CITY OF CHICAGO, Petitioner,
v.
Jesus MORALES, et al., Respondents.
No. 97-1121.
United States Supreme Court Amicus
Brief.
October Term, 1997.
June 19, 1998.
On Writ of Certiorari to the Supreme
Court of Illinois
BRIEF AMICUS CURIAE OF THE CHICAGO
NEIGHBORHOOD ORGANIZATIONS IN SUPPORT OF
PETITIONER
DAN M. KAHAN TRACEY L. MEARES University of
Chicago Law School 1111 East 60th Street Chicago,
Illinois 60637 (773) 702-9566
MICHELE L. ODORIZZI Counsel of Record JEFFREY
W. SARLES STEFFEN N. JOHNSON Mayer, Brown & Platt 190 South LaSalle Street
Chicago, Illinois 60603 (312) 782-0600
Counsel for Amici Curiae
*i QUESTION PRESENTED
Whether Chicago's gang loitering ordinance, which
enjoys the overwhelming support of citizens who share in the burdens as well as
the benefits of the law, and which was adopted because it has a significantly
less destructive impact on gang members and their communities than do
alternative law- enforcement policies, strikes a reasonable and constitutional
balance between liberty and order.
*ii TABLE OF CONTENTS
QUESTION
PRESENTED ... i
TABLE OF
CONTENTS ... ii
TABLE OF
AUTHORITIES ... iv
INTRODUCTION
AND INTEREST OF AMICI CURIAE ... 1
SUMMARY OF
ARGUMENT ... 4
ARGUMENT ...
6
I. THE
GENERALIZED IMPACT OF A POLICING TECHNIQUE ON MEMBERS OF THE COMMUNITY IS
RELEVANT TO THE LEVEL OF JUDICIAL SCRUTINY ... 6
II. THE BURDENS
ON LIBERTY ASSOCIATED WITH THE ORDINANCE AFFECT MEMBERS OF THE COMMUNITY
GENERALLY ... 14
III. THE
ORDINANCE REASONABLY BALANCES LIBERTY AND ORDER ... 18
A. The
Ordinance Substantially Promotes Order ... 19
1. Gang
criminality plagues inner-city neighborhoods ... 19
2. The
Ordinance is geared to reducing gang activity through its effect on social
norms ... 21
B. The
Ordinance Places Minimal Restraints on Liberty ... 25
*iii 1. The Ordinance is liberty-enhancing
for the community at large and for youths who resent pressure to join gangs ...
25
2. The
ordinance is a liberty-conserving alternative to conventional "crack
down" strategies for combating gangs ... 27
3. Objective
criteria and political monitoring furnish safeguards against abuse ... 27
CONCLUSION
... 30
*iv TABLE OF AUTHORITIES
Cases:
Armstrong v. United States, 364 U.S. 40 (1960) ... 8
Bouie v. South Carolina, 378 U.S. 347 (1964) ... 10
Boyce Motor Lines v. United States, 342 U.S. 337 (1952) ... 9
Church of Lukumi Babalu Aye v. City of Hialeah, 508
U.S. 520
(1993) ... 7, 13
Connecticut v. Doehr, 501 U.S. 1 (1991) ... 25
Coolidge v. New Hampshire, 403 U.S. 443 (1971) ... 8
Cox v.
Louisiana, 379 U.S. 536 (1965) ... 10
Employment Division v. Smith, 494 U.S. 872 (1990) ... 7
Federal Election Commission v. Akins, 118 S. Ct. 1777 (1998) ... 8
Grayned v. City of Rockford, 408 U.S. 104 (1972) ... 9
Keystone Bituminous Coal Ass'n v. DeBenedictis, 480
U.S. 470
(1987) ... 8
Leathers v. Medlock, 499 U.S. 439 (1991) ... 7
Medina v. California, 505 U.S. 437 (1992) ... 6
Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1980) ... 8
Minneapolis Star & Tribune Co. v. Minnesota Comm'r
of Revenue, 460 U.S. 575 (1983) ... 7
National Treasury Employees Union v. Von Raab, 489
U.S. 656
(1989) ... 8
*v New York v. Burger, 482 U.S. 691 (1987) ... 9
Papachristou v. City of Jacksonville, 405 U.S. 156 (1972) ... 6, 9-11, 13
People ex rel. Gallo v. Acuna, 929 P.2d 596 (Cal.), cert. denied, 117 S. Ct. 2513 (1997) ... 26
Schall v. Martin, 467 U.S. 253 (1984) ... 26, 28
Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965) ... 6, 9-11, 13
South Carolina State Hwy. Dep't v. Barnwell Bros., 303
U.S. 177
(1938) ... 8
United States v. Carolene Products Co., 304 U.S. 144 (1938) ... 6
United States v. Salerno, 481 U.S. 739 (1987) ... 28
Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995) ... 9, 13
Village of Hoffman Estates v. The Flipside, Hoffman
Estates, Inc., 455 U.S. 489
(1982) ... 29
Statutes:
Voting Rights
Act of 1965, 42 U.S.C. § 1971 et seq ... 10
Miscellaneous:
1998 Chicago
Community Policing Convention Resolution Endorsing Chicago's Anti- Gang
Loitering Ordinance ... 15, 26
*vi G. Akerlof & J. Yellen, Gang
Behavior, Law Enforcement, and Community Values in Values and Public Policy (H.
Aaron et al., eds., 1994) ... 24
All Things
Considered: Miami Curfew Gaining
Support Among Many Black Groups (National
Public Radio broadcast, Feb. 24, 1994) ... 11
E. Anderson,
Streetwise: Race, Class, and Change in
an Urban Community (1990) ... 23, 24
D. Barry
& D. Sontag, Disrespect as Catalyst for Police Brutality, N.Y. Times, Nov. 19, 1997, at A1 ... 29
P. Bennett,
Growing Up, Skewed, with Violence, Bost. Globe, June 4, 1992, at 1 ... 21
S. Braun,
Shepherds for a Flock in the Cross-Fire, L.A. Times, Jan 16, 1998, at A1 ... 21
B. Clements, Views
Differ on Dallas' Curfew, Which Spawned Tacoma's Plan, News Trib. (Tacoma,
Wash.), Oct. 17, 1994, at B1 ... 12, 13
R. Conner, et
al., Listen to the Voice of the Projects (letter to the Editor), N.Y. Times,
Apr. 15, 1994, at A30 ... 14
H. Covey, et
al., Juvenile Gangs (1992) ... 19
Sen. U.
Curie, The ACLU Pits the Civil Rights of Few Against the Common Good (Letter to Editor), Wash. Times, Nov. 30,
1996, at A12 ... 14
M. Dawson,
Behind the Mule: Race and Class in
African-American Politics (1994) ... 16
*vii D. DeFotis, Police Fret for Public
after Gang Shootings, Chi. Trib., June 2, 1998, at B1 ... 20
W. Douglas,
Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1 (1960) ... 10
J. Ely,
Democracy and Distrust (1980) ... 7, 8
M. Genelin,
Gang Prosecutions: The Hardest Game in
Town, in The Gang Intervention Handbook (1993) ... 20
A. Gonzalez,
et al., Introduction to Gang Violence Prevention (1990) ... 21
B. Harden,
Letter from New York: "Ideal State
of Cleanliness" Is Apple of Giuliani's Eye, Wash. Post, Mar. 23, 1998, at
A6 ... 12
J. Jacobs,
The Death and Life of Great American Cities (1961) ... 24
M. Jankowski,
Islands in the Street: Gangs and
American Urban Society (1991) ... 23, 24
M. Johnson,
Crime: New Frontier, Chi. Sun-Times,
Nov. 29, 1993, at 4 ... 20
Joint Ctr.
for Political & Economic Studies, Black Elected Officials: A National Roster (1993) ... 11
Joint Ctr.
for Political Studies, Black Elected Officials: A National Roster (1984) ...
11
Journal, City
Council, Chicago, May 20, 1998 ... 15
*viii G. Kelling & C. Coles, Fixing
Broken Windows: Restoring Order and
Reducing Crime in Our Communities (1996) ... 29
R. Kennedy,
Race, Crime, and the Law ch. 3 (1997) ... 10
M. Klarman, The Puzzling Resistance to Political Process Theory,
77 Va. L. Rev. 747
(1991) ... 7
M.
Klein, The American Street Gang (1995) ... 20
S. Lawson,
Running for Freedom: Civil Rights and
Black Politics in America Since 1941 (1991) ... 11
D.
Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 Colum. L.
Rev. 551
(1997) ... 10, 12-14, 24, 28, 29
T. Locy, D.C.
Curfew Overturned in Federal Court, Wash. Post, Oct. 30, 1996, at A1 ... 12
Louis Harris
& Assoc., Inc., Between Hope and Fear:
Teens Speak Out on Crime and the Community (1995) ... 22
Man Demanding
Gang Affiliation Shoots Teen Standing on Street, Chi. Trib., Feb. 17, 1998, at
B3 ... 20
M. Martinez,
Parents Paid to Walk Line Between Gangs and School, Chi. Trib., Jan. 21, 1998,
at A1 ... 21
D. Matza,
Delinquency and Drift (1964) ... 23
*ix M. Mauer, The Sentencing Project,
Young Black Men and the Criminal Justice System: A Growing National Problem (1990) ... 27
T. Meares, Charting
Race and Class Differences in Attitudes Toward Drug Legalization and Law
Enforcement: Lessons for Federal
Criminal Law, 1 Buff. Crim. L. Rev. 137 (1997) ... 18
T. Meares, It's a Question of Connections, 31 Val. U.L. Rev. 579 (1997) ... 12
T. Meares,
Social Organization and Drug Law Enforcement, 5 Am. Crim. L. Rev. 191 (1998)
... 12, 18, 22, 25
W. Miller,
Lower Class Culture as a Generating Milieu of Gang Delinquency, 14 J. Soc. Issues 5 (1958) ... 23
W. Miller, Why
the United States Has Failed to Solve Its Youth Gang Problem, in Gangs in America (C. Ronald Huff ed., 1990) ... 21, 22
S. Mills
& D. Bunuel, Not Yet 13--and a Murder Suspect, Chi. Trib., Feb. 4, 1998, at
A1 ... 21
S. Mills
& D. Bunuel, Small Gang's Big Grip Troubles Neighborhood--The Saints Have
Grown More Violent And More Diverse Since Forming In The 1960s, Chi. Trib.,
Feb. 11, 1998, at B1 ... 19
Office of
Juvenile Justice and Delinquency Prevention, U.S. Dept. of Justice,
Curfew: An Answer to Juvenile
Delinquency and Victimization?, Juvenile Justice Bulletin, April 1996 ... 25
*x R. Posner, The Most Punitive Nation,
Times Literary Supp., Sept. 1, 1995 ... 27
S. Power, Boy
Headed to School Killed by Gang Member, Police Say, Dallas Morning News, Jan.
29, 1998 ... 19
K. Pye, The
Warren Court and Criminal Procedure, 67 Mich. L. Rev. 249 (1968)
... 10
Quiet
Revolution in the South: The Impact of
the Voting Rights Act, 1965-1990 (C.
Davidson et al. eds., 1994) ... 11
R. Sampson,
et al., Community Structure and Crime:
Testing Social- Disorganization Theory, 94 Am. J. Soc. 774 (1989) ... 17
R. Sampson,
Neighborhoods and Violent Crime: A
Multilevel Study of Collective Efficacy, 277 Science 918 (1997) ... 17
Sourcebook of
Criminal Justice Statistics Table 1.36 (K. Maguire et al. eds. 1994) ... 11
F. Spielman,
AntiGang Law Won't Be Abused, City Says, Chi. Sun-Times, June 19, 1992, at 10
... 16
A. Stanley,
Child Warriors, Time, June 18, 1990, at 30 ... 21
C. Steiker, Second Thoughts About First Principles, 107 Harv. L.
Rev. 820 (1994) ... 10
W. Stuntz,
Privacy's Problem and the Law of Criminal Procedure, 93 Mich. L. Rev. 1016 (1995) ... 9
*xi W. Stuntz, The Uneasy Relationship
Between Criminal Procedure and Criminal Justice, 107 Yale L.J. (1997) ... 27
The Teen
Curfew Works (editorial), San Diego Union-Tribune, Aug. 7, 1994, at G2 ... 12
There Are No
Children Here, Economist, Dec. 17, 1994, at 21 ... 19-21
P. Thomas,
Putting Children on the Front Lines, Wash. Post, June 20, 1996, at A1 ... 21
S.
Wasserstrom, & L. Seidman, The Fourth Amendment As Constitutional
Theory, 77 Geo. L.J. 19 (1988) ... 9
*1 INTRODUCTION AND INTEREST OF AMICI
CURIAE [FN1]
FN1. The
parties have consented to the filing of this brief. Copies of the consent letters have been lodged with the Clerk of
the Court. This brief was not authored
in whole or in part by counsel for a party, and no person or entity, other than
the amici curiae, their members, and their counsel made a monetary contribution
to the preparation and submission of this brief.
Amici--collectively, "the Neighborhood
Groups"--are 20 civic, religious, and other community associations from
throughout Chicago. [FN2] Working
closely with their elected representatives on the City Council, the
Neighborhood Groups played a critical role in the design of the gang-loitering
ordinance ("the Ordinance").
Because the Ordinance's implementing regulations oblige the police *2
to consult with community associations, the Neighborhood Groups have also been
intimately involved in determining where and how the Ordinance is
enforced. Finally, the Neighborhood
Groups have played an active role defending the Ordinance, filing amicus briefs
in the Illinois Court of Appeals, the Illinois Supreme Court, and in support of
the petition for certiorari.
FN2. Amici
include: United Neighborhood
Organization, a nonprofit organization whose focus is
economic development, school reform, and civic participation; Southwest Neighbors Against Gangs, a
southwest side community organization whose efforts include aggressive graffiti
removal and active Nite Patrol; West
Woodlawn Council of Block Clubs, representing roughly 75 block clubs in
Woodlawn; Hegewisch Community
Committee, a 60- year-old organization working to prevent juvenile
delinquency; Chicago Roseland Coalition
for Community Control, an economic development corporation of 24 years in
Roseland; South Chicago Chamber of
Commerce, representing 275 area businesses, churches, and school and community
groups. Ravenswood Community Council,
dedicated to housing, youth, senior programs, and community safety; Nobel Neighbors, an organization committed
to improving living conditions in West Humboldt Park; Hermosa Community Organization, an organization addressing escalating
neighborhood crime and providing tuition support for area children; Reach Out & Touch Ministries, working to
provide at-risk youth in Englewood with job opportunities; West Humboldt Park Family & Community
Development Council, a community-based group committed to housing, economic
development, and neighborhood safety; Bethel New Life, working to increase the
quality of life in East & West Garfield Park through crime prevention and
economic development; Crime Stoppers,
an Englewood organization directed at controlling conditions that foster crime;
Lawndale Business & Local Development Council, representing 66 local
businesses working to create jobs on Chicago's west side; CARE, rehabilitating homes, removing
graffiti, and promoting neighborhood safety;
Near Westside Community Development Corporation, a "bottom up"
planning movement aimed at neighborhood development and self-sufficiency;
Edgewater Community Council, which focuses on housing and public safety
issues; Emmaus Ministries, an outreach
to young men involved in high-risk street activity including gangs,
prostitution, and substance abuse;
Walls Community Church, a west side church committed to urban life and
the poor; Circle Urban Ministries, which operates youth development and shelter
programs in the Austin community.
The interest of the Neighborhood Groups can
be simply stated: to be heard. No other group of citizens is in a better
position to address the practical impact of the Ordinance. The Groups' members are the ones who daily
face a heightened risk of criminal victimization from gang criminality, and who
experience first-hand the destructive impact of gangs--and more severe means of
abating gangs--on the lives of their communities. The Groups are the mothers and fathers, the sisters and brothers,
and the neighbors and friends of the youths subject to the law. They support the Ordinance because it is a
form of policing that secures order without destroying
the lives of community youth who find themselves enmeshed in the complex social
and economic forces that fuel gang criminality.
From the outset, those who have opposed the
Ordinance have dismissed the unique perspective of the Neighborhood Groups'
members as irrelevant. An exchange from
the City Council hearings on the Ordinance typifies the critics' attitude. At the hearings, dozens of residents--from
church leaders, to representatives of local neighborhood associations, to
ordinary citizens-- testified in favor of the proposed law. Harvey Grossman, Director of the Illinois
ACLU, testified against it:
I am a lawyer, and I spend a great deal of
time doing nothing more than reviewing ordinances and statutes, and it turns
into a little bit of a long exam game.
* * * We pick apart the statute.
We focus on [a] word or [a] phrase, and we try to say why that phrase
might or might not be constitutional.
