In 1992, just prior to the dramatic decline in national crime rates, the City of Chicago enacted a loitering ordinance supposedly targeted at street gangs. The law's purpose is prophylactic – to prevent crime before it occurs by banishing certain people from public places. It gives police wide powers to disperse any group of two or more persons who are in a public place "with no apparent purpose" if one of the persons is "reasonably suspected" of being a gang member. Failure to disperse results in arrest.
The ordinance was immediately and successfully challenged in the Circuit Court of Cook County by the American Civil Liberties Union of Illinois and the Cook County Public Defender. However, the City continued to enforce the law until 1995, when the Illinois Appellate Court also ruled the law unconstitutional. The City appealed to the Illinois Supreme Court, only to be rebuffed yet again in October of 1997 when the state high court unanimously struck down the ordinance as unconstitutionally vague and a violation of substantive due process. The case is now before the United States Supreme Court which granted the City's request for review in April, 1998.
During the three years that the law was enforced, Chicago police engaged in periodic "street sweeps," dispersing about 45,000 people and arresting an equal number of individuals who allegedly refused to disperse. Most of the people targeted were African-American and Hispanic residents – many of whom were not even gang members. Contrary to the selective presentation of crime data by the City, the ordinance had no discernible impact on the incidence of crime.
The basis for the legal challenge to Chicago's ordinance is a substantial body of federal and state court decisions which long ago invalidated general loitering laws. The principles underlying those court rulings are fundamental to our constitutional tradition. First, criminal laws must adequately define the conduct sought to be prohibited. Loitering, or appearing to be doing nothing, is such an amorphous and subjective concept that these kinds of laws do not inform people of what they cannot do and thus trap people engaged in wholly innocent conduct. They also allow police to arbitrarily select people for arrest and punishment. Second, people have a basic right of free movement – to come to and go from, as well as to remain in, public places so long as they conduct themselves in a lawful fashion. Third, when government regulates the use of public streets, sidewalks and parks, places historically reserved for expression, on the basis of the identity or associations of a person, the law must be narrowly tailored. It must be the least restrictive means to achieve the government's goal. Finally, people may be subjected to criminal penalties only on the basis of what they do, and not because of who they are or with whom they choose to associate. The Constitution does not allow arrest and prosecution based on police speculation that someone or some group may possibly commit some unspecified crime in the future.
Over a half a century ago, the Supreme Court issued the first of a series of decisions recognizing that loitering laws violate those constitutional principles. Finally, in its 1972 landmark decision in Papachristou v. City of Jacksonville, the Court declared a loitering law unconstitutionally vague and prohibited its enforcement. As a consequence, until Chicago sought to resurrect this archaic type of prohibition, most cities had abandoned enforcing loitering laws more than 25 years ago.
Chicago has attempted to characterize its law as something different from old loitering laws because it applies only to gang members and their associates. The Illinois Courts uniformly and unanimously rejected that proposed distinction. If a law is vague and does not provide sufficient notice of what conduct is prohibited, it is not made more clear simply because it applies only to a selected group of people. The state courts steadfastly insisted that Constitutional guarantees of due process apply to all persons equally. In any event, the Illinois courts noted, the law included anyone who was with a suspected gang member, including family members, and was not limited to persons associating with gang members for the purpose of committing crimes.
Significantly, the Illinois Supreme Court recognized that the city was not helpless in its war against the criminal activities of gangs and pointed out that there are already laws which prohibit intimidation, compelling persons to join organizations, and intimidation for the purpose of furthering gang activities. The state high court also was adamant about the need for abiding by the strict commands of the Constitution: "Such laws, arbitrarily aimed at persons based merely on the suspicion that they may commit some future crime, are arbitrary and likely to be enforced in a discriminatory manner."