Supreme Court of the United States CITY OF CHICAGO, Petitioner, v. Jesus MORALES et al. No. 97-1121. Argued Dec. 9, 1998. Decided June 10, 1999. Law in question: Chicago's Gang Congregation Ordinance prohibits "criminal street gang members" from loitering in public places. Under the ordinance, if a police officer observes ...
11-04-2006, 03:36 PM
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| Banned  Progressive Philadelphia, PA 
| For people who like Scalia and/or Thomas Supreme Court of the United States CITY OF CHICAGO, Petitioner, v. Jesus MORALES et al. No. 97-1121. Argued Dec. 9, 1998. Decided June 10, 1999. Law in question: Chicago's Gang Congregation Ordinance prohibits "criminal street gang members" from loitering in public places. Under the ordinance, if a police officer observes a person whom he reasonably believes to be a gang member loitering in a public place with one or more persons, he shall order them to disperse. Anyone who does not promptly obey such an order has violated the ordinance. Majority Opinion: The Illinois Supreme Court recognized that the term "loiter" may have a common and accepted meaning, 177 Ill.2d, at 451, 227 Ill.Dec. 130, 687 N.E.2d, at 61, but the definition of that term in this ordinance--"to remain in any one place with no apparent purpose"--does not. It is difficult to imagine how *57 any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an "apparent purpose." If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose? If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. If the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law we held invalid in Shuttlesworth v. Birmingham, 382 U.S. 87, 90, 86 S.Ct. 211, 15 L.Ed.2d 176 *59 1965). [FN29] Because an officer may issue an order only after prohibited conduct has already occurred, it cannot provide the kind of advance notice that will protect the putative loiterer from being ordered to disperse. Such an order cannot retroactively give adequate warning of the boundary between the permissible and the impermissible applications of the law After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the public streets. Thorgrim Note: Basically, the court agreed and its pretty obvious, the law gave the police the power to do whatever the hell they wanted to...its almost Gestapo-like. If officers don't like you enjoying a sunny day with your friends in public, they can basically chase you around the city telling you to disperse and then arrest you, the police-state atmosphere it would give...is ridiculous So what do Scalia and Thomas write? A majority of the Court believes that this scheme vests too much discretion in police officers. Nothing could be further from the truth. Far from according officers too much discretion, the ordinance merely enables police officers to fulfill one of their traditional functions. Police officers are not, and have never been, simply enforcers of the criminal law. They wear other hats--importantly, they have long been vested with the responsibility for preserving the public peace. Ridiculous | ||||
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11-04-2006, 04:11 PM
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| helluo librorum The Lab Moderator  Humanist Chicago Suburbs
| Oh lord. This reminds me of 7960 being pulled over for not wearing his helmet in a state with no helmet law. And Chicago cops are horrible. They are given so much power that it leads to corruption. Last edited by Scrum; 11-06-2006 at 03:47 PM. | ||||
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11-06-2006, 03:40 PM
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| Baka  Idealist Adelaide, Australia
| This reminds me of so many other legal opinions. They are too much like personal opinions | ||||
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11-06-2006, 03:45 PM
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| Dirty Liberal  Democrat South Jersey
| Originally Posted by Thorgrim Scalia always sides with law enforcement in cases like this. Scalia is smart, but he does not share my values. Cases like this aren't really about who is right, but who gets to decide. 
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11-06-2006, 05:49 PM
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| Banned Progressive Philadelphia, PA
| Originally Posted by WickedLou9 It goes against two principles...its judicial activism they usually decry by trying to interpret state law...thats traditionally supposed to be left to the state supreme court
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11-06-2006, 07:13 PM
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| America Fuck Yea Election Moderator  Republican In Name Only
| Originally Posted by WickedLou9 because there is no real "right", which is one of the problems with judical review
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11-06-2006, 07:24 PM
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| Banned Progressive Philadelphia, PA
| Originally Posted by kinggovernor So you'd be comfortable with the police state he lays out in that case?