*3 Supp. R. II at 107. Alderman
William Beavers, a Council member who represents a ward on Chicago's south
side, objected to this bookish conception of how to appraise the
constitutionality of the law. "I
don't know if you are attuned to what's going [on] in these
neighborhoods," he told Grossman.
"Maybe I need to take you out there and show you what's really
going on." Id. at 119. To which Grossman replied that that would
not be necessary: I think our ability to come together and to try to resolve issues
[like this] really doesn't * * * depend on if I see what's happening in your
neighborhood or you see what's happening in my neighborhood.
Id. at 120.
Rather, what it does depend on, he stated (ibid.), is
empathy or ability to understand what's
happening to other people and, two, some commitment, some intellectual
integrity and some commitment to principle. And the principle that I am
suggesting to you is inviolate. It
doesn't change.
The Neighborhood Groups submit that this
conception of how to assess the constitutionality of the Ordinance is just
plain wrong. We do not deny that the
Ordinance poses challenging issues. But
we do deny, emphatically, that those issues--bearing as they do on the proper
balance of liberty and order in our communities--can adequately be considered
from the perspective of someone who does "nothing more" than
"pick apart" statutes and ordinances for a living. We vehemently contest the suggestion that
these issues can fairly be resolved by a formulaic application of
"inviolate" "intellectual" "principle [s]" that
"do[ ]n't depend," "really," on "see[ing] what's
happening in [our] neighborhood[s]."
And most important of all, we indignantly resist the characterization of
the complex issues in this case as one big "exam game." Ibid.
The fate of the Ordinance is not a
"game" for members of the Neighborhood Groups. The goal of this brief is to show that their
perspective is constitutionally relevant and to explain why, in their *4
view, the Ordinance strikes a constitutionally permissible balance between
liberty and order.
SUMMARY OF ARGUMENT
I. Courts should adjust the level of
constitutional scrutiny applied to a policing technique based on the breadth of
its impact on liberty within the community.
The proposition that courts should reserve the highest degree of
scrutiny for laws that concentrate burdens on politically disempowered
minorities figures prominently across a wide expanse of doctrines. The exacting scrutiny associated with this
Court's Due Process vagueness jurisprudence reflects the assumption that
communities never share in the burden on liberty associated with public order
laws, the incidence of which is predictably concentrated on minority citizens.
That perception accurately captured the
political reality of the 1960s and early 1970s, when this Court's leading
criminal procedure precedents were established. Today, however, minority citizens are no longer so
disenfranchised, and in fact exercise significant authority in the Nation's
inner-cities. They are using their
new-found political power to secure effective law enforcement in the form of
anti-loitering laws, curfews, and order-maintenance
policing.
It makes little sense to approach the
constitutional questions posed by these laws as if they were the same ones
posed by an earlier generation of public order provisions, the purpose and
effect of which were to oppress minorities. Rather than subject all such laws
to searching scrutiny, courts should consider whether the community at large is
meaningfully sharing in the burden created by the challenged provision. If it is, courts should afford significant
weight to the judgment of the community's political representatives that the
subject law reasonably balances liberty and order.
II. The Ordinance affects members of the
community at large in a meaningful way.
Unlike the anti-loitering laws of an earlier *5 generation, the Ordinance
is not a tool of repression being used by white majorities to reinforce the
exclusion of minorities from the community's political and economic life. To the contrary, representatives of
Chicago's poorest minority communities have played a key role in the adoption
and implementation of this law. The
residents of those communities, moreover, are linked by strong social and
familial ties to the gang members against whom the Ordinance is enforced. It is
precisely because they care so deeply about the welfare of these persons that
residents favor the relatively mild gang-loitering law as an alternative to
draconian penalty enhancements for gang crimes, severe mandatory minimum prison sentences for drug distribution, and similarly
punitive measures. The pervasive sense
of "linked fate" between the majority of these communities' residents
and the youths affected by the Ordinance provides a compelling reason to
respect the community's determination that such measures enhance rather than
detract from liberty in their communities.
III. Evaluated under an appropriately
deferential standard of review, the Ordinance strikes a reasonable balance
between liberty and order. Like other
forms of order-maintenance policing, the Ordinance promotes obedience to law
primarily through its positive effect on community social norms. Suppressing visible displays of gang
authority counteracts the social pressures that drive many youths to join or
emulate gang members. It also provides
assurance to committed law-abiders, who are more likely to cooperate with each
other and with the police when insulated from relentless public intimidation by
gang members. At the same time, the
guidelines established by the Ordinance's implementing regulations, combined
with the ongoing role of community organizations in overseeing its
implementation, furnish potent safeguards against abusive enforcement. Indeed, the Ordinance represents a
significantly less coercive alternative to conventional law-enforcement
strategies for combating gangs, and even to other forms of order-maintenance
policing, which afford police officers considerably more discretion in
enforcement.
I. THE GENERALIZED IMPACT OF A POLICING
TECHNIQUE ON MEMBERS OF THE COMMUNITY IS RELEVANT TO THE LEVEL OF JUDICIAL
SCRUTINY
Applying this Court's decisions in Papachristou v. City of Jacksonville, 405 U.S. 156 (1972), and Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965), the Illinois Supreme Court
held that the Ordinance was unconstitutionally vague. We submit that the court fundamentally misconceived the
rationale, and hence the proper reach, of those decisions. The exacting demand for statutory precision
reflected in those cases is reserved for discretionary policing techniques the
coercive incidence of which is concentrated on a politically disempowered
minority. When the policing technique
affects the community generally, in contrast, courts appropriately relax the
degree of scrutiny in recognition of the community's own incentives to police
its police. [FN3]
FN3. The
court below also held that the Ordinance violated substantive due process. We dispute that ruling on the same
ground--namely, that in undertaking to enforce its own conception of liberty,
the court applied a degree of scrutiny inconsistent with the deference that is
due when the law in question does not concentrate burdens on a disempowered
minority but rather affects members of the community
generally.
This Court commonly describes constitutional rights--particularly
those that relate to criminal justice--as guaranteeing a reasonable
"balance * * * between liberty and order." E.g., Medina v. California, 505 U.S. 437, 443 (1992). In determining whether the
balance struck by any particular policy is reasonable, courts appropriately pay
attention to how diffusely the impact of that policy is felt within the
community. Where the coercive incidence
of a particular policy is being visited on a powerless minority, popularly
elected representatives lack adequate incentives to determine whether the order
benefits of the law for the community at large truly outweigh the liberty costs
to the few. See generally *7United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4 (1938); J. Ely, Democracy and Distrust 73-104 (1980). This explains why
courts strictly scrutinize policies that discriminate on the basis of race,
restrict "dangerous" speech, or impose special obligations on account
of religion. See M. Klarman, The Puzzling Resistance to Political Process Theory,
77 Va. L. Rev. 747, 748-57, 760-63 (1991).
But when a community can be seen as
internalizing the coercive incidence of a particular policy, courts are much
less likely to second-guess political institutions on whether the tradeoff
between liberty and order is appropriate. Thus, the
Free Exercise Clause proscribes " 'prohibition[s] that society is prepared
to impose upon [religious minorities] but not upon itself" ' (Church of Lukumi Babalu Aye v. City of Hialeah, 508
U.S. 520, 545
(1993)), but does not affect "neutral law[s] of general
applicability" resulting from the normal "political process" in
our "democratic government" (Employment Division v. Smith, 494 U.S. 872, 879, 890 (1990)). Likewise, this Court has readily sustained free speech challenges
to taxes that "single[ ] out the press," reasoning that "the
political constraints that prevent a legislature from passing crippling taxes
of general applicability are weakened" in such circumstances, while
rejecting free speech challenges to taxes of general applicability, reasoning
that there is little cause to "fear that a government will destroy a
selected group of taxpayers by burdensome taxation if it must impose the same
burden on the rest of its constituency."
See Minneapolis Star & Tribune Co. v. Minnesota Comm'r
of Revenue, 460 U.S. 575, 585
(1983) (invalidating a tax targeted at the press); cf. Leathers
v. Medlock, 499 U.S. 439, 447
(1991) (sustaining a generally applicable sales tax as applied to the press).
