Chicago v. Morales – Oral Argument – December 09, 1998

Media for Chicago v. Morales

Audio Transcription for Opinion Announcement – June 10, 1999 in Chicago v. Morales

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William H. Rehnquist:

We’ll hear argument first this morning in Number 97-1121, the City of Chicago v. Jesus Morales.

Mr. Rosenthal.

Lawrence Rosenthal:

Thank you, Mr. Chief Justice, and may it please the Court–

As the record before the Chicago City Council makes plain, gang crime is different from most other forms of criminal activity.

Most criminals, of course, do not commit their crimes in broad daylight, in full view of law abiding citizens, and on the public way.

Not so with gang crime.

Street gangs rely on their ability to so terrorize their neighborhoods that they may commit crimes with impunity while law abiding persons are afraid to cooperate with the police, indeed, afraid to even use the public spaces in their own neighborhoods.

When police are present, however, all they see is gang members pretending to innocently loiter.

On that record, the city council enacted the gang loitering ordinance.

It provides that whenever a police officer sees a group of loiterers in a public place and reasonably believes a member of a criminal street gang to be present, he may order the group to disperse.

This morning, I will discuss the two holdings below and explain why this ordinance is neither impermissibly vague nor inconsistent with principles of substantive due process.

Anthony M. Kennedy:

Just one question.

Do the police have special training and instructions to know who members of the gangs are?

Lawrence Rosenthal:

The general order that govern enforcement, 92 4… it is in the petition appendix… contains quite explicit instructions and demanding standards for making determinations of gang membership and, of course, even respondents do not challenge–

Anthony M. Kennedy:

And it takes some experience and expertise to know this?

Lawrence Rosenthal:

–It does.

For example, under the order, not all police officers are permitted to enforce this ordinance, only gang specialists, tactical officers, and other specially designated personnel familiar with the gang files of the Chicago Police Department are permitted to make arrests under the ordinance.

Anthony M. Kennedy:

Well then, how does the person who’s not a member of the gang know that he is doing something unlawful?

Lawrence Rosenthal:

Well, interestingly, Justice Kennedy, the critical point here is that, on the question of fair notice, as Your Honor’s question points out, it is not unlawful to loiter in the City of Chicago.

When one loiters with a gang member one is not breaking the law.

Under this ordinance, it is a crime only, after having received an order to disperse, to fail to obey that order, order–

Anthony M. Kennedy:

Does the police tell the person who is not a gang member, this is a gang member and therefore you must disperse?

Does he say that?

Lawrence Rosenthal:

–The ordinance does not provide for that?

Anthony M. Kennedy:

Well, how does the person know?

How does the nongang member know that the other person’s a gang member?

Lawrence Rosenthal:

Well, what the person has… what the police are told, what the police do is, they give an order in terms of common parlance to disperse.

That provides fair notice of what the constitution requires, how to conform one’s conduct with the requirement of the law.

Of course, individuals ordinarily ought to presume that when police issue orders they do so for appropriate police power reasons.

Presumably–

David H. Souter:

Well, maybe they should and maybe not.

I mean, I suppose that if the police are without the predicate to issue the order, an individual is within his rights to say no, I’m not going to move.

Lawrence Rosenthal:

–Of course, the way to test the order is in court, and it is a defense–

David H. Souter:

Well, regardless of whether one wants to test it or not, if the police do not have the predicate for the order the individual doesn’t have to move.

Lawrence Rosenthal:

–Well, the traffic laws provide a good example.

When a police officer refuses to let cars go down a street, we know of no principle of constitutional law that says the police officer must explain why that street has been closed and that there is sufficient ordinance authority.

Ruth Bader Ginsburg:

Mr. Rosenthal, are you saying, then, that if the law… simply read, it would be much easier if a police officer gives you a command to disperse and you don’t obey you’ve committed an offense.

Lawrence Rosenthal:

Justice Ginsburg, we think that that is what this law reads for purposes of fair notice.

The–

Ruth Bader Ginsburg:

And you think that that’s… if the Chicago ordinance said nothing but that, you think it would be constitutional?

Lawrence Rosenthal:

–We think it would supply fair notice.

There might be other problems with an ordinance.

Ruth Bader Ginsburg:

What other problems?

If it simply said, the police ordered you to disperse, you disperse, otherwise you’ve committed an offense–

Lawrence Rosenthal:

Well, that ordinance is so broad it might reach picketing demonstrations, activity protected by the First Amendment.

What people are told on a point of fair notice is what they must do, disperse.

Now, there are other standards for enforcement under the ordinance.

Stephen G. Breyer:

–Suppose the hypothetical were changed so that it says, the police give you a lawful order to disperse.

Lawrence Rosenthal:

Well, again, I… we think that that would be–

Stephen G. Breyer:

Which means that they would have to have good reason.

Lawrence Rosenthal:

–That… and we think this case is no different, Justice–

Stephen G. Breyer:

And suppose–

Antonin Scalia:

–You think that would be okay.

Lawrence Rosenthal:

–We do, at least on the question of fair notice.

There might be other issues about whether their enforcement discretion has been circumscribed or not.

Suppose the police had secret guidelines for when they give you the order to disperse.

Lawrence Rosenthal:

If those guide–

But they were… no one else knew them.

Lawrence Rosenthal:

–Well–

Would you have to assume that the order’s valid?

Lawrence Rosenthal:

–I think on a facial challenge, one could bring a facial challenge to such an ordinance and if the police refused to disclose the guidelines, the court obviously could compel disclosure of the guidelines and if the guidelines were not on principle then there might be a basis.

The FBI, for example, has all kinds of rules that they don’t necessarily disclose to the public.

Our point is, it is important not to conflate the issue of fair notice and standards for enforcement.

When people are told to move on, they are given notice of what the law requires them to do.

That–

David H. Souter:

I think that comes back to the point we keep raising.

They are given notice of the fact that the police officer has concluded that, but the question that is bothering some of us is, on what basis can they come to a conclusion that they have, in fact, violated the ordinance.

Lawrence Rosenthal:

–We know of no principle of constitutional law–

David H. Souter:

Strike that.

I’ve misspoken.

On what basis can they come to a conclusion that the police officer has the necessary predicate to give them the order?

That’s what’s bothering us.

Lawrence Rosenthal:

–The city… we start with the ordinance.

The city council passed an ordinance, it’s public record which grants to the police the authority under these specified circumstances when a member of a criminal street gang is present, to issue the order.

The public, of course, has notice of the authority that is conferred on the police.

Stephen G. Breyer:

When he tells them to disperse, does he tell them why?

Lawrence Rosenthal:

Under the ordinance, people are only told to disperse, and again, we know of no principle of constitutional law that entitles one to be given a reason.

If the police are clearing the street in Washington because the President is about to walk by, we know of no rule that says they have to explain to people the reason you need to move is that the President is coming.

David H. Souter:

Well, I can accept that, but it seems to me that’s not the problem.

