Sweeping Powers

"This fall," says a recent advertorial sponsored by the Washington Legal Foundation, "the United States Supreme Court has an opportunity to take the streets back from gangs and return them to law-abiding citizens."

All the Court has to do, explains WLF Chairman Daniel J. Popeo, is uphold Chicago's "anti-gang loitering ordinance." This handy law "empowers police to order gang members to disperse from organizing in streets or other public places."

The problem is that a bunch of "activist lawyers" at the American Civil Liberties Union, "more concerned with arcane constitutional theory than the harsh reality of street crime," somehow convinced state judges to overturn the ordinance. And get this: "The activist lawyers argued that there is a fundamental constitutional 'right to loiter.' "

Can you imagine anything more ridiculous? I can: Popeo's audacious misrepresentation of the issues involved in this case.

First of all, Chicago's anti-loitering ordinance does not apply only to gang members. "Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons," it says, "he shall order all such persons to disperse and remove themselves from the area."

Thus, in addition to actual gang members, the ordinance covers anyone a police officer thinks is a gang member, plus anyone else in the vicinity. A single suspected gang member in a group of five is enough to trigger an order to move along. Anyone who doesn't obey faces arrest, a fine of up to $500, up to six months in jail, and up to 120 hours of community service.

During the three years the ordinance was in effect, some 90,000 people were ordered to disperse; about half refused and were arrested. The case the Supreme Court is about to hear, Chicago v. Morales, involves 70 of them.

Despite Popeo's implication, the ordinance makes no reference to "organizing," whether that means recruiting gang members or planning crimes (both of which were already illegal when the ordinance was adopted). Indeed, the city defines loitering as "remain[ing] in any one place for no apparent purpose."

Under this ordinance, then, police have complete discretion in deciding 1) who is a gang member and 2) who is loitering. They literally can arrest you for doing nothing because they don't like your looks–or because they don't like the looks of someone you're with.

As the Illinois Supreme Court noted, such ordinances "are drafted in an intentionally vague manner so that persons who are undesirable in the eyes of police and prosecutors can be convicted even though they are not chargeable with any particular offense." The city itself described the law as a "prophylactic" measure intended to "stop crime before it occurs."

This approach can affect plenty of people whose activities are entirely innocent: a couple holding hands in the park, a group of friends waiting for a cab, a family getting some fresh air on a hot summer night. Such individuals have no way of knowing whether a police officer will decide they are breaking the law.

Because of this unpredictability, the Illinois Supreme Court unanimously ruled that the ordinance is unconstitutionally vague: It fails to tell people how they can avoid running afoul of the law, and it invites arbitrary and discriminatory enforcement.

Contrary to Popeo's dismissive characterization, the court did not announce a "right to loiter." Rather, it found that Chicago's ordinance arbitrarily infringed on freedom of movement, which the U.S. Supreme Court has long recognized as a basic aspect of liberty protected by the Constitution.

Indeed, beginning in 1940, the Court has repeatedly overturned anti-loitering measures similar to Chicago's, warning against "government by the moment-to-moment opinions of a policeman on his beat." The fact that the Court agreed to hear this case has civil libertarians worried that it will reconsider those precedents, encouraging other cities and states to follow Chicago's example.

The Clinton administration, always eager to undermine the Bill of Rights, has asked the Court to uphold the anti-loitering law. So have 13 state attorneys general and the U.S. Conference of Mayors.

Defenders of the ordinance say they want to protect law-abiding citizens from the intimidating presence of gangs. But who will protect them from the intimidating presence of police officers empowered to clear the streets of undesirables? If it is true to its precedents and to the rule of law, the Supreme Court will.