. But, as the Court 
admonished in that case, the desire to combat crime cannot 
suspend constitutional protections against vague laws. As Justice 
O ’Connor noted:

Appellants stress the need for strengthened law- 
enforcement tools to combat the epidemic of crime that 
plagues our Nation. The concern of our citizens with 
curbing criminal activity is certainly a matter requiring the 
attention o f all branches of government. As weighty as 
this concern is, however, it cannot justify legislation that 
would otherwise fail to meet constitutional standards for 
definiteness and clarity.

Kolender, 461 U.S. at 361.

This Court’s emphasis on definiteness and clarity stems from 
long experience with abusive and discriminatory enforcement that 
too frequently accompanies standardless or imprecise laws:

“These [vagrancy] statutes are in a class by themselves, in 
view of the familiar abuses to which they are put . . . .  
Definiteness is designedly avoided so as to allow the net 
to be cast at large, to enable men to be caught who are 
vaguely undesirable in the eyes of police and prosecution 
although not chargeable with any particular offense. In 
short, these ‘vagrancy statutes’ and laws against ‘gangs’ 
are not fenced in by the text of the statute or by the subject 
matter so as to give notice o f conduct to be avoided.”

Papachristou v. City o f  Jacksonville, 405 U.S. 156, 166 
( \972)(quoting Winters v. New York, 333 U.S. 507, 540 (1948) 
(Frankfurter, J., dissenting)).

This Court has long made clear that an ordinance fails to meet 
constitutional standards of "definiteness and clarity” not only 
where the ordinance fails to provide adequate notice so that 
“ordinary people can understand what conduct is prohibited,” but

8



more importantly, where the legislature has failed to “'establish 
minimal guidelines to govern law enforcement.’’’ Kolender. 461 
U.S. at 357-58 (quoting Smith v. Goguen, 415 U.S. 566, 574 
(1984)). "Where the legislature fails to provide such minimal 
guidelines, a criminal statute may permit 'a standardless sweep 
[that] allows policemen, prosecutors, and juries to pursue their 
personal predilections.’” Id. at 358 (quoting Smith, 415 U.S. at 
575). Chicago’s ordinance does not meet that standard.

A. The Ordinance Impermissibly Leaves Enforcement
To The Unconstrained Predilections O f The Police.

The “more important aspect of the vagueness doctrine, ‘ is 
. . . that a legislature establish minimum guidelines to govern law 

enforcement.' ” Kolender, 461 U.S. at 35 8 (quotingSmith, 415 U.S. 
at 574). Chicago contends that the ordinance satisfies this 
important requirement because it applies only to persons who (i) 
do not have an apparent purpose, (li) are loitering with a person 
reasonably believed to be a gang member, and (iii) fail to move on 
when ordered to do so. Pet. Br. 34-35. Contrary to Chicago's 
assertion, however, the ordinance, “by failing to describe with 
sufficient particularity what a suspect must do in order to satisfy 
the statute,” Id. at 361, encourages arbitrary and discriminatory 
enforcement in precisely the manner as did the laws this Court held 
unconstitutional in Papachristou and Kolender. Specifically, the 
ordinance provides no guidelines as to (i) what constitutes loitering 
-  that is, what is or is not an “apparent purpose,” (ii) what persons 
are considered to be “"with” a suspected gang member, and (iii) 
what action will satisfy an order to “move on.”

/. The ordinance vests an officer with unfettered
discretion to conclude that a person does not have an 
"apparent purpose " and is therefore “loitering. ”

The ordinance defines loitering as “remain[ing] in any one 
place with no apparent purpose.” Pet. App. 61a. Chicago and its 
amici argue that the ordinance does not vest the police with 
unfettered discretion to determine whether a person is “loitering.”

9



However, the Illinois Supreme Court found to the contrary, 
holding that the ordinance provides the police officer with 
"absolute discretion . . .  to decide what activities constitute 
loitering." Pet. App. 15a. That decision was clearly correct.

Chicago’s description of the “no apparent purpose” 
requirement as “straightforwardf]” (Pet. Br. 30) is contradicted by 
its contusing assertions in this Court and elsewhere as to what 
would or would not be an “apparent purpose.” For example, 
"gazing at the nighttime sky” and “loafing through the day” are 
apparent purposes, according to Chicago (111. App. Br. at 70-71), 
whereas standing on a public sidewalk to get fresh air, sitting on a 
park bench or simply chatting with friends is not. See Pet. Br. 38; 
Supp. R. II at 231. Chicago does not point to anything in the 
ordinance (or elsewhere) that would lead an officer to draw those 
distinctions.

Further, the fact that two persons are “chatting” should be 
apparent to the outside observer. To conclude, as Chicago 
suggests (Pet. Br. 38), that chatting is not an “apparent purpose” 
really means that “chatting” is not an acceptable purpose under the 
ordinance. The ordinance’s language, however, provides no 
guidance as to why that or any other apparent purpose is 
unacceptable. The officer, therefore, is required to bring to bear 
his or her own personal predilections to conclude that “chatting” 
or “sitting,” however apparent, is not an acceptable “purpose.” 
Chicago's own examples make clear that what is a “purpose” and 
what is "apparent” are left to the officer’s absolute discretion.