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11-06-2006, 08:05 PM
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| America Fuck Yea Election Moderator Republican In Name Only
| Originally Posted by Thorgrim do the police perserve public peace? yes they do.
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11-06-2006, 08:13 PM
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| Baka Idealist Adelaide, Australia
| Originally Posted by kinggovernor Among other things, yes.
I don't anything in police preserving public peace conflicting with the majority opinion. | ||||
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11-06-2006, 09:23 PM
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| America Fuck Yea Election Moderator Republican In Name Only
| Originally Posted by Kytro allowing known gang members to gather in public settings does conflict with public peace
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11-06-2006, 09:36 PM
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| Baka Idealist Adelaide, Australia
| Originally Posted by kinggovernor Really how is that? What can they do to conflict with public peace without breaking a law?
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11-06-2006, 09:42 PM
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| America Fuck Yea Election Moderator Republican In Name Only
| Originally Posted by Kytro gangs are expressly founded upon the idea of breaking laws, why should the police wait til someone gets mugged or shot before they handle the gangmembers.
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11-06-2006, 09:49 PM
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| Baka Idealist Adelaide, Australia
| Originally Posted by kinggovernor Not all gangs are founded on that idea, but many are.
The reason they should "wait" is because the entire justice system is based on the assumption of innocence no matter how "obvious" it is they are guilty. If you want to prevent crime this is not the way to go about it. | ||||
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11-06-2006, 09:56 PM
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| Administrator  libertarian Oklahoma
| Do you have a link to the entire decision? 5 lines makes it hard to judge considering the entire decision was probably at least 10 pages and maybe longer. | ||||
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11-06-2006, 10:05 PM
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| Banned Progressive Philadelphia, PA
| Originally Posted by 6SpeedTA95 for you, ofcourse:
Chicago's Gang Congregation Ordinance prohibits "criminal street gang members" from loitering in public places. Under the ordinance, if a police officer observes a person whom he reasonably believes to be a gang member loitering in a public place with one or more persons, he shall order them to disperse. Anyone who does not promptly obey such an order has violated the ordinance. The police department's General Order 92-4 purports to limit officers' enforcement discretion by confining arrest authority to designated officers, establishing detailed criteria for defining street gangs and membership therein, and providing for designated, but publicly undisclosed, enforcement areas. Two trial judges upheld the ordinance's constitutionality, but 11 others ruled it invalid. The Illinois Appellate Court affirmed the latter cases and reversed the convictions in the former. The State Supreme Court affirmed, holding that the ordinance violates due process in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties. Held: The judgment is affirmed. 177 Ill.2d 440, 227 Ill.Dec. 130, 687 N.E.2d 53, affirmed. Justice STEVENS delivered the opinion of the Court with respect to Parts I, II, and V, concluding that the ordinance's broad sweep violates the requirement that a legislature establish minimal guidelines to govern law enforcement. Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903. The ordinance encompasses a great deal of harmless behavior: In any public place in Chicago, persons in the company of a gang member "shall" be ordered to disperse if their purpose is not apparent to an officer. Moreover, the Illinois Supreme Court interprets the ordinance's loitering definition--"to remain in any one place with no apparent purpose"--as giving officers absolute discretion **1852 to determine what activities constitute loitering. See id., at 359, 103 S.Ct. 1855. This Court has no authority to construe the language of a state statute more narrowly than the State's highest court. See Smiley v. Kansas, 196 U.S. 447, 455, 25 S.Ct. 289, 49 L.Ed. 546. The three features of the ordinance that, the city argues, limit the officer's discretion--(1) it does