High Court May Move Back on ‘Move On’ Laws

Siding with civil rights protesters during the 1960s, the Supreme Court struck down broad anti-loitering laws as bearing “the hallmarks of a police state.”

But times have changed. Now the high court is being asked to uphold a new generation of anti-loitering laws targeted at street gangs. And this time, the pressure is coming in part from community leaders in the predominantly black and Latino neighborhoods of Chicago.

The anti-gang case highlights the fall term of the high court, which opens today. At issue is whether Chicago can enforce a new anti-gang law that authorizes police to arrest suspected gang members who gather on street corners or in public parks.

The courts in Illinois struck down the law, citing the well-known case of Fred Shuttlesworth in 1965 as precedent. Shuttlesworth, who was picketing outside a whites-only department store in Birmingham, Ala., was arrested and sentenced to 241 days at “hard labor” because he failed to “move on.” But if the ordinance is revived by the Supreme Court, many cities, including Los Angeles, are expected to quickly enact similar measures.

“This is not a black-white issue anymore. The majority of Latino and black aldermen supported this ordinance,” says University of Chicago law professor Tracey L. Meares, an African American who has been an influential advocate for the measure. “We think it’s time to rethink the legal framework, because the people in the communities, the ones who live with the crime problems every day, are supporting it.”

The gang case (Chicago vs. Morales, 97-1121) will be argued before the court Dec. 9. Between now and then, the justices will also hear cases testing whether the Clinton administration can use sampling in the next census and whether local telephone service can be opened to national competition.

In two closely watched cases that come from California, the court will consider whether cities can be forced to pay damages to property owners denied building permits and whether the courthouse door can be closed to immigrants facing deportation.

The Chicago case has drawn the most attention, and not just because of the problem of street gangs. Today’s conservative-leaning high court appears eager to reconsider some broad rulings by a more liberal court in the past that restrained the police.

Before those rulings, many cities gave their police broad power to clear the streets and sidewalks of people considered undesirable. Municipal ordinances authorized the arrest of loiterers and vagrants, even if their crime consisted of doing nothing.

For example, a Jacksonville, Fla., ordinance called for the arrest of “rogues, vagabonds, dissolute persons, common nightwalkers [and] habitual loafers.” Often, particularly in the South, these ordinances were used primarily against blacks and poor whites.

In a thundering opinion for the court, Justice William O. Douglas, the legendary liberal, condemned these measures as authorizing the “roundup of the so-called undesirables.” These open-ended laws allowed for the arrest of virtually anyone “who looks suspicious to the police,” he wrote in 1972.

Ever since, cities have been on notice that their loitering laws must target a true crime. For example, ordinances against prostitution make it illegal to “loiter with the intent of soliciting lewd and lascivious acts.” This requires police and prosecutors to prove the arrested person was not simply standing on a sidewalk but was there for the purpose of committing a crime.

But faced with powerful street gangs that control neighborhoods and intimidate residents, Chicago’s lawyers are urging the court to uphold an open-ended loitering law targeted at gang members.

“Whenever a police officer observes a person he reasonably believes to be a criminal street gang member loitering in any public place,” the 1992 ordinance says, “he shall order all such persons to disperse and remove themselves from the area.” Violators can be given six months in jail and a $500 fine.

Before the measure was struck down in 1995, Chicago police used it to make 45,000 arrests. Assaults, drive-by shootings and gang murders declined when the law was in effect, city lawyers said, and crime rose after the law was invalidated.

Lawrence Rosenthal, a city attorney, said that the anti-gang law “restores a very traditional power to the police officer. When he sees a potential problem, he can just say, ‘Move on.’ ”

In California, state courts have upheld judges’ orders targeted at gang members on designated blocks or in particular neighborhoods. Those injunctions are not as broad as the Chicago law and cannot be triggered until prosecutors convince a judge to issue an order.

Civil libertarians say that the Chicago law, if upheld, could return the nation to the days when people could be arrested because of who they are, not what they do.