The problem is whether the individual has notice of the standard of conduct to which he must conform, or to which he can refer when he decides whether the police officer is worthy of obedience legally in making the order that he makes, and that’s… that’s… you know, it seems that was behind Justice Kennedy’s question, I think it’s behind a lot of our questions.

Gang… identification of the gang member is one thing.

Identification of the conduct of loitering, so defined, is another.

Lawrence Rosenthal:

Well, Justice Souter, as the Illinois supreme court acknowledged, as a matter of ordinance construction, the term loiter has a common and accepted meaning.

That court embraced dictionary definitions of the term loiter, and it acknowledged–

David H. Souter:

Well, the meaning here involves the absence of an apparent purpose, right?

Lawrence Rosenthal:

–That is the definition of the term, loiter.

In addition–

David H. Souter:

Well, don’t most… I mean, it… I have difficulty with that, because it seems to me that there usually is an apparent purpose for most of what we call loitering.

Some people, for example, with nothing better to do like to sit and… or stand and watch the cars go by.

That’s a purpose, it seems to me that under this ordinance, the problem is not that there is no apparent purpose but that the ordinance necessarily is making some silent assumptions that some purposes are worthy and some are not, and it’s difficult, I would think, for a person, particularly for a non gang member, to stick with Justice Kennedy’s first question, to know in advance what purpose is, in fact, going to be an acceptable one under the ordinance or to the police.

Lawrence Rosenthal:

–Well, the ordinance… what is critical under the ordinance is if an individual’s purpose for remaining in any one place is apparent.

If the officer cannot tell–

Is what?

Apparent?

Lawrence Rosenthal:

–If the person’s purpose for remaining in any one place is apparent, if the officer does not know if the reason the individual is standing still, the group are standing still, is they’re enjoying the night air, or they’re going to resume dealing drugs from their specified location as soon as the officer leaves, the purpose for remaining still, for standing still is not purpose, is not apparent.

But Justice Souter, I think what’s even more critical is, is to consider the premise whether people are doing anything wrong when they’re loitering under this ordinance.

One of the premises for this regulation is that the nongang member is at risk when he is standing still at public.

When people know they’re with gang members, at least you can say that they’re assuming the risks that adhere in standing still with someone who is–

Sandra Day O’Connor:

Well, I think you have to assume that the ordinance is broad enough that some people would not know they happen to have a gang member present.

I mean, maybe some would, maybe some wouldn’t.

Has any attempt been made in any other city ordinance to focus on some action by the so called gang, intimidation of people, or seeking to obtain physical control of an area for some illicit purpose?

I mean, if it were something like that in the ordinance, then it seems to me people would understand if they engaged in activity like that–

Lawrence Rosenthal:

–Well–

Sandra Day O’Connor:

–That it’s–

Lawrence Rosenthal:

–Justice O’Connor–

Sandra Day O’Connor:

–suspect.

Lawrence Rosenthal:

–Justice O’Connor–

Sandra Day O’Connor:

Yes.

Lawrence Rosenthal:

–Justice O’Connor, Illinois has an intimidation statute.

One should not underestimate, however, the difficulty of enforcing laws when a neighborhood is so terrorized by gang crime they are afraid.

The only way to bring an intimidation case when the police are not present is to put oneself in harm’s way by offering to be a witness.

The great virtue of this ordinance is that people call the police and, instead of being told, sorry, unless you’re willing to testify there’s nothing I can do for you, they see visible results.

The loiterers are dispersed, and not only does that inhibit crime and violence, but it also energizes the community in a host of ways when they see a visible pay off for cooperating with the police in a host of–

Ruth Bader Ginsburg:

I suppose, Mr. Rosenthal, the streets would be cleaner and clearer if the city just said, anyone who loiters in a public place and doesn’t move when told to move on commits an offense.

Lawrence Rosenthal:

–Well, and I don’t–

Ruth Bader Ginsburg:

And would you defend the constitutionality of such a statute that said, anyone who loiters and is told to move on commits an offense?

Lawrence Rosenthal:

–Well, and on the question of vagueness, I don’t mean to say the end justifies the means.

What I do mean to say is, even putting loitering aside, there is one unquestionably objective standard for enforcement.

First, people need to be standing still.

No question that’s objective.

Lawrence Rosenthal:

Even if one doesn’t know what loitering is, enforcement is delimited to people who aren’t walking.

Second, enforcement is limited when there is a reasonable belief that a member of a criminal street gang is present, and always there, even if another individual doesn’t realize he’s next to a gang member.

Antonin Scalia:

So it isn’t really loitering.

It’s prohibited… it’s loitering with a member of a street gang.

Lawrence Rosenthal:

That’s correct.

There is–

Antonin Scalia:

Let’s just take loitering.

I guess, what I gather from your response to Justice Ginsburg, that you concede that loitering is a constitutionally protected right?

Lawrence Rosenthal:

–We do… we find nothing in the Constitution that protects the right to loiter.

Antonin Scalia:

Is it better than smoking cigarettes, for example, which, you know, people used to have a right to do–

[Laughter]

Antonin Scalia:

–and the State decides it’s a bad idea, so it prohibits it.

Why is loitering above smoking cigarettes, for example?

Lawrence Rosenthal:

We see no constitutional protection in the right to loiter.

Antonin Scalia:

Much less loitering with a member of a gang.

Lawrence Rosenthal:

And absolutely no right to join a criminal street gang under our Constitution and not to stand next to a criminal street gang with no… with or without an apparent purpose.

Kolender, the–

Ruth Bader Ginsburg:

This isn’t the Court’s first encounter with a loitering statute, and there are cases like Papachristou, where the Court found, at least those statutes were problematic because of the discretion given to the officers.

Lawrence Rosenthal:

–Well, and of course Papachristou was a drag net.

There was no order to disperse given, and anyone outdoors at night could be arrested.

Anthony M. Kennedy:

But you were going to mention Kolender, and that’s on this same point as Justice Ginsburg made.

I think the Court was very careful to say that what we’re really concerned about in Kolender was that the police have… there are no standards to guide the police for when it’s going to enforce the order.

Lawrence Rosenthal:

What I think is so interesting about Justice O’Connor’s opinion in Kolender is, loitering was an element of that offense.

Not a single member of the Court identified any problem with using loitering as a member of the offense.

Justice Brennan even wrote separately, because he thought there was an additional constitutional infirmity.

Anthony M. Kennedy:

But the opinion says the important thing is that there be minimal guidelines to those who enforce the ordinance.

Lawrence Rosenthal:

Yes.

That’s correct, and–

Anthony M. Kennedy:

And it seems to me we can’t affirm, or rule in your favor unless we modify that, or somehow confine it.

Lawrence Rosenthal:

–I quite agree there must be minimal guidelines, although Kolender hypothesized a law with loitering as an element that would be constitutional and didn’t identify loitering as the invalid element in that statute.

Lawrence Rosenthal:

But here, even if loitering alone would be fatally imprecise, enforcement is delimited only to a particular class of potentially dangerous people when a member of a criminal street gang is present.

