City of Chicago v. Morales
Annotate this Case
City of Chicago v. Morales, Nos. 80479, 80485, 80668 cons. (10/17/97)
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket Nos. 80479, 80485, 80668 cons.--Agenda12--
November 1996.
THE CITY OF CHICAGO, Appellant, v. JESUS MORALES
et al., Appellees.
Opinion filed October 17, 1997.
JUSTICE NICKELS delivered the opinion of the court:
These consolidated appeals involve 70 defendants who were
charged with violating the City of Chicago's Gang Congregation
Ordinance (Chicago Municipal Code sec. 8--4--015 (added June
17, 1992)). In cause No. 80668, defendant Youkhana and 13
other defendants were charged with violating the ordinance. The
Cook County circuit court granted defendants' motion to dismiss
the city's actions against them, finding the ordinance
unconstitutionally vague. The appellate court affirmed, holding
the ordinance unconstitutional on several grounds. Youkhana,
277 Ill. App. 3d 101.
In cause No. 80485, the Cook County circuit court
dismissed the charges against defendant Ramsey and 49 other
defendants, also finding the ordinance unconstitutional. In cause
No. 80479, after separate bench trials in the Cook County circuit
court, defendant Morales and five other defendants were found
guilty of violating the ordinance and each sentenced to jail terms
ranging from 1 to 27 days. The appellate court reversed the
convictions of the Morales defendants based on its holding in
Youkhana (Morales, Nos. 1--93-4039, 1--93--4351, 1--93--4356,
1--94--1542, 1--94--3065, 1--94--4062 cons. (unpublished order
under Supreme Court Rule 23)), and affirmed the dismissal of
the actions against the Ramsey defendants (Ramsey, Nos. 1--93--
4125, 1--93--4126, 1--94--0220, 1--94--0876, 1--94--0877, 1--94-
-1541, 1--95--0191, 1--95--0246 cons. (unpublished order under
Supreme Court Rule 23)). The appellate court granted the city's
request for a certificate of importance in Youkhana (155 Ill. 2d
R. 316), and this court granted the city's petitions for leave to
appeal in the other two causes (155 Ill. 2d R. 315). We
consolidated the three causes for purposes of this appeal.
BACKGROUND
In May 1992, the Chicago city council held hearings to
explore the problems criminal street gangs present for the city's
residents. Of particular concern was the problems gang members
cause by loitering in public. Witnesses testified how gang
members loiter as part of a strategy to claim territory, recruit
new members, and intimidate rival gangs and ordinary
community residents. Testimony revealed that street gangs are
responsible for a variety of criminal activity, including drive-by
shootings, drug dealing, and vandalism.
As a result of the hearings, the city council enacted the
Gang Congregation Ordinance, more commonly known as the
"gang loitering ordinance." The city council incorporated its
findings in the preamble to the ordinance, as follows:
"WHEREAS, The City of Chicago, like other cities
across the nation, has been experiencing an increasing
murder rate as well as an increase in violent and drug
related crimes; and
WHEREAS, The City Council has determined that the
continuing increase in criminal street gang activity in
the City is largely responsible for this unacceptable
situation; and
WHEREAS, In many neighborhoods throughout the
City, the burgeoning presence of street gang members
in public places has intimidated many law abiding
citizens; and
WHEREAS, One of the methods by which criminal
street gangs establish control over identifiable areas is
by loitering in those areas and intimidating others from
entering those areas; and
WHEREAS, Members of criminal street gangs avoid
arrest by committing no offense punishable under
existing laws when they know the police are present,
while maintaining control over identifiable areas by
continued loitering; and
WHEREAS, The City Council has determined that
loitering in public places by criminal street gang
members creates a justifiable fear for the safety of
persons and property in the area because of the
violence, drug-dealing and vandalism often associated
with such activity; and
WHEREAS, The City also has an interest in
discouraging all persons from loitering in public places
with criminal gang members; and
WHEREAS, Aggressive action is necessary to
preserve the city's streets and other public places so that
the public may use such places without fear[.]" Chicago
Municipal Code sec. 8--4--015 (added June 17, 1992).
The gang loitering ordinance provides in pertinent part:
"(a) Whenever a police officer observes a person
whom he reasonably believes to be a criminal street
gang member loitering in any public place with one or
more other persons, he shall order all such persons to
disperse and remove themselves from the area. Any
person who does not promptly obey such an order is in
violation of this section.
(b) It shall be an affirmative defense to an alleged
violation of this section that no person who was
observed loitering was in fact a member of a criminal
street gang.
(c) As used in this section:
(1) `Loiter' means to remain in any one place with no
apparent purpose.
(2) `Criminal street gang' means any ongoing
organization, association in fact or group of three or
more persons, whether formal or informal, having as
one of its substantial activities the commission of one
or more of the criminal acts enumerated in paragraph
(3), and whose members individually or collectively
engage in or have engaged in a pattern of criminal gang
activity.
* * *
(5) `Public place' means the public way and any other
location open to the public, whether publicly or
privately owned." Chicago Municipal Code sec. 8--4--
015 (added June 17, 1992).
Each violation of the ordinance is punishable by a fine of up to
$500, imprisonment for not more than six months, and the
requirement to perform up to 120 hours of community service.
During the hearings, representatives of the Chicago law and
police departments informed the city council that any limitations
on the discretion police have in enforcing the ordinance would
be best developed through police policy, rather than placing
such limitations into the ordinance itself. Accordingly, after the
gang loitering ordinance was enacted, the Chicago police
department issued a general order which provides guidelines for
enforcement of the ordinance. Among other things, the general
order sets forth standards for identifying criminal street gangs
and specifies criteria for establishing probable cause that an
individual is a member of a criminal street gang. Chicago Police
Department, General Order No. 92--4 (eff. August 8, 1992).
Once enforcement of the gang loitering ordinance began,
the circuit courts of Cook County disagreed as to its validity.
Upon review, the appellate court held the ordinance
unconstitutional on several grounds. First, the appellate court
found the ordinance unconstitutionally overbroad because it
violates the first amendment rights of association, assembly, and
expression. In addition, the appellate court found that the
ordinance was unconstitutionally vague. Next, the appellate
court determined the ordinance criminalizes a person's status in
violation of the eighth amendment. Finally, the appellate court
determined the ordinance allows arrests without probable cause,
in violation of the fourth amendment. Youkhana, 277 Ill. App.
3d 101.
The city urges that the judgment of the appellate court be
reversed because the gang loitering ordinance: (1) sufficiently
defines criminal conduct such that it is not unconstitutionally
vague; (2) is not overbroad because it is a permissible restriction
of first amendment rights; (3) does not create a status offense;
and (4) requires the police to establish probable cause of illegal
conduct before an offender can be arrested.
We find that the gang loitering ordinance violates due
process of law in that it is impermissibly vague on its face and
an arbitrary restriction on personal liberties. In doing so, we
need not reach the issues that the ordinance creates a status
offense, permits arrests without probable cause or is overbroad.
ANALYSIS
In construing a municipal ordinance, the same rules are
applied as those which govern the construction of statutes. In re
Application of the County Collector, 132 Ill. 2d 64, 72 (1989).
Statutes are presumed constitutional and it is the court's duty to
construe a legislative enactment so as to affirm its
constitutionality and validity, if it is reasonably susceptible to
such a construction. People v. Haywood, 118 Ill. 2d 263, 271
(1987). The fundamental rule of statutory construction is to
ascertain and give effect to the true intent and meaning of the
lawmakers. Solich v. George & Anna Portes Cancer Prevention
Center of Chicago, Inc., 158 Ill. 2d 76, 81 (1994). In doing so,
the courts should look first to the statutory language, for the
language of the statute is the best indication of the lawmaker's
intent. Williams v. Illinois State Scholarship Comm'n, 139 Ill. 2d 24, 51 (1990). Where the meaning of an enactment is clear and
unambiguous, a court must give it effect as written, without
reading into it limitations or conditions that the lawmakers did
not express. Garza v. Navistar International Transportation
Corp., 172 Ill. 2d 373, 378 (1996). Moreover, criminal statutes
are to be strictly construed in favor of an accused and nothing
should be taken by intendment or implication beyond the
obvious or literal meaning of the statute. People v. Woodward,
175 Ill. 2d 435, 444 (1997).
I. Vagueness
A cornerstone of our jurisprudence is that no person shall
be deprived of life, liberty, or property without due process of
law. U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, sec.