It is precisely such subjective, standardless discretion that 
results in enforcement decisions that may vary arbitrarily not only 
from officer to officer but from decision to decision by the same 
officer. See, e.g., Coates v. Cincinnati, 402 U.S. 611, 614 (1971) 
(holding ordinance void for vagueness where violation may have 
depended entirely on whether a particular officer was annoyed by 
conduct o f persons subject to the ordinance); Kolender, 461 U.S. 
at 360-61 (holding loitering ordinance void for vagueness where 
officers had complete discretion to conclude whether suspects had

10



shown "'credible and reliable' identification”); Papachristou, 405 
U.S. at 170-71 (holding vagrancy law unconstitutionally vaeue 
where the ordinance provided imprecise standards for enforcement, 
thus allowing persons to stand on public sidewalks, etc. only at the 
whim o f the police). The "no apparent purpose” requirement is so 
amorphous that Chicago is even unwilling to state without 
equivocation that a parade or picketing is a clearly apparent 
purpose tailing outside of the proscriptions of the ordinance. See 
Pet. Br. 10, 20 (acknowledging only that the ordinance would 
"rarely, if ever" apply to parades, picketing or protests).-

2. The ordinance vests an officer with unfettered
discretion to conclude that a person is "loitering 
with " a suspected sanv member._________________

The ordinance is imprecise in yet another way. The ordinance 
applies not only to persons reasonably believed to be gang 
members, but also to all persons who are deemed to be "with” a 
"loitering” gang member. While Chicago focuses on “street gang 
members and their cohorts” (Pet. Br. 9), the ordinance is clearly 
not so limited.- It applies to any and all persons with a “loitering”

* Even the Solicitor General is unable to discern what constitutes an
"apparent purpose" under the ordinance. In his amicus brief in support of the 
ordinance, the best that the Solicitor General can do is to suggest what the term 
loitering would “likely” include and would “not likely" include. See Amicus 
Brief of the United States (“U.S. Br ") at 16. Chicago and the Solicitor General 
reach different conclusions about what is or is not included. Whereas Chicago 
leaves open the possibility that picketing and protests may be subject to the 
ordinance, the Solicitor General assures the Court that demonstrations and 
picketing “will be apparent to outsiders” and thus beyond the ordinance. U.S Br 
13.

2 Even if its proscriptions were limited to persons believed by police to
be gang members, the ordinance could encompass a substantial number of the 
young people in many communities — particularly minority youth. In Denver, for 
example, African American and Hispanic youths dominated a list of suspected 
gang members compiled by police. The list itself was so large that it included 
approximately two-thirds of the African American males in the city between the 
ages of 12 and 24. Dirk Johnson, Two Out o f  Three Young Black Men In Denver

(continued...)

11



individual reasonably believed by the police officer to be a gang 
member. The ordinance, which requires no interaction between 
the suspected gang member and other persons, supplies no 
guidelines for an officer to use to determine whether a person is 
“with” the suspected gang member, as opposed to merely being 
near or in the general vicinity of a suspected gang member.-

This absence of legislative standards leaves the officer with 
absolute discretion in enforcement. For example, according to 
Chicago, the presence of a single gang member in a public 
playground with 99 other non-gang members is sufficient to 
authorize an officer to order the entire group of 100 persons to 
disperse and to arrest any who refuse to do so. See Supp. R. II at 
229-30. This is true, as discussed below, even if the other 99 
persons have no knowledge that a suspected gang member is 
present in the public playground. It may well be unlikely that the 
police would oust or arrest 99 people because of the presence of a 
single suspected gang member. The ordinance permits it, however, 
and the decision as to how many and which of the 99 to threaten 
with arrest is left wholly to the whim of the officers.

3. The ordinance vests an officer with unfettered
discretion to conclude that a person has fa iled  to 
“move on. ”_______________

The ordinance further provides that an officer shall order 
persons in violation “to disperse and remove themselves from the

-(...continued)
Listed By Police as Suspected Gangsters, N. Y. Times, Dec. 11, 1993,atA-8. In 
Los Angeles in 1992, 47% of the African American males between the ages of 21 
and 24 were listed on a gang database maintained by the police. Ira Reiner, 
Gangs, Crime and Violence in Los Angeles: Findings and Proposals from the 
District Attorney s Office 121(1992).

- The Solicitor General contends that the ordinance is limited to “gang
members or those who participate in groups containing gang members.” U.S. Br. 
10. The ordinance, however, imposes no requirement of participation. Rather, 
it applies by its terms to all persons "with" a “loitering" suspected gang member.

12



area,” what Chicago commonly refers to as a "move on” order. 
Pet. App. 61a. While Chicago contends that the "move on” order 
is clear and cannot be misunderstood (Pet. Br. 29), that is not so. 
The "move on” order is yet another unclear element of the 
ordinance that enhances the potential for arbitrary and 
discriminatory enforcement.

For example, the ordinance provides no guidelines as to how 
far one must move in order to be removed "from the area.” The 
"area” is not defined geographically or even conceptually. There 
is no gauge by which either the police officer or the citizen can 
determine whether it would be sufficient to move across the street, 
down the street, out of a park, or to another neighborhood 
entirely.- Nor does the ordinance provide any guidance as to the 
length of time that a person must remove himself or herself from 
the area in order to avoid arrest — ten minutes? An hour? A day? 
The ordinance does not provide either the officer or persons 
subject to the ordinance with answers to these very basic questions.