“This is still the old round-up-the-usual-suspects approach,” said Steven R. Shapiro, legal director for the American Civil Liberties Union, which successfully challenged the Chicago law. “It is a dangerous notion to have the police go after people for innocent conduct” such as standing on a street corner.

“If you commit crimes such as assault or harassment, you can be arrested. We have laws on the books covering those criminal acts. But we shouldn’t allow persons to be arrested just because they have been labeled as bad people,” Shapiro said.

Significantly, the Clinton administration entered the case on Chicago’s side, arguing that the anti-gang ordinance is a step toward “returning the city’s public spaces to law-abiding citizens and reducing the level of crime, fear and violence.”

On Oct. 13, the court will hear the telephone case, which tests whether Congress can open up the $100-billion-per-year local phone market (AT&T; vs. Iowa Utilities, 97-826).

In 1996, lawmakers authorized the Federal Communications Commission to set cost regulations that would allow outside firms to lease local phone lines, giving Americans for the first time a choice in local service.

But local firms objected and the U.S. Court of Appeals in St. Louis struck down the regulations. It concluded that the states--not the federal government--have the power to regulate local phone service.

The census case, to be heard Nov. 30, could mean the shift of billions of dollars in federal funds, as well as some seats in Congress.

The Clinton administration wants to use a sampling method in the 2000 census, saying that it would count more minorities and poor people and make the overall figures more accurate. House Republicans oppose the idea, saying that the Constitution demands an “actual enumeration,” meaning a head count.

Rather than pass a new law, the Republicans sued the administration in court and have won the early rounds (U.S. Department of Commerce vs. U.S. House of Representatives, 98-404).

The property rights case, to be heard Oct. 13, could have a broad impact on cities and developers.

After the City Council in Monterey rejected a series of proposals to build homes on a sandy coastal strip, the developer sued and a jury awarded him $1.45 million in damages. The city appealed, but the U.S. Court of Appeals agreed with the developer, saying that the regulatory ban on building amounted to a “taking” of private property (Monterey vs. Del Monte Dunes, 97-1235).

If the high court agrees, city officials fear that they will be sued whenever a building permit is denied.

On Nov. 4, the justices will take their first look at the so-called court stripping provisions of the 1996 immigration reform act.

For more than a decade, the government has tried to deport the “L.A. 8,” eight Palestinian immigrants in the Los Angeles area who raised money for the Popular Front for the Liberation of Palestine.

Federal judges have repeatedly blocked the action and ruled that the immigrants have a free-speech right to support the group.

However, Congress revised the immigration law to say that judges have no jurisdiction to hear deportation disputes, and the Clinton administration says that the Palestinians’ case (Reno vs. American-Arab Anti-Discrimination Committee, 97-1252) should be thrown out of court.

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Supreme Court Cases

Here are highlights of other fall cases scheduled to be heard by the U.S. Supreme Court.

* PENSIONS: When a company’s pension fund has a $1.2-billion surplus, are retirees entitled to share in it, or can the company use it for other purposes? (Hughes Aircraft vs. Jacobson, 97-1287. To be argued Nov. 2.)

* DISCRIMINATION: Do workers have a right to go to court if they say they suffered discrimination, or can they be forced by a union contract to settle for arbitration? (Wright vs. Universal Maritime, 97-889. Arguments Oct. 7.)

* UNIONS: Must a union tell workers that they need not join or pay full union dues? The National Right to Work Committee has taken up the case of a part-time actress who says that she was told she had to pay $500 in union dues before she could get a one-day job. (Marquez vs. Screen Actors Guild, 97-1056. Arguments Oct. 5.)

* CAR SEARCHES: Can the police routinely search an auto after stopping the driver for a traffic violation? (Knowles vs. Iowa, 97-7597. Arguments Nov. 3.)

* SEIZURE: Must the police who raid a house with a search warrant later help an innocent homeowner get back cash or other property that was seized and removed? (City of West Covina vs. Perkins, 77-1230. Arguments Nov. 3.)