ANTI-LOITERING LAW UNCONSTITUTIONAL, SUPREME COURT RULES 6 TO 3

Tom Boland (wgcp@earthlink.net)
Sat, 12 Jun 1999 10:32:45 -0700 (PDT)


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http://www.sjmercury.com/nation/nationwire/docs/531736l.htm
FWD  June 10, 1999 - Associated Press

     COURT STRIKES DOWN 'STREET GANG' LAW

     By Richard Carelli
     Associated Press Writer

WASHINGTON (AP) -- Chicago went too far in its fight against street gangs
by ordering police to break up groups of loiterers, the Supreme Court ruled
Thursday, striking down the city's law despite pleas from the Clinton
administration, 31 states and many mayors.

   The court deemed as unconstitutionally vague the anti-loitering
ordinance that resulted in 45,000 arrests in the three years it was
enforced.

   ``If the loitering is in fact harmless and innocent, the dispersal order
itself is an unjustified impairment of liberty,'' even if it did reduce
crime, Justice John Paul Stevens said in the court's main opinion.

   The Illinois Supreme Court previously had invalidated the ordinance and
blocked its enforcement.

   Thursday' 6-3 ruling spurred six separate opinions and deep disagreement
among the justices.

   Stevens, the highest court's only Chicago native, wrote for the majority
that the ordinance gave police officers too much discretion to arrest
people who never belonged to any gang.

   But Justice Clarence Thomas, a dissenter, said he feared the court ``has
unnecessarily sentenced law-abiding citizens to lives of terror and
misery.''

   Another dissenter, Justice Antonin Scalia, chastised the court for
``elevating loitering to a constitutionally guaranteed right.''

   But the court long has barred communities from using anti-loitering laws
to discriminate against racial minorities by, for example, trying to keep
blacks out of some towns or neighborhoods.

   ``We are grateful ... that it is not a criminal activity simply to be a
young man of color gathered with friends on the streets of Chicago,'' said
Harvey Grossman, the American Civil Liberties Union lawyer who successfully
challenged the ordinance. ``Such laws are likely to be enforced in a
discriminatory manner.''

   But Thomas, the court's only black justice and one of its consistently
conservative voices, cited far different concerns for innocent minorities.

   ``The people who suffer from our lofty pronouncements are people ... who
have seen their neighborhoods literally destroyed by gangs and violence and
drugs,'' he said. ``They are good, decent people who must struggle to
overcome their desperate situation, against all odds, in order to raise
their families, earn a living and remain good citizens.''

   The 1992 ordinance required police to order any group of people standing
around with no apparent purpose to move along if an officer believed at
least one of them belonged to a street gang. Those who disregarded the
order would be arrested.

   ``Although it is true that a loiterer is not subject to criminal
sanctions unless he or she disobeys a dispersal order,'' Stevens said, ``if
the loitering is in fact harmless and innocent, the dispersal order itself
is an unjustified impairment of liberty.''

   Emphasizing that police were not required to ask the purpose of any
perceived loitering, Stevens said, ``It matters not 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.

   ``In either, if their purpose is not apparent to a nearby police
officer, she may -- indeed, she 'shall' -- order them to disperse,'' he
added.

   Scalia took a page out of ``West Side Story'' in his dissenting opinion,
complete with gang member Tony, Officer Krupke and the Jets' ``speculative
discussion (probably irrelevant here) over whether the Jets are depraved
because they are deprived.''

   As Krupke arrests the group for rudely failing to obey his order to
disperse, Scalia wrote, ``I find it hard to believe that the Jets would not
have known they had it coming,''

   City attorney Lawrence Rosenthal told the court in December that gang
crime is ``different from every other form of criminal activity'' because
street gangs ``rely on their ability to terrorize the community'' with
their mere presence. By the time police officers arrive, he said, all they
see are gang members ``pretending to innocently loiter.''

   Acknowledging the ``serious and difficult problems'' street gangs cause,
the court said Chicago has numerous other laws and strategies to use
against gang intimidation.

   Mayor Richard Daley said the city will try to draft a new ordinance, and
Illinois Gov. George Ryan said Daley and other city officials who were just
trying to keep the streets safe will devise a new plan that will withstand
constitutional scrutiny.

   Joining Stevens in finding fatal flaws in the Chicago ordinance were
Justices Sandra Day O'Connor, Anthony M. Kennedy, David H. Souter, Ruth
Bader Ginsburg and Stephen G. Breyer.

   O'Connor, Kennedy and Breyer also wrote separately to explain their views.

   Chief Justice William H. Rehnquist was the third dissenter. He and
Scalia signed on to Thomas' impassioned dissenting opinion.

   The Chicago controversy had been among the most closely watched cases of
the Supreme Court's 1998-99 term, scheduled to end this month. The National
League of Cities, U.S. Mayors Conference and National Governors Association
all weighed in on Chicago's side. The ordinance's opponents included the
NAACP and other civil rights groups, the National Law Center on
Homelessness and Poverty and the National Black Police Association.

   There is broad disagreement over how many street gang members reside in
Chicago. City police estimated gang membership might total 10,000, but the
court was told federal prosecutors believe the total might be closer to
100,000.

AP-NY-06-10-99 1728EDT
Associated Press

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