Caseflicks

Supreme Court of the United States • 1999

City of Chicago v. Morales

527 U.S. 41 | 119 S. Ct. 1849 | 144 L. Ed. 2d 67 | 1999 U.S. LEXIS 4005

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Takeaway

In short, this case holds that a criminal anti-loitering ordinance is void for vagueness when it gives police unchecked discretion to order people—including nongang members—away from public places without clear standards for when that power may be used.

Background

Chicago enacted its Gang Congregation Ordinance in 1992 to address gang violence and intimidation in public spaces. The ordinance authorized an officer who reasonably believed that a person was a criminal street-gang member to order that person and anyone loitering with that person to disperse. It defined “loiter” as remaining in one place “with no apparent purpose.” Anyone who did not promptly obey faced a fine, jail time, or community service.

Chicago adopted police guidelines that purported to restrict enforcement to designated officers and locations, but the ordinance itself applied throughout the city and the designated areas were not disclosed publicly. During about three years of enforcement, police issued more than 89,000 dispersal orders and made more than 42,000 arrests.

Illinois trial courts divided over the ordinance’s validity. The Illinois Appellate Court invalidated it, and the Illinois Supreme Court affirmed, holding that the ordinance was facially void for vagueness and an arbitrary restriction on liberty. The Supreme Court granted certiorari and affirmed the Illinois Supreme Court’s judgment.

Issues

Issue #1

Whether the ordinance was facially invalid under the First Amendment overbreadth doctrine because it burdened speech or association.

Holding

No. The Court concluded that the ordinance did not substantially reach First Amendment-protected activity and therefore did not rest its decision on overbreadth.

Reasoning

The ordinance did not prohibit speech, and its definition of loitering excluded conduct with an apparent purpose. As a result, it did not by its terms reach demonstrations or other assemblies that were apparently intended to communicate a message.

The Court also concluded that the ordinance’s effect on ordinary social contact between gang members and others did not impair the limited First Amendment right of association recognized in the Court’s precedents. Its invalidity instead arose from due-process vagueness.

Issue #2

Whether a facial vagueness challenge was appropriate for this criminal ordinance.

Holding

Yes. The plurality concluded that facial review was appropriate because vagueness permeated a criminal law lacking a mens rea requirement and affecting liberty interests; the Court’s controlling holding ultimately rested on the ordinance’s standardless delegation to police.

Reasoning

Justice Stevens explained that the freedom to remain in a public place and move according to one’s inclination is a liberty interest protected by the Fourteenth Amendment. The Court did not decide whether the ordinance independently violated substantive due process, but treated the liberty interest as relevant to the strictness of vagueness review.

Unlike a business regulation with a scienter requirement, the ordinance imposed criminal penalties without requiring a culpable mental state. In that setting, pervasive uncertainty about the law’s scope justified a facial challenge rather than requiring each person ordered to disperse to litigate the law’s validity only as applied.

Issue #3

Whether the ordinance gave ordinary people fair notice of the conduct that could lead to a dispersal order and criminal punishment.

Holding

No, according to Justice Stevens’s plurality opinion, joined by Justices Souter and Ginsburg; Justice Kennedy also expressed substantial agreement with this concern.

Reasoning

The phrase “remain in any one place with no apparent purpose” did not tell an ordinary person which innocent activities were permissible. A person talking with another, waiting for someone, watching for a bus, or simply standing in a public place could not reliably know whether an officer would perceive an apparent purpose.

The requirement of a dispersal order did not cure the notice problem. The order came only after the officer had decided that prohibited loitering had occurred, so it could not provide advance guidance about when a citizen could be compelled to leave a public place.

The order’s command to “disperse and remove themselves from the area” added uncertainty. The ordinance did not say how far people had to go, how long they had to remain apart, or when they could return without risking arrest.

Issue #4

Whether the ordinance supplied sufficiently definite standards to prevent arbitrary and discriminatory police enforcement.

Holding

No. A majority held that the ordinance was unconstitutionally vague because it gave police officers too much unguided discretion to decide whom to order away from public places.

Reasoning

The Illinois Supreme Court had construed the ordinance to give police “absolute discretion” to decide what counted as loitering, and the U.S. Supreme Court was bound by that state-law construction. The operative standard—whether a person had “no apparent purpose”—depended on an officer’s subjective assessment and provided no meaningful guide for deciding which purposes were acceptable.

The requirement that an officer reasonably believe one person in the group was a gang member did not adequately limit discretion. The order could be directed at every companion, including relatives, friends, counselors, teachers, or strangers, even though they were not gang members and were engaged in harmless conduct.