These principles apply broadly in
constitutional law. For instance, in
challenges to state laws pursuant to the Dormant Commerce Clause, the Court
carefully scrutinizes laws whose "burden falls principally upon those
without the state," simply because such laws are
"not likely to be subjected to those political *8 restraints which
are normally exerted on legislation where it affects adversely some interests
within the state." South Carolina State Hwy. Dept v. Barnwell Bros., 303
U.S. 177, 184 n. 2
(1938). Similarly, the Takings Clause
principally "bar[s] Government from forcing some people alone to bear
public burdens which, in all fairness and justice, should be borne by the
public as a whole" (Armstrong v. United States, 364 U.S. 40, 49 (1960)), but does not limit land-use
regulations that impose equal burdens on all property owners (see Keystone Bituminous Coal Ass'n v. DeBenedictis, 480
U.S. 470, 486
(1987)). Even the Court's standing
cases reflect the notion that the generality of a burden is important in determining
what role (if any) the judiciary should play in its redress. As the Court explained just a few days ago
in Federal Election Commission v. Akins, 118 S. Ct. 1777,
1785 (1998),
"where large numbers of Americans suffer alike, the political process,
rather than the judicial process, may provide the more appropriate remedy for a
widely shared grievance."
The constitutional doctrines that regulate
policing reflect the same emphasis on how burdens are apportioned. Normally, the police must obtain a warrant,
supported by probable cause, before they can conduct a search. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 449-50 (1971). This requirement recognizes that
law-enforcement officials are not likely to attach sufficient value to the
liberty of individual criminal suspects, whose interests are generally a matter
of indifference to the general public.
See ibid.; cf. Ely, supra, at
96-97. Law-enforcement officials need
not obtain a warrant or even have probable cause, however, to stop motorists at
sobriety checkpoints (see Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1980)), or to search all persons
entering airports or government buildings (see National Treasury Employees Union v. Von Raab, 489
U.S. 656, 675 n. 3
(1989)). Insofar as these policies
burden average members of the community, there is far less reason for courts to
doubt the determination of politically accountable officials that these
policies strike a fair balance between liberty and order. See S. Wasserstrom *9 & L. Seidman, The Fourth Amendment As
Constitutional Theory, 77 Geo. L.J. 19, 95-96 (1988).
If the burden of a law-enforcement policy
falls on someone other than the average citizen, deference is still due so long
as the political process can be viewed as sufficiently attentive to that
party's interests. Thus, random drug-
testing of student athletes is exempted from the warrant requirement not
because student athletes exercise significant influence in the political
process but because their parents, who naturally take their children's
interests to heart, do. See Vernonia Sch. Dist. v. Acton, 515 U.S. 646 (1995). Likewise, searches of regulated commercial
enterprises, which exert considerable influence in the political process, and
which pass the cost of regulation onto consumers, are exempt from the warrant
requirement under the "administrative search" doctrine. See, e.g., New York v. Burger, 482 U.S. 691 (1987); W. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 Mich. L. Rev. 1016, 1044-45 (1995).
There is no reason to approach the Due
Process constraints on policing any differently. The "void for vagueness" doctrine permits
"reasonable breadth" in statutory drafting in order to accommodate
the need for "flexibility" in law enforcement and the interest of
citizens in avoiding "arbitrary and discriminatory application." Grayned v. City of Rockford, 408 U.S. 104, 109-10 (1972); see Boyce Motor Lines v. United States, 342 U.S. 337, 340 (1952) (Constitution demands only
"a reasonable degree of certainty" in light of "untold and
unforeseen variations in factual situations"). Just how precise the language of a statute must be to be
"reasonable" should depend on how widely the burden of that law is
likely to be felt within the community.
Papachristou and Shuttlesworth reflect the
exacting degree of precision that courts appropriately demand when the burdens
of community policing are being concentrated on politically disadvantaged
minorities. Well into the 1960s,
discretionary law enforcement authority was a central means by which communities *10 in both the North and South
excluded minorities from economic and political life. [FN4] Shuttlesworth and Papachristou both arose
from this factual context, as did a variety of other landmark criminal
procedure precedents. [FN5] Because
those arrested under the public order laws of the era typically came "from
minority groups" with insufficient political clout "to protect
themselves" and without "the prestige to prevent an easy laying-on of
hands by the police," it would have been absurd, the author of
Papachristou observed, for courts to defer to the judgment of the community's
political institutions on whether those forms of policing embodied a reasonable
balance of liberty and order. W.
Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1, 13 (1960).
FN4. See R.
Kennedy, Race, Crime, and the Law ch. 3 (1997); C. Steiker, Second Thoughts About First Principles, 107 Harv. L.
Rev. 820, 839-40
(1994); D. Livingston, Police Discretion
and the Quality of Life in Public Places:
Courts, Communities, and the New Policing, 97 Colum. L. Rev.
551, 595-601
(1997).
FN5. At issue
in Shuttlesworth was the application of a loitering ordinance to a "
'notorious' * * * civil rights" activist at a time when African-Americans were engaged in picketing and boycotting
of businesses that discriminated on the basis of race. See 382 U.S. at 101-02 (Fortas, J., concurring). Papachristou involved the application of
such a law to two interracial couples sitting in a parked car. See 405 U.S. at 158-59.
See also Cox v. Louisiana, 379 U.S. 536 (1965) (invalidating conviction obtained under vaguely
worded statute as applied to protesting civil rights demonstrators); Bouie v. South Carolina, 378 U.S. 347 (1964) (same). See generally K. Pye, The Warren Court and
Criminal Procedure. 67 Mich. L. Rev.
249, 256 (1968), and Steiker, supra, at 844.
It would be a mistake, however, to assume
that the conditions that informed
Papachristou and Shuttlesworth are immutable. For one thing, as a result of the Voting Rights Act of 1965, 42 U.S.C. § 1971 et seq., African- Americans are no
longer so disenfranchised, and in fact exercise considerable political
influence, particularly in the Nation's inner-cities. [FN6] Nor is the relationship *11 between
minorities and police marked by the unbridled animosity that furnished the
backdrop for Papachristou and Shuttlesworth.
Due in large part to the increased political representation of
minorities, African-Americans today make up a significant percentage of all urban police departments. [FN7] New York, Washington, D.C., and Los Angeles, for example, have
all had black police chiefs accountable to black mayors.
FN6. On the
dramatic effects of the Act on minority registration, turnout, and
representation, see Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965-1990 (C. Davidson et
al. eds., 1994). On the increase of
African-American representation in elected offices at all levels of government,
see Joint Ctr. for Political & Economic Studies, Black Elected
Officials: A National Roster
(1993); Joint Ctr. for Political
Studies Black Elected Officials: A
National Roster (1984); see also S.
Lawson, Running for Freedom: Civil
Rights and Black Politics in America Since 1941, at 170-182 (1991) (detailing
progress of Black urban politicians and noting triumphs of candidates in
Newark, Oakland, New Orleans, Atlanta, Detroit, and Gary among other cities).
FN7. Consider
the "index of black representation," which is calculated by dividing
the percent of African-American police officers in a department by the percent
of African Americans in the local population of several major cities. Los Angeles's index increased from .55 to
1.00 between 1983 and 1992. Detroit's
index increased from .49 to .70 during the same period. Chicago,
San Diego, Dallas, and Phoenix posted indexes of .64, .80, .64, . 77 in 1992,
respectively, each an increase from 1982 levels. See Sourcebook of Criminal Justice Statistics Table 1.36 at 49
(K. Maguire et al. eds. 1994).
Indeed, rather than shunning the police,
African-Americans are now using their political strength to remedy the historic
under-enforcement of law in their communities.
In nearly every large American city, African-Americans have supplied the
impetus for the revival of community policing.
African-American community groups (including the Urban League) were the
driving force behind the adoption of curfews in cities such as Miami, Dallas,
San Diego, and Washington, D.C. [FN8] African-American city council *12
members, representing the city's most crime-ridden districts, were instrumental
in the enactment of the Chicago's Ordinance.
See pp. 14-16, infra.
African-Americans have also strongly supported the use of anti-loitering
laws in other cities, as well as the renewed attention to order-maintenance
policing in New York. [FN9]
FN8. See All
Things Considered: Miami Curfew Gaining
Support Among Many Black Groups (National Public Radio broadcast, Feb. 24,
1994) (reporting that curfew ordinance sponsored by African-American County
commissioner is supported by 70% of African-Americans
in Dade County and by Greater Miami Urban League); The Teen Curfew Works (editorial), San Diego Union-Tribune, Aug.
7, 1994, at G2 (minority community support for San Diego curfew); B. Clements, Views Differ on Dallas' Curfew,
Which Spawned Tacoma's Plan, News Trib. (Tacoma, Wash.), Oct. 17, 1994, at B1
(same, Dallas curfew); T. Locy, D.C.