In this manner, the “move on” order is critically different from 
the directive issued by the officer in Colten v. Kentucky, 407 U.S. 
104 (1972). In Colten, the Court determined that a person could be 
ordered to "move on” where he was interfering with an officer 
issuing a traffic citation. The Court agreed that the order was 
"suited to the occasion.” Id. at 109-10. Unlike “move on” orders 
under the ordinance here, in Colten one could easily understand, 
based on external clues provided by the occasion itself, that "move 
on” meant to remove onself from the immediate vicinity o f the 
traffic incident for so long as it took the officer to issue the citation 
and conclude the incident.

The “area” could be very large. A city representative testified in a 
lawsuit brought by the ACLU under the Illinois Freedom of Information Act that 
locations designated for enforcement of the ordinance included parks and public 
housing developments. Deposition Transcript of Thomas Needham at 86, filed 
with the Circuit Court of Cook County, Illinois in ACLU v. d ry  o f  Chicago, etal, 
98 CH 10054. Some of Chicago's parks extend for miles and others are as large 
as many square blocks. Chicago’s public housing developments may also be many 
acres in size, and may be home to persons told to leave the areas.

13



There are no such external limitations provided, however, 
where one is ordered to remove oneself “from the area” pursuant 
to the ordinance. There is no apparent geographic boundary that 
delineates the "area” or that establishes what would be a sufficient 
distance to avoid arrest. Nor is there an objective time limit that 
would indicate when one could return to the public area and not be 
subject to arrest. The officer has complete discretion to define the 
public area from which the citizen is excluded on pain of arrest and 
the duration of that exclusion. Such untrammeled power to banish 
any person deemed by the arresting officer to be undesirable 
understandably prompted one of Chicago's African American 
aldermen to say during City Council hearings that the ordinance is 
reminiscent o f the "pass laws of South Africa.” Fran Spielman, 
Loitering Ban Passes; Alderman Bitterly Split on Anti-Gang 
Measure, Chi. Sun-Times, June 18, 1992, at A-l.

B. The Ordinance Fails To Provide Actual
Notice O f What Conduct Is Prohibited.

The ordinance fails to provide citizens with actual notice so 
that “ordinary people can understand what conduct is prohibited.” 
Kolender, 461 U.S. at 357. For example, the ordinance does not, 
as discussed above, disclose what purposes the police may deem 
unacceptable. That critical omission not only invites arbitrary and 
discriminatory enforcement, but also leaves Chicago’s citizens 
without any notice as to what behavior would be subject to the 
ordinance.

Chicago argues that the “move on” order provides notice that 
a person’s conduct is subject to the ordinance. Pet. Br. 29. But, as 
even Chicago concedes, "[i]f police officers are afforded 
standardless discretion to order individuals to move on, the mere 
fact a police order is given does not serve to sustain the order.” 
Pet. Br. 32. As discussed above, the ordinance does give police

14



that discretion.2 Given that the meaning of the ordinance is 
detined by the "personal predilections" of the police, there is no 
way that a person can know what conduct will lead to a police 
order to "move on.”

Moreover, although a predicate for arrest under the ordinance 
is the presence of a "loitering” suspected gang member, there is no 
requirement that any other individual in that same public place be 
on notice that a gang member is present. While Chicago focuses 
on "gang members and their cohorts,” suggesting that a lack of 
knowledge is not likely, the ordinance is not in any sense limited 
to "cohorts. ’ As discussed above, Chicago acknowledges that the 
mere presence of a single person reasonably believed by a police 
officer to be a gang member with no apparent purpose in a public 
playground with 99 other persons, none of whom are suspected of 
being gang members, is sufficient to authorize the officer to order 
all 100 persons to disperse and to arrest those who refuse to do so. 
Although the ordinance expressly provides that the fact that no 
gang member was present is an affirmative defense to prosecution 
(Pet. App. 61a.), the fact that an arrested person had no knowledge 
that a gang member was present apparently does not provide a 
defense. And, as the Illinois Supreme Court found, a person “has 
no way of knowing whether an approaching police officer has a 
reasonable belief that the group contains a member of a criminal 
street gang.” Chicago v. Morales, 177 111. 2d 550 (1997) (Pet. App.
1 la -12a.)

* * *
In less than three years, the police in Chicago ordered 89,000 

people to “move on” from public places and arrested 41,000 of 
them for failing to do so in a manner satisfactory to the arresting

The fact that the conduct prohibited by the ordinance is defined by the 
police officer on the beat is confirmed by Chicago's attempt to reassure this Court 
that the ordinance is limited in scope. Remarkably, Chicago states that “anyone 
can loiter alone, or even with others, including criminal street gang members, as 
long as they move along when directed to do so." Pet. Br. 44 (emphasis added). 
Thus Chicago concedes that one's right to stand in the streets or parks of Chicago 
is subject to the unforeseeable whim and caprice of the police.

15



officers. This large number of arrests for conduct as innocuous as 
standing on a public sidew alk- makes clear that the ordinance is 
another version of the abusive and discriminatory “street sweeps” 
that have been consistently, and properly, condemned by courts 
and commentators.— The Illinois Supreme Court recognized the 
true nature of the ordinance, noting that the City Council’s intent 
in enacting the ordinance was to address gang members’ ability to 
avoid arrest for crimes they commit by “craft[ing] an exceptionally 
broad ordinance which could be used to sweep these intolerable 
and objectionable gang members from the city streets.” Chicago 
v. Morales, 177111. 2d 440 (1997) (Pet. App. 16a.) Under the long­
standing precedent of this Court, the ordinance is unconstitutional.