That is a limit on enforcement discretion, limits enforcement only when the potential danger identified by the legislature is present.

No question this law is, like most prophylactic laws, tough.

It will occasionally be applied to individuals who in fact… whose hearts are in fact pure.

That does not create a problem of vagueness, however.

People are told precisely what they must do, and there are standards for who can receive the order.

The problem that creates, like any prophylactic law, is at most a problem of substantive due process, and it is to that question that I will now turn.

On the question–

David H. Souter:

Before you turn to it, I’m still bothered by the seemingly open ended possibilities of determining what is… what is or is not an apparent purpose.

How do you address the vagueness of that and the discretion of the officer to decide whether he will accept the appearance of a purpose or not?

Lawrence Rosenthal:

–Well, the officer is in many ways like a camera.

When he goes to court and testifies to support his order, all he does is describe what he saw.

If the judge saw a picture and could tell why people are remaining in one place… they’re playing basketball on a court, they’re looking at Christmas windows at a department store… there is an objective basis.

David H. Souter:

They want to watch the cars go by.

I mean, people… there are communities in Florida in which people apparently spend most of their time sitting on park benches watching this.

Their purpose is perfectly obvious.

Lawrence Rosenthal:

Well, but in–

David H. Souter:

I suppose people standing on a street corner can have that purpose.

There is an apparent purpose, but I would suppose that under this ordinance it would not be accepted as an apparent purpose.

Lawrence Rosenthal:

–Well, Justice Souter in these–

David H. Souter:

Would it?

Lawrence Rosenthal:

–It would not, Justice Souter, and the reason is in these neighborhoods police can’t tell if one’s standing still to watch the cars go by or because that’s where you deal drugs as soon as the police leave, but if you are so–

David H. Souter:

They can’t tell, so that in order to make the ordinance work they have to make a judgment about what they will accept as a sufficient, or a sufficiently obvious purpose, or a sufficiently legitimate purpose.

I mean, they do have to make that judgment, don’t they?

Lawrence Rosenthal:

–With… there is a judgment, but I think it is actually the reverse.

When the police officer cannot tell, that’s when he can’t make a judgment.

The ordinance is rigid in that respect.

But assume with me, Justice Souter, loitering alone would be fatally imprecise.

Nevertheless, a law that says, one cannot stand still in the City of Chicago when ordered to move on by a police officer, is not vague.

Whatever else it is, it is not vague.

Lawrence Rosenthal:

The most you can say–

David H. Souter:

But that’s not the basis upon which you’re basing your ordinance here, and your ordinance is based upon a judgment, and it seems to me that either that judgment can always be made… I mean, you know, Benjamin Franklin said, we can always find a purpose for everything that is done, or it’s a judgment which is left entirely to the discretion of the officer to decide on a normative basis whether the apparent purpose is, in fact, a legitimate one, and I don’t see how you get around that problem.

Lawrence Rosenthal:

–Well, because the law does require minimal standards, and even if apparent purpose alone is not enough, Kolender does not say every loitering law in the country is unconstitutional.

If there are other criteria–

Antonin Scalia:

Why does the law require minimal standards?

Lawrence Rosenthal:

–Well, that is what this Court said in the Kolender case.

Antonin Scalia:

To give… but to give adequate notice, I assume.

Lawrence Rosenthal:

No.

That part of the Kolender opinion, Justice Scalia, addressed the danger of arbitrary and discriminatory enforcement.

Justice O’Connor did not have a problem, and the Court did not identify a problem in that opinion with fair notice.

There was plenty of notice in Kolender.

It was the second prong of the due process inquiry that the Court centered on in Kolender.

Sandra Day O’Connor:

Well, there is a concern here, of course, as well with the potential for arbitrariness by the police in interpreting it.

You could have a situation as, I assume, in many poor neighborhoods of the country where some person might be trying to persuade gang members to change their ways, and be out on the streets where they’re gathered to talk to them.

Now, the officer wouldn’t be able to detect an apparent purpose.

It’s just a bunch of people including a gang member or two standing around on the street, so it’s open to the officer to say, outta here.

Lawrence Rosenthal:

It is, and that simply shows–

Sandra Day O’Connor:

And that’s the concern.

Lawrence Rosenthal:

–That… and that shows that there are hypotheticals where this ordinance can… there’s certainly a standard, but it nevertheless can be applied.

What is critical, though, it’s so interesting that after tens of thousands of applications respondents can’t identify a single case where that actually happened, and the legislative findings explain why.

In these communities, law abiding people are afraid to use their public spaces.

People are afraid to stand with gang members because gang members do not want law abiding people in their midst.

The legislature could rationally conclude that since the burden under this ordinance is so minimal, usually just a minor inconvenience, moving on, and these hypotheticals are so unlikely to occur, that the benefits of creating this prophylactic law to deal with enormous evils associated with gang loitering make this ordinance amply rational and hence constitutional.

Sandra Day O’Connor:

Do most loitering laws refer to specific places where you can’t loiter, in public rest rooms, or around schoolyards, or something like that?

Lawrence Rosenthal:

As the amicus briefs describe, I think there are a great variety of loitering laws.

Some are much more general.

Loitering with intent, for example, was quite… the Model Penal Code recommends a loitering law that is entirely general.

Some are specific.

Would the Chief Justice–

Could I–

Sandra Day O’Connor:

–I can understand a zoning approach where you concluded in certain areas, public areas it’s sufficiently dangerous that it ought to be prohibited altogether.

Lawrence Rosenthal:

–And the general order here does provide that the ordinance will only be enforced where a district commander has determined that gang loitering has a demonstrable effect on the activities of law–

Sandra Day O’Connor:

Oh, but that’s not on the face of the statute.

The public doesn’t know that, presumably.

Lawrence Rosenthal:

–Well, the general order is public.

It is also in the record, and this Court has over and over again said, from Hoffman Estates on, facial attacks should be considered in light of these kind of administrative practices.

Ruth Bader Ginsburg:

I thought the designated areas were not known to the public.

Lawrence Rosenthal:

That’s correct.

The general order, the standard for designation is in the record, in the general order.

The general order itself is public.

Which areas are designated, that was not made public.

Antonin Scalia:

But this is a facial attack, so that if there is… I guess theoretically if there is any direction to the police which would render it constitutional it would be okay, but you’re appealing to one that is actually extant.

Lawrence Rosenthal:

We are, one that–

Antonin Scalia:

You’re going to say that if that is followed at least it’s okay, so a facial attack–

Lawrence Rosenthal:

–We are.

It’s a facial–

William H. Rehnquist:

–To what extent must a member of the general public under our jurisprudence know precisely what a criminal statute means?

I mean, take the Screws case.

Do you think that the people who have been prosecuted under that statute know precisely the state of mind that is required by the court?

Lawrence Rosenthal:

–I think not.

All the court requires is fair notice of what to do in order to conform one’s conduct in the law.