2. A well-established element of the guarantees of due process
is the requirement that the proscriptions of a criminal statute be
clearly defined. Haywood, 118 Ill. 2d at 269, citing Grayned v.
City of Rockford, 408 U.S. 104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2298, 2298-99 (1972). To successfully challenge a
criminal statute as being vague on its face, the statute must be
impermissibly vague in all of its applications. Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L. Ed. 2d 362, 369, 102 S. Ct. 1186, 1191
(1982); Haywood, 118 Ill. 2d at 270. That is, the statute must be
shown to be vague "in the sense that no standard of conduct is
specified at all." Coates v. City of Cincinnati, 402 U.S. 611,
614, 29 L. Ed. 2d 214, 217, 91 S. Ct. 1686, 1688 (1971). If on
its face the challenged statute violates the due process clause,
then the specific details of the individual offense would not
serve to validate the statute. Lanzetta v. New Jersey, 306 U.S. 451, 453, 83 L. Ed. 888, 890, 59 S. Ct. 618, 619 (1939).
To satisfy the vagueness doctrine, a criminal statute must
meet two basic criteria. First, a criminal statute must be
sufficiently definite so that it gives persons of ordinary
intelligence a reasonable opportunity to distinguish between
lawful and unlawful conduct. Kolender v. Lawson, 461 U.S. 352,
357, 75 L. Ed. 2d 903, 909, 103 S. Ct. 1855, 1858 (1983);
Grayned, 408 U.S. at 108, 33 L. Ed. 2d at 227, 92 S. Ct. at
2298-99; People v. Bailey, 167 Ill. 2d 210, 228 (1995). Second,
a penal statute must adequately define the criminal offense in
such a manner that does not encourage arbitrary and
discriminatory enforcement. Kolender, 461 U.S. at 357-58, 75 L. Ed. 2d at 909, 103 S. Ct. at 1858; Haywood, 118 Ill. 2d at
269; see also Papachristou v. City of Jacksonville, 405 U.S. 156,
162, 31 L. Ed. 2d 110, 115, 92 S. Ct. 839, 843 (1972). We
evaluate the provisions of the gang loitering ordinance in light
of the due process criteria.
A. Adequate Notice
The first criterion of the void-for-vagueness doctrine
requires a criminal statute to be sufficiently defined so it
provides persons of ordinary intelligence adequate notice of
proscribed conduct. Kolender, 461 U.S. at 357, 75 L. Ed. 2d at
909, 103 S. Ct. at 1858; Grayned, 408 U.S. at 108, 33 L. Ed. 2d
at 227, 92 S. Ct. at 2298-99; Bailey, 167 Ill. 2d at 228. Due
process guarantees this adequate notice of proscribed conduct so
that ordinary persons are not required to guess at a law's
meaning but, rather, can know what conduct is forbidden and
act accordingly. Flipside, Hoffman Estates, Inc., 455 U.S. at
498, 71 L. Ed. 2d at 371, 102 S. Ct. at 1193; Connally v.
General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322,
328, 46 S. Ct. 126, 127 (1926). "No one may be required at
peril of life, liberty or property to speculate as to the meaning
of penal statutes. All are entitled to be informed as to what the
State commands or forbids." Lanzetta, 306 U.S. at 453, 83 L. Ed. at 890, 59 S. Ct. at 619.
Loitering and vagrancy statutes have been utilized
throughout American history in an attempt to prevent crime by
removing "undesirable persons" from public before they have
the opportunity to engage in criminal activity. See Papachristou,
405 U.S. at 161-63, 31 L. Ed. 2d at 114-16, 92 S. Ct. at 842-44;
see generally Model Penal Code sec. 250.6, Commentary
(1980); Comment, Is There Something Suspicious About the
Constitutionality of Loitering Laws?, 50 Ohio St. L.J. 717
(1989). Nevertheless, it is well settled that broadly worded
criminal loitering laws which prohibit loitering without
additional unlawful conduct are doubtlessly unconstitutional.
See, e.g., Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90,
15 L. Ed. 2d 176, 179, 86 S. Ct. 211, 213 (1965).
The gang loitering ordinance provides that "[w]henever a
police officer observes a person whom he reasonably believes
to be a criminal street gang member loitering in any public
place with one or more other persons, he shall order all such
persons to disperse and remove themselves from the area. Any
person who does not promptly obey such an order is in violation
of this section." Chicago Municipal Code sec. 8--4--015 (added
June 17, 1992). The city argues that the terms of the ordinance
are sufficiently definite so that ordinary persons can comprehend
the prohibited conduct. We disagree.
The ordinance seeks to criminalize acts of "loitering" in a
public place. Webster's defines "loiter" to mean "to remain in
or near a place in an idle or apparently idle manner" and to
"hang around aimlessly." Webster's Third New International
Dictionary 1331 (1981). The infirmity with this type of
prohibition is that it fails to distinguish between innocent
conduct and conduct calculated to cause harm and "makes
criminal activities which by modern standards are normally
innocent" (Papachristou, 405 U.S. at 163, 31 L. Ed. 2d at 116,
92 S. Ct. at 844). Although persons of ordinary intelligence may
maintain a common and accepted meaning of the word "loiter,"
such term by itself is inadequate to inform a citizen of its
criminal implications. See Territory of Hawaii v. Anduha, 48 F.2d 171, 172-73 (9th Cir. 1931); Arizona ex rel. Williams v.
City Court, 21 Ariz. App. 489, 491, 520 P.2d 1166, 1168
(1974); State v. Hudson, 111 N.H. 25, 26, 274 A.2d 878, 879
(1971); People v. Diaz, 4 N.Y.2d 469, 471, 151 N.E.2d 871,
872, 176 N.Y.S.2d 313, 315 (1958).
The city cites Wiemerslage v. Maine Township High School
District 207, 29 F.3d 1149 (7th Cir. 1994), for the proposition
that the term "loiter" is not unconstitutionally vague. The
Wiemerslage holding is not applicable to the instant case. At
issue in Wiemerslage was the validity of a high school
disciplinary rule prohibiting loitering in a specific area of
campus. The federal court of appeals, in finding that the
prohibitions of the disciplinary rule were not vague, expressly
observed that criminal loitering laws are subject to a more
stringent standard of specificity. Wiemerslage, 29 F.3d at 1152.
Moreover, the definition of "loiter" provided by the
ordinance does not assist in clearly articulating the proscriptions
of the ordinance. The ordinance defines "loiter" to mean "to
remain in any one place with no apparent purpose." Chicago
Municipal Code sec. 8--4--015(c)(1) (added June 17, 1992).
People with entirely legitimate and lawful purposes will not
always be able to make their purposes apparent to an observing
police officer. For example, a person waiting to hail a taxi,
resting on a corner during a jog, or stepping into a doorway to
evade a rain shower has a perfectly legitimate purpose in all
these scenarios; however, that purpose will rarely be apparent to
an observer.
Courts in several other jurisdictions have found similarly
worded prohibitions of criminal loitering statutes
unconstitutionally vague. See, e.g., United States ex rel.
Newsome v. Malcolm, 492 F.2d 1166 (2d Cir. 1974) (loitering
without apparent reason), aff'd sub nom. Lefkowitz v. Newsome,
420 U.S. 283, 43 L. Ed. 2d 196, 95 S. Ct. 886 (1975); Powell
v. Stone, 507 F.2d 93, 95 (9th Cir. 1974) (loitering without
apparent reason), rev'd on other grounds, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976); Ricks v. District of
Columbia, 414 F.2d 1097, 1107 (D.C. Cir. 1968) (loitering
without visible business); Kirkwood v. Loeb, 323 F. Supp. 611,
614-15 (W.D. Tenn. 1971) (loitering without any legitimate
purpose); In re C.M., 630 P.2d 593, 596 (Colo. 1981) (loitering
without legitimate reason); People v. Berck, 32 N.Y.2d 567, 300 N.E.2d 411, 347 N.Y.S.2d 33 (1973) (loitering without apparent
reason).
In addition, the city cites several cases for the proposition
that an ordinance prohibiting loitering alone is sufficiently
defined to pass the void-for-vagueness test. However, in all of
the cases cited by the city, the courts upheld ordinances which
criminalized loitering combined with some other overt act or
criminal intent. See, e.g., Williams, 21 Ariz. App. at 491, 520 P.2d at 1168 (loitering for purpose of begging); People v.