II.
THERE IS NO REASON TO ABANDON 

THE PAPACHRISTOU-KOLENDER STANDARD

As explained above, and in the briefs of Respondents and their 
other amici, the ordinance is plainly inconsistent with this Court’s 
establishedjunsprudence. Chicago implicitly recognizes that fact,

— Chicago repeatedly refers to “visibly lawless behavior” as the target of 
the ordinance. See. e g  Pet. Br. at 9-10, 12, 14, 16, 27. That is clearly not the 
case. If the behavior was truly “visibly lawless,” the person would have an 
apparent, albeit a lawless, purpose and thus would not, by definition, be 
“loitering." Moreover, if people are “visibly lawless,” they can be arrested under 
the laws they are violating. For those situations, the ordinance is unnecessary. 
It is clear that the ordinance intentionally targets behavior that is lawful or 
innocent. Chicago implicitly concedes as much, stating that it seeks to move 
persons on or arrest them to “prevent crime before it occurs." Pet. Br. 10 
(emphasis added).

— During 1994 Chicago used the ordinance to make wholesale arrests as 
part of “Operation EDGE" in which more than 60 extra officers were assigned to 
target areas for up to eight hours. Robert Olmstead, Cops taking EDGE in Crime 
Battles, Chi. Sun-Times, July 5, 1994, at 14. In one Operation EDGE sweep in 
the Englewood neighborhood, 100 people were arrested, 69 of them for gang 
loitering. Sweep Nets 100 Arrests, Chi. Sun-Times, Feb. 6, 1994, at 4. During the 
summer of 1994, there were more than 2400 arrests in connection with Operation 
EDGE. Fran Spieiman, Daley to Simon Quit "Nitpicking " Over Crime Bill, Chi. 
Sun-Times, Sept. 1, 1994, at 12.

16



referring the Court to “commentators [who] have repeatedly called 
for courts to provide greater leeway for state and local 
governments to address signs of chronic disorder on the streets.” 
Pet. Br. 15.- The CNO amicus brief, authored by one of those 
commentators, is more forthright, asking this Court to abandon the 
Papachristou-Kolender standard except for those cases in which 
a law’s impact is directed at a “politically disempowered 
minority.” CNO Br. 6. In all other cases, Chicago’s amici urge, 
this Court should apply a sliding scale of review that depends on 
the extent to which members of the affected communities support 
the challenged law and on the extent to which minority groups 
subject to the law have achieved political empowerment. Id  at 11- 
16. They are wrong.

Although this Court recognized in Papachristou and Kolender 
that vague, standardless laws have the potential for racially 
discriminatory enforcement, the principles of those cases are race- 
neutral and are properly focused on the specificity that due process 
requires of all criminal laws, against whomever they may be 
enforced. Indeed, contrary to the suggestions of Chicago’s amici, 
the facts of Papachristou were not limited to the arrest of a racially 
mixed group of defendants, but also included the separate arrests 
of several other defendants, whose race is not even identified. See 
Papachristou, 405 U.S. at 159-61. This Court has reiterated that 
standards of constitutional review are "not dependent upon the race 
o f those burdened or benefitted.” City o f Richmond v. J. A. Croson 
Co., 488 U.S. 469, 494(1989).

Chicago’s amici also suggest that this Court need no longer be 
concerned about the reality and perception of abusive and 
discriminatory enforcement that are fostered by standardless laws

— Chicago and its amici suggest, expressly and implicitly, that gang crime
cannot be addressed effectively without giving police this "leeway." Even the 
Chicago Police Department rejected that notion. In testimony at the City Council 
Hearings, the Assistant Deputy Superintendent of Police testified that “there are 
already enough laws in the books at this point [that address the street gang 
problems], criminal laws, criminal penalties which are much different than the 
ones that are articulated in the ordinance." Supp. R. II at 181.

17



because racial minorities have achieved political empowerment. 
CNO B r.11-12. While it is certainly correct that the political 
influence ot African American and Hispanic citizens is increasing 
in some of America's large urban areas, it is certainly not correct 
that conflict between the police and minority communities is no 
longer a concern.

As noted by former New York City Police Commissioner 
Patrick Murphy and former Newark Director of Police Hubert 
Williams:

[A lthough the police are better prepared to deal with 
residents of the inner city than they were 20 years ago, 
they are far from having totally bridged the chasm that has 
separated them from minorities - especially blacks - for 
over 200 years. There are still too few black officers at all 
levels. Racism still persists within contemporary police 
departments. Regardless o f rules and guidelines, 
inappropriate behavior on the streets still occurs. 
Complaints about differential treatment, patrol coverage 
and response time persist.

Hubert Williams & Patrick V. Murphy, The Evolving Strategy o f  
Police: A Minority View, in Perspectives on Policing (U.S. Dept, 
of Justice, N at’l Inst, of Justice No. 13, Jan. 1990). See also 
discussion, supra, at nn.2-4.

