Chicago anti-loitering ordinance struck down by Supreme Court

Law was intended to reclaim city streets from control of gangs

June 11, 1999|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- With bitter emotions showing, a deeply divided Supreme Court ruled yesterday that cities may not try to get criminal gangs off the street by giving the police broad power to control who can loiter in public places.

In a much-awaited ruling, the court struck down by a 6-3 vote a sweeping Chicago anti-loitering ordinance passed seven years ago to curb turf battles between gangs in the city's poorer, crime-ridden neighborhoods.

The law, the majority said, gave police the authority to interfere with innocent individuals gathered on sidewalks any time police believed a single gang member was in the group and the officers could not find a reason to justify a sidewalk gathering.

Under the ordinance, "any police officer in Chicago is free to order at his whim any person standing in a public place with a suspected gang member to disperse," Justice Sandra Day O'Connor wrote.

"Friends, relatives, teachers, counselors, or even total strangers might unwittingly engage in forbidden loitering if they happen to engage in idle conversation with a gang member," Justice John Paul Stevens declared.

"It matters not," Stevens said, "whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark." Either way, they could be ordered by a police officer to move on, the justice said.

"The ordinance is unconstitutional," Justice Stephen G. Breyer said, "because the policeman enjoys too much discretion in every case."

The dissenters, complaining angrily, said "the people who will have to live with the consequences of today's opinion do not live in our neighborhoods."

Justice Clarence Thomas, writing for the dissenters, said acidly: "I fear that the court has unnecessarily sentenced law-abiding citizens to lives of terror and misery," leaving them "prisoners in their own homes," afraid even to go out into gang-dominated streets. "The human costs exacted by criminal street gangs are inestimable," he added.

In Baltimore, police have the authority to arrest individuals for loitering if they refuse to leave areas designated as "drug-free zones." Mayor Kurt L. Schmoke, however, has asked that the zones be eliminated because police are not enforcing those restrictions.

The Chicago case, one of the most important the court is to decide during its current term, has gained wide attention because of the growing urban problem of gang violence. Chicago adopted the ordinance after police said that gang members were taking control of the streets in some neighborhoods, but could not be stopped because they ceased any illegal activity when police showed up. Other cities were watching the Chicago dispute as a test of city power to deal with gang gatherings.

The dissenters yesterday cited government figures showing that Chicago gangs have been involved in as many as 225 homicides a year. Nationwide, the dissenters said, there are as many as 31,000 street gangs with membership approaching 900,000.

Although the deepest division in the court was between the majority and the dissenters, the majority itself was far from united. In fact, the outcome of the case could be found only by piecing together the separate views of justices spelled out in four separate opinions: by Stevens, O'Connor, Breyer and Justice Anthony M. Kennedy.

Attempting to counter the stern objections of the dissenters, the majority sought to stress how narrow the decision was. Cities, in fact, were offered a blueprint on how they could pass constitutional ordinances to cut down on gang control of the streets.

The court hinted it would uphold any of the following: an anti-loitering law aimed solely at gang members, one that bans loitering if it has a clearly "harmful purpose," one that narrowly limits the times and locations of banned gatherings, or one that forbids intimidation by large "lawless" assemblies of gang members.

In addition, the majority said cities could try to get at the problem of gang domination of the streets by enforcing existing laws, such as those that outlaw intimidation or mob action.

Cities did not lose the power to pass laws against gang loitering, other than ordinances patterned on Chicago's, because the decision did not create a constitutional right for anyone to loiter on a public street.

While three justices wanted the court to establish such a right, three others directly opposed it, and three took no position.

The only part of the ruling that represented the views of the majority of six was that the Chicago ordinance was unconstitutional because it was too vague, and thus left the police with "too much discretion," as Stevens put it, about when to clear the streets.

Sun staff writer Gerard Shields contributed to this article.

Pub Date: 6/11/99

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