Superior Court, 46 Cal. 3d 381, 758 P.2d 1046, 250 Cal. Rptr. 515 (1988) (loitering to solicit lewd or unlawful act); State v.
Ecker, 311 So. 2d 104 (Fla. 1975) (loitering in an unusual
manner under circumstances which warrant alarm); Bell v. State,
252 Ga. 267, 313 S.E.2d 678 (1984) (same); State v. Armstrong,
282 Minn. 39, 162 N.W.2d 357 (1968) (loitering with intent to
solicit prostitution). Moreover, several of the cases cited by the
city expressly recognize that a law which criminalizes
"loitering" alone would be unconstitutionally vague. See, e.g.,
Williams, 21 Ariz. App. at 491, 520 P.2d at 1168; Ecker, 311 So. 2d at 107; Camarco v. City of Orange, 116 N.J. Super. 531,
534, 283 A.2d 122, 126 (1971). The city's argument is without
merit.
These cases demonstrate that when the term "loitering" is
joined with a second specific element to form the prohibited
conduct defined by a criminal loitering statute, courts have
uniformly found that the law sufficiently informs persons as to
the forbidden conduct and, thus, is not vague. The city contends,
in the alternative, that the gang loitering ordinance's prohibited
conduct is made up of specific elements in addition to mere
loitering.
1. Loitering With a Criminal Street Gang Member
First, the city argues that the ordinance prohibits loitering
with the additional element of being with a member of a
criminal street gang. Initially, we must observe that, literally
read, the gang loitering ordinance does not prohibit loitering
with a criminal street gang member. Rather, the ordinance
requires only that the arresting officer have a reasonable belief
that one person in a group of loiterers is a gang member.
However, a reasonable belief, or probable cause, is
insufficient to support a criminal conviction. See People v.
Nash, 173 Ill. 2d 423, 431 (1996). In addition, this added
element is itself vague, as it conveys no precise warning of the
proscribed conduct understandable by an ordinary person. An
individual standing on a street corner with a group of people has
no way of knowing whether an approaching police officer has
a reasonable belief that the group contains a member of a
criminal street gang. That condition depends solely on the police
officer's subjective evaluation of the facts of the situation in
light of his own experience. See Kolender, 461 U.S. at 368-69,
75 L. Ed. 2d at 916, 103 S. Ct. at 1864 (Brennan, J.,
concurring).
If the city intended to require actual knowledge on a
defendant's part of another loiterer's gang membership, then that
knowledge must be established as a fact in order to support a
conviction. See Lanzetta, 306 U.S. at 458, 83 L. Ed. at 893, 59 S. Ct. at 621; accord People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 929 P.2d 596, 60 Cal. Rptr. 2d 277 (1997) (imposing
requirement of actual knowledge on part of defendant of other
party's gang membership status in order for injunction to pass
scrutiny under the vagueness doctrine). Although the ordinance
provides an affirmative defense which allows the defendant to
show that no one in the group was actually a gang member, this
affirmative defense does not cure the defect. Showing that one
person in a group of loiterers is a gang member does not
ultimately prove that a defendant had knowledge of that fact.
Furthermore, even adding a knowing association with a gang
member to the act of loitering is still insufficient because the
city cannot "forbid, on pain of criminal punishment, assembly
with others merely to advocate activity, even if that activity is
criminal in nature" (People v. Nash, 173 Ill. 2d 423, 431-32
(1996), citing Brandenburg v. Ohio, 395 U.S. 444, 448-49, 23 L. Ed. 2d 430, 434-35, 89 S. Ct. 1827, 1830 (1969)).
2. Failure to Obey a Dispersal Order
The city contends that another specific element of the
offense of gang loitering is the failure to obey a police order to
disperse. This is also insufficient to cure the vagueness of the
ordinance. In Shuttlesworth, the Supreme Court reviewed a
conviction pursuant to an ordinance which made it " `unlawful
for any person to stand or loiter upon any street or sidewalk ...
after having been requested by any police officer to move on.' "
Shuttlesworth, 382 U.S. at 90-92, 15 L. Ed. 2d at 179-80, 86 S. Ct. at 213-14. The Court determined that, as written, the
ordinance was unconstitutionally vague because it allowed a
person to "stand on a public sidewalk *** only at the whim of
any police officer." Shuttlesworth, 382 U.S. at 90-92, 15 L. Ed. 2d at 179-80, 86 S. Ct. at 213-14.
The proscriptions of the gang loitering ordinance are
essentially the same as the Shuttlesworth ordinance. Merely
adding the element of refusing to obey an order by police to
disperse does not elevate the gang loitering ordinance to such a
level that it provides adequate notice of proscribed conduct. See
State v. Hudson, 111 N.H. at 26, 274 A.2d at 879 (merely
loitering cannot be made criminal, even if statute requires
refusal of police's order to disperse); Kirkwood, 323 F. Supp. at
616 (violation of loitering ordinance conditioned upon failure to
move when directed to do so by police officer includes
unconstitutionally vague standards). Moreover, this
determination is consistent with our prior holdings. See, e.g.,
City of Chicago v. Meyer, 44 Ill. 2d 1, 5 (1969) (police may
arrest persons for failing to obey an order to cease otherwise
lawful conduct, but only after the police have made all
reasonable efforts to maintain order and the conduct produces an
imminent threat of uncontrollable violence or riot).
Furthermore, if the underlying statute is itself impermissibly
vague, as the gang loitering ordinance here, then a conviction
based upon failure to obey the order of a police officer pursuant
to that statute cannot stand. See Shuttlesworth, 382 U.S. at 90-
92, 15 L. Ed. 2d at 179-80, 86 S. Ct. at 213-14. The city
correctly observes that it is free to prevent people from
obstructing traffic and blocking the public way. However, it
must do so "through the enactment and enforcement of
ordinances directed with reasonable specificity toward the
conduct to be prohibited." Coates, 402 U.S. at 614, 29 L. Ed. 2d
at 217, 91 S. Ct. at 1688, citing Gregory v. City of Chicago, 394 U.S. 111, 118, 124-25, 22 L. Ed. 2d 134-40, 139, 143, 89 S. Ct. 946, 950, 953-54 (1969) (Black, J., concurring, joined by
Douglas, J.).
For these reasons, we find that the gang loitering ordinance
fails to meet the adequate notice standards of the vagueness
doctrine.
B. Arbitrary Enforcement
The second and more important aspect of the vagueness
doctrine is the requirement that a penal statute must adequately
define a criminal offense in such a manner that does not
encourage arbitrary and discriminatory enforcement. Kolender,
461 U.S. at 357-58, 75 L. Ed. 2d at 909, 103 S. Ct. at 1858;
Haywood, 118 Ill. 2d at 269; see also Papachristou, 405 U.S. at
162, 31 L. Ed. 2d at 115, 92 S. Ct. at 843. Where lawmakers
fail to provide minimal guidelines to govern law enforcement,
a criminal law "may permit `a standardless sweep [that] allows
policemen, prosecutors, and juries to pursue their personal
predilections.' " Kolender, 461 U.S. at 358, 75 L. Ed. 2d at 909,
103 S. Ct. at 1858, quoting Smith v. Goguen, 415 U.S. 566, 575,
39 L. Ed. 2d 605, 613, 94 S. Ct. 1242, 1248 (1974). Moreover,
when a law fails to provide standards regulating the exercise of
its discretion, "the scheme permits and encourages an arbitrary
and discriminatory enforcement of the law. [The law] furnishes
a convenient tool for `harsh and discriminatory enforcement by
local prosecuting officials, against particular groups deemed to
merit their displeasure.' " Papachristou, 405 U.S. at 170, 31 L. Ed. 2d at 120, 92 S. Ct. at 847, quoting Thornhill v. Alabama,
310 U.S. 88, 97-98, 84 L. Ed. 1093, 1100, 60 S. Ct. 736, 742
(1940).
The gang loitering ordinance fails to meet these standards.
The ordinance provides such ambiguous definitions of its
elements that it does not discourage arbitrary or discriminatory
enforcement. The definition of loitering as "to remain in any one
place with no apparent purpose" provides absolute discretion to
police officers to decide what activities constitute loitering.
Moreover, police are given complete discretion to determine
whether any members of a group are gang members. These
guidelines do not conform with accepted standards for defining
a criminal offense.