Here, the order to disperse gives fair notice in terms of–

Stephen G. Breyer:

Assume that there’s fair notice for purposes of my question.

I want you to get back to where you were going, what you call substantive, or maybe it’s procedural.

I’m not sure what kind of due process, but think of not the category of gang members… gangs mean people who engage in very serious crimes… but people who are not members of the gang.

The ordinance seems to say on its face that all the people who are not members of the gangs in this ordinance can’t use the public streets to stand in when a gang member is present.

Now, that I have to say, to me anyway, is of some concern.

Lawrence Rosenthal:

–Well, they can stand there until a police order is given, when–

Stephen G. Breyer:

Well, it says the police shall order them to disperse, so if you read this statute it says that the people who are not gang members who are standing on a public street and want to talk to a member of the gang, or he’s one of the group, that they can’t stand on that street because if a policeman comes along he shall order them to disperse.

Lawrence Rosenthal:

–And under those circumstances the legislature could rationally conclude that hypothetical is unlikely, because they heard from the citizens, who are scared to use the public–

Stephen G. Breyer:

Oh, no, no, there are some gang members and some nongang members.

I take it a lot of people stand around on the street.

I doubt that there’s evidence here that says the only people who stand on the street, even in the worst neighborhood problem areas, are just gang members.

Lawrence Rosenthal:

–There is certainly ample testimony that law abiding people are afraid to stand with gang members, who are going to be dealing drugs and don’t–

Stephen G. Breyer:

Can a city council pass an ordinance that says, we’ve had some gang problems in a certain area.

Therefore, no one can stand on the street.

No one.

Lawrence Rosenthal:

–Certainly, nothing vague about that law–

Stephen G. Breyer:

No, nothing vague about it.

I’m asking you if–

[Laughter]

Stephen G. Breyer:

I agree.

That’s right.

So can they do it?

Lawrence Rosenthal:

–If rational, given the legislative record, and here, we of course confine our argument to the evidence and the findings of the city council.

We do think that would be rational.

I’d like to reserve–

Stephen G. Breyer:

As long as it’s… is that… but I don’t want you to stop now.

If I… if… is that the standard for people being able to stand on the street?

I mean, all they want to do, innocent, not members of the gang, I want to stand on the street today.

That’s… I… my house isn’t very big, and it’s unpleasant there, and it’s hot, and I want to go and stand on the street and talk to people.

Some of my friends are gang members, I agree.

Now, the city council says, you can’t, all right.

What’s the standard that we’re supposed to judge under the Constitution whether they can do that?

Lawrence Rosenthal:

–In our view, rational basis, we find no fundamental constitutional right to stand still.

Antonin Scalia:

Mr. Grossman, do you know anybody who would rather smoke a cigarette in a bar than stand on the street?

Lawrence Rosenthal:

I… sure, I’ve met such–

Antonin Scalia:

I know several people like that.

[Laughter]

Antonin Scalia:

They’re disabled from doing it, and nobody thinks it’s a problem.

Lawrence Rosenthal:

–And of course, one can walk wherever one wants, and one can stand alone whenever one wants.

I would like, Mr. Chief Justice, to reserve the balance of my time.

Ruth Bader Ginsburg:

May I just ask if you would apply that same reasoning to… if the statute said, instead of gang member, reasonably suspected of being a prostitute, reasonably suspected of being a beggar?

They would all be equally effective.

Lawrence Rosenthal:

The kind of terror to the point where law abiding people won’t even be able to use their streets and are at risk of drive by shootings and other things where they’re near gang members, that kind of terror doesn’t exist, I think, Justice Ginsburg, in your hypotheticals.

I doubt that ordinance would be rational, and I doubt that anyone… any legislature would pass that ordinance.

William H. Rehnquist:

Thank you, Mr. Rosenthal.

Mr. Grossman, we’ll hear from you.

Harvey Grossman:

Mr. Chief Justice, and may it please the Court–

The City of Chicago has enacted a statute which is inherently vague and overbroad.

At its core, it defines no conduct that–

William H. Rehnquist:

Mr. Grossman, the question of overbreadth isn’t before us, is it?

The supreme court of Illinois didn’t rest on that basis.

Harvey Grossman:

–It did not, Your Honor, but we have preserved that issue.

The Illinois appellate court did rule that the statute… the ordinance was overbroad.

William H. Rehnquist:

Well, you’ve preserved it what, as an alternate ground for affirmance?

Harvey Grossman:

Yes, we have, Your Honor.

This law requires a police officer to engage in a surreal exercise of seeking to determine whether or not someone has a purpose that qualifies for exclusion or exclusion under this vaguely worded law.

Nothing has changed linguistically in our culture over the last 100 years.

At the turn of the century the supreme court of Missouri struck down the first loitering law that a court held unconstitutional in this country, and the progression has been continuous.

There is no debate about the issue amongst a overwhelming majority of modern courts.

Antonin Scalia:

But what issue, whether you can prohibit loitering?

Harvey Grossman:

Whether a police officer will have sufficient guidance under a law that prohibits nothing more than mere loitering, in this case defined as having no apparent purpose, when that officer seeks to apply it in the field.

There is a surreal construct.

Most of the time we ask police officers to gauge behavior within a construct of wrongful purpose or wrongful behavior.

In fact, although Mr. Rosenthal suggested that Kolender was a case in which this Court was only upset about the question of arbitrary enforcement, in fact loitering there had been construed by the California court to require reasonable suspicion of commission of another crime.

It had transposed the Terry standard into Kolender, so when this Court looked–

Antonin Scalia:

This is admittedly a prophylactic measure, and maybe sometimes it will pick up situations that were not dangerous, but how do you distinguish it from, as far as police discretion is concerned, nighttime road blockades to check for drunken drivers?

Harvey Grossman:

–Well–

Antonin Scalia:

Now, that’s a situation where you’re stopping somebody’s freedom to move instead of somebody’s freedom to stand still, but it’s entirely up to the policeman at the blockade which car he’s going to stop and which car he isn’t going to stop.

Antonin Scalia:

Is the constitutional right to move any greater than this constitutional right to stand still?

Harvey Grossman:

–Well–

Antonin Scalia:

And isn’t that entirely up to the discretion of the police officer to say it’s okay?

Harvey Grossman:

–No, I think that it matters if it is a regul… if it is regulatory in nature.

I think that there is a safety interest in regulatory stops to check license or check sobriety, and that this Court has limited discretion, and what kind of road block–

Antonin Scalia:

Regulatory in nature?

That makes the difference for the Constitution?

Here you’re–

Harvey Grossman:

–I think the situs–

Antonin Scalia:

–Wow.

Harvey Grossman:

–If I could go on, I don’t think–

Antonin Scalia:

Protecting against drunken drivers is better than protecting against criminals?

Harvey Grossman:

–No.

It is a different kind of interest.

One has to look at what the person is doing when they’re exercising their right of free movement.

In this instance we’re talking about limiting, indeed banishing from the public place people who are involved in free movement on the most basic site that our country recognizes as a place for both the presence of people, their streets and sidewalks.