Curfew Overturned in Federal Court, Wash. Post, Oct. 30, 1996, at A1
(Washington, D.C. curfew sponsored by African-American council member and
supported by African-American Mayor).
FN9. See
Livingston, supra. at 623 ("Loitering legislation in the 1990s has often
had broad community support, particularly in some predominantly minority
communities plagued by street-level drug dealing."); B. Harden, Letter from New York: "Ideal State of Cleanliness" Is Apple
of Giuliani's Eye, Wash. Post, Mar. 23, 1998, at A6 (reporting majority of
city's African-Americans support Mayor Giuliani based on perception that his
emphasis on "civility" is responsible for steep drops in crime in
poor, minority neighborhoods).
The relationship between the political
supporters of these laws and those at whom those laws are aimed also
distinguishes the new community policing from the
old. Unlike the 1960s, today there is
no natural antagonism between the supporters of community policing and those
who bear the coercive incidence of curfews, anti-loitering laws, and the like. On the contrary, these two groups are
intimately linked by strong emotional, social, and even familial ties. In fact, many inner-city residents support
anti-loitering laws and curfews precisely because they see them as tolerably
moderate alternatives to the draconian punishment of minor drug offenses.
[FN10]
FN10. See T.
Meares, It's a Question of Connections, 31 Val. U.L. Rev. 579, 588-89 (1997): T. Meares, Social Organization and Drug Law
Enforcement, 35 Am. Crim. L. Rev. 191, 211-17 (1998).
The idea that the resurgence of public order
laws signals a return to the discriminatory and arbitrary policing that
motivated Papachristou completely misconceives the political reality. These *13 new public order laws
"are not facially aimed at rendering some people, like racial minorities,
transients, and the poor, outsiders to the community." Livingston, supra, at 594. Rather, they are part and parcel of minority
communities' efforts to restore community organization. Meares, Social Organization, supra, at 224-
26. [FN11]
FN11. Not
surprisingly, when civil libertarians challenge curfews, anti- loitering laws,
and like forms of order-maintenance policing as inviting racial harassment,
their lawsuits are frequently opposed by minority citizens themselves. See, e.g., Clements, supra, at B1 (quoting
African- American mother who spear-headed support for Dallas curfew: claim that curfew would lead to racial
harassment "was an ACLU scare tactic that polarized the
community"); R. Conner et al.,
Listen to the Voice of the Projects (letter to the Editor), N.Y. Times, Apr.
15, 1994, at A30 (noting that residents of Chicago housing projects sought
legal representation to oppose ACLU class action brought on residents' behalf); Sen. U. Curie, The ACLU Pits the Civil
Rights of Few Against the Common Good (Letter to Editor), Wash. Times, Nov. 30,
1996, at A12 (comment of African-American legislator on ACLU opposition to
curfews: "the ACLU seem[s] to be
marching to music only it c[an] hear").
Because the circumstances surrounding the
adoption and enforcement of public order laws can vary, constitutional doctrine
should not presume that all such laws are of a piece. The most straightforward way for the Due Process vagueness
doctrine to take account of the relevant differences in such laws is through the burden-internalization principle that informs
constitutional jurisprudence in so many other settings. Thus, rather than subject all public order
laws to the searching scrutiny embodied in Papachristou and Shuttlesworth,
courts should first ask whether the community itself is sharing in the burden
that that law imposes on individual freedom.
Relevant indications are the purposes served by the law (see Church of the Lukumi Babalu Aye, 508 U.S. at 545-46), the relationship between supporters
of the law and those to whom it is being applied (see Vernonia School Dist., 515 U.S. at 649-50, 665), and the availability of
administrative procedures aimed at guaranteeing effective political oversight
of the exercise of discretion (see Livingston, supra, at 653-58). If, on this basis, a court concludes that a
law's impact on liberty is being widely felt *14 within the community,
it should afford that law greater deference, in recognition of the community's
own considered judgment that it appropriately balances liberty and order.
II. THE BURDENS ON LIBERTY ASSOCIATED WITH
THE ORDINANCE AFFECT MEMBERS OF THE COMMUNITY GENERALLY
This Court's jurisprudence reserves the
strictest scrutiny for police practices that concentrate burdens on individuals
who are excluded from the political process and whose interests are not
otherwise adequately represented by members of the community at large. That situation does not describe the Ordinance. Rather,
the day-to-day impact of the Ordinance has been felt generally by the citizens
of affected neighborhoods, who are intimately connected to the city's gang
members, and who support the law because it is the least coercive means of
protecting themselves, their children, and their neighbors from the scourge of
gang criminality.
Unlike the public order provisions
scrutinized by this Court in the 1960s, the Ordinance was not imposed on minorities
by an alien political establishment; rather, it was enacted at the behest of
those very citizens. Members of the
Neighborhood Groups, as well as many other grassroots organizations from the
poorest and most crime-ridden minority neighborhoods in the city, played a
critical role in the Ordinance's adoption and implementation. [FN12] The Chicago City Council held two days of
hearings on the Ordinance, replete with testimony of residents and community
leaders registering support for its adoption. As numerous residents explained, when "[a] gang claims the
neighborhood as its own," "[t]hey know where you live,"
"what time you leave, what time *15 you come home." Supp. R. I at 54, 66, 67. "You can't get on the bus * * * [or] go
to church on Sundays," because "[w]hen you go to the bus stop, there
is a group of people" waiting. Id.
at 108. Residents of Chicago's poorer
neighborhoods--those located in proximity to the expressways--also described
the loitering of gang members and associates as designed to facilitate drug sales:
individuals loiter on corners to advertise the wares of associates
hidden in dark alleys and to warn their compatriots of the arrival of
police. Ibid. As gang control
solidifies, "people begin to hide behind locked doors, [and] the gang is
free again to turn the community into open air drugstores and eventually a war
zone." Id. at 54. Not surprisingly, when the proposed
Ordinance was put to a vote, Aldermen representing the city's poorest,
predominantly minority wards--e.g., Alderman Ed Smith, representing Chicago's
highest-crime police district--supplied the key support for its passage.
FN12. For
example, the transcripts of the meeting of Chicago City Council Committee on
Police and Fire on May 15, 1992, and May 18, 1992, demonstrate that there was
widespread support for the Ordinance from neighborhood groups on Chicago's
predominantly minority 7th, 8th, and 20th wards on the south side of the city.
These communities continued to support the
Ordinance after enactment. In fact, the
City Council recently adopted a resolution supporting the invalidated Ordinance
by a 3-to-1 margin. Journal, City
Council, Chicago, May 20, 1998, at 70134, 70135. Significantly, representatives of predominantly African-American
and Latino wards--especially those in which gang-related crime poses serious challenges to the daily lives of residents--voted in
favor. [FN13] In addition, the
residents of these same wards have been actively organizing a petition drive in
support of the Ordinance. To date, over
8,500 signatures have been collected throughout the City. 1998 Chicago
Community Policing Convention Resolution Endorsing Chicago's Anti-Gang
Loitering Ordinance, on file with Office of City Clerk. Over half of these have been collected in
the predominantly Latino communities of Pilsen, Little Village, Back *16
of the Yards, Marquette Park, and Gage Park, all wards with vexing crime
problems. Ibid.
FN13.
Alderman representing the predominantly African-American 2d, 7th, 8th, 17th,
20th, 21st, 27th, and 29th wards all voted in favor of the resolution. Similarly, Alderman Frias, Olivo, Soils,
Suarez, and Colom, all of whom represent heavily Latino-influenced wards, voted
in favor. Journal, City Council, Chicago, supra.
In short, any suggestion that the Ordinance
was adopted as a cover for harassing minority youths is completely
misguided. Indeed, Aldermen from high-
income and exclusive areas could not have sought to have it applied in this way,
since enforcement is expressly confined to neighborhoods suffering from a pronounced gang presence.
Moreover, the City volunteered not to enforce the Ordinance in those
wards in which the Alderman did not support it. See F. Spielman, Anti-Gang Law Won't Be Abused, City Says, Chi.
Sun-Times, June 19, 1992, at 10.
Nor can it be credibly maintained that those
citizens who supported the Ordinance did so to oppress minorities within their
own neighborhoods. Although not every person in those communities faced a
significant risk of being approached by the police under the Ordinance, even
those who were never asked to "move along" felt its impact in a
meaningful way. After all, those who
were subject to the Ordinance were not "outsiders"; they were the sons and daughters, the
brothers and sisters, and the friends and neighbors of the community's own
residents. Indeed, residents who
supported the Ordinance did so precisely because they saw it as an acceptably
moderate way to steer their children and their neighbors' children away from
the gang life.