Where a criminal ordinance vests unfettered discretion in
the police to determine whether a suspect's conduct has violated
the ordinance, it "entrust[s] lawmaking `to the moment-to-
moment judgment of the policeman on his beat' " (Smith, 415 U.S. at 575, 39 L. Ed. 2d at 613, 94 S. Ct. at 1248, quoting
Gregory v. City of Chicago, 394 U.S. 111, 120, 22 L. Ed. 2d 134, 141, 89 S. Ct. 946, 951 (1969) (Black, J., concurring,
joined by Douglas, J.)), and "confers on police a virtually
unrestrained power to arrest and charge persons with a
violation" (Lewis v. City of New Orleans, 415 U.S. 130, 135, 39 L. Ed. 2d 214, 220, 94 S. Ct. 970, 973 (1974) (Powell, J.,
concurring)).
The city does not dispute that the ordinance grants the
police department a vast amount of discretion in its
enforcement. In fact, the city itself points out that the Chicago
police department urged the city council to exclude from the
ordinance any limitations on the discretion the police hold in
enforcing the ordinance. Notwithstanding that fact, the city
contends that the general order of the police department should
be considered a limiting construction of the ordinance, thus
curing its vagueness. However, the general police order does not
save the ordinance from being impermissibly vague.
We observe that lawmakers may not abdicate their
responsibilities for setting the standards of the criminal law.
Smith, 415 U.S. at 575, 39 L. Ed. 2d at 613, 94 S. Ct. at 1248.
It is the duty of the lawmakers to establish minimal guidelines
to govern law enforcement. Kolender, 461 U.S. at 358, 75 L. Ed. 2d at 909, 103 S. Ct. at 1858. Moreover, although the
general police order goes to great lengths to define criminal
street gangs, it does absolutely nothing to cure the imprecisions
of the definition of the "loitering" element of the crime. In
addition, a thorough examination of the record reveals that
police officers have not followed the guidelines of the general
order in a uniform manner.[fn 1]
Furthermore, the gang loitering ordinance is not reasonably
susceptible to a limiting construction which would affirm its
validity. Although the proscriptions of the ordinance are vague,
the city council's intent in its enactment is clear and
unambiguous. The city has declared gang members a public
menace and determined that gang members are too adept at
avoiding arrest for all the other crimes they commit.
Accordingly, the city council crafted an exceptionally broad
ordinance which could be used to sweep these intolerable and
objectionable gang members from the city streets. As the
Supreme Court has observed, ordinances such as the gang
loitering ordinance are drafted in an intentionally vague manner
so that persons who are undesirable in the eyes of police and
prosecutors can be convicted even though they are not
chargeable with any other particular offense. Papachristou, 405 U.S. at 166, 31 L. Ed. 2d at 118, 92 S. Ct. at 845. Laws such as
these tend "to be invoked only where there is no other valid
basis for arresting an objectionable or suspicious person. The
opportunity for abuse *** is self-evident." Lewis, 415 U.S. at
136, 39 L. Ed. 2d at 221, 94 S. Ct. at 974 (Powell, J.,
concurring).
We empathize with the city council's objectives in enacting
the gang loitering ordinance. Criminal street gangs are an
expanding cancer in our society and their illegal activities
endanger the safety of many law-abiding citizens. Nevertheless,
as important as it is to abate this problem, the city cannot fight
gang crime through the enactment and enforcement of an
ordinance that fails to meet constitutional standards for
definiteness and clarity. Kolender, 461 U.S. at 361, 75 L. Ed. 2d
at 911, 103 S. Ct. at 1860, citing Lanzetta v. New Jersey, 306 U.S. 451, 453, 83 L. Ed. 888, 890, 59 S. Ct. 618, 619 (1939).
II. Substantive Due Process
Defendants also contend that the gang loitering ordinance
is an arbitrary exercise of the city's police power and, thus,
violates substantive due process. The city responds that
defendants have no constitutional right to loiter. We agree with
defendants.
The city is incorrect in its contention that the gang loitering
ordinance intrudes upon no constitutionally protected activity. In
Papachristou, the Supreme Court reviewed a statute which
prohibited, among other things, the acts of loafing, loitering, and
nightwalking. The Court observed that, although not expressly
mentioned in the Constitution, such activities are amenities of
American life. Papachristou, 405 U.S. at 164, 31 L. Ed. 2d at
117, 92 S. Ct. at 844. The freedom to engage in such harmless
activities is an aspect of the personal liberties protected by the
due process clause. See City of Chicago v. Wilson, 75 Ill. 2d 525, 529-30 (1978), citing Kelley v. Johnson, 425 U.S. 238, 47 L. Ed. 2d 708, 96 S. Ct. 1440 (1976); see also Swank v. Smart,
898 F.2d 1247, 1251-52 (7th Cir. 1990).
Among those protected personal liberties which have long
been recognized are the general right to travel (see, e.g., Shapiro
v. Thompson, 394 U.S. 618, 629, 22 L. Ed. 2d 600, 612, 89 S. Ct. 1322, 1329 (1969) (constitutional concepts of personal
liberty require that all citizens be free to travel throughout the
land uninhibited by laws which unreasonably burden or restrict
this movement), overruled in part on other grounds, Edelman
v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347
(1974)), the right of locomotion (see, e.g., Anduha, 48 F.2d at
172, quoting Pinkerton v. Verberg, 78 Mich. 573, 584, 44 N.W. 579, 582 (1889) (the right to go where and when one pleases),
the right to freedom of movement (Kolender, 461 U.S. at 358,
75 L. Ed. 2d at 910, 103 S. Ct. at 1859), and the general right
to associate with others (Swank, 898 F.2d at 1252). The gang
loitering ordinance impedes upon all of these personal liberty
interests.
We recognize that such personal liberties are not absolute.
Only governmental actions which intrude upon personal liberties
arbitrarily or in an utterly unreasonable manner violate the due
process clause. See Illinois Gamefowl Breeders Ass'n v. Block,
75 Ill. 2d 443, 453 (1979). Nevertheless, we find that the gang
loitering ordinance unreasonably infringes upon personal liberty.
Persons suspected of being in criminal street gangs are deprived
of the personal liberty of being able to freely walk the streets
and associate with friends, regardless of whether they are
actually gang members or have committed any crime. As one
trial judge warned one of defendants below, "[the police] will
lock you up just for being who you are." 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. See Papachristou, 405 U.S. at 166, 31 L. Ed. 2d at 118, 92 S. Ct. at 845.
The city is not helpless in its war against the criminal
activity of gangs. Many of the offensive activities the city
claims the gang loitering ordinance will deter are already
criminal acts. See, e.g., 720 ILCS 5/12--6 (West 1996)
(intimidation); 720 ILCS 5/12--6.1 (West 1996) (compelling
organization membership of persons); 720 ILCS 5/12--6.2 (West
1996) (aggravated intimidation--a gang member committing the
offense of intimidation for the purpose of furthering gang
activities); 720 ILCS 5/25--1 (West 1996) (mob action).
However, the city cannot empower the police to sweep
undesirable persons from the public streets through vague and
arbitrary criminal ordinances.
We hold the that the gang loitering ordinance is an arbitrary
restriction on personal liberty and, thus, violates substantive due
process. Therefore, we need not determine whether the gang
loitering ordinance impermissibly infringes on either the first
amendment right of expressive association or the fundamental
right of intimate association, both of which command a much
higher level of scrutiny. See, e.g., Roberts v. United States
Jaycees, 468 U.S. 609, 623, 82 L. Ed. 2d 462, 474-75, 104 S. Ct. 3244, 3252-53 (1984).
For the foregoing reasons, the judgments of the appellate
court are affirmed.
Appellate court judgments affirmed.
[fn1] In one example, the general order provides that probable
cause of a defendant's membership in a criminal street gang can
be substantiated by his wearing distinctive colors indicative of
a specific criminal street gang. However, the general order
expressly states that gang "membership may not be established
solely because an individual is wearing clothing available for
sale to the general public." Chicago Police Department, General
Order No. 92--4, par. V (eff. August 8, 1992). Despite this
express limitation, defendant Morales was arrested and
convicted of violating the gang loitering ordinance even though
the arresting officer testified that his only basis for determining
that Morales was a gang member was that Morales wore black
and blue clothing, which are the colors of the Gangster Disciples
criminal street gang.