The concerns noted in Papachristou and Kolender have not 
disappeared for the nation’s minority communities. The long 
history of abuse o f standardless laws by officers pursuing their 
"personal predilections” has produced a lingering corrosive tension 
between police and minority communities that law enforcement

18



professionals and commentators recognize as a major impediment 
to effective law enforcement.—

Neither is there any reason for the Court to abandon settled 
notions of due process because, as certain amici urge, the 
ordinance was “enacted at the behest" of minorities. CNO Br.14. 
The argument of the CNO Brief is premised on two erroneous 
propositions. The first is that the "minority community” speaks 
with a single voice that is dispositive for purposes of constitutional 
adjudication. There w'as and is substantial opposition to the 
ordinance within Chicago’s minority communities. The ordinance 
was enacted over the strong objection of most o f Chicago’s 
African American aldermen and the editorial objection of the 
Chicago Defender, Chicago’s principal African American 
newspaper. See discussion in CANS Brief 3 - 6.—

CNO’s second erroneous premise is that once members of 
minority communities attain a degree of political power, 
discrimination will no longer be a matter of concern because 
minority leaders will not practice or countenance discrimination 
against “their own.” This Court rejected that analysis in 
Castaneda v. Partida, 430 U.S. 482 (1977), a jury composition 
challenge. The state argued that it was highly likely that the large

—' A recent study reached the same conclusion, finding that “African-
Americans are more likely to perceive that they are both personally and 
vicariously hassled by the police [that is, stopped or watched by the police when 
they have done nothing wrong]. Again, nearly half of African-Americans had 
been hassled personally and two-thirds knew someone who had been hassled 
[‘vicariously hassled’], while the figures for whites in both cases were about one- 
tenth of those sampled.” Sandra Lee Browning, etal., Race And Getting Hassled 
By The Police: A Research Note, 17 Police Studies 1, 8 (1994).

— The need to be alert to the diversity of interests within a community has
been noted by community policing experts. “Community, when used in the 
context of policing, is problematic. . . . Practitioners and researchers alike have 
discovered that the ‘community’ cannot be easily defined as a single, 
unidimensional or monolithic social group. More often, there are many 
‘communities of interest’ within a single neighborhood." Dennis P. Rosenbaum 
el al.. The Prevention o f  Crime Social and Situational Strategies 191 (1998).

19



disparity between Mexican-American jury-eligible citizens and 
those summoned for grand jury service was attributable to 
something other than discrimination because Mexican-Americans 
held many elective county offices.- This minority empowerment, 
Texas argued, made it unlikely that the disparity was linked to 
racism because “Mexican-Amencans would [not] discriminate 
against their own kind.” 430 U.S. at 490. The Court rejected the 
argument, concluding that “[bjecause of the many facets of human 
motivation, it would be unwise to presume as a matter o f law that 
human beings of one definable group will not discriminate against 
other members of their group.” Id. at 499.—

The Casteneda rule was reaffirmed just last Term, in Oncale 
v. Sundowner Offshore Servs., Inc., 140 L. Ed. 2d 201 (1998). 
Referring to Casteneda, this Court noted that “in the related 
context o f racial discrimination in the workplace we have rejected 
any conclusive presumption that an employer will not discriminate 
against members of his own race.” 140 L. Ed. 2d at 206 (holding 
that same-sex discrimination is actionable under Title VII).—

-  In Casteneda. the state based its argument on the fact that Mexican- 
Americans were a majority of the county population, and controlled the county 
politically. Even CNO does not suggest that Chicago’s African American and 
Hispanic communities control the city’s political structure.

-  Subsequently, lower courts have consistently rejected the presumption 
that minorities will not discriminate against other minorities. See. e.g., Bowen v. 
Kemp, 769 F.2d 672, 688 (1 1th Cir. 1985); Bell v. Bolger, 708 F.2d 1312, 1315 
n.3 (8th Cir. 1983); McWilliams v. Escambia County School Bd.. 658 F.2d 326, 
333 (5 th Cir. Unit B 1981); Eccleston v. Secretary o f  Navy, 700 F. Supp. 67, 69 
(D.D.C. 1988); United States v. Thomas. 787 F. Supp. 663, 676 n. 18 (E.D. Tex. 
1992).

— This rule finds considerable support in academic writing. See Peter M.
Shane, School Desegregation Remedies and the Fair Governance o f Schools. 132 
U. Pa. L. Rev. 1041, 1083-84 n. 139 (1984); Edward Patrick Boyle, It's Not Easy 
Bern Green: The Psychology o f  Racism. Environmental Discrimination, and the 
Argument fo r  Modernizing Equal Protection Analysis, 46 Vand. L. Rev. 937,966-

(continued...)

20



Finally, even if the ordinance did have the support of 
majorities in the African American and Hispanic communities (and 
there is no basis trom which this Court could conclude that is the 
case), and those communities controlled the politics of the City of 
Chicago, it would not warrant this Court’s abandonment of the 
fundamental proposition that due process requires criminal law to 
be sufficiently definite so that police and citizens know what 
behavior will be deemed unlawful. As this Court declared in West 
Virginia State Bd. ofEduc. v. Barnette, 319 U.S. 624, 638 (1943);

“the very purpose of a Bill of Rights was to withdraw 
certain subjects from the vicissitudes of political 
controversy, to place them beyond the reach of 
majorities and officials and to establish them as legal
principles to be applied by the courts___[Fundamental
rights may not be submitted to vote; they depend on the 
outcome of no elections.”—

— (...continued)
67 n.38 (1993); Janies H. Colopy, The Road Less Traveled; Pursuing 
Environmental Justice Through Title Vi o f  the Civil Rights Act o f  1964, 13 Stan. 
Envtl. L. J. 125, 136 (1994).