The spirit that marked community support for
the Ordinance reflects two larger currents of sentiment in inner-city
communities. The first is an extended
sense of empathy. Individuals in these
communities tend to evaluate whether a policy benefits them individually by
considering its impact not just on themselves but also on members of the groups
to which they belong. University of
Chicago political scientist Michael Dawson has referred to this decisionmaking process as "linked fate." M. Dawson, Behind the Mule: Race and Class in African-American Politics
75-84 (1994). Dawson has demonstrated
through extensive use of public opinion *17 surveys that linked fate is
especially prominent among African-Americans.
It was, in fact, this sense of solidarity
with--and not any antagonism toward--the community's youth that motivated the
grass-roots support for the Ordinance.
Testifying at the City Council hearings, for example, Acasi Abey,
President of the Brothers West Association, objected to law enforcement
strategies that treat gang members as outsiders:
[I]t's a community problem. I think a lot of times we approach a gang
problem as if these kids were from outerspace.
They are next door neighbors. Some of them go to church. Some of them are in school. Some of them are in college.
Supp. R. I at 143. Mr. Neil Bosanko, head of amicus South Chicago Chamber of
Commerce (an organization comprising 275 businesses, churches, and school and
community groups), is a parent of a youth imprisoned for his involvement in a
gang-style murder. He supported the
Ordinance as a morally responsible way to steer community youth away from gang
life and to counter the escalating number of young murder victims from his
neighborhood and young lives wasted in prison.
The second common sensibility that motivated
the grass-roots support for the Ordinance was
resentment of "get tough" law enforcement strategies. These approaches, which feature severe
prison sentences for drug-dealing and related "street" crimes, can in
fact undermine inner-city communities' own capacity to resist crime. Empirical work in criminology (undertaken,
significantly, in Chicago) demonstrates that institutions of community life
such as friendship networks, shared adult supervision of teens, and informal
associations are critical to a neighborhood's ability to control
offenders. See R. Sampson,
Neighborhoods and Violent Crime: A
Multilevel Study of Collective Efficacy, 277 Science 918 (1997); R. Sampson et al., Community Structure and
Crime: Testing Social-Disorganization Theory, 94 Am. J. Soc. 774 (1989). Widespread imprisonment in high crime
neighborhoods breaks up *18 families, disrupts local employment markets,
and generally enfeebles the community institutions that prevent crime. See T. Meares, Social Organization, supra,
at 205-11. The "get tough" style of law enforcement is generally
resented by minorities for precisely that reason. In sum, the residents of poor, minority communities favor
"middle ground" solutions to crime--ones that furnish a reasonable
prospect of relief from crime without severely disrupting their communities.
See T. Meares, Charting Race and Class Differences in Attitudes Toward Drug
Legalization and Law Enforcement: Lessons
for Federal Criminal Law, 1 Buff. Crim. L. Rev. 137, 144-47 (1997) (documenting that
African-Americans are more likely to support drug criminalization,
but to oppose severe penalties for offenders, than are similarly situated
whites).
Testimony at the hearings shows community
residents' awareness of the high costs that both gang criminality and severe prison
terms visit on poor, minority communities.
Imprisonment of youths such as Mr. Bosanko's son destroys lives just as
surely as does gang violence. The goal
of the Ordinance, as one resident put it, was not "to hurt anyone,"
but only to give the police the power "to clean these corners
up." Supp. R. I at 67. Given the unusual sensitivity of the
residents of these neighborhoods to the individual and societal costs of
invasive policing, their considered judgment that the Ordinance embodies a
reasonable accommodation of liberty and order is entitled to substantial
deference.
III. THE ORDINANCE REASONABLY BALANCES
LIBERTY AND ORDER
Because the coercive incidence of the
Ordinance is felt by members of the affected communities generally, this Court should
afford considerable deference to the judgment of the residents' political
representatives that the Ordinance embodies a reasonable balance between
liberty and order. See Part I, supra.
Under this standard, the Ordinance passes muster under both procedural and
substantive Due Process. The Ordinance
is designed to protect the whole community--not just law-abiding citizens, but
prospective *19 and current gang members as
well--from the destructive impact of gang criminality. It does so, moreover, not by severely
punishing gang members, who are also in significant ways victims of social
conditions that they did not create. Rather, through a guided regime of
discretion, subject to ongoing political monitoring, the Ordinance attacks the
pathological social norms that fuel gang criminality and destroy the lives of
gang members and non-gang members alike.
A. The Ordinance Substantially Promotes Order
1. Gang criminality plagues inner-city
neighborhoods. Gang criminality has
made the inner-city neighborhoods of Chicago deadly places to live. Stories of innocent bystanders shot in
gang-war crossfire have become staples of newspaper headlines and TV news in
Chicago as elsewhere. E.g., D. DeFotis,
Police Fret for Public after Gang Shootings, Chi. Trib., June 2, 1998, at
B1; S. Power, Boy Headed to School
Killed by Gang Member, Police Say, Dallas Morning News, Jan. 29, 1998, at 21A.
Although criminal gangs have long been part
of the urban landscape, they have taken a dramatic new direction in recent years,
away from small-scale and localized activities to highly organized takeovers of
entire neighborhoods based on the acquisition of lethal weaponry financed by
lucrative trading in crack cocaine. See
H. Covey, et al., Juvenile Gangs 101 (1992);
S. Mills & D. Bunuel, Small Gang's Big Grip Troubles
Neighborhood--The Saints Have Grown More Violent And
More Diverse Since Forming In The 1960s, Chi. Trib., Feb. 11, 1998, at B1.
Brass knuckles and baseball bats are no longer the weapons of choice. See There
Are No Children Here, Economist, Dec. 17, 1994, at 21 ("Now automatic and
semi-automatic assault weapons are de rigueur "). Chicago and Los Angeles alone account for
1,000 gang homicides annually. OJJDP
Fact Sheet, supra.
Street-level intimidation is one of the
primary strategies by which gangs extend their influence. By stationing small groups of *20
gang members on the streets, gangs stake out and lay claim to turf, sell drugs
to finance the procurement of arms, recruit new members (often coercively),
serve as lookouts and intelligence gatherers, and intimidate neighborhood
residents and passers- by. Intimidation
takes many forms, including wearing gang colors and clothing, flashing gang
signs, and plastering buildings with graffiti.
See M. Genelin, Gang Prosecutions:
The Hardest Game in Town, in The Gang Intervention Handbook 417
(1993). Street-corner squads of gang
members also facilitate the commission of violent gang crimes. See M. Klein, The American Street Gang
(1995); Man Demanding Gang Affiliation
Shoots Teen Standing on Street, Chi. Trib., Feb. 17, 1998, at B3.
Law-abiding citizens are effectively
imprisoned in their homes as a result of the mere presence of gang members on
the streets. At the City Council
hearings prior to passage of the Ordinance, residents vividly described their
fear to walk their own streets in the face of loitering
gang members for whom drugs, shootings, and vandalism constitute business as
usual. See Supp. R. I at 53, 62, 93,
95, 110, 132, 138. Civil rights leader
Jesse Jackson expressed the feelings of many when he stated, "Just to
think we can't walk down our own streets, how humiliating." M. Johnson, Crime: New Frontier, Chi. Sun-Times, Nov. 29, 1993, at 4.
Children are particularly vulnerable to the
intimidation of gang members congregating on the streets. Fear is the primary tool of gang
recruitment. "[I]f you're [a child and] not in a gang," a Chicago
anti-drug counselor told the Economist, "you're a target wherever you
go." There Are No Children Here,
supra. In Chicago, the heavy gang
presence on the streets around the Robert Taylor housing project has resulted
in "waves of fear-induced absenteeism" from neighborhood schools,
prompting hundreds of volunteers to band together to shepherd children to
school and the School Board to hire dozens of parents to serve as escorts. S. Braun, Shepherds for a Flock in the
Cross-Fire, L.A. *21 Times, Jan 16, 1998, at Al; M. Martinez, Parents Paid to Walk Line
Between Gangs and School, Chi. Trib., Jan. 21, 1998, at A1.
Gangs have focused their recruitment on
increasingly younger children as the competition to control turf and drug
markets has intensified. See P. Thomas,
Putting Children on the Front Lines, Wash. Post, June 20, 1996, at A1; S. Mills & D.
