City of Chicago v. Morales

United States Supreme Court

527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999)

 

      Chicago’s Gangland Congregation Ordinance prohibited criminal “street gang members” from loitering in public places. The Illinois Supreme Court held that the ordinance violated due process of law in that it was impermissibly vague and was an arbitrary restriction on personal liberties. The city of Chicago sought review, and the U.S. Supreme Court affirmed.

 

Justice Stevens announced the judgment of the Court. ...

 

      ... The ordinance creates a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a “public place” is a “criminal street gang membe[r].” Second, the persons must be “loitering,” which the ordinance defines as “remain[ing] in any one place with no apparent purpose.” Third, the officer must then order “all” of the persons to disperse and remove themselves “from the area.” Fourth, a person must disobey the officer’s order. If any person, whether a gang member or not, disobeys the officer’s order, that person is guilty of violating the ordinance. ...

 

      The basic factual predicate for the city’s ordinance is not in dispute. As the city argues in its brief, “the very presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils community residents’ sense of safety and security, detracts from property values, and can ultimately destabilize entire neighborhoods.” The findings in the ordinance explain that it was motivated by these concerns. We have no doubt that a law that directly prohibited such intimidating conduct would be constitutional, but this ordinance broadly covers a significant amount of additional activity. Uncertainty about the scope of that additional coverage provides the basis for respondents’ claim that the ordinance is too vague. ...

 

      Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. ...

 

      “It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits. ...” The Illinois Supreme Court recognized that the term “loiter” may have a common and accepted meaning, ... but the definition of that term in this ordinance—“to remain in any one place with no apparent purpose”—does not. It is difficult to imagine how any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an “apparent purpose.” If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose?

 

      Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of “loitering,” but rather about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law’s failure to distinguish between innocent conduct and conduct threatening harm. Its decision followed the precedent set by a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent. However, state courts have uniformly invalidated laws that do not join the term “loitering” with a second specific element of the crime.

 

      The city’s principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer’s order to disperse. ... We find this response unpersuasive for at least two reasons.

 

      First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.” ... Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit. If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. ... Because an officer may issue an order only after prohibited conduct has already occurred, it cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law.

 

      Second, the terms of the dispersal order compound the inadequacy of the notice afforded by the ordinance. It provides that the officer “shall order all such persons to disperse and remove themselves from the area.” ... This vague phrasing raises a host of questions. After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? As we do here, we have found vagueness in a criminal statute exacerbated by the use of the standards of “neighborhood” and “locality.” ...

 

      Lack of clarity in the description of the loiterer’s duty to obey a dispersal order might not render the ordinance unconstitutionally vague if the definition of the forbidden conduct were clear, but it does buttress our conclusion that the entire ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted. The Constitution does not permit a legislature to “set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.” ... This ordinance is therefore vague “not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.” ...

 

      The broad sweep of the ordinance also violates “the requirement that a legislature establish minimal guidelines to govern law enforcement.” ... There are no such guidelines in the ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. 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 event, if their purpose is not apparent to a nearby police officer, she may—indeed, she “shall”—order them to disperse.

 

      Recognizing that the ordinance does reach a substantial amount of innocent conduct, we turn, then, to its language to determine if it “necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat.” ... As we discussed in the context of fair notice, ... the principal source of the vast discretion conferred on the police in this case is the definition of loitering as “to remain in any one place with no apparent purpose.”

 

      As the Illinois Supreme Court interprets that definition, it “provides absolute discretion to police officers to determine what activities constitute loitering.” ... We have no authority to construe the language of a state statute more narrowly than the construction given by that State’s highest court. “The power to determine the meaning of a statute carries with it the power to prescribe its extent and limitations as well as the method by which they shall be determined.” ...

 

      Nevertheless, the city disputes the Illinois Supreme Court’s interpretation, arguing that the text of the ordinance limits the officer’s discretion in three ways. First, it does not permit the officer to issue a dispersal order to anyone who is moving along or who has an apparent purpose. Second, it does not permit an arrest if individuals obey a dispersal order. Third, no order can issue unless the officer reasonably believes that one of the loiterers is a member of a criminal street gang.

 

      Even putting to one side our duty to defer to a state court’s construction of the scope of a local enactment, we find each of these limitations insufficient. That the ordinance does not apply to people who are moving—that is, to activity that would not constitute loitering under any possible definition of the term—does not even address the question of how much discretion the police enjoy in deciding which stationary persons to disperse under the ordinance. Similarly, that the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue. The “no apparent purpose” standard for making that decision is inherently subjective because its application depends on whether some purpose is “apparent” to the officer on the scene.

