Anti-Gang Loitering Ban Worries Justices

The Supreme Court justices, debating an anti-gang law, questioned Wednesday whether police should be given the power to arrest suspected gang members simply for standing on street corners.

At issue is a novel Chicago ordinance that tells the police to arrest suspected gang members who gather in parks or on streets if they fail to disperse when ordered to do so.

More than 90,000 arrests were made under the law before it was struck down by the state courts in Illinois.

California prosecutors have used a more targeted approach and obtained court injunctions that allow the police to arrest members of certain gangs if they are seen on a few specified blocks.

However, Los Angeles County prosecutors say they will move to adopt a broader attack on the gangs if Chicago’s ordinance is upheld by the Supreme Court.

But that prospect looked to be in doubt after Wednesday’s arguments.

“There are no standards for the police,” Justice Anthony M. Kennedy told a Chicago city attorney. Justice Sandra Day O’Connor added she too had a “concern for arbitrariness of the police.”

For decades, the court has insisted that a criminal law must be clear so both citizens and police officers will know just what constitutes a violation.

Anti-loitering and anti-vagrancy laws had long been criticized because they made normally innocent behavior, such as standing on a public sidewalk, into a crime. They also allowed police officers to sweep the streets of “undesirables.”

During the civil rights era of the 1960s, the court struck down broad anti-loitering laws that allowed police to arrest demonstrators for doing nothing other than walking on the sidewalks. Giving officers the power to arrest people on such a slim basis had “the hallmarks of a police state,” the court said in 1965.

Since then, anti-loitering laws must link the activity to another crime. For example, it is frequently a crime to loiter with an intent to solicit prostitution or loiter with an intent to sell drugs.

Now, Chicago’s lawyers are asking the court to reconsider its precedents and to allow a broad attack on gangs that dominate some neighborhoods. The city’s 1992 ordinance permitted police to arrest suspected gang members who are standing on a street corner with “no apparent purpose.”

Chicago Deputy City Atty. Lawrence Rosenthal said the law is needed because street gangs control some areas and “law-abiding people are afraid to use public places.” The ordinance gives the police the authority to crack down “only on a particular class of dangerous people,” he said.

But several justices said they thought the Chicago law had the same flaws as earlier measures declared unconstitutional.

What’s wrong with loitering for no apparent purpose, asked Justice David H. Souter. “Some people just like to watch the cars go by. I’m bothered about the open-ended purpose of this statute.”

Justice Stephen G. Breyer asked if it would be constitutional for a city to make it illegal for everyone to stand on the street.

Yes, Rosenthal replied.

Breyer seemed taken aback. “I’m an innocent person. Not a gang member. And it’s hot. And my house isn’t big. Can you pass a law that says no one can stand on the street?” he asked again.

The Chicago lawyer said such a law could be enacted because the Constitution does not give anyone a right to be on the street.

Justice Antonin Scalia came to his defense. A smoker, Scalia noted that some places like California have made it illegal to smoke in bars.

“Is there a constitutional right to loiter? Why not a constitutional right to smoke cigarettes?” he asked. “Do you know anyone who would rather smoke a cigarette in a bar rather than stand on the street?” he continued, suggesting he is just such a person. “They are disabled from doing so by law. No one thinks that’s a problem.”

But only Chief Justice William H. Rehnquist joined Scalia in defending the virtues of the Chicago law.

During Wednesday’s argument, Harvey Grossman, a lawyer for the American Civil Liberties Union, said California’s use of injunctions is more acceptable because these anti-gang injunctions are targeted with “surgical precision” to a small number of people and a particular area.

Prosecutors nationwide who support the Chicago law say it would allow a broader attack on the gang problem.

A ruling in the case, Chicago vs. Morales, 97-1121, can be expected in several months.