Bunuel, Not Yet 13--and a Murder Suspect, Chi. Trib., Feb. 4, 1998, at A1; There Are No Children Here, supra (citing
Chicago anti-gang counselor's estimate that 80% of boys aged 13 to 15 in the
area where he works are involved in gangs).
Moreover, whether or not they are gang members, children growing up in
gang-dominated neighborhoods often show signs of post-traumatic stress
disorder. A. Gonzalez et al.,
Introduction to Gang Violence Prevention 5-6 (1990). A study of children in Chicago day care centers found that 100%
of them had seen a shooting by the age of five. P. Bennett, Growing Up, Skewed, with Violence, Bost. Globe, June
4, 1992, at 1. As one journalist reported several years ago, "many of the
children emerge from the streets of Los Angeles more psychologically scarred
than the young mujahedin who patrol the mountain passes of
Afghanistan." A. Stanley, Child
Warriors, Time, June 18, 1990, at 30.
Inner-city residents in Chicago and elsewhere
are, in a very real sense, engaged in a battle to protect themselves from a
deadly urban disease that victimizes both gang members and non-gang
members. Their formidable challenge is
to find a cure that does not itself threaten the well-being of their
communities and children.
2. The Ordinance is geared to reducing gang
activity through its effect on social norms.
The disease of gang criminality has proven notoriously resistant to treatment. The
conventional prescription is the "crack down" strategy of severe
prison terms, which has done little to reduce gangs (see, e.g., W. Miller, Why the United States Has Failed to Solve
Its Youth Gang Problem, in Gangs in America 263, 267 (C.R. Huff ed., 1990)), *22
while leaving a trail of broken lives and fractured communities in its wake
(see Meares, Social Organization, supra, at 206-07).
The Ordinance employs a unique approach to
combating gangs based on a distinctive theory of why they exist. Rather than trying to bludgeon gang members
into submission through severe punishments, the Ordinance seeks to reform the
social norms that drive individuals into crime and weaken the community's own
crime-defense mechanisms.
The causes of gang criminality are
subtle. Residents of gang-ridden
neighborhoods are not invariably poorer than the residents of relatively gang-
free ones. See Miller, supra, at
280-81. Nor is law-enforcement in gang-
ridden neighborhoods invariably more lax.
See id. at 267. Rather, the
difference between these communities lies mainly in the attitudes of their
residents toward gangs. Juveniles in
gang-ridden neighborhoods do not necessarily look up to gang members. Indeed, they are just as likely as those in
relatively gang-free neighborhoods to resent gangs as violent and destructive. See Louis Harris & Assocs., Inc.,
Between Hope and Fear: Teens Speak Out on Crime and the Community, table 5-2, at 104
(1995). Nevertheless, those in
gang-ridden neighborhoods are much more likely to believe that a majority of
their peers admire gang members:
whereas only 19% of juveniles in relatively gang-free communities
believe that, 66% of those in gang-ridden ones do. Ibid.
These perceptions can reinforce themselves
and ultimately determine the level of gang activity in a particular
community. In relatively gang-free
neighborhoods, the belief that others devalue gang membership strengthens the
aversion that individual youths have toward joining them. But the belief of juveniles in gang-ridden
neighborhoods that their peers admire gang members can make joining one seem
worthwhile even to those only weakly committed (or opposed) to gangs. See D. Matza, Delinquency and Drift 54-56
(1964). Notwithstanding their private reservations, moreover, the decision of
such individuals to join gangs conveys *23 publicly that they, too,
value membership, a signal that reinforces the pressure on other teens to do
the same. See id. at 52-59. This "system of shared
misunderstanding" is one mechanism by which social norms fuel criminal
gang activity. Id. at 53.
Another is the effect of visible gang
activity on emotional dispositions, In a community pervaded by gang activity,
residents are more likely to form the aggressive disposition that gang members
themselves prize. The apparent authority and status of gang members imbues their
mannerisms with connotations of strength.
Indeed, the failure to imitate their demeanor can make one appear weak
and vulnerable. See E. Anderson,
Streetwise: Race, Class, and Change in
an Urban Community 177-79, 181 (1990);
M. Jankowski, Islands in the Street: Gangs and American Urban Society 28
(1991). As a result, individuals face
strong pressure to cultivate the aggressive bearing associated with gang
membership. When numerous individuals
cultivate that bearing simultaneously, more of them are likely to turn to
crime, both because of the (mis)information those mannerisms impart about
public attitudes toward gang membership, and because of the obstacles they
create to interactions with law-abiders, who strongly devalue aggression. See Anderson, supra, at 177-78, 189.
This social-norm account not only helps to
explain why gangs exist, but also identifies which policies are likely to abate
them. The conventional suppression
strategy does not, in part because policies that severely punish gang activity
may actually reinforce the norms that promote gang membership. Delinquency is
status-enhancing because juveniles often view willingness to break the law as a
sign of strength and courage. See,
e.g., W. Miller, Lower Class Culture as a Generating Milieu of Gang
Delinquency, 14 J. Soc. Issues 5, 8-9 (1958).
The more severe the penalty, the more strength law-breaking
projects. Thus, the crackdown strategy
is at war with itself.
A more effective approach is to attack the public
signs and cues that inform juveniles' (mis)perception that their peers value *24
gang criminality. That is what Chicago is trying to achieve with the
Ordinance. Other jurisdictions seek to
produce the same effect through curfews or nuisance injunctions. See Livingston, supra, at 640-42. By preventing gangs from openly displaying
their authority, these policing strategies counteract the perception that gang
members enjoy a high status in the community.
As that perception recedes, so does the reputational pressure to join
them.
The suppression of open gang activity also
positively influences the attitude and behavior of law-abiding members of the
community. Like other forms of public
disorder, gang activity drives some law-abiding citizens out of the community
and others off the streets, thereby depriving the community of their
stabilizing influence. See Anderson,
supra, at 2-5, 58-59, 69-76; J. Jacobs,
The Death and Life of Great American Cities 29-35 (1961). In addition, gang activity drives a wedge
between the community and the police.
When individuals understand gangs to be in control, they infer that
cooperating with law- enforcement officials is likely to be both futile and
dangerous. See G. Akerlof & J.
Yellen, Gang Behavior, Law Enforcement, and Community Values in Values and
Public Policy 173-84 (H. Aaron et al., eds., 1994). The reluctance of the community to turn on the gangs not only
shields them from punishment but also legitimizes gang
membership in the eyes of potential recruits.
See Jankowski, supra, at 193-202.
By counteracting perceptions that gangs control the community,
gang-loitering laws and curfews give law-abiders the confidence they need to
oppose gangs. Once the community
withdraws its support for them, the perception of waning gang influence quickly
becomes a reality. See id. at 201-02.
A growing body of evidence documents the
effectiveness of the social-norm strategy for fighting gangs. Law-enforcement officials in Chicago, for
example, report dramatic reductions in violent offenses in the neighborhoods
where the Ordinance has been most vigorously enforced. See Meares, Social Organization, supra, at
225. Numerous other municipalities
report the *25 effectiveness of curfews in reducing the incidence of
juvenile victimization and juvenile crime.
See Office of Juvenile Justice and Delinquency Prevention, U.S. Dept. of
Justice, Curfew: An Answer to Juvenile
Delinquency and Victimization?, Juvenile Justice Bulletin, April 1996, at 1, 3-
9. Courts should respect the considered
judgment of Chicago's lawmakers that the Ordinance embodies the most promising
way to solve the persistent problem of gang criminality.
B. The Ordinance Places Minimal Restraints on
Liberty
The Ordinance is carefully crafted to minimize
any restraint on liberty. In fact, both because it serves as a substitute for severe
punishments, and because it dissipates widely resented norms, the Ordinance may
actually enhance liberty for many youths likely to be subject to the "move
along" orders it authorizes.
Moreover, both the Ordinance and its implementing regulations employ
objective standards to limit police discretion and to provide gang loiterers
with an opportunity to avoid any criminal sanction simply by obeying an order
to move along.
1. The Ordinance is liberty-enhancing for the
community at large and for youths who resent pressure to join gangs. In declaring that the Ordinance
unconstitutionally abridges liberty, the Illinois Supreme Court focused only on
the restraints that the Ordinance put on the behavior of gang members. As a result, it failed to consider the
various ways in which the Ordinance actually enhances the liberty of the
communities in which it is enforced. Cf. Connecticut v. Doehr, 501 U.S. 1, 11 (1991) (due process requires
"due regard for any ancillary interest" of third parties).