— Scholars of community policing have cautioned that apparent support 
from the community cannot legitimize otherwise objectionable police practices. 
“None of this is intended to make the police entirely subservient to communities 
and their desires. The police must continue to stand for a set of values that 
communities will not always honor. For example, the police must defend the 
importance of fairness in the treatment of offenders and the protection of their 
constitutional rights against the vengence of an angry community.” Mark H. 
Moore, Problem-Solving and Community Policing in Modem Policing 1992, at 
99-158 (Crime & Justice: A review of Research Series No. 15, 1992), M. Tonry 
& N. Moms, eds.). Accord Debra Livingston, Police Discretion and the Quality 
o f Life in Public Places: Courts, Communities and the New Policing, 97 Colum. 
L. Rev. 551, 658 (1997) (“police must resist rather than respond to community 
mandates that would violate the constitutional rights of others or require police to 
act beyond their lawful authority"); and Herman Goldstein, Toward Community- 
Oriented Policing: Potential, Basic Requirements and Threshold Questions, 33, 
Crime & Delinquency 6 (1987).

21



THE GANG LOITERING ORDINANCE IS POOR 
POLICE PRACTICE AND THERE IS NO REASON 

TO BELIEVE IT WAS OR WOULD BE EFFECTIVE

It is widely recognized today that effective law enforcement 
requires cooperation between the police and the communities they 
serve in a mutual effort to solve problems of crime and community 
safety. See, e.g., Rosenbaum et al., supra, at 173-74. This 
approach is commonly referred to as community policing. 
Chicago and certain amici attempt to justify the “strong medicine,” 
Pet. Br. 38, of the ordinance by claiming that the ordinance with its 
broad arrest power is simply a manifestation of community 
policing. They ask this Court to give Chicago “greater leeway,” 
Id. at 17, and uphold the ordinance so that Chicago can address 
gang crime in accordance with what it deems to be modem police 
practice. But the ordinance is not an example of modem law 
enforcement. It is yet another example of old-style law 
enforcement measures rife with potential for abuse. Far from 
being an expression of community policing, it undermines the 
essential tenets on which community policing is founded and 
invites the abusive, discriminatory enforcement that has 
historically created barriers between police and minority 
communities.

Central to community policing is the strengthening of 
relationships between police and community residents. “At the 
heart o f the community policing model is the empirically 
supported idea that the police are more effective in solving 
neighborhood problems when they use the resources available in 
the community than when they try to complete the task alone.” 
Rosenbaum et al., supra, at 180. The same truth was recognized 
by the Kemer Commission, which noted that,

[i]t is axiomatic that effective law enforcement requires 
the support of the community. Such support will not be

III.

22



present when a substantial segment ot the community feels 
threatened by the police and regards the police as an 
occupying force.

Report o f  the National Commission on Civil Disorders (“Kerner 
Commission Report”) 158 (1968).

A second fundamental tenet of community policing is the use 
of innovative, flexible solutions to community problems that, 
unlike traditional law enforcement strategy, do not rely on arrest 
and prosecution. As stated by Prof. Moore, “The challenge is to 
use mechanisms other than arrests to produce resolutions and to 
look outside the department as well as within for usable 
operational capacity.” Moore, supra, at 121; see also Rosenbaum, 
et al., supra, at 179.-

The ordinance undermines both o f these fundamental 
principles of community policing. Most importantly, the 
ordinance is more likely to weaken than to strengthen police- 
community relationships. The ordinance sweeps great numbers of 
people not otherwise in violation of any law into the criminal 
justice system for merely standing around. The number o f persons 
caught within its wide net is staggenng. Chicago’s statistics show

-  One notable example of apparently successful community policing is
San Diego, which implemented a Neighborhood Policing Philosophy in the late 
1980's that emphasized alternatives to arrest and prosecution. Dunng the period 
from 1990-1995, serious crime in San Diego fell by 36.8%. The number of 
misdemeanor and felony arrests in San Diego during the overlapping period of 
1993-1996 also fell by 15%. Judith A. Greene, Zero Tolerance: A Case Study o f  
Police Policies and Practices in New York City, Crime & Delinquency 
(forthcoming April 1999) (manuscript at 12). Another example is the Boston Gun 
Project, which dramatically reduced gun violence among Boston gangs by 
"reaching out directly to gangs, setting clear standards for their behavior [the 
cessation of gun violance], and backing up that message by 'pulling every lever’ 
legally available when those standards were violated.” David Kennedy, Pulling 
Levers: Getting Deterrence Right, Nat’l Inst. Just. J. (July 1998). Boston's 
enforcement of clear standards is in marked contrast to the standardless approach 
of the ordinance.

23



that during the less than three years that the ordinance was 
enforced, more than 89,000 people were ordered by police to 
"move on.” More than 41,000 of those people were actually 
arrested for failing to respond to a police order in a manner that 
satisfied the particular arresting officer.- Thus, rather than reduce 
the adversarial interactions between the police and members of the 
community, the ordinance multiplied them.

The effect of such a large number of arrests under the 
ordinance not only reinforces the perception of the police as a 
hostile force, it damages further the reputation of the police in the 
community because the consequences of arrest are likely to be 
fleeting. Chicago Deputy Police Superintendent Gerald Cooper 
recognized that problem when testifying before the Chicago City 
Council concerning the then-proposed ordinance. After noting that 
the Cook County jail had a capacity o f only 6,500 and that arrests 
in Chicago during the year prior to the enactment of the ordinance 
exceeded 350,000, Mr. Cooper stated:

So what happened to those people. They all came 
out the other end.