The ordinance was particularly mismatched to its stated goal. It swept in innocent gatherings with no apparent purpose while potentially excluding much of the gang intimidation it sought to address, because threatening territorial displays or overt drug dealing often have an obvious purpose.

The police department’s internal general order could not save the ordinance. Internal enforcement practices did not alter the ordinance’s text, were not available as a defense to someone arrested outside a designated area, and did not provide citizens public notice of where enforcement would occur.

Concurrences

Justice O'Connor

Reasoning

Justice O'Connor joined the Court's result, but justice O’Connor, joined by Justice Breyer, agreed that the ordinance was void for vagueness but relied on the narrower ground that it lacked minimal standards to guide law enforcement. As construed by the Illinois Supreme Court, the ordinance allowed an officer to choose, without a governing standard, which persons standing with a suspected gang member had an insufficiently “apparent purpose.”

She did not join the plurality’s broader discussion of liberty, facial challenges, or fair notice because the uncontrolled discretion issue alone resolved the case. In her view, the state court’s construction of the ordinance was binding, even if a narrower construction might have been possible.

Justice O’Connor stressed that Chicago retained substantial authority to combat gang violence. A law directed at harmful or intimidating conduct, confined to gang members, or more carefully defining when nongang members could be ordered away might avoid this ordinance’s constitutional defect.

Justice Kennedy

Reasoning

Justice Kennedy joined the portions of the opinion addressing the facts, procedural history, and arbitrary enforcement, and he agreed with the judgment. He also shared Justice Stevens’s concern that the ordinance could reach a broad range of innocent conduct.

He emphasized that a dispersal order does not automatically provide sufficient notice merely because a person can be punished for disobeying it. A citizen engaged in innocent conduct may not know that an officer believes someone nearby is a gang member or may not know what the officer considers a lack of apparent purpose.

At the same time, Justice Kennedy recognized that police sometimes may issue orders without first explaining their justification, such as orders needed to protect a crime scene or rescue operation. His point was narrower: this ordinance’s predicates did not adequately tell a citizen when an order to disperse could lawfully issue.

Justice Breyer

Reasoning

Justice Breyer agreed that the ordinance was facially invalid because it delegated virtually standardless authority to police officers to exclude people from a vast range of public and publicly accessible private places. The gang-membership condition limited the number of affected people, but it did not limit the kinds of conduct an officer could prohibit.

He treated the ordinance’s central defect as unchecked discretion, not simply inadequate warning in a particular case. Because every application required an officer to fill in the undefined content of “no apparent purpose,” the law was invalid in every application regardless of whether a particular officer exercised judgment sensibly.

Justice Breyer rejected the dissent’s argument that a valid core application defeated facial invalidity. The constitutional injury was each person’s exposure to unbounded official discretion, much as in an ordinance that makes criminality depend entirely on whether an officer finds conduct annoying.

Dissents

Justice Scalia

Reasoning

Justice Scalia argued that the Court improperly invalidated the ordinance on its face. Outside the First Amendment overbreadth context, he maintained, a facial challenger must show that no set of circumstances exists in which the law could constitutionally apply. In his view, obvious cases of gang members visibly staking out territory and refusing a dispersal order supplied valid applications.

He contended that the ordinance punished only the knowing failure to obey an officer’s order, not loitering itself. Because a person who did not hear the order or could not comply could not be convicted, Justice Scalia believed the ordinance included a sufficient wrongful-intent component and gave clear notice of the prohibited act.

Justice Scalia rejected the proposition that harmless loitering is a fundamental constitutional liberty. He argued that laws regulating loitering and requiring obedience to peacekeeping orders have longstanding historical roots, and that policy judgments about restricting harmless conduct to prevent gang intimidation belong principally to the people of Chicago rather than the Court.

Justice Thomas

Reasoning

Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, began with the severe costs gang violence and territorial intimidation imposed on Chicago residents. He viewed the ordinance as a democratically enacted attempt to let residents safely use their own streets and criticized the majority for insufficiently weighing those interests.

He rejected the plurality’s assertion that there is a constitutionally protected freedom to loiter for innocent purposes. In his view, Anglo-American law has long regulated vagrancy and loitering, so the asserted right was not deeply rooted in the Nation’s history and tradition as substantive due process doctrine requires.

Justice Thomas also concluded that the ordinance gave adequate guidance. It required an officer reasonably to believe that a group included a gang member and to observe the group remaining in one place without an apparent purpose; ordinary people, he maintained, could understand that standard and an order to disperse. Any rare arbitrary or discriminatory application should be challenged as applied, rather than used to invalidate the ordinance in all circumstances.