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket Nos. 80479, 80485, 80668 cons.--Agenda12--
November 1996.
THE CITY OF CHICAGO, Appellant, v. JESUS MORALES
et al., Appellees.
Opinion filed October 17, 1997.
JUSTICE NICKELS delivered the opinion of the court:
These consolidated appeals involve 70 defendants who were
charged with violating the City of Chicago's Gang Congregation
Ordinance (Chicago Municipal Code sec. 8--4--015 (added June
17, 1992)). In cause No. 80668, defendant Youkhana and 13
other defendants were charged with violating the ordinance. The
Cook County circuit court granted defendants' motion to dismiss
the city's actions against them, finding the ordinance
unconstitutionally vague. The appellate court affirmed, holding
the ordinance unconstitutional on several grounds. Youkhana,
277 Ill. App. 3d 101.
In cause No. 80485, the Cook County circuit court
dismissed the charges against defendant Ramsey and 49 other
defendants, also finding the ordinance unconstitutional. In cause
No. 80479, after separate bench trials in the Cook County circuit
court, defendant Morales and five other defendants were found
guilty of violating the ordinance and each sentenced to jail terms
ranging from 1 to 27 days. The appellate court reversed the
convictions of the Morales defendants based on its holding in
Youkhana (Morales, Nos. 1--93-4039, 1--93--4351, 1--93--4356,
1--94--1542, 1--94--3065, 1--94--4062 cons. (unpublished order
under Supreme Court Rule 23)), and affirmed the dismissal of
the actions against the Ramsey defendants (Ramsey, Nos. 1--93--
4125, 1--93--4126, 1--94--0220, 1--94--0876, 1--94--0877, 1--94-
-1541, 1--95--0191, 1--95--0246 cons. (unpublished order under
Supreme Court Rule 23)). The appellate court granted the city's
request for a certificate of importance in Youkhana (155 Ill. 2d
R. 316), and this court granted the city's petitions for leave to
appeal in the other two causes (155 Ill. 2d R. 315). We
consolidated the three causes for purposes of this appeal.
BACKGROUND
In May 1992, the Chicago city council held hearings to
explore the problems criminal street gangs present for the city's
residents. Of particular concern was the problems gang members
cause by loitering in public. Witnesses testified how gang
members loiter as part of a strategy to claim territory, recruit
new members, and intimidate rival gangs and ordinary
community residents. Testimony revealed that street gangs are
responsible for a variety of criminal activity, including drive-by
shootings, drug dealing, and vandalism.
As a result of the hearings, the city council enacted the
Gang Congregation Ordinance, more commonly known as the
"gang loitering ordinance." The city council incorporated its
findings in the preamble to the ordinance, as follows:
"WHEREAS, The City of Chicago, like other cities
across the nation, has been experiencing an increasing
murder rate as well as an increase in violent and drug
related crimes; and
WHEREAS, The City Council has determined that the
continuing increase in criminal street gang activity in
the City is largely responsible for this unacceptable
situation; and
WHEREAS, In many neighborhoods throughout the
City, the burgeoning presence of street gang members
in public places has intimidated many law abiding
citizens; and
WHEREAS, One of the methods by which criminal
street gangs establish control over identifiable areas is
by loitering in those areas and intimidating others from
entering those areas; and
WHEREAS, Members of criminal street gangs avoid
arrest by committing no offense punishable under
existing laws when they know the police are present,
while maintaining control over identifiable areas by
continued loitering; and
WHEREAS, The City Council has determined that
loitering in public places by criminal street gang
members creates a justifiable fear for the safety of
persons and property in the area because of the
violence, drug-dealing and vandalism often associated
with such activity; and
WHEREAS, The City also has an interest in
discouraging all persons from loitering in public places
with criminal gang members; and
WHEREAS, Aggressive action is necessary to
preserve the city's streets and other public places so that
the public may use such places without fear[.]" Chicago
Municipal Code sec. 8--4--015 (added June 17, 1992).
The gang loitering ordinance provides in pertinent part:
"(a) Whenever a police officer observes a person
whom he reasonably believes to be a criminal street
gang member loitering in any public place with one or
more other persons, he shall order all such persons to
disperse and remove themselves from the area. Any
person who does not promptly obey such an order is in
violation of this section.
(b) It shall be an affirmative defense to an alleged
violation of this section that no person who was
observed loitering was in fact a member of a criminal
street gang.
(c) As used in this section:
(1) `Loiter' means to remain in any one place with no
apparent purpose.
(2) `Criminal street gang' means any ongoing
organization, association in fact or group of three or
more persons, whether formal or informal, having as
one of its substantial activities the commission of one
or more of the criminal acts enumerated in paragraph
(3), and whose members individually or collectively
engage in or have engaged in a pattern of criminal gang
activity.
* * *
(5) `Public place' means the public way and any other
location open to the public, whether publicly or
privately owned." Chicago Municipal Code sec. 8--4--
015 (added June 17, 1992).
Each violation of the ordinance is punishable by a fine of up to
$500, imprisonment for not more than six months, and the
requirement to perform up to 120 hours of community service.
During the hearings, representatives of the Chicago law and
police departments informed the city council that any limitations
on the discretion police have in enforcing the ordinance would
be best developed through police policy, rather than placing
such limitations into the ordinance itself. Accordingly, after the
gang loitering ordinance was enacted, the Chicago police
department issued a general order which provides guidelines for
enforcement of the ordinance. Among other things, the general
order sets forth standards for identifying criminal street gangs
and specifies criteria for establishing probable cause that an
individual is a member of a criminal street gang. Chicago Police
Department, General Order No. 92--4 (eff. August 8, 1992).
Once enforcement of the gang loitering ordinance began,
the circuit courts of Cook County disagreed as to its validity.
Upon review, the appellate court held the ordinance
unconstitutional on several grounds. First, the appellate court
found the ordinance unconstitutionally overbroad because it
violates the first amendment rights of association, assembly, and
expression. In addition, the appellate court found that the
ordinance was unconstitutionally vague. Next, the appellate
court determined the ordinance criminalizes a person's status in
violation of the eighth amendment. Finally, the appellate court
determined the ordinance allows arrests without probable cause,
in violation of the fourth amendment. Youkhana, 277 Ill. App.
3d 101.
The city urges that the judgment of the appellate court be
reversed because the gang loitering ordinance: (1) sufficiently
defines criminal conduct such that it is not unconstitutionally
vague; (2) is not overbroad because it is a permissible restriction
of first amendment rights; (3) does not create a status offense;
and (4) requires the police to establish probable cause of illegal
conduct before an offender can be arrested.
We find that the gang loitering ordinance violates due
process of law in that it is impermissibly vague on its face and
an arbitrary restriction on personal liberties. In doing so, we
need not reach the issues that the ordinance creates a status
offense, permits arrests without probable cause or is overbroad.
ANALYSIS
In construing a municipal ordinance, the same rules are
applied as those which govern the construction of statutes. In re
Application of the County Collector, 132 Ill. 2d 64, 72 (1989).
Statutes are presumed constitutional and it is the court's duty to
construe a legislative enactment so as to affirm its
constitutionality and validity, if it is reasonably susceptible to
such a construction. People v. Haywood, 118 Ill. 2d 263, 271
(1987). The fundamental rule of statutory construction is to
ascertain and give effect to the true intent and meaning of the
lawmakers. Solich v. George & Anna Portes Cancer Prevention
Center of Chicago, Inc., 158 Ill. 2d 76, 81 (1994). In doing so,
the courts should look first to the statutory language, for the
language of the statute is the best indication of the lawmaker's
intent. Williams v. Illinois State Scholarship Comm'n, 139 Ill. 2d 24, 51 (1990). Where the meaning of an enactment is clear and
unambiguous, a court must give it effect as written, without
reading into it limitations or conditions that the lawmakers did
not express. Garza v. Navistar International Transportation
Corp., 172 Ill. 2d 373, 378 (1996). Moreover, criminal statutes
are to be strictly construed in favor of an accused and nothing
should be taken by intendment or implication beyond the
obvious or literal meaning of the statute. People v. Woodward,
175 Ill. 2d 435, 444 (1997).
I. Vagueness
A cornerstone of our jurisprudence is that no person shall
be deprived of life, liberty, or property without due process of
law. U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, sec.
2. A well-established element of the guarantees of due process
is the requirement that the proscriptions of a criminal statute be
clearly defined. Haywood, 118 Ill. 2d at 269, citing Grayned v.