 

      Presumably an officer would have discretion to treat some purposes—perhaps a purpose to engage in idle conversation or simply to enjoy a cool breeze on a warm evening—as too frivolous to be apparent if he suspected a different ulterior motive. Moreover, an officer conscious of the city council’s reasons for enacting the ordinance might well ignore its text and issue a dispersal order, even though an illicit purpose is actually apparent.

 

      It is true, as the city argues, that the requirement that the officer reasonably believe that a group of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members. But this ordinance, for reasons that are not explained in the findings of the city council, requires no harmful purpose and applies to non-gang members as well as suspected gang members. It applies to everyone in the city who may remain in one place with one suspected gang member as long as their purpose is not apparent to an officer observing them. 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.

 

      Ironically, the definition of loitering in the Chicago ordinance not only extends its scope to encompass harmless conduct, but also has the perverse consequence of excluding from its coverage much of the intimidating conduct that motivated its enactment. As the city council’s findings demonstrate, the most harmful gang loitering is motivated either by an apparent purpose to publicize the gang’s dominance of certain territory, thereby intimidating nonmembers, or by an equally apparent purpose to conceal ongoing commerce in illegal drugs. As the Illinois Supreme Court has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says and that it has no application to loiterers whose purpose is apparent. The relative importance of its application to harmless loitering is magnified by its inapplicability to loitering that has an obviously threatening or illicit purpose. ...

 

      In our judgment, the Illinois Supreme Court correctly concluded that the ordinance does not provide sufficiently specific limits on the enforcement discretion of the police “to meet constitutional standards for definiteness and clarity.” We recognize the serious and difficult problems testified to by the citizens of Chicago that led to the enactment of this ordinance. “We are mindful that the preservation of liberty depends in part on the maintenance of social order.” However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the public streets.

 

      Accordingly, the judgment of the Supreme Court of Illinois is Affirmed.

 

 

Justice O’Connor, with whom Justice Breyer joins, concurring in part and concurring in the judgment. ...

 

 

Justice Kennedy, concurring in part and concurring in the judgment. ...

 

 

Justice Breyer, concurring in part and concurring in the judgment. ...

 

 

Justice Scalia, dissenting. ...

 

 

Justice Thomas, with whom The Chief Justice and Justice Scalia join, dissenting.

 

      The duly elected members of the Chicago City Council enacted the ordinance at issue as part of a larger effort to prevent gangs from establishing dominion over the public streets. By invalidating Chicago’s ordinance, I fear that the Court has unnecessarily sentenced law-abiding citizens to lives of terror and misery. The ordinance is not vague. “[A]ny fool would know that a particular category of conduct would be within [its] reach.” ...

 

      The human costs exacted by criminal street gangs are inestimable. In many of our Nation’s cities, gangs have “[v]irtually overtak[en] certain neighborhoods, contributing to the economic and social decline of these areas and causing fear and lifestyle changes among law-abiding residents.” ... Gangs fill the daily lives of many of our poorest and most vulnerable citizens with a terror that the Court does not give sufficient consideration, often relegating them to the status of prisoners in their own homes. ...

 

      In order to perform their peace-keeping responsibilities satisfactorily, the police inevitably must exercise discretion. Indeed, by empowering them to act as peace officers, the law assumes that the police will exercise that discretion responsibly and with sound judgment. That is not to say that the law should not provide objective guidelines for the police, but simply that it cannot rigidly constrain their every action. By directing a police officer not to issue a dispersal order unless he “observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place,” ... Chicago’s ordinance strikes an appropriate balance between those two extremes. ...

 

      The ... conclusion that the ordinance “fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted,” ... is similarly untenable. There is nothing “vague” about an order to disperse. While “we can never expect mathematical certainty from our language,” ... it is safe to assume that the vast majority of people who are ordered by the police to “disperse and remove themselves from the area” will have little difficulty understanding how to comply. ...

 

      ... Today, the Court focuses extensively on the “rights” of gang members and their companions. It can safely do so—the people who will have to live with the consequences of today’s opinion do not live in our neighborhoods. Rather, the people who will suffer from our lofty pronouncements are people ... who have seen their neighborhoods literally destroyed by gangs and violence and drugs. 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. ... By focusing exclusively on the imagined “rights” of the two percent, the Court today has denied our most vulnerable citizens the very thing that it elevates above all else—the “freedom of movement.” And that is a shame. I respectfully dissent.