William H. Rehnquist:

That’s not a question of vagueness.

There’s nothing vague about being told by a police officer to move on.

Perhaps your argument is really overbreadth, but I don’t think you should call it vagueness.

Harvey Grossman:

Your Honor, I respectfully disagree.

The issue about whether or not move on cures, a move on order cures the question of notice I think is a high level of sophistry that the city is engaging in.

What this Court is dealing with is not a dispersal ordinance.

A dispersal ordinance is the one that I think was described by Justice Souter.

This is a ordinance which prohibits loitering and association.

An element of the offense here is loitering.

When you go to court, you are not charged with failing to disperse.

You are charged first with loitering, having no apparent purpose and, in fact, when the city argues that we should deal with this on an as applied basis, the city is–

William H. Rehnquist:

How do you know that?

I mean, certainly I would not read the ordinance that way.

I would think that the charge would be failing to obey the order of a police officer to move on.

Harvey Grossman:

–The Court can freely examine the charging documents in this case that are of record.

That is not the nature of the charge.

The charge is that you were loitering.

You were found on the street with no apparent purpose with a person reasonably suspected of being a gang member, and that you failed to disperse, and that is–

Antonin Scalia:

Mr. Grossman, the section reads this way.

I don’t see how you can say that.

It reads, whenever a police officer believes a person he reasonably… observes a person 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.

It doesn’t say that anybody else is in violation of the section.

Harvey Grossman:

–Well, Your Honor, I respectfully disagree with you.

I not only understand–

Antonin Scalia:

You disagree with the words of the statute?

Harvey Grossman:

–I disagree with how you’re parsing the statute, and I also disagree with how it is that the city views this statute in reality, because whenever the city talks about whether or not this ordinance inappropriately sweeps within its prosecution scope persons who it thinks shouldn’t be prosecuted or is embarrassed to say should be prosecuted, or fears that if it does agree that they would be subject to prosecution that it would violate even minimal notions of rationality, it says they are free to go to court and prove they weren’t loitering.

David H. Souter:

But Mr.–

Harvey Grossman:

In fact, Mr. Rosenthal did it as he stood up here.

He said, they’ll tell the judge they were window shopping.

They’ll tell the judge–

William H. Rehnquist:

–That’s in the ordinance as an affirmative defense, isn’t it?

Harvey Grossman:

–No, it is not.

In fact, the only affirmative defense in this ordinance is that you weren’t… that somebody wasn’t a gang member.

The burden is on you to prove that the person that you were standing with was not a gang member, an impossible burden.

David H. Souter:

Well, Mr. Grossman, wouldn’t you take the position if you were defending someone that the complaint certainly should charge the predicate of the order, that is, loitering in the company of a gang member?

Harvey Grossman:

Absolutely.

David H. Souter:

All right.

Harvey Grossman:

And the charging documents do do that.

David H. Souter:

That’s what they do, so–

Harvey Grossman:

Absolutely.

David H. Souter:

–So in fact they charge both the loitering, the identity of the gang member, and the refusal to disperse.

Harvey Grossman:

They do, and they make a distinction.

34 of the defen… 34 of the 66 defendants here were charged in a document that only accused them of being in the presence of a gang member.

Harvey Grossman:

The remaining members of the 66 defendants were charged with being gang members, and I’d like to stress to the Court that there is nothing in the evidentiary record before the city council that speaks to nongang members, nothing whatsoever.

Antonin Scalia:

Has anybody been charged who did not disobey a police order to disperse?

Harvey Grossman:

There is no one–

Antonin Scalia:

Is there anybody who has been charged at all in Chicago who did not disobey a police order to disperse?

Harvey Grossman:

–There is no one of the 66 defendants who has a charging document that does not recite verbatim–

Antonin Scalia:

Are you answering my question–

Harvey Grossman:

–Yes–

Antonin Scalia:

–or some other question?

Harvey Grossman:

–Your Honor, I am answering your question within my capability.

I cannot speak to anyone other than the 66 defendants.

90,000 people have been swept up by this ordinance.

Antonin Scalia:

Do you know of any–

William H. Rehnquist:

–He asked a question, Mr. Grossman.

Answer the question, then explain.

Harvey Grossman:

Mr. Morales testifies… excuse me, Your Honor.

I do not mean to be evasive.

Mr. Morales testifies that he was not ordered to disperse.

That is the only… there are only 6 of the 66–

Antonin Scalia:

I’m asking whether he was charged.

Harvey Grossman:

–He was charged that way, yes, sir.

Antonin Scalia:

And as far as you know, everyone who has been charged has been charged with disobeying the order to disperse?

Harvey Grossman:

All 66 of the defendants before the Court have been so charged.

Antonin Scalia:

And you don’t know of anybody else who has been charged who hasn’t been charged with failing to disobey the order?

Harvey Grossman:

I do not, Your Honor.

Antonin Scalia:

Okay.

Harvey Grossman:

I’d like to reiterate that there is nothing in this record, the evidentiary record before the city council, that spoke to nongang members at all.

The city can’t have it both ways.

In one breath they stand before this Court and they say that the streets are so dangerous, that these gang members are so threatening, that no one stands around them, and then in the next minute they try to justify an ordinance that broadly and without an evidentiary basis, certainly no substantial–

Stephen G. Breyer:

So what, in your opinion, could… look, what could Chicago do?

What they’re saying, and they have something in the record to support them, is that in these neighborhoods the choice is who will stand on the sidewalk.

Stephen G. Breyer:

Either poor people, who are not members of groups that murder, sell drugs… you know, it’s defined, a gang is defined as a group of people who have substantial activities are murder, drugs, et cetera.

They say that the terrible choice is, either they stand on the sidewalk, or people who are poor and honest stand on the sidewalk.

You can’t do both.

And they have drafted an ordinance that you think has many flaws in it.

Is it your view that the Constitution says, if that factual predicate is true the poor people have to stay in their houses, or is it your view that it is possible to draft an ordinance that would satisfy this… their need and, if so, what?

Harvey Grossman:

–I think that the Illinois supreme court, as many other courts… in fact, we cite People v. Caswell, which is a California supreme court, which reviews in some detail the way that the States have treated this matter.

They all, as Illinois… the Illinois supreme court stated, have dealt with the issue of whether a loitering type ordinance can be made constitutional by adding a scienter requirement.

This Court has recognized that as both assisting and providing notice and also in helping to limit discretion of police officers to put a construct of wrongful purpose or behavior on a police officer and on the citizen.

They make a distinction between innocent loitering and criminal loitering.

I think that if we give people that kind of notice, it will look different.

The person who’s window shopping doesn’t look like a… doesn’t loiter the way that a person–

John Paul Stevens:

I suppose the city’s answer to that is that it’s unenforceable because we have to have a nongang member neighborhood resident testify, and they won’t testify, and the police come by and the police see nothing.

I assume that’s their answer.