So, of course, that is a consideration for us 
because that makes our job even more difficult if people 
feel they can thumb their nose at us. If they feel so what, 
if the police do come along and take us to the station, we 
can get out on an I-bond. We will be back out on the 
street before they do.

— The number of arrests increased dramatically throughout the three years
that the ordinance was enforced. According to statistics prepared by Chicago and 
lodged with the Court, in 1993 there were 5,251 arrests under the ordinance, in 
1994 there were 15,660 and in 1995 there were 22,056. See Richard M. Daley & 
Terry G. Hillard, Gang and Narcotic Related Violent Crime City o f  Chicago 
1993-1997 (1998) (“Five Year Report").

24



So what if we do have to go to court in a couple
ot weeks. We go to court. The courts are so crowded.
They look at the case and they throw it out.

Supp. R. II at 176-77.

Cooper's implicit prediction that the ordinance would breed 
contempt tor the police is borne out by the sheer number of people 
who failed to comply with police orders. The fact that nearly half 
of those who were ordered to move on were arrested for failing to 
do so to the satisfaction of the arresting officer represents a 
stunning number of citizens unwilling to heed a direct law- 
enforcement order. This can be interpreted in several ways: (i) 
citizens resented the “move on” order in the face of their 
apparently harmless behavior; (ii) citizens had tremendous 
contempt for police generally; or (iii) police did not properly 
explain the consequences of failing to obey the "move on” order. 
In any case, the Chicago experience does not reflect successful 
community policing.

Another likely explanation for the large and increasing number 
of arrests is that the officers simply did not notify citizens to 
"move on” prior to taking them into custody. Instead they used the 
ordinance as a pretext to arrest or to “sweep” the streets of persons 
they deemed undesirable. Such street sweeps represent the 
antithesis of modem community policing. The ordinance is not — 
unlike Boston's Gun Project -- targeted to enforcement of clearly 
defined standards o f conduct. It is, rather, a continuation o f a 
standardless approach to policing that has been repeatedly 
recognized as counterproductive since the Kemer Commission 
Report examined the causes o f civil disorder in 1968.

Indeed, the Kemer Commission’s discussion of police attitudes 
toward minority youth is apposite to this case:

Some conduct [by the police] -- breaking up of street groups,
indiscriminate stops and searches — is frequently directed at

25



youths, creating special tensions in the ghetto where the 
average age is generally under 21.

*  *  *

Because youths commit a large and increasing proportion of 
crime, police are under growing pressure from their 
supervisors -  and from the community -  to deal with them 
forcefully. "Harassment of youths” may therefore be viewed 
by some police departments -  and members even o f the Negro 
community -  as a proper crime prevention technique.

Kemer Commission Report, supra, at 159.

Even the commentators relied on by Chicago and its amici 
have recognized that “[s]treet sweeps,” such as those invited by the 
ordinance, are not effective or constitutionally permissible. For 
example, George Kelling, explicating his earlier “Broken 
Windows” theory, cautioned that “[sjweeps, inherently a short 
term and legally marginal placebo, often worsen the situation for 
residents and local police: they alienate innocent youths caught up 
in them (as well as their parents), and are meaningless to real 
troublemakers for whom an arrest is a minor irritant.” George 
Kelling & Katherine Coles, Fixing Broken Windows 166 (1996). 
Kelling further asserted that “the ideas presented in ‘Broken 
Windows’ were antithetical to the use o f ‘street sweeping’ tactics 
targeted on ‘undesirables.’” Id. at 22. Similarly, Debra Livingston 
has written that “[Pjolice scholars advocating focus on 
neighborhood disorder also cautioned that employing resurrected 
. . .  reform era methods to ‘sweep up,’ . . .  ‘move along,’ and arrest 
persons threatening some conception of public order was 
dangerous, and contrary to the role for police that they endorsed.” 
Livingston, supra note 18, at 581.

Chicago’s half-hearted attempt to wrap the ordinance in the 
mantle of community policing cannot disguise the true nature of 
the ordinance — a mechanism that permits the police to conduct 
street sweeps of precisely the sort that courts and responsible

26



commentators have correctly condemned as unconstitutional and 
ineffective.

IV.
TH ERE IS NO REASON TO BELIEVE THAT THE 

GANG LO ITERIN G  ORDINANCE WAS EFFECTIVE 
IN REDUCING GANG CRIM E IN CH ICAG O

Chicago contends that enforcement of the ordinance “had a 
substantial effect on the level of gang-related violence in 
Chicago.” Pet. Br. 16. That contention is echoed by several o f the 
City’s amici. E.g, Amicus Brief of National District Attorneys’ 
Association 11; CNO Br. 24. The United States, somewhat more 
cautiously, asserts that the ordinance “appears to have had 
significant impact.” U.S. Br. 2.

There is, however, no significant evidence that enforcement of 
the ordinance produced any reduction in gang-related crim e.- 
Chicago’s own data flatly contradict its claim that “if fewer gang 
members are loitering . . . fewer of them -  and innocent people 
nearby — will be shot to death.” Pet. Br. 16-17. Chicago 
emphasizes that in 1995, the last year Chicago enforced the 
ordinance, gang-related homicide in Chicago dropped more rapidly 
than total homicides did. Id. Yet precisely the same trend 
prevailed during the next two years, a period when the ordinance 
was not being enforced.- Apparently, suspension of the ordinance

— Whether the ordinance has an effect on crime does not, of course, affect 
constitutional analysis. It would likely reduce crime if all young men between the 
ages of 16 and 21 were confined, yet no one would suggest that such an approach 
would be constitutionally permissible.

