Supreme Court to review antigang ordinance

By Thomas L. Hafemeister, PhD, JD
Chicago-Kent College of Law, Illinois Institute of Technology

Psychologists? research could guide the balancing of criminal justice needs and personal liberties in the case.

Tension has historically existed in this country between the constitutional rights of individuals suspected of criminal activities and law enforcement efforts used to control such activities. The U.S. Supreme Court, for example, has ruled that police officers cannot arrest someone merely for loitering without more to indicate that criminal conduct is involved.

In recent years complaints have arisen that 'street gangs' have taken control of inner-city neighborhoods by employing relatively sophisticated strategies that avoid criminal prosecution. For example, working in teams, lookouts maintain a visible and intimidating presence in a neighborhood while warning hidden cohorts engaged in drug dealing or other illicit activities of police patrols. Also, municipal authorities assert that gang members blatantly engage in street-corner drug deals, but are able to frustrate police officers responding to complaints from neighborhood residents by appearing to be innocently hanging out when the officers arrive.

As gang activities become more organized, pervasive and adult-dominated, law-enforcement officials have combined some new strategies (e.g., federal prosecutions) with some refined older approaches. Among the latter is the use of public nuisance and antiloitering laws to prevent identified gang members from congregating in public.

Chicago and Southern California are reported to have the most gang activity in the country. In 1992, the city of Chicago passed an ordinance that allows police officers to order any group of individuals loitering in a public place to disperse if the officer 'reasonably believes' that someone who belongs to a street gang is in the group. Anyone who fails to leave in response to this order can be arrested. 'Loiter' is defined as 'to remain in any one place with no apparent purpose.' As directed by this law, the police department established criteria for identifying street gangs and street gang members.

Relying heavily on the U.S. Supreme Court?s landmark 1972 ruling of Papachristou v. City of Jacksonville (405 U.S. 156), the Illinois Supreme Court struck down this ordinance in City of Chicago v. Morales, 687 N.E.2d 53 (Ill. 1997) as an arbitrary restriction on personal liberty that did not sufficiently distinguish between innocent and criminal conduct. The U.S. Supreme Court recently agreed to review this decision (Chicago v. Morales [No. 97?1121] [66 USLW 3686]), which may also signal a re-examination of Papachristou. Arguments will be heard during the term that begins this October, with a ruling likely in 1999.

The city of Chicago is arguing that this ordinance is an important pre-emptive criminal justice tool. Chicago?s attorneys contend that the ordinance is legitimate because it requires arresting officers to act only where known and verifiable gang members are involved. Joined by amicus briefs filed by the U.S. Conference of Mayors, other municipal groups and attorneys general from 13 states, they also assert a need to update the law on loitering ordinances in the context of gang activity. They claim that big-city law enforcement officials have an overriding, compelling interest in protecting neighborhoods from gang loitering, intimidation and criminal activity, and that the Illinois ruling overprotects criminal gangs and underprotects other members of urban neighborhoods. They assert that a police order to disperse provides sufficient notice of what is required and that no one can be arrested until this order is first made.

In opposition, the American Civil Liberties Union argues that Chicago?s ordinance goes too far by seeking to curtail harmless behavior, that it violates constitutional rights and that criminal justice officials have sufficient other weapons to combat this criminal activity. The Illinois Supreme Court concluded that the law was impermissibly vague, failed to give people notice of exactly what conduct was prohibited, made it too easy for police to act arbitrarily and indiscriminately and deprived suspected gang members of the personal liberty of freely walking the streets and associating with friends without evidence of criminal activity.

Psychologists could supply information relevant to this appeal by providing insights into what deters criminal behavior in general and gang activities in particular. Chicago explicitly noted in its ordinance various empirical assumptions, including that discouraging gang members from loitering in public places would diminish criminal behavior, reduce gang control over identifiable areas and enable law-abiding citizens to use such areas without fear. Meares (1998) cites statistics showing significant decreases in criminal activities in gang-dominated areas after the implementation of this ordinance and reports that residents in these neighborhoods felt safer and supported this ordinance. She also notes, however, that these statistics need to be cautiously regarded because they do not control for a number of important variables. Empirical data might help guide the balancing of criminal justice needs and personal liberties involved in this case.

'Judicial notebook' is an effort by the Courtwatch Committee of APA?s Div. 9, the Society for the Psychological Study of Social Issues, to encourage involvement by psychologists in judicial decision-making.