Justices Air Reservations About Anti-Loitering Ordinance
By Joan Biskupic
Several Supreme Court justices expressed grave reservations yesterday over whether police should be able to stop people from hanging out on street corners as a means of girding against the threat of gang violence.
During unusually heated oral arguments in a closely watched case, Chicago deputy corporation counsel Lawrence Rosenthal told the justices that gang violence is so malignantly different from other crime that strong steps must be taken to make neighborhoods safe again. He defended a Chicago ordinance that allows police to break up groups loitering on city streets "with no apparent purpose" if at least one of those in the group is suspected of belonging to a gang.
A majority of the justices were skeptical about how police can separate harmless loitering from activity that leads to the drug dealing, drive-by shootings and other violence the police are trying to prevent.
"The ordinance is making some silent assumptions that some purposes [for hanging out] are worthy and some are not," Justice David H. Souter said, adding that some people like to sit and watch cars go by.
Justice Sandra Day O'Connor, questioning how police would know what people milling about are up to, said, "There is a concern here . . . for arbitrariness by the police."
Justice Antonin Scalia was more sympathetic to Chicago's ordinance, asking dubiously whether loitering is a "constitutional right."
Adopted in 1992 by the Chicago City Council, the law allows loiterers who refuse to move on to be fined up to $500 and jailed for six months. During the three years it was enforced before an Illinois court ruled against it some 45,000 people were arrested and it attracted the attention of cities across America fighting the gang scourge.
The U.S. Conference of Mayors and 31 states have backed Chicago and its power to have such a law. But civil libertarians and minority rights groups say the law effectively targets blacks and Hispanics and constitutes a return to the street sweeps of the 1960s.
Overall, the ordinance is part of a new generation of zero-tolerance policies, such as curfew laws adopted in the District and elsewhere, aimed at helping communities battle violent street crime. But some of these policies (including the District curfew law) have been challenged as infringing on personal freedom. In Illinois, the state Supreme Court ruled that the Chicago ordinance was unconstitutionally vague and violated due process by restricting the right to move about freely.
Appealing that decision, attorney Rosenthal told the justices that a gang's presence terrorizes the community. He said "the great virtue" of the Chicago law is that it prompts neighbors to alert authorities to gang activity and promotes community policing.
Many of the justices questioned how a gang member or anyone else would have fair notice that he was breaking the law by milling about "with no apparent purpose." And Justice Anthony M. Kennedy asked how someone who is not a member of the gang would know he was doing something unlawful.
O'Connor said she would be more open to an anti-loitering law tied to specific locations, such as public restrooms or schools, but was wary of a broad-based approach. Justices Ruth Bader Ginsburg and Stephen G. Breyer also were outspoken in their concerns.
Urging the court to strike down the law, Harvey Grossman, a lawyer for the American Civil Liberties Union, said it leads to the "surreal exercise" of police trying to determine whether people gathered on a street corner have a legitimate purpose. He said any law that tries to stop gang members from congregating must be tied to some evil intent or unlawful behavior, such as "loitering with the intent to sell drugs."
Grossman said the country's tradition has been to permit people to gather in the street or other public areas to talk about personal or public matters as long as they are not engaged in any wrongdoing. He relies heavily on a 1972 high court ruling that struck down a Jacksonville, Fla., law prohibiting people from wandering about "without any lawful purpose."
Scalia and Chief Justice William H. Rehnquist were the toughest on Grossman. "There is nothing vague about being told by a police officer to move on," Rehnquist said at one point. Scalia and Grossman got into combative exchanges over the extent of gang members' or anyone's rights to move freely about streets and sidewalks.
Justice John Paul Stevens asked Grossman how the city's African American aldermen had voted on the ordinance. Grossman said eight opposed it; six favored it. Neighborhood groups in Chicago have been similarly divided on the merits of the law. As is his habit, Justice Clarence Thomas asked no questions.
A ruling in City of Chicago v. Morales is expected before the justices recess next summer.
© 1998 The Washington Post Company