not permit issuance of a dispersal order to anyone who is moving along or who has an apparent purpose; (2) it does not permit an arrest if individuals obey a dispersal order; and (3) no order can issue unless the officer reasonably believes that one of the loiterers is a gang member *42 are insufficient. Finally, the Illinois Supreme Court is correct that General Order 92-4 is not a sufficient limitation on police discretion. See Smith v. Goguen, 415 U.S. 566, 575, 94 S.Ct. 1242, 39 L.Ed.2d 605. Pp. 1861-1862. Justice STEVENS, joined by Justice SOUTER and Justice GINSBURG, concluded in Parts III, IV, and VI: 1. It was not improper for the state courts to conclude that the ordinance, which covers a significant amount of activity in addition to the intimidating conduct that is its factual predicate, is invalid on its face. An enactment may be attacked on its face as impermissibly vague if, inter alia, it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty. Kolender v. Lawson, 461 U.S., at 358, 103 S.Ct. 1855. The freedom to loiter for innocent purposes is part of such "liberty." See, e.g., Kent v. Dulles, 357 U.S. 116, 126, 78 S.Ct. 1113, 2 L.Ed.2d 1204. The ordinance's vagueness makes a facial challenge appropriate. This is not an enactment that simply regulates business behavior and contains a scienter requirement. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362. It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U.S. 379, 395, 99 S.Ct. 675, 58 L.Ed.2d 596, and infringes on constitutionally protected rights, see id., at 391, 99 S.Ct. 675. Pp. 1856-1859. 2. Because the ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted, it is impermissibly vague. See, e.g., Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214. The term "loiter" may have a common and accepted meaning, but the ordinance's definition of that term--"to remain in any one place with no apparent purpose"--does not. It is difficult to imagine how any Chicagoan standing in a public place with a group of people would know if he or she had an "apparent purpose." This vagueness about what loitering is covered and what is not dooms the ordinance. The city's principal response to the adequate notice concern--that loiterers are not subject to criminal sanction until after they have disobeyed a dispersal order--is unpersuasive for at least two reasons. First, the fair notice requirement's purpose is to enable the ordinary citizen to conform his or her conduct to the law. See Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888. A dispersal order, which is issued only after prohibited conduct has occurred, cannot retroactively provide adequate notice of the boundary between the permissible and the impermissible applications of the ordinance. Second, the dispersal order's terms compound the inadequacy of the notice afforded by the ordinance, which vaguely requires that the officer "order all such persons to disperse and remove themselves from the area," and thereby raises a host of questions as to the duration and distinguishing features of the loiterers' separation. Pp. 1859-1861. *43 Justice O'CONNOR, joined by Justice BREYER, concluded that, as construed by the Illinois Supreme Court, the Chicago ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforcement officers; in particular, it fails to provide any standard by which police can judge whether an individual has an "apparent purpose." This vagueness alone provides a sufficient ground for affirming the judgment below, and there is no need to consider the other issues briefed by the parties and addressed by the plurality. It is important to courts and legislatures alike to characterize more clearly the narrow scope of the Court's holding. Chicago still has reasonable alternatives to combat the very real threat posed by gang intimidation and **1853 violence, including, e.g., adoption of laws that directly prohibit the congregation of gang members to intimidate residents, or the enforcement of existing laws with that effect. Moreover, the ordinance could have been construed more narrowly to avoid the vagueness problem, by, e.g., adopting limitations that restrict the ordinance's criminal penalties to gang members or interpreting the term "apparent purpose" narrowly and in light of the Chicago City Council's findings. This Court, however, cannot impose a limiting construction that a state supreme court has declined to adopt. See, e.g., Kolender v. Lawson, 461 U.S. 352, 355-356, n. 4, 103 S.Ct. 1855, 75 L.Ed.2d 903. The Illinois Supreme Court misapplied this Court's precedents, particularly Papachristou v. Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110, to the extent it read them as requiring it to hold the ordinance vague in all of its applications. Pp. 1863-1865. Justice KENNEDY concluded that, as interpreted by the Illinois Supreme Court, the Chicago ordinance unconstitutionally reaches a broad range of innocent conduct, and, therefore, is not necessarily saved by the requirement that the citizen disobey a dispersal order before there is a violation. Although it can be assumed that disobeying some police commands will subject a citizen to prosecution whether or not the citizen knows why the order is given, it does not follow that any unexplained police order must be obeyed without notice of its lawfulness. The predicate of a dispersal order is not sufficient to eliminate doubts regarding the adequacy of notice under this ordinance. A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to such an order based on the officer's own knowledge of the identity or affiliations of other persons with whom the citizen is congregating; nor may the citizen be able to assess what an officer might conceive to be the citizen's lack of an apparent purpose. P. 1865. Justice BREYER concluded that the ordinance violates the Constitution because it delegates too much discretion to the police, and it is not saved by its limitations requiring that the police reasonably believe that the person ordered to disperse (or someone accompanying him) is a gang *44 member, and that he remain in the public place "with no apparent purpose." Nor does it violate this Court's usual rules governing facial challenges to forbid the city to apply the unconstitutional ordinance in this case. There is no way to distinguish in the ordinance's terms between one application of unlimited police discretion and another. It is unconstitutional, not because a policeman applied his discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications. See Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888. Contrary to Justice SCALIA's suggestion, the ordinance does not escape facial invalidation simply because it may provide fair warning to some individual defendants that it prohibits the conduct in which they are engaged. This ordinance is unconstitutional, not because it provides insufficient notice, but because it does not provide sufficient minimal standards to guide the police. See Coates v. Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 29 L.Ed.2d 214. Pp. 1865-1867. STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, in which O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined, and an opinion with respect to Parts III, IV, and VI, in which SOUTER and GINSBURG, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in which BREYER, J., joined, post, p. 1863. KENNEDY, J., post, p. 1865, and BREYER, J., post, p. 1865, filed opinions concurring in part and concurring in the judgment. SCALIA, J., filed a dissenting opinion, post, p. 1867. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA, J., joined, post, p. 1879. Lawrence Rosenthal, for petitioner. Harvey Grossman, Chicago, IL, for respondent. *45 Justice STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, and an opinion with respect to Parts III, IV, and VI, in which Justice SOUTER and Justice GINSBURG join. In 1992, the Chicago City Council enacted the Gang Congregation Ordinance, which prohibits "criminal street gang *46 members" from "loitering" with one another or with other persons in any public place. The question presented is whether the Supreme Court of Illinois correctly held that the ordinance violates the Due Process Clause of the Fourteenth Amendment to the Federal Constitution. I Before the ordinance was adopted, the city council's Committee on Police and Fire conducted hearings to explore the problems created by the city's street gangs, and more particularly, the consequences of public loitering by gang members. Witnesses included residents of the neighborhoods where gang members are most active, as well as some of the aldermen who represent those areas. Based on that evidence, the council made a series of findings that are included in the text of the ordinance and explain the reasons for its enactment. [FN1] FN1. The findings are quoted in full in the opinion of the Supreme Court of Illinois. 