First, the Ordinance enhances the liberty of
community residents to use and enjoy their own streets. Gang crime and intimidation diminish the
liberty not only of their victims, but also of community residents who must
take costly and opportunity-sacrificing precautions to avoid becoming victims. Permitting gang members to camp out on city
streets impedes the very liberties *26 invoked by
the court below--to travel, to move freely, and to associate with others. People living in gang-infested neighborhoods
who wish to walk along their streets and to associate with their neighbors have
every right to do so free of threats, whether spoken or silent, and to expect
the police to take measures to promote their safety and the integrity of their
homes and businesses.
By seeking to prevent serious crime before it
occurs, the Ordinance breaks the gangs' stranglehold on the streets, destroys
their aura of invincibility, and disrupts their ability to commit more serious
crimes. As the California Supreme Court
recently observed, to forfeit the liberty of peaceful and industrious residents
of a community "to preserve the illusion of freedom for those whose ill
conduct is deleterious to the community as a whole is to ignore half the
political promise of the Constitution and the whole of its sense." People ex rel. Gallo v. Acuna, 929 P.2d 596, 618 (Cal.), cert. denied, 117 S. Ct. 2513 (1997).
Second, the Ordinance liberates community
youth from the intense pressure that they feel to join gangs. The vast majority of individuals join gangs not
because they value gang membership intrinsically, but because they perceive
(mistakenly) that their peers value it and (correctly) that failing to join can
lead to deadly repercussions. See p.
22, supra. These impressions are formed
and transmitted through the intimidating presence of gang members on neighborhood streets.
See pp. 22-25, supra. By
vanquishing this presence, the Ordinance relieves the pressure that drives
youths into self-destructive gang criminality.
Thus, it should come as no surprise that over 1,500 youths in Chicago
have registered support for the Ordinance.
See 1998 Resolution, supra.
The Ordinance thus reflects a "combined
interest in protecting both the community and the juvenile himself from the
consequences of future criminal conduct."
Schall v. Martin, 467 U.S. 253, 264 (1984) (emphasis added). It recognizes that society has a legitimate
interest in protecting a juvenile from "the downward spiral of criminal
activity into which peer pressure may lead the child." *27Id. at 266.
In that sense, it is liberty- enhancing, even with regard to many of the
very persons likely to be its targets.
2. The ordinance is a liberty-conserving
alternative to conventional "crack down" strategies for combating
gangs. The Illinois Supreme Court's
conclusion that the Ordinance exacts an unconstitutional toll on liberty also
overlooks the liberty-destroying effects of severe punishment--the Ordinance's principal
alternative. Legislatures commonly
attempt to compensate for judicial restrictions on effective street-level
policing by adopting even longer prison terms.
R. Posner, The Most Punitive Nation, Times Literary Supp., Sept. 1,
1995, at 3, 4; W. Stuntz, The Uneasy
Relationship Between Criminal Procedure and Criminal
Justice, 107 Yale L.J. 1 (1997). Indeed, many inner-city residents support anti-loitering laws
precisely because they see them as tolerably moderate alternatives to draconian
punishment of minor drug offenses. See
p. 17, supra. The kids whom the police
can't order off the streets today, they realize, are the same ones they'll be
carting off to jail tomorrow.
The identity of the Ordinance as an
alternative to long prison terms goes to the heart of the interest that the
Neighborhood Groups have in this case.
As coercive as enforcing order on the streets can be, it pales in
comparison to the disproportionate impact of incarceration on young
African-American and other minority men. [FN14] The ironic consequence of judicial decisions invalidating the
Ordinance and like forms of community policing would be a vast curtailment of
individual liberty in the name of preserving it.
FN14. See,
e.g., M. Mauer & T. Huling, The Sentencing Project, Young Black Americans
and the Criminal Justice System: Five
Years Later 4 (1995) (finding one-third of African-American men are either
imprisoned, on parole, or on probation).
3. Objective criteria and political
monitoring furnish safeguards against abuse. The Illinois Supreme Court held that the
Ordinance was invalid on its face. A
Due Process facial *28 challenge should be sustained only if "no
set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U.S. 739, 745 (1987). That is clearly not the case here: the objective enforcement criteria specified by the Ordinance
itself and by the police department's enforcement guidelines, combined with the
community consultation procedures found in the regulations, reasonably
constrain discretion. Considered
against the backdrop of the community's own internalization of the effects of
the Ordinance, these safeguards clearly satisfy Due Process. See Part I, supra; Livingston, supra, at 650-70.
Significantly, the Ordinance incorporates an
objective standard against which to test the propriety of an officer's order to
disperse. Such an order is authorized
only if the officer "reasonably believes" that one or more members of
a group of loiterers is a member of a criminal street gang. Pet. App. 61a. In addition, the terms
"criminal street gang" and "loiter" are carefully defined
to deter any over broad reading. Id. at
61a-62a. These provisions safeguard
against any concerns about unfettered police discretion.
Such concerns should be further allayed by
the Chicago Police Department's implementing guidelines, specifically adopted
"to ensure that the anti-gang loitering is not enforced in an arbitrary or
discriminatory way." Pet. App. 65a. Under those
guidelines, the Ordinance may be enforced only by trained officers in certain
"areas frequented by members of criminal street gangs"--as designated
after consultation with community leaders and residents--thereby significantly
limiting the scope of enforcement. Pet.
App. 68a. Thus, the Ordinance and
regulations permit criminal sanctions only based on "a prediction of
future criminal conduct [that] is 'an experienced one based on a host of
variables' that cannot be readily codified." Schall, 467 U.S. at 279 (emphasis added). Finally, the guidelines oblige the police to
consult with community groups concerning implementation of the Ordinance *29
(Pet.App.68a), thereby assuring effective and ongoing political oversight of
the exercise of police discretion. [FN15]
FN15. The
court below disregarded the Police Department's guidelines on the ground that
they were not binding under state law.
Pet. App. 16a. This was error.
As this Court has made clear, courts can and should look to
administrative constructions to determine, as a matter of federal
constitutional law, whether a state statute is susceptible of valid applications
sufficient to defeat a facial challenge.
See, e.g., Village of Hoffman Estates v. The Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5 (1982) ("In evaluating a facial
challenge to a state law, a federal court must, of
course, consider any limiting construction that a state court or enforcement
agency has proffered") (emphasis added).
Should this Court uphold the lower court's decision
to invalidate the Ordinance, it will remit Chicago--not to mention other cities
contemplating norm-focused strategies for combating gangs--to policing
strategies that involve even more discretion.
A reasonably close substitute for Chicago's invalidated gang-loitering
law, for example, would be New York's strategy of order-maintenance
policing. See generally G. Kelling
& C. Coles, Fixing Broken Windows:
Restoring Order and Reducing Crime in Our Communities (1996). The "public order" provisions at
the base of that strategy--including laws against public drunkenness,
prostitution, aggressive panhandling, jaywalking, and unlicensed street
vending--are specific enough on their face to survive vagueness
challenges. See Livingston, supra, at
615-16. Yet the officers who enforce
these laws retain considerable latitude about whether to enforce them at all,
and, if so, where and against whom. See
id. at 609. Teen curfews invite
considerable discretion as well.
Distinguishing legitimate from abusive police behavior is thus much more
difficult when a police department engages in general order-maintenance
policing than it is under a gang-loitering ordinance like Chicago's, which,
contrary to its apparent generality, jealously guards against
the diffusion of enforcement authority.
Indeed, New York's order- maintenance policing reportedly has generated
a considerable increase in police-misconduct complaints. See D. Barry & D. Sontag, Disrespect as
Catalyst for Police Brutality, N.Y. Times, Nov. 19, 1997, at A1.
*30 CONCLUSION
Chicago's gang loitering ordinance represents
a modest attempt to restore order to the city's streets while preserving the
liberty of those most likely to bear the brunt of criminal law enforcement. The Ordinance enjoys the broad support of
the communities where it is enforced, enhances the liberty of residents who
lack other effective means of combating gang intimidation, and is responsibly
crafted to constrain police discretion in its enforcement. To strike the Ordinance down on the basis
that it is unduly "vague" or somehow interferes with Respondents'
"fundamental right to loiter," as did the Illinois Supreme Court,
would disserve the very communities the Due Process Clause of the Fourteenth
Amendment was designed to serve.
The judgment of the Illinois Supreme Court
should be reversed.