— From 1995 to 1997, gang-related homicides dropped 13%, again a 
steeper decline than the 8% drop in the overall homicide rate for that two-year 
period. Chicago relies, in its Petition, on a contrast between homicide trends in 
1995 and 1996: In the former year (when the ordinance was enforced), gang-

(continued...)

27



either reduced gang-related homicides or, more likely, it was 
simply irrelevant to homicide levels that are driven by far more 
complex phenomena.— None ot the available evidence supports 
Chicago's claim that the ordinance reduced gang-related 
homicides.—

^(...continued)
related homicides fell faster than the total. For 1996, Chicago reports that gang- 
related homicides rose by 7%, though total homicides were still falling. Pet. Br. 
16. However, Chicago’s claims reflected a short-term statistical aberration. The 
following year, with enforcement of the ordinance still suspended, gang-related 
homicides dropped 19%, a much steeper decline than the 4% drop in the overall 
homicide rate for that year. See Five Year Report at 4-5.

-  The latter view is held by the principal expens on the implementation 
of community policing in Chicago. See Chicago Community Policing Evaluation 
Consortium, Community Policing in Chicago, Year Four An Interim Report 
(Nov. 1997) (discussing numerous factors that contributed to Chicago’s declining 
crime rates but omitting any mention of the gang-loitering ordinance). The 
published article Chicago cites, Tracey L. Meares, Social Organization and Drug 
Law Enforcement, 35 Am. Cnm. L. Rev. 191 (1998), relies exclusively on data 
prepared in January 1996 and therefore takes no account of the downward trend 
in gang-related homicides that continued after enforcement of the ordinance was 
suspended. Viewed in light of the Police Department's own analysis of more 
recent data, the out-of-date Police Department claims relied on in Meares’ article 
no longer have any conceivable relevance.

-  In the new set of statistics that Chicago presents to the Court, Chicago 
refers for the first time to offenses other than homicide, and claims that suspension 
of the ordinance produced increases in 1997 in two selectively reported crime 
categories: “gang related aggravated battery with a firearm” and “drive-by 
shootings." Br. 16 n i l  (referring to the Five Year Report). But the trend in these 
two, highly particularized offense categories is on its face anomalous. If, as 
Chicago’s data suggests, gang-related aggravated battery with a firearm rose by 
11% and drive-by shootings rose by 10% at a time when gang-related homicides 
were declining by 19%, see Five Year Report at 5-7, then either the fatality rate 
for reported shootings dropped precipitously during the year or, more likely, the 
assumptions used to classify these offense reports changed significantly. There 
are strong grounds to suspect that less serious cases excluded in the earlier year 
(or perhaps not reported to the police) were reported and included in 1997. Even 
accepting this self-serving and unverified data at face value, therefore, there is 
strong reason to doubt whether the statistics in question were compiled on a

(continued...)

28



CONCLUSION

Chicago and its amici contend that criminal street gangs are 
ushering in a new era in crime -  crime that cannot be controlled by 
existing laws, crime that demands the type of drastic preventative 
law that sweeps thousands of persons into the criminal justice 
system for standing on a public sidewalk or other public place. 
Chicago and its amici assure this Court that the constitutionality of 
the ordinance cannot be doubted, particularly because it is 
supported by members of the community. These arguments are 
not new. The ordinance is no different than other laws this Court 
has found unconstitutional. Indeed, this Court’s admonitions in 
Papachristou easily could have been written expressly in response 
to Chicago’s Gang Loitering Ordinance:

The implicit presumption in these generalized vagrancy 
standards -  that crime is being nipped in the bud -  is too 
extravagant to deserve extended treatment. O f course, 
vagrancy statutes are useful to the police. O f course they 
are nets making easy the roundup of so-called 
undesirables. But the rule of law implies equality and 
justice in its application. Vagrancy laws of the 
Jacksonville type teach that the scales of justice are so 
tipped even-handed administration of the law is not 
possible. The rule of law, evenly applied to minorities as 
well as majorities, to the poor as well as the rich, is the 
great mucilage that holds society together.

Papachristou, 405 U.S. at 171. Just as this Court correctly held in 
Papachristou that the Jacksonville loitering law was 
unconstitutional, the Illinois Supreme Court correctly held that 
Chicago’s Gang Loitering Ordinance was unconstitutional.

— (.■•continued)
consistent basis. This Court has never before based a change of constitutional 
doctrine on unverified data that changes from month to month.

29



Accordingly, thejudgment of the Illinois Supreme Court should be 
affirmed.

Dated: September 11, 1998

Respectfully submitted:

Marc O. Beem*
Diane F. Klotma 
Michael S. D ’Orsi 
Miller, Shakman, Hamilton, 

Kurtzon & Schlifke 
208 South LaSalle Street 
Suite 1100 
Chicago, IL 60604 
Telephone: (312) 263-3700 
* Counsel of Record

Elaine R. Jones 
Director-Counsel 
Theodore M. Shaw 
Associate Director-Counsel 
George H. Kendall 
Laura E. Hankins 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson St. - Suite 1600 
New York, NY 10013-2897 
Telephone: (212)965-2200

30