Harvey Grossman:

–Well, but the other States have been living with intent to… loitering with intent to deal drugs, loitering with intent to engage in prostitution, and there are–

Antonin Scalia:

What other–

Harvey Grossman:

–massive numbers of prosecutions under those laws.

You can read the appellate decisions affirming that.

What it looks like when you watch somebody is that they aren’t looking in a window.

They’re moving furtively across, they’re talking to people in cars, they’re engaging in the kind of behavior that’s probative of wrongful conduct, and that’s something that a police officer can do.

A police officer can, within those boundaries, make appropriate judgments.

We ask them to do that all day long when we ask them to–

Antonin Scalia:

–If they will accommodate by engaging in criminal conduct while the police officer is looking at them.

Harvey Grossman:

–No, I think that people have to… I think that there are different… well, first of all they do do that.

Antonin Scalia:

As soon as they see a police car in the area they just hang out, and that’s the problem.

Harvey Grossman:

Well, they do–

Antonin Scalia:

Their mere presence hanging out terrorizes the neighborhood and prevents the people of the neighborhood from using the streets.

Harvey Grossman:

–Well, they do in some places and they don’t in some places.

In the places that are hot, on corners where there’s open air drug market, policemen should and do do surveillance.

They don’t drive up in a police car.

They do surveillance and they identify people and they make arrests, every single day in the City of Chicago, of people who are engaged in selling drugs on the street.

Antonin Scalia:

Some of the problem is not just dealing drugs.

Some of the problem is simply the maintenance of gangs.

Gangs perpetuate themselves by showing themselves publicly, by showing off being on the street with a bunch of other members of the gang, whether they’re dealing drugs or not, and that’s how gang violence occurs.

One gang comes and shoots up the other one and so forth.

Don’t they have a right to stop that kind of activity?

Harvey Grossman:

They have a right to try to stop that activity through various means, not necessarily a broadly worded loitering ordinance that includes within its sweep nongang members.

Ruth Bader Ginsburg:

How about if they just cut out the nongang members?

Everything else is the same, but the only one that the police can arrest is someone reasonably suspected to be a gang member.

Harvey Grossman:

Apparent purpose, no apparent purpose is still too vague for a police officer to operate under.

The only thing that you’re doing is taking the same law that people for 100 years have recognized as being too vague to provide notice and saying that we’re going to impose that on a subset of the population, and I’d like to stress that this ordinance–

Anthony M. Kennedy:

So that… so then your argument has very little to do with the fact that nongang members are subject to this ordinance.

Harvey Grossman:

–Excuse me?

Anthony M. Kennedy:

So then you’re arguing it has very little to do with the fact that nongang member are subject to this ordinance, then.

Harvey Grossman:

No, it… I think that those are both vices of this ordinance.

I don’t think that they’re mutually exclusive, and I wouldn’t accept the ordinance if no apparent purpose was the standard.

I think that there are limits with what we can do in trying to balance what is the right of people to move on the street and to communicate on the street.

I want to stress that there are people who are nongang members who associate with persons who are reasonably suspected of being gang members on the street, that those people are involved in all sorts of forms of communication and protected activity, that all of the neighborhoods don’t look the same, that places, in some places it is very hot on a corner and a very dangerous place to be, and in that place you’ll find no nongang members, but in the broad remainder of the community you will find interaction, because suspected gang members–

Antonin Scalia:

Don’t the police rules handle that?

Don’t the police rules say, only certain neighborhoods will be targeted where, indeed, there is this gang activity?

Harvey Grossman:

–Well, first of all–

Antonin Scalia:

I mean, you’re making a facial challenge here.

Harvey Grossman:

–I am–

Antonin Scalia:

It seems to me Chicago has tried to implement it in a way that will only identify what you call the hot spots.

Harvey Grossman:

–I am, Your Honor.

I am bound by this ordinance.

This ordinance on its face is not limited to any particular place.

The police department has created general orders which this Court should look at, in which it says it will designate them, but it is not limited in the number that it can designate.

Of the 66 defendants before this Court, they were arrested in 28 different locations.

90,000 people have been swept from the streets of the City of Chicago.

There are thousands and thousands and thousands of areas that have been designated, street corners, city blocks, parks… there is no limitation to what the city can designate.

Harvey Grossman:

The discretion of the police to designate those areas are unreviewable.

This isn’t for example, a tightly worded injunction like the Acuna case out of California.

It doesn’t bound a significant… a small area that’s been shown to a court under a discrete evidentiary record to impact in the way that we’re discussing.

Antonin Scalia:

But if you say you can designate thousands of areas under it, you’re denying the fact that the ordinance can reasonably be limited in our review of it by what has been in fact provided in the police regulation implementing the ordinance.

Harvey Grossman:

It does–

Antonin Scalia:

In theory, you could designate millions of places, but they say, we will only designate those places that are hot spots.

Harvey Grossman:

–Thousands and thousands have been designated.

Antonin Scalia:

Well, I don’t care, maybe there are thousands… do you know that there are not thousands and thousands of hot spots?

Harvey Grossman:

If there are thousands and thousands of hot spots, Your Honor, then what we’re talking about is a broad omnibus ordinance that stretches across the entire city, and we’re no longer talking about a place, an ordinance that’s focused, and limited, and applied with surgical precision.

Ruth Bader Ginsburg:

This order is not currently enforced because of the Illinois supreme court decision, is that right?

Harvey Grossman:

It has not been enforced for 3 years because of the Illinois appellate court decision.

It was at that point in time, December of ’95, that the city chose to stop enforcement of the ordinance.

Ruth Bader Ginsburg:

Has there been a substitute?

Has there been some alternate technique used?

Harvey Grossman:

No, although the city continues to do sweeps, and we have in our brief before the Court indicated–

Ruth Bader Ginsburg:

Sweeps under what statute, if this ordinance is no good?

Harvey Grossman:

–I think that they continue to use a disorderly conduct ordinance which requires, of course, a threat to… an imminent breach of peace, a threat to… an immediate threat to the public safety, and that’s an individualized determination that’s made about a particular person on the street.

John Paul Stevens:

May I ask if… you suggested earlier that it would be the same problem if there were… nongang members were not included in the ordinance.

Would it change your view of the case if the number of persons that had to congregate were increased to say, 10… what if the ordinance said, if the police find 10 or more people whom they have probable cause to believe are gang members, they can order them to disperse–

Harvey Grossman:

I think that–

John Paul Stevens:

–if they loiter without apparent purpose.

Harvey Grossman:

–I think–

John Paul Stevens:

Would that be valid?

Harvey Grossman:

–I think that at some point a city could make a judgment that a congregation of a certain size posed a de facto obstruction of the street, for example.

I think that one could begin to approach it based on numbers.

I think that one could begin to approach it on the basis of specific locales.

Loitering–

Anthony M. Kennedy:

Well, if it’s a de facto obstruction of the street that has nothing to do with gang membership, then your ordinance would say, any group of 10 or more, no matter, without referencing… Justice Stevens was asking you about gang members.

