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High Court Rejects Chicago Anti-Gang
Loitering Law


Summer 1999

On June 10, in a 6-to-3 decision, the U.S. Supreme Court struck down a Chicago anti-loitering law that allowed police to arrest persons who look like gang members and loiter on city streets (Chicago v. Morales, No. 97-1121 (1999)) (David G. Savage, "Supreme Court Rejects Ban on Gang Loitering," Los Angeles Times, June 11, 1999, p. A3; Tony Mauro, "Court kills Chicago anti-gang law," USA Today, June 11, 1999).

Chicago's 1992 anti-gang ordinance allowed police to arrest persons who "remain in any one place with no apparent purpose" in the presence of a suspected gang member and who then fail to disperse satisfactorily when warned by police. Under the law, the city could arrest and win convictions even if they did not prove criminal behavior, criminal intent, or previous criminal activity by the person accused of loitering. Before lower courts found the law unconstitutional in 1995, Chicago police issued 89,000 dispersal orders under the ordinance and made 42,000 arrests. The majority of people arrested were black or Latino.

Writing for the majority, Justice John Paul Stevens said, "The freedom to loiter for innocent purposes is part of the liberty" protected by the U.S. Constitution. People in Chicago who stop to "engage in idle conversation or simply enjoy a cool breeze on a warm evening" should not be subject to police commands, said Stevens, joined in full by Justices David H. Souter and Ruth Bader Ginsburg.

In separate opinions, three other justices joined the majority but rejected the idea that loitering is a constitutional right. Justices Sandra Day O'Connor, Anthony Kennedy, and Stephen Breyer rejected the Chicago ordinance because it did not focus on specific criminal conduct. Justice O'Connor suggested that Chicago lawmakers should redraft their anti-gang laws to make it illegal to loiter in order to "establish control over identifiable areas or to intimidate others from entering those areas."

Justice O'Connor's opinion "gives states and local governments, for the first time, a legal avenue to address the terrible problems that communities face when gangs take over the public ways," said Brian Crowe, corporation counsel for the City of Chicago.

In a highly critical dissent, Justice Antonin Scalia said, "I would trade my rights to loiter any day in exchange for the liberation of my neighborhood." Justice Clarence Thomas wrote a separate dissent, joined by Chief Justice William Rehnquist.

Brian Crowe, corporation counsel for the City of Chicago - City Hall, Room 610, 121 N. La Salle Street, Chicago, IL 60602, Tel: (312) 744-6900, Fax: (312) 744-8538.