177 Ill.2d 440, 445, 227 Ill.Dec. 130, 687 N.E.2d 53, 58 (1997). Some of the evidence supporting these findings is quoted in Justice THOMAS' dissenting opinion. Post, at 1880-1881. The council found that a continuing increase in criminal street gang activity was largely responsible for the city's rising murder rate, as well as an escalation of violent and drug related crimes. It noted that in many neighborhoods throughout the city, " 'the burgeoning presence of street gang members in public places has intimidated many law abiding citizens.' " 177 Ill.2d 440, 445, 227 Ill.Dec. 130, 687 N.E.2d 53, 58 (1997). Furthermore, the council stated that gang members " 'establish control over identifiable areas ... by loitering in those areas and intimidating others from entering those areas; and ... [m]embers of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know the police are present....' " Ibid. It further found that " 'loitering in public places by *47 criminal street gang members creates a justifiable fear for the safety of persons and property in the area' " and that " '[a]ggressive action is necessary to preserve the city's streets and other public places so that the public may use such places without fear.' " Moreover, the council concluded that the city " 'has an interest in discouraging all persons from loitering in public places with criminal gang members.' " Ibid. The ordinance creates a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a " 'public place' " is a " 'criminal street gang membe[r].' " Second, the persons must be " 'loitering,' " which the ordinance defines as "remain[ing] in any one place with no apparent purpose." Third, the officer must then order " 'all' " of the persons to disperse and remove themselves " 'from the area.' " Fourth, a person must disobey the officer's order. If any person, whether a gang member or not, disobeys the officer's order, that person is guilty of violating the ordinance. Ibid. [FN2] FN2. The ordinance states 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. "(e) Any person who violates this Section is subject to a fine of not less than $100 and not more than $500 for each offense, or imprisonment for not more than six months, or both. "In addition to or instead of the above penalties, any person who violates this section may be required to perform up to 120 hours of community service pursuant to section 1-4-120 of this Code." Chicago Municipal Code § 8-4-015 (added June 17, 1992), reprinted in App. to Pet. for Cert. 61a-63a. **1855 *48 Two months after the ordinance was adopted, the Chicago Police Department promulgated General Order 92-4 to provide guidelines to govern its enforcement. [FN3] That order purported to establish limitations on the enforcement discretion of police officers "to ensure that the anti-gang loitering ordinance is not enforced in an arbitrary or discriminatory way." Chicago Police Department, General Order 92-4, reprinted in App. to Pet. for Cert. 65a. The limitations confine the authority to arrest gang members who violate the ordinance to sworn "members of the Gang Crime Section" and certain other designated officers, [FN4] and establish detailed criteria for defining street gangs and membership in such gangs. Id., at 66a-67a. In addition, the order directs district commanders to "designate areas in which the presence of gang members has a demonstrable effect on the activities of law abiding persons in the surrounding community," and provides that the ordinance "will be enforced only within the designated *49 areas." Id., at 68a-69 a. The city, however, does not release the locations of these "designated areas" to the public. [FN5] FN3. As the Illinois Supreme Court noted, during the hearings preceding the adoption of the ordinance, "representatives of the Chicago law and police departments informed the city counsel 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." 177 Ill.2d, at 446, 227 Ill.Dec. 130, 687 N.E.2d, at 58-59. FN4. Presumably, these officers would also be able to arrest all nongang members who violate the ordinance. FN5. Tr. of Oral Arg. 22-23. II During the three years of its enforcement, [FN6] the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance. [FN7] In the ensuing enforcement proceedings, 2 trial judges upheld the constitutionality of the ordinance, but 11 others ruled that it was invalid. [FN8] In respondent Youkhana's case, the trial judge held that the "ordinance fails to notify individuals what conduct *50 is prohibited, and it encourages arbitrary and capricious enforcement by police." [FN9] FN6. The city began enforcing the ordinance on the effective date of the general order in August 1992 and stopped enforcing it in December 1995, when it was held invalid in Chicago v. Youkhana, 277 Ill.App.3d 101, 213 Ill.Dec. 777, 660 N.E.2d 34 (1995). Tr. of Oral Arg. 43. FN7. Brief for Petitioner 16. There were 5,251 arrests under the ordinance in 1993, 15,660 in 1994, and 22,056 in 1995. City of Chicago, R. Daley & T. Hillard, Gang and Narcotic Related Violent Crime: 1993-1997, p. 7 (June 1998). The city believes that the ordinance resulted in a significant decline in gang-related homicides. It notes that in 1995, the last year the ordinance was enforced, the gang-related homicide rate fell by 26%. In 1996, after the ordinance had been held invalid, the gang-related homicide rate rose 11%. Pet. for Cert. 9, n. 5. However, gang-related homicides fell by 19% in 1997, over a year after the suspension of the ordinance. Daley & Hillard, at 5. Given the myriad factors that influence levels of violence, it is difficult to evaluate the probative value of this statistical evidence, or to reach any firm conclusion about the ordinance's efficacy. Cf. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style, 97 Mich. L.Rev. 291, 296 (1998) (describing the "hotly contested debate raging among ... experts over the causes of the decline in crime in New York City and nationally"). FN8. See Poulos, Chicago's Ban on Gang Loitering: Making Sense of Vagueness and Overbreadth in Loitering Laws, 83 Calif. L.Rev. 379, 384, n. 26 (1995). FN9. Chicago v. Youkhana, Nos. 93 MCI 293363 et al. (Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert. 45a. The court also concluded that the ordinance improperly authorized arrest on the basis of a person's status instead of conduct and that it was facially overbroad under the First Amendment to the Federal Constitution and Art. I, § 5, of the Illinois Constitution. Id., at 59a. **1856 The Illinois Appellate Court affirmed the trial court's ruling in the Youkhana case, [FN10] consolidated and affirmed other pending appeals in accordance with Youkhana, [FN11] and reversed the convictions of respondents Gutierrez, Morales, and others. [FN12] The Appellate Court was persuaded that the ordinance impaired the freedom of assembly of nongang members in violation of the First Amendment to the Federal Constitution and Article I of the Illinois Constitution, that it was unconstitutionally vague, that it improperly criminalized status rather than conduct, and that it jeopardized rights guaranteed under the Fourth Amendment. [FN13] FN10. Chicago v. Youkhana, 277 Ill.App.3d 101, 213 Ill.Dec. 777, 660 N.E.2d 34 (1995). FN11. Chicago v. Ramsey, 276 Ill.App.3d 1112, 231 Ill.Dec. 730, 697 N.E.2d 11 (1995), App. to Pet. for Cert. 39a. FN12. Chicago v. Morales, 276 Ill.App.3d 1111, 231 Ill.Dec. 730, 697 N.E.2d 11 (1995), App. to Pet. for Cert. 37a. FN13. Chicago v. Youkhana, 277 Ill.App.3d, at 106, 213 Ill.Dec. 777, 660 N.E.2d, at 38; id., at 112, 213 Ill.Dec. 777, 660 N.E.2d, at 41; id., at 113, 213 Ill.Dec. 777, 660 N.E.2d, at 42. The Illinois Supreme Court affirmed. It held "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." 177 Ill.2d, at 447, 227 Ill.Dec. 130, 687 N.E.2d, at 59. The court did not reach the contentions that the ordinance "creates a status offense, permits arrests without probable cause or is overbroad." Ibid. In support of its vagueness holding, the court pointed out that the definition of "loitering" in the ordinance drew no distinction between innocent conduct and conduct calculated *51 to cause harm. [FN14] "Moreover, the definition of 'loiter' provided by the ordinance does not assist in clearly articulating the proscriptions of the ordinance." Id., at 451-452, 227 Ill.Dec. 130, 687 N.E.2d, at 60-61.Furthermore, it concluded that the ordinance was "not reasonably susceptible to a limiting construction which would affirm its validity." [FN15] FN14. "The ordinance defines 'loiter' to mean 'to remain in any one place with no apparent purpose.' Chicago Municipal Code § 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." 177 Ill.2d, at 451-452, 227 Ill.Dec. 130, 687 N.E.2d, at 60-61. FN15. It stated: "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." Id., at 458, 227 Ill.Dec. 130, 687 N.E.2d, at 64. We granted certiorari, 523 U.S. 1071, 118 S.Ct. 1510, 140 L.Ed.2d 664 (1998), and now affirm. Like the Illinois Supreme Court, we conclude that the ordinance enacted by the city of Chicago is unconstitutionally vague. III The basic factual predicate for the city's ordinance is not in dispute. As the city argues in its brief, "the very presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils community residents' sense of safety and security, detracts from property values, and can ultimately destabilize entire neighborhoods." [FN16] The findings in the ordinance explain that it was motivated by these concerns. We have no doubt *52 that a law that directly prohibited such intimidating conduct **1857 would be constitutional, [FN17] but this ordinance broadly covers a significant amount of additional activity. Uncertainty about the scope of that additional coverage provides the basis for respondents' claim that the ordinance is too vague. FN16. Brief for Petitioner 14. FN17. In fact the city already has several laws that serve this purpose. See, e.g., Ill. Comp. Stat., ch. 720 §§ 5/12-6 (1998) (intimidation); 570/405.2 (streetgang criminal drug