Harvey Grossman:

–I… the way this ordinance is phrased is suspected gang members.

I suppose that if you tailored it more closely to gang members, and if you presented a construct of wrongful purpose, or wrongful behavior, it would be permissible.

John Paul Stevens:

No, I’m assuming that the… you still have the same loitering condition, and the same definition of loitering, no apparent purpose, but you’re… you have two major changes.

You take out the nongang members, and you increase the number of gang members, so if there are, say, five or more gang members loitering in an area, they can be ordered to disperse by the officer, and if they don’t obey, it would be a violation of the ordinance.

Harvey Grossman:

No, I would still have problems with the vagueness of the ordinance.

John Paul Stevens:

And what would be the defect, the principal defect in that ordinance?

Harvey Grossman:

The principal defect would still be unbounded discretion of a police officer, because he has to make the judgment, or she has to make the judgment about no apparent purpose.

But this Court did do something in Boos that is very close to what you’re talking about, Your Honor.

You approved a congregation ordinance in Boos v. Berry that prohibited congregations near an embassy.

You found it in the first instance problematic, because it was in effect phrased in the manner that you’re describing.

It simply allowed a… once there was a congregation, it was within 500 feet, it could be disbanded.

But once the court of appeals construed it as being a congregation which posed a threat to safety, at that point in time it required an individualized determination on the street, and if that kind of an ordinance were phrased, an anticongregation ordinance that complied with the provisions of Boos, which this Court said would be problematic in the absence of those qualifiers–

Antonin Scalia:

Protesting in front of an embassy is a First Amendment activity.

I mean, to compare this hanging out on a street corner with a desire to make First Amendment statements of protest seems to me entirely unrealistic.

Harvey Grossman:

–The Boos… the Boos ordinance did not speak at all about First Amendment activity.

It was 500 feet away, and it spoke of all congregations.

Antonin Scalia:

It was obviously directed at protests in front of embassies that were intending to make First Amendment points.

Harvey Grossman:

Well, I can’t agree or disagree with you about the legislative intent on that particular ordinance.

Antonin Scalia:

You disagree that it was treated as a First Amendment case, as a First Amendment problem by the Court, and is this case a First Amendment case?

Harvey Grossman:

I agree that the Court considered it problematic without too much definition, and that it must have been concerned about First Amendment rights, but I don’t think that First Amendment rights are not present in this case.

The city itself has indicated that there is a range of communications which it will permit and will not permit under this ordinance.

It will allow formal demonstrations, but something less than a formal demonstration, people talking to each other, it’s used… it has offered its own examples, people debating the constitutionality of the ordinance, people engaged in common discussion, those people who the city recognizes are involved in communicative activities the city says will be swept off the street under this ordinance, so there–

Antonin Scalia:

The issue as to whether it’s a First Amendment case is whether the ordinance is directed at First Amendment activities.

Any law can affect First Amendment activities.

The law prohibiting smoking in bars stops some people from going in bars, wherefore they cannot converse with the bartender.

Harvey Grossman:

–Well, Your Honor, this is a regulation of the public street and in Kolender, the last time this Court saw a pure loitering ordinance, it said that it implicated freedom of movement, and that it had the potential to arbitrarily suppress First Amendment freedom.

The same is true of Shuttlesworth, the same was true in Thornhill, and there isn’t a case that this Court has looked at in the last 60 years which deals with street regulation that has this broad a scope that it has not recognized that implicit in that law is the ability to sweep from the street people involved in communicative activity.

Stephen G. Breyer:

We do give… I’m thinking of Justice Stevens’ hypothetical statute.

Three or more members of an organization that has a substantial activity, murdering people et cetera, they can’t use the street to stand around in.

Harvey Grossman:

Excuse me?

Stephen G. Breyer:

They, the statute says, can’t use the street to stand around in.

Not some other people, but they can’t use the street to stand around in.

Stephen G. Breyer:

Now, if the Constitution permits quite a lot of authority to be given to traffic policemen to control the streets because driving risks death, why doesn’t it give the police a similar kind of discretion to control the movements of gang members on the street, because after all there’s also that kind of a risk.

Harvey Grossman:

Because when you are attempting to regulate the street there are a multitude of interests and activities which the citizen possesses.

There are a multitude of activities in which that person can engage in.

And so when this Court has approved efforts to regulate the sidewalk, and notwithstanding concerns that hanging out is not communicative activity, this definition of no apparent purpose embraces and includes communicative activity, the Court has required individualized determinations of wrongdoing.

For example, in Grayned, when this Court looked at an antinoise ordinance in close proximity to a school, it approved it as opposed to a general breach of the peace statute because it said it made an individualized… it required an individualized determination that that person continuing to make noise presented a direct threat to the interest the city sought to protect.

David H. Souter:

All right.

What about an ordinance that does not have the feature of no apparent purpose, but simply provides that whenever, let’s say, five or more individuals reasonably suspected of being gang members are seen standing and not moving on a public street, they may be ordered to disperse, the justification legislatively being that we can simply… we can simply prove, based on experience, that whenever you have a congregation of gang members trouble is soon to follow.

Constitutional?

Harvey Grossman:

No, I think that it is not, Your Honor.

I think it’s still–

David H. Souter:

Why?

Harvey Grossman:

–Because–

David H. Souter:

We don’t have the purpose problem here.

Harvey Grossman:

–We have always allowed people to continue to assemble on the streets in public fora so long as their immediate behavior does not threaten public safety.

We have not, for example–

David H. Souter:

Okay.

There’s no vagueness problem, and there’s no discretion problem–

Harvey Grossman:

–There is not, Your Honor.

David H. Souter:

–So we’re into substantive due process.

Harvey Grossman:

We are.

We’re also into an overbroad ordinance which potentially sweeps within it protected expression.

Antonin Scalia:

So you say there is a constitutional right to loiter.

Harvey Grossman:

No, I do not.

I say–

Antonin Scalia:

I thought that’s what your point was.

Harvey Grossman:

–Excuse me, Your Honor.

I did not mean to say that, if that’s how I was understood.

What I intended to say is that we’ve looked at ordinances… for example, Coates talks about conduct… assembly… assembling on a sidewalk and engaging in conduct annoying to other people.

I mean, clearly that can be any kind of nonverbal, noncommunicative conduct.

David H. Souter:

Sure, but it’s also extraordinarily vague.

David H. Souter:

Here, we don’t have that kind of vagueness problem.

We’ve got gang membership.

We’ve got a legislative predicate that congregations of individuals with gang memberships tends to lead to the effectuation of the gang’s purposes.

We’re not affecting anybody else.

The nongang members are not involved, so none of those problems.

Aren’t you really forced to say that gang members, too, have a right to congregate on the street, and that is a substantive right?

Wouldn’t that have to be the basis for your objection?

Harvey Grossman:

Well, I do believe that that’s true, and that you can’t prophylactically ban that activity under a criminal statute.

What I think that one needs to do is to try to break down the interests and not simply say that they are substantive due process.