City of Rockford, 408 U.S. 104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2298, 2298-99 (1972). To successfully challenge a
criminal statute as being vague on its face, the statute must be
impermissibly vague in all of its applications. Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L. Ed. 2d 362, 369, 102 S. Ct. 1186, 1191
(1982); Haywood, 118 Ill. 2d at 270. That is, the statute must be
shown to be vague "in the sense that no standard of conduct is
specified at all." Coates v. City of Cincinnati, 402 U.S. 611,
614, 29 L. Ed. 2d 214, 217, 91 S. Ct. 1686, 1688 (1971). If on
its face the challenged statute violates the due process clause,
then the specific details of the individual offense would not
serve to validate the statute. Lanzetta v. New Jersey, 306 U.S. 451, 453, 83 L. Ed. 888, 890, 59 S. Ct. 618, 619 (1939).
To satisfy the vagueness doctrine, a criminal statute must
meet two basic criteria. First, a criminal statute must be
sufficiently definite so that it gives persons of ordinary
intelligence a reasonable opportunity to distinguish between
lawful and unlawful conduct. Kolender v. Lawson, 461 U.S. 352,
357, 75 L. Ed. 2d 903, 909, 103 S. Ct. 1855, 1858 (1983);
Grayned, 408 U.S. at 108, 33 L. Ed. 2d at 227, 92 S. Ct. at
2298-99; People v. Bailey, 167 Ill. 2d 210, 228 (1995). Second,
a penal statute must adequately define the criminal offense in
such a manner that does not encourage arbitrary and
discriminatory enforcement. Kolender, 461 U.S. at 357-58, 75 L. Ed. 2d at 909, 103 S. Ct. at 1858; Haywood, 118 Ill. 2d at
269; see also Papachristou v. City of Jacksonville, 405 U.S. 156,
162, 31 L. Ed. 2d 110, 115, 92 S. Ct. 839, 843 (1972). We
evaluate the provisions of the gang loitering ordinance in light
of the due process criteria.
A. Adequate Notice
The first criterion of the void-for-vagueness doctrine
requires a criminal statute to be sufficiently defined so it
provides persons of ordinary intelligence adequate notice of
proscribed conduct. Kolender, 461 U.S. at 357, 75 L. Ed. 2d at
909, 103 S. Ct. at 1858; Grayned, 408 U.S. at 108, 33 L. Ed. 2d
at 227, 92 S. Ct. at 2298-99; Bailey, 167 Ill. 2d at 228. Due
process guarantees this adequate notice of proscribed conduct so
that ordinary persons are not required to guess at a law's
meaning but, rather, can know what conduct is forbidden and
act accordingly. Flipside, Hoffman Estates, Inc., 455 U.S. at
498, 71 L. Ed. 2d at 371, 102 S. Ct. at 1193; Connally v.
General Construction Co., 269 U.S. 385, 391, 70 L. Ed. 322,
328, 46 S. Ct. 126, 127 (1926). "No one may be required at
peril of life, liberty or property to speculate as to the meaning
of penal statutes. All are entitled to be informed as to what the
State commands or forbids." Lanzetta, 306 U.S. at 453, 83 L. Ed. at 890, 59 S. Ct. at 619.
Loitering and vagrancy statutes have been utilized
throughout American history in an attempt to prevent crime by
removing "undesirable persons" from public before they have
the opportunity to engage in criminal activity. See Papachristou,
405 U.S. at 161-63, 31 L. Ed. 2d at 114-16, 92 S. Ct. at 842-44;
see generally Model Penal Code sec. 250.6, Commentary
(1980); Comment, Is There Something Suspicious About the
Constitutionality of Loitering Laws?, 50 Ohio St. L.J. 717
(1989). Nevertheless, it is well settled that broadly worded
criminal loitering laws which prohibit loitering without
additional unlawful conduct are doubtlessly unconstitutional.
See, e.g., Shuttlesworth v. City of Birmingham, 382 U.S. 87, 90,
15 L. Ed. 2d 176, 179, 86 S. Ct. 211, 213 (1965).
The gang loitering ordinance provides that "[w]henever a
police officer observes a person whom he reasonably believes
to be a criminal street gang member loitering in any public
place with one or more other persons, he shall order all such
persons to disperse and remove themselves from the area. Any
person who does not promptly obey such an order is in violation
of this section." Chicago Municipal Code sec. 8--4--015 (added
June 17, 1992). The city argues that the terms of the ordinance
are sufficiently definite so that ordinary persons can comprehend
the prohibited conduct. We disagree.
The ordinance seeks to criminalize acts of "loitering" in a
public place. Webster's defines "loiter" to mean "to remain in
or near a place in an idle or apparently idle manner" and to
"hang around aimlessly." Webster's Third New International
Dictionary 1331 (1981). The infirmity with this type of
prohibition is that it fails to distinguish between innocent
conduct and conduct calculated to cause harm and "makes
criminal activities which by modern standards are normally
innocent" (Papachristou, 405 U.S. at 163, 31 L. Ed. 2d at 116,
92 S. Ct. at 844). Although persons of ordinary intelligence may
maintain a common and accepted meaning of the word "loiter,"
such term by itself is inadequate to inform a citizen of its
criminal implications. See Territory of Hawaii v. Anduha, 48 F.2d 171, 172-73 (9th Cir. 1931); Arizona ex rel. Williams v.
City Court, 21 Ariz. App. 489, 491, 520 P.2d 1166, 1168
(1974); State v. Hudson, 111 N.H. 25, 26, 274 A.2d 878, 879
(1971); People v. Diaz, 4 N.Y.2d 469, 471, 151 N.E.2d 871,
872, 176 N.Y.S.2d 313, 315 (1958).
The city cites Wiemerslage v. Maine Township High School
District 207, 29 F.3d 1149 (7th Cir. 1994), for the proposition
that the term "loiter" is not unconstitutionally vague. The
Wiemerslage holding is not applicable to the instant case. At
issue in Wiemerslage was the validity of a high school
disciplinary rule prohibiting loitering in a specific area of
campus. The federal court of appeals, in finding that the
prohibitions of the disciplinary rule were not vague, expressly
observed that criminal loitering laws are subject to a more
stringent standard of specificity. Wiemerslage, 29 F.3d at 1152.
Moreover, the definition of "loiter" provided by the
ordinance does not assist in clearly articulating the proscriptions
of the ordinance. The ordinance defines "loiter" to mean "to
remain in any one place with no apparent purpose." Chicago
Municipal Code sec. 8--4--015(c)(1) (added June 17, 1992).
People with entirely legitimate and lawful purposes will not
always be able to make their purposes apparent to an observing
police officer. For example, a person waiting to hail a taxi,
resting on a corner during a jog, or stepping into a doorway to
evade a rain shower has a perfectly legitimate purpose in all
these scenarios; however, that purpose will rarely be apparent to
an observer.
Courts in several other jurisdictions have found similarly
worded prohibitions of criminal loitering statutes
unconstitutionally vague. See, e.g., United States ex rel.
Newsome v. Malcolm, 492 F.2d 1166 (2d Cir. 1974) (loitering
without apparent reason), aff'd sub nom. Lefkowitz v. Newsome,
420 U.S. 283, 43 L. Ed. 2d 196, 95 S. Ct. 886 (1975); Powell
v. Stone, 507 F.2d 93, 95 (9th Cir. 1974) (loitering without
apparent reason), rev'd on other grounds, 428 U.S. 465, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976); Ricks v. District of
Columbia, 414 F.2d 1097, 1107 (D.C. Cir. 1968) (loitering
without visible business); Kirkwood v. Loeb, 323 F. Supp. 611,
614-15 (W.D. Tenn. 1971) (loitering without any legitimate
purpose); In re C.M., 630 P.2d 593, 596 (Colo. 1981) (loitering
without legitimate reason); People v. Berck, 32 N.Y.2d 567, 300 N.E.2d 411, 347 N.Y.S.2d 33 (1973) (loitering without apparent
reason).
In addition, the city cites several cases for the proposition
that an ordinance prohibiting loitering alone is sufficiently
defined to pass the void-for-vagueness test. However, in all of
the cases cited by the city, the courts upheld ordinances which
criminalized loitering combined with some other overt act or
criminal intent. See, e.g., Williams, 21 Ariz. App. at 491, 520 P.2d at 1168 (loitering for purpose of begging); People v.