conspiracy); 147/1 et seq. (Illinois Streetgang Terrorism Omnibus Prevention Act); 5/25-1 (mob action). Deputy Superintendent Cooper, the only representative of the police department at the Committee on Police and Fire hearing on the ordinance, testified that, of the kinds of behavior people had discussed at the hearing, "90 percent of those instances are actually criminal offenses where people, in fact, can be arrested." Record, Appendix II to plaintiff's Memorandum in Opposition to Motion to Dismiss 182 (Tr. of Proceedings, Chicago City Council Committee on Police and Fire, May 18, 1992). [1] We are confronted at the outset with the city's claim that it was improper for the state courts to conclude that the ordinance is invalid on its face. The city correctly points out that imprecise laws can be attacked on their face under two different doctrines. [FN18] First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when "judged in relation to the statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U.S. 601, 612-615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). FN18. Brief for Petitioner 17. [2] While we, like the Illinois courts, conclude that the ordinance is invalid on its face, we do not rely on the overbreadth doctrine. We agree with the city's submission that the law does not have a sufficiently substantial impact on conduct *53 protected by the First Amendment to render it unconstitutional. The ordinance does not prohibit speech. Because the term "loiter" is defined as remaining in one place "with no apparent purpose," it is also clear that it does not prohibit any form of conduct that is apparently intended to convey a message. By its terms, the ordinance is inapplicable to assemblies that are designed to demonstrate a group's support of, or opposition to, a particular point of view. Cf. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984); Gregory v. Chicago, 394 U.S. 111, 89 S.Ct. 946, 22 L.Ed.2d 134 (1969). Its impact on the social contact between gang members and others does not impair the First Amendment "right of association" that our cases have recognized. See Dallas v. Stanglin, 490 U.S. 19, 23-25, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989). [3] On the other hand, as the United States recognizes, the freedom to loiter for innocent purposes is part of the "liberty" protected by the Due Process Clause of the Fourteenth Amendment. [FN19] We have expressly identified this "right to remove from one place to another according to inclination" as "an attribute of personal liberty" protected by the Constitution. Williams v. Fears, 179 U.S. 270, 274, 21 S.Ct. 128, 45 L.Ed. 186 (1900); see also Papachristou v. Jacksonville, 405 U.S. 156, 164, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972). [FN20] *54 Indeed, it is apparent **1858 that 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 frontiers that is "a part of our heritage" Kent v. Dulles, 357 U.S. 116, 126, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), or the right to move "to whatsoever place one's own inclination may direct" identified in Blackstone's Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765). [FN21] FN19. See Brief for United States as Amicus Curiae 23: "We do not doubt that, under the Due Process Clause, individuals in this country have significant liberty interests in standing on sidewalks and in other public places, and in traveling, moving, and associating with others." The city appears to agree, at least to the extent that such activities include "social gatherings." Brief for Petitioner 21, n. 13. Both Justice SCALIA, post, at 1872-1874 (dissenting opinion), and Justice THOMAS, post, at 1881-1883 (dissenting opinion), not only disagree with this proposition, but also incorrectly assume (as the city does not, see Brief for Petitioner 44) that identification of an obvious liberty interest that is impacted by a statute is equivalent to finding a violation of substantive due process. See n. 35, infra. FN20. Petitioner cites historical precedent against recognizing what it describes as the "fundamental right to loiter." Brief for Petitioner 12. While antiloitering ordinances have long existed in this country, their pedigree does not ensure their constitutionality. In 16th-century England, for example, the " 'Slavery acts' " provided for a 2-year enslavement period for anyone who " 'liveth idly and loiteringly, by the space of three days.' " Note, Homelessness in a Modern Urban Setting, 10 Ford. Urb. L.J. 749, 754, n. 17 (1982). In Papachristou we noted that many American vagrancy laws were patterned on these "Elizabethan poor laws." 405 U.S., at 161-162, 92 S.Ct. 839. These laws went virtually unchallenged in this country until attorneys bec |