If you try to regulate conduct in a public forum on the streets, on the sidewalks, in our parks… for example, the city has identified that two people sitting on a park bench are subject to arrest under this ordinance.

If you make that broad and that sweeping a declaration of the type of conduct which you are going to penalize… dispersal on pain of arrest… I think that you have to understand that you will sweep within it not simply hanging out, but a multitude of human activity that this Court would give protection to.

If I have a right to stand on the street–

David H. Souter:

Well, what is specifically the activity that you’re concerned about in the congregation of the five gang members, speech?

I mean, is that it?

They want to talk to each other.

Harvey Grossman:

–Yes.

I do believe… and I don’t think that it’s low grade speech necessarily.

Like it or not, political street… street gangs in the City of Chicago engage in all sorts of political processes.

Antonin Scalia:

They’re probably complaining about the police, which is–

[Laughter]

Antonin Scalia:

Which is, you know, the height of First Amendment protest activity.

[Laughter]

Harvey Grossman:

They are probably doing that.

There’s a substantial movement on the West Side of Chicago right now challenging police behavior, and Congressman Rush has it as a major agenda item on his run in the mayoral election in February, and I have no question that members of street gangs are active in that dialogue, and that they have a right to engage in that dialogue.

They also have a right to work for precinct captains, which they have historically done.

We have cited Spergel’s historic work on gangs in our brief before this Court.

You will find that quite upright aldermen in the City of Chicago retain street gang members to organize, that the Urban League in the City of Chicago has given a subcontract to organizations identified as having substantial gang support and membership, and it is a fact of life.

John Paul Stevens:

Mr. Grossman, could I ask you a question about a fact of life?

The amicus briefs are a little confusing to me in describing the extent to which the… this ordinance was supported by the African American aldermen in Chicago.

Do you know what the answer is to that?

Harvey Grossman:

The answer to that, Your Honor… and we have not gotten into that fray, but the answer to that, Your Honor, is that eight African American aldermen opposed the ordinance, and six voted in favor.

Antonin Scalia:

What about the assertion in the petitioner’s brief that in the last year in which the ordinance was enforced, gang related homicides dropped 26 percent, a considerable… considerably steeper decline than the 9 percent drop in the overall homicide rate, and that in the first year in which the ordinance was not enforced because it was enjoined, although the overall homicide rate fell another 4 percent, the level of gang related homicide increased 7 percent.

Do you contest those figures?

Harvey Grossman:

I would agree with those figures, and then I would add one for clarity, and that is, in 1997, after the ordinance was no longer in effect for 2 years, that gang related homicides dropped 19 percent to a figure of 183, and while those are significant, each and every murder, of course, is significant, that in 1993, when this whole process started, there were 223 gang related homicides so gang related homicides have decreased over the last 5 years, and they are down to 183 in the city.

William H. Rehnquist:

Thank you, Mr. Grossman.

Mr. Rosenthal, you have 4 minutes remaining.

Lawrence Rosenthal:

United States Attorney’s Office for the Northern District of Illinois estimates there are 100,000 gang members in the City of Chicago.

Mr. Grossman says we must use laws that require individualized determinations.

Well, it was the failure of those laws to satisfactorily address the problem that led to the enactment of this ordinance and, indeed, gang crime has been rising since the ordinance was no longer in effect in ’97.

More people got shot as a result of gang related shootings.

The fatality rate went down.

More people have gotten shot again this year.

In fact, drive bys are up 40 percent this year in the City of Chicago without this ordinance.

What does that tell us?

Well, on the vagueness prong… there are two prongs, of course, to vagueness inquiry.

Fair notice.

Mr. Grossman doesn’t really address that, because no criminal sanctions are available under this ordinance for loitering alone.

Criminal sanctions come into play only after an officer specifically informs an individual that he has loitered in that officer’s… the officer’s determined he’s loitered with a gang member in a public place and is subject to an order to disperse.

Mr. Grossman therefore focuses on the second prong.

The second prong the Court describes as minimal standards.

There is not some manual for how to write statutes lurking in the Due Process Clause and here, whatever the imprecisions in loitering, even if this ordinance can be potentially applied to all people standing still, remaining in any one place, in the City of Chicago there remains an enforcement standard.

There must be a reasonable belief that a member of a criminal street gang is present and that has dangers associated with it, as the legislature found, not only dangers to the gang member, dangers to the innocent bystanders that are nearby.

When innocent bystanders are ordered to move on, it is not because they’ve done anything wrong.

It is to protect them from the dangers of drive by shooting, as well as the dangers of gang recruitment, and of the–

Ruth Bader Ginsburg:

Mr. Rosenthal, would you explain why their purpose wouldn’t be accomplished as well if the only target of the arrest and the crime were the suspected gang member?

Lawrence Rosenthal:

–By ordering everyone to move on, it is far simpler, rather than sorting through a crowd and telling each individual who must stay and who… who may stay and who must go.

It is far more effective to issue these dispersal orders generally and, of course narrow tailoring is not required in rational basis analysis under the substantive Due Process Clause.

The efficacy of the order to move on is greater if the police do not have to, while they are on there, in a potentially dangerous situation, trying to sort through a crowd and make again what Mr. Grossman calls individualized determination.

Antonin Scalia:

And I thought you also assumed that in the ordinary case there wouldn’t be terrorized local residents of the housing projects hanging out on the corner with the gang members.

Lawrence Rosenthal:

Absolutely, Justice Scalia.

Antonin Scalia:

Sort of a birds of a feather flock together principle.

Lawrence Rosenthal:

Justice Scalia, it is so interesting that the respondents have chosen to dwell in the realm of hypotheticals on a facial challenge, after there were tens of thousands of applications of this ordinance.

The legislative findings do tell us that law abiding people are afraid to use these public spaces, and that’s what makes the legislative judgment here rational, that these hypothetical law abiding people get sweeped up.

At most, it is a minimal inconvenience.

Maybe–

Stephen G. Breyer:

I thought he said that about 33 out of the 100 or something, a lot of them are not gang members who are being–

Lawrence Rosenthal:

–The police did not have… were not able to establish a reasonable belief that they were gang members.

Nevertheless, those individuals are at risk of being recruited into the gang, are at risk of drive by shootings… there are a variety of reasons why the legislature can discourage this association.

The Constitution does not protect the right to stand next to a gang member.

That is not a protected form of associational activity.

Here, the legislative findings amply explain why the legislature could reasonably conclude… at most, people will have to stand on private property, on somebody’s lawn, since the ordinance is limited to public places.

That modest inconvenience, if you will, by having to obey the order, is amply justified by… taking… in… when the legislature instead is able to create a law that does not depend on individualized determinations, that will in turn depend on civilian witnesses, since the police cannot be everywhere–

William H. Rehnquist:

Thank you, Mr. Rosenthal.

Lawrence Rosenthal:

–and for that reason, we ask that judgment be reversed.

Thank you.

William H. Rehnquist:

The case is submitted.