Superior Court, 46 Cal. 3d 381, 758 P.2d 1046, 250 Cal. Rptr. 515 (1988) (loitering to solicit lewd or unlawful act); State v.
Ecker, 311 So. 2d 104 (Fla. 1975) (loitering in an unusual
manner under circumstances which warrant alarm); Bell v. State,
252 Ga. 267, 313 S.E.2d 678 (1984) (same); State v. Armstrong,
282 Minn. 39, 162 N.W.2d 357 (1968) (loitering with intent to
solicit prostitution). Moreover, several of the cases cited by the
city expressly recognize that a law which criminalizes
"loitering" alone would be unconstitutionally vague. See, e.g.,
Williams, 21 Ariz. App. at 491, 520 P.2d at 1168; Ecker, 311 So. 2d at 107; Camarco v. City of Orange, 116 N.J. Super. 531,
534, 283 A.2d 122, 126 (1971). The city's argument is without
merit.
These cases demonstrate that when the term "loitering" is
joined with a second specific element to form the prohibited
conduct defined by a criminal loitering statute, courts have
uniformly found that the law sufficiently informs persons as to
the forbidden conduct and, thus, is not vague. The city contends,
in the alternative, that the gang loitering ordinance's prohibited
conduct is made up of specific elements in addition to mere
loitering.
1. Loitering With a Criminal Street Gang Member
First, the city argues that the ordinance prohibits loitering
with the additional element of being with a member of a
criminal street gang. Initially, we must observe that, literally
read, the gang loitering ordinance does not prohibit loitering
with a criminal street gang member. Rather, the ordinance
requires only that the arresting officer have a reasonable belief
that one person in a group of loiterers is a gang member.
However, a reasonable belief, or probable cause, is
insufficient to support a criminal conviction. See People v.
Nash, 173 Ill. 2d 423, 431 (1996). In addition, this added
element is itself vague, as it conveys no precise warning of the
proscribed conduct understandable by an ordinary person. An
individual standing on a street corner with a group of people has
no way of knowing whether an approaching police officer has
a reasonable belief that the group contains a member of a
criminal street gang. That condition depends solely on the police
officer's subjective evaluation of the facts of the situation in
light of his own experience. See Kolender, 461 U.S. at 368-69,
75 L. Ed. 2d at 916, 103 S. Ct. at 1864 (Brennan, J.,
concurring).
If the city intended to require actual knowledge on a
defendant's part of another loiterer's gang membership, then that
knowledge must be established as a fact in order to support a
conviction. See Lanzetta, 306 U.S. at 458, 83 L. Ed. at 893, 59 S. Ct. at 621; accord People ex rel. Gallo v. Acuna, 14 Cal. 4th 1090, 929 P.2d 596, 60 Cal. Rptr. 2d 277 (1997) (imposing
requirement of actual knowledge on part of defendant of other
party's gang membership status in order for injunction to pass
scrutiny under the vagueness doctrine). Although the ordinance
provides an affirmative defense which allows the defendant to
show that no one in the group was actually a gang member, this
affirmative defense does not cure the defect. Showing that one
person in a group of loiterers is a gang member does not
ultimately prove that a defendant had knowledge of that fact.
Furthermore, even adding a knowing association with a gang
member to the act of loitering is still insufficient because the
city cannot "forbid, on pain of criminal punishment, assembly
with others merely to advocate activity, even if that activity is
criminal in nature" (People v. Nash, 173 Ill. 2d 423, 431-32
(1996), citing Brandenburg v. Ohio, 395 U.S. 444, 448-49, 23 L. Ed. 2d 430, 434-35, 89 S. Ct. 1827, 1830 (1969)).
2. Failure to Obey a Dispersal Order
The city contends that another specific element of the
offense of gang loitering is the failure to obey a police order to
disperse. This is also insufficient to cure the vagueness of the
ordinance. In Shuttlesworth, the Supreme Court reviewed a
conviction pursuant to an ordinance which made it " `unlawful
for any person to stand or loiter upon any street or sidewalk ...
after having been requested by any police officer to move on.' "
Shuttlesworth, 382 U.S. at 90-92, 15 L. Ed. 2d at 179-80, 86 S. Ct. at 213-14. The Court determined that, as written, the
ordinance was unconstitutionally vague because it allowed a
person to "stand on a public sidewalk *** only at the whim of
any police officer." Shuttlesworth, 382 U.S. at 90-92, 15 L. Ed. 2d at 179-80, 86 S. Ct. at 213-14.
The proscriptions of the gang loitering ordinance are
essentially the same as the Shuttlesworth ordinance. Merely
adding the element of refusing to obey an order by police to
disperse does not elevate the gang loitering ordinance to such a
level that it provides adequate notice of proscribed conduct. See
State v. Hudson, 111 N.H. at 26, 274 A.2d at 879 (merely
loitering cannot be made criminal, even if statute requires
refusal of police's order to disperse); Kirkwood, 323 F. Supp. at
616 (violation of loitering ordinance conditioned upon failure to
move when directed to do so by police officer includes
unconstitutionally vague standards). Moreover, this
determination is consistent with our prior holdings. See, e.g.,
City of Chicago v. Meyer, 44 Ill. 2d 1, 5 (1969) (police may
arrest persons for failing to obey an order to cease otherwise
lawful conduct, but only after the police have made all
reasonable efforts to maintain order and the conduct produces an
imminent threat of uncontrollable violence or riot).
Furthermore, if the underlying statute is itself impermissibly
vague, as the gang loitering ordinance here, then a conviction
based upon failure to obey the order of a police officer pursuant
to that statute cannot stand. See Shuttlesworth, 382 U.S. at 90-
92, 15 L. Ed. 2d at 179-80, 86 S. Ct. at 213-14. The city
correctly observes that it is free to prevent people from
obstructing traffic and blocking the public way. However, it
must do so "through the enactment and enforcement of
ordinances directed with reasonable specificity toward the
conduct to be prohibited." Coates, 402 U.S. at 614, 29 L. Ed. 2d
at 217, 91 S. Ct. at 1688, citing Gregory v. City of Chicago, 394 U.S. 111, 118, 124-25, 22 L. Ed. 2d 134-40, 139, 143, 89 S. Ct. 946, 950, 953-54 (1969) (Black, J., concurring, joined by
Douglas, J.).
For these reasons, we find that the gang loitering ordinance
fails to meet the adequate notice standards of the vagueness
doctrine.
B. Arbitrary Enforcement
The second and more important aspect of the vagueness
doctrine is the requirement that a penal statute must adequately
define a criminal offense in such a manner that does not
encourage arbitrary and discriminatory enforcement. Kolender,
461 U.S. at 357-58, 75 L. Ed. 2d at 909, 103 S. Ct. at 1858;
Haywood, 118 Ill. 2d at 269; see also Papachristou, 405 U.S. at
162, 31 L. Ed. 2d at 115, 92 S. Ct. at 843. Where lawmakers
fail to provide minimal guidelines to govern law enforcement,
a criminal law "may permit `a standardless sweep [that] allows
policemen, prosecutors, and juries to pursue their personal
predilections.' " Kolender, 461 U.S. at 358, 75 L. Ed. 2d at 909,
103 S. Ct. at 1858, quoting Smith v. Goguen, 415 U.S. 566, 575,
39 L. Ed. 2d 605, 613, 94 S. Ct. 1242, 1248 (1974). Moreover,
when a law fails to provide standards regulating the exercise of
its discretion, "the scheme permits and encourages an arbitrary
and discriminatory enforcement of the law. [The law] furnishes
a convenient tool for `harsh and discriminatory enforcement by
local prosecuting officials, against particular groups deemed to
merit their displeasure.' " Papachristou, 405 U.S. at 170, 31 L. Ed. 2d at 120, 92 S. Ct. at 847, quoting Thornhill v. Alabama,
310 U.S. 88, 97-98, 84 L. Ed. 1093, 1100, 60 S. Ct. 736, 742
(1940).
The gang loitering ordinance fails to meet these standards.
The ordinance provides such ambiguous definitions of its
elements that it does not discourage arbitrary or discriminatory
enforcement. The definition of loitering as "to remain in any one
place with no apparent purpose" provides absolute discretion to
police officers to decide what activities constitute loitering.
Moreover, police are given complete discretion to determine
whether any members of a group are gang members. These
guidelines do not conform with accepted standards for defining
a criminal offense.
