527 U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 67 (1999)
In 1992 the Chicago City Council enacted the Gang Congregation Ordinance after hearings revealing that gang members intimidated residents by loitering in public places.1
The ordinance made it unlawful for any person to loiter in a public place with one or more persons knowing that at least one of those persons was a criminal street gang member.2 The ordinance defined loitering as remaining in any one place with no apparent purpose.3 It required a police officer who reasonably believed a person to be a gang member loitering with others to order the entire group to disperse, and failure to obey the order was punishable by a fine of up to $500, imprisonment for not more than six months, or up to 120 hours of community service.4
Two months after enactment the Chicago Police Department issued General Order 92-4 to provide guidelines to govern its enforcement.5 The order confined arrest authority to members of the Gang Crime Section and other designated officers, established criteria for identifying street gangs and membership, and directed district commanders to designate enforcement areas where gang presence had a demonstrable effect on law-abiding persons.6 Those designated areas were not released to the public.7
During the three years the ordinance was enforced, officers issued more than 89,000 dispersal orders and arrested more than 42,000 people.8 Respondent Jesus Morales and other individuals were charged with violating the ordinance.9 Trial courts divided on its constitutionality, with some judges upholding it while eleven others ruled it invalid.10
The Illinois Appellate Court consolidated the cases, affirmed the invalidations, and reversed convictions in the remaining matters.11 The Illinois Supreme Court affirmed, and the United States Supreme Court granted certiorari.12
Whether the Chicago Gang Congregation Ordinance violates the Due Process Clause of the Fourteenth Amendment?13
Yes. The ordinance is unconstitutionally vague because its definition of loitering as remaining in any one place with no apparent purpose provides no standard by which to determine what conduct is prohibited.16 The definition applies to anyone who remains in a place in the company of other persons with no apparent purpose.17 It is difficult to imagine how any citizen of Chicago standing in a public place with a group of people would know if his conduct violates the ordinance.18
The ordinance reaches a substantial amount of innocent conduct and grants police absolute discretion to order dispersal without any standard for harmful purpose.19
The ordinance violates the Due Process Clause because it is impermissibly vague on its face.20
Related opinions on this issue
Joined by Breyer
Justice O’Connor agreed that the ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforcement officers.21 She explained that the ordinance fails to provide police with any standard by which they can judge whether an individual has an apparent purpose.22 Under the Illinois Supreme Court’s construction the police do not have to decide that an individual is threatening the public peace to issue a dispersal order.23
Any police officer in Chicago is free to order at his whim any person standing in a public place with a suspected gang member to disperse.24 Justice O’Connor emphasized that the city may be able to draft a narrower ordinance targeting only conduct with a harmful purpose.25
Justice Kennedy joined the holding that the ordinance is unconstitutionally vague because it fails to give adequate notice of what conduct is prohibited and reaches a substantial amount of innocent conduct.26 He explained that the requirement of disobeying a dispersal order does not cure the notice problem for citizens engaged in innocent conduct.27 A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to a dispersal order based on the officer’s own knowledge of the identity or affiliations of other persons with whom the citizen is congregating.28
Nor may the citizen be able to assess what an officer might conceive to be the citizen’s lack of an apparent purpose.29
Justice Breyer concurred that the ordinance is unconstitutional because it delegates too much discretion to a police officer to decide whom to order to move on.30 He explained that the ordinance is invalid in all its applications since the policeman enjoys too much discretion in every case.31 The second limitation of no apparent purpose is not a limitation at all.32
Since one always has some apparent purpose the so-called limitation invites the policeman to interpret the words as meaning no apparent purpose except for something the officer dislikes.33 To grant to a policeman virtually standardless discretion to close off major portions of the city to an innocent person creates a major limitation upon the free state of nature.34
Justice Scalia dissented arguing that the ordinance is a reasonable response to gang activity that provides adequate notice and standards.35 He contended that facial challenges require showing invalidity in all applications and that the ordinance has at least some valid applications.36 The only act of a defendant that is made punishable by the ordinance is his failure to promptly obey an order to disperse.37
The willful failure to obey a police order is wrongful intent enough.38 Justice Scalia maintained that the criteria for issuance of a dispersal order under the ordinance could hardly be clearer.39
Joined by Rehnquist, Scalia
Justice Thomas dissented maintaining that the ordinance is not unconstitutionally vague and targets conduct that is not constitutionally protected.40 He argued that the decision undermines local governments’ ability to maintain order.41 Laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law at least since the time of the Norman Conquest.42
The plurality’s sweeping conclusion that this ordinance infringes upon a liberty interest protected by the Fourteenth Amendment’s Due Process Clause withers when exposed to the history of vagrancy laws since the Norman Conquest.43
Whether the ordinance implicates liberty interests protected by the Due Process Clause?44
Yes. The ordinance restricts individuals’ decisions to remain in public places of their choice even when their conduct is innocent and harmless.47 The freedom to loiter for innocent purposes is part of the liberty protected by the Due Process Clause of the Fourteenth Amendment. An individual’s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside the home.48
The ordinance implicates liberty interests protected by the Due Process Clause.49
Whether the ordinance is impermissibly vague on its face?50
Yes. The ordinance fails to provide fair notice because ordinary citizens cannot determine when their presence with a suspected gang member has no apparent purpose.53 It grants police absolute discretion to order dispersal without any standard for harmful purpose.54 The definition of loitering as remaining in any one place with no apparent purpose provides no such standard.55 It is not limited to loitering that has an apparently harmful purpose or effect.56
The ordinance is impermissibly vague on its face.57