Where a criminal ordinance vests unfettered discretion in
the police to determine whether a suspect's conduct has violated
the ordinance, it "entrust[s] lawmaking `to the moment-to-
moment judgment of the policeman on his beat' " (Smith, 415 U.S. at 575, 39 L. Ed. 2d at 613, 94 S. Ct. at 1248, quoting
Gregory v. City of Chicago, 394 U.S. 111, 120, 22 L. Ed. 2d 134, 141, 89 S. Ct. 946, 951 (1969) (Black, J., concurring,
joined by Douglas, J.)), and "confers on police a virtually
unrestrained power to arrest and charge persons with a
violation" (Lewis v. City of New Orleans, 415 U.S. 130, 135, 39 L. Ed. 2d 214, 220, 94 S. Ct. 970, 973 (1974) (Powell, J.,
concurring)).
The city does not dispute that the ordinance grants the
police department a vast amount of discretion in its
enforcement. In fact, the city itself points out that the Chicago
police department urged the city council to exclude from the
ordinance any limitations on the discretion the police hold in
enforcing the ordinance. Notwithstanding that fact, the city
contends that the general order of the police department should
be considered a limiting construction of the ordinance, thus
curing its vagueness. However, the general police order does not
save the ordinance from being impermissibly vague.
We observe that lawmakers may not abdicate their
responsibilities for setting the standards of the criminal law.
Smith, 415 U.S. at 575, 39 L. Ed. 2d at 613, 94 S. Ct. at 1248.
It is the duty of the lawmakers to establish minimal guidelines
to govern law enforcement. Kolender, 461 U.S. at 358, 75 L. Ed. 2d at 909, 103 S. Ct. at 1858. Moreover, although the
general police order goes to great lengths to define criminal
street gangs, it does absolutely nothing to cure the imprecisions
of the definition of the "loitering" element of the crime. In
addition, a thorough examination of the record reveals that
police officers have not followed the guidelines of the general
order in a uniform manner.[fn 1]
Furthermore, the gang loitering ordinance is not reasonably
susceptible to a limiting construction which would affirm its
validity. Although the proscriptions of the ordinance are vague,
the city council's intent in its enactment is clear and
unambiguous. The city has declared gang members a public
menace and determined that gang members are too adept at
avoiding arrest for all the other crimes they commit.
Accordingly, the city council crafted an exceptionally broad
ordinance which could be used to sweep these intolerable and
objectionable gang members from the city streets. As the
Supreme Court has observed, ordinances such as the gang
loitering ordinance are drafted in an intentionally vague manner
so that persons who are undesirable in the eyes of police and
prosecutors can be convicted even though they are not
chargeable with any other particular offense. Papachristou, 405 U.S. at 166, 31 L. Ed. 2d at 118, 92 S. Ct. at 845. Laws such as
these tend "to be invoked only where there is no other valid
basis for arresting an objectionable or suspicious person. The
opportunity for abuse *** is self-evident." Lewis, 415 U.S. at
136, 39 L. Ed. 2d at 221, 94 S. Ct. at 974 (Powell, J.,
concurring).
We empathize with the city council's objectives in enacting
the gang loitering ordinance. Criminal street gangs are an
expanding cancer in our society and their illegal activities
endanger the safety of many law-abiding citizens. Nevertheless,
as important as it is to abate this problem, the city cannot fight
gang crime through the enactment and enforcement of an
ordinance that fails to meet constitutional standards for
definiteness and clarity. Kolender, 461 U.S. at 361, 75 L. Ed. 2d
at 911, 103 S. Ct. at 1860, citing Lanzetta v. New Jersey, 306 U.S. 451, 453, 83 L. Ed. 888, 890, 59 S. Ct. 618, 619 (1939).
II. Substantive Due Process
Defendants also contend that the gang loitering ordinance
is an arbitrary exercise of the city's police power and, thus,
violates substantive due process. The city responds that
defendants have no constitutional right to loiter. We agree with
defendants.
The city is incorrect in its contention that the gang loitering
ordinance intrudes upon no constitutionally protected activity. In
Papachristou, the Supreme Court reviewed a statute which
prohibited, among other things, the acts of loafing, loitering, and
nightwalking. The Court observed that, although not expressly
mentioned in the Constitution, such activities are amenities of
American life. Papachristou, 405 U.S. at 164, 31 L. Ed. 2d at
117, 92 S. Ct. at 844. The freedom to engage in such harmless
activities is an aspect of the personal liberties protected by the
due process clause. See City of Chicago v. Wilson, 75 Ill. 2d 525, 529-30 (1978), citing Kelley v. Johnson, 425 U.S. 238, 47 L. Ed. 2d 708, 96 S. Ct. 1440 (1976); see also Swank v. Smart,
898 F.2d 1247, 1251-52 (7th Cir. 1990).
Among those protected personal liberties which have long
been recognized are the general right to travel (see, e.g., Shapiro
v. Thompson, 394 U.S. 618, 629, 22 L. Ed. 2d 600, 612, 89 S. Ct. 1322, 1329 (1969) (constitutional concepts of personal
liberty require that all citizens be free to travel throughout the
land uninhibited by laws which unreasonably burden or restrict
this movement), overruled in part on other grounds, Edelman
v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347
(1974)), the right of locomotion (see, e.g., Anduha, 48 F.2d at
172, quoting Pinkerton v. Verberg, 78 Mich. 573, 584, 44 N.W. 579, 582 (1889) (the right to go where and when one pleases),
the right to freedom of movement (Kolender, 461 U.S. at 358,
75 L. Ed. 2d at 910, 103 S. Ct. at 1859), and the general right
to associate with others (Swank, 898 F.2d at 1252). The gang
loitering ordinance impedes upon all of these personal liberty
interests.
We recognize that such personal liberties are not absolute.
Only governmental actions which intrude upon personal liberties
arbitrarily or in an utterly unreasonable manner violate the due
process clause. See Illinois Gamefowl Breeders Ass'n v. Block,
75 Ill. 2d 443, 453 (1979). Nevertheless, we find that the gang
loitering ordinance unreasonably infringes upon personal liberty.
Persons suspected of being in criminal street gangs are deprived
of the personal liberty of being able to freely walk the streets
and associate with friends, regardless of whether they are
actually gang members or have committed any crime. As one
trial judge warned one of defendants below, "[the police] will
lock you up just for being who you are." 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. See Papachristou, 405 U.S. at 166, 31 L. Ed. 2d at 118, 92 S. Ct. at 845.
The city is not helpless in its war against the criminal
activity of gangs. Many of the offensive activities the city
claims the gang loitering ordinance will deter are already
criminal acts. See, e.g., 720 ILCS 5/12--6 (West 1996)
(intimidation); 720 ILCS 5/12--6.1 (West 1996) (compelling
organization membership of persons); 720 ILCS 5/12--6.2 (West
1996) (aggravated intimidation--a gang member committing the
offense of intimidation for the purpose of furthering gang
activities); 720 ILCS 5/25--1 (West 1996) (mob action).
However, the city cannot empower the police to sweep
undesirable persons from the public streets through vague and
arbitrary criminal ordinances.
We hold the that the gang loitering ordinance is an arbitrary
restriction on personal liberty and, thus, violates substantive due
process. Therefore, we need not determine whether the gang
loitering ordinance impermissibly infringes on either the first
amendment right of expressive association or the fundamental
right of intimate association, both of which command a much
higher level of scrutiny. See, e.g., Roberts v. United States
Jaycees, 468 U.S. 609, 623, 82 L. Ed. 2d 462, 474-75, 104 S. Ct. 3244, 3252-53 (1984).
For the foregoing reasons, the judgments of the appellate
court are affirmed.
Appellate court judgments affirmed.
[fn1] In one example, the general order provides that probable
cause of a defendant's membership in a criminal street gang can
be substantiated by his wearing distinctive colors indicative of
a specific criminal street gang. However, the general order
expressly states that gang "membership may not be established
solely because an individual is wearing clothing available for
sale to the general public." Chicago Police Department, General
Order No. 92--4, par. V (eff. August 8, 1992). Despite this
express limitation, defendant Morales was arrested and
convicted of violating the gang loitering ordinance even though
the arresting officer testified that his only basis for determining
that Morales was a gang member was that Morales wore black
and blue clothing, which are the colors of the Gangster Disciples
criminal street gang.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
