Faced with an explosion of gang-related crime in the early 1990s, the City of Chicago attempted to take back the streets from street gangs.
The idea was to make it as difficult as possible for the gangs to sell drugs, recruit new members, and confront rivals on street corners and in public parks. So the City Council passed a loitering ordinance allowing the police to arrest anyone hanging out with a suspected gang member if they refused to obey a police order to disperse.
In three years more than 43,000 suspects were arrested.
Supporters of the new law called it a shining example of proactive community-based policing.
Opponents called it a massive violation of the US Constitution.
Today, the US Supreme Court will consider whether Chicago's anti-loitering law is a permissible delegation of law-enforcement authority or an infringement of the rights of city residents to assemble, associate, and move freely in public areas without government interference.
"A family getting fresh air in front of their apartment building would be subject to this ordinance," says Harvey Grossman, legal director of the American Civil Liberties Union of Illinois, and attorney for 70 Chicagoans arrested under the ordinance.
"Innocent kids will get swept off the streets in a trade-off in which the city says this is the only way we can get the bad guys," he says. "That is just too high a price to pay."
The Chicago ordinance was declared unconstitutional by the Illinois Supreme Court. Lawyers for the city appealed to the US Supreme Court.
The case is being closely watched by cities that have such ordinances and law-enforcement officials nationwide who are seeking effective tactics to employ against the growing menace of street gangs.
The essence of the task facing the justices is to determine whether Chicago's loitering law adequately incorporates a series of safeguards laid down in prior court decisions dating back to Depression-era efforts of some cities to keep poor and homeless folks from moving into their areas. Those so-called vagrancy laws were declared unconstitutional because they tended to make a person's economic status a violation of the law.
Through the years the high court has refined the standard for such ordinances, making it extremely difficult to write laws outlawing hard-to-define conduct such as loitering, loafing, or aimlessness.
Chicago defines loitering as "to remain in one place with no apparent purpose."
To many hard-working Americans that sounds like the ideal vacation.
But in the context of Chicago's most crime-ridden neighborhoods, the law became a tool that police used to harass street-based crime syndicates that were threatening to take over parts of the city.
"By enabling the police to demonstrate control over the streetscape and the most lawless elements in the community, loitering laws make people feel safer, thereby reinvigorating neighborhoods," lawyers for the city say in their legal brief.
Chicago is supported by the Department of Justice and the attorneys general from 33 states interested in passing similar laws. Such supporters emphasize the proactive crimefighting goal of the ordinance.
But ordinance opponents say the police already have all the laws they need to battle illegal activity by street gangs. What is lacking is the political will to allocate the necessary resources and to examine the problem from a broader perspective.
At the heart of the legal dispute over the ordinance is the issue of whether it is too vaguely written. Constitutional safeguards require that such an ordinance must give ordinary city residents fair warning that their conduct may be a violation of the law. And it has to include specific instructions to the police to prevent arbitrary or discriminatory enforcement.
The Chicago ordinance authorizes an arrest only when a suspected gang member is among the alleged loiterers, and only when the alleged loiterers refuse to leave the area when the police tell them to disperse.
Questions over fair warning
One major point of contention is that an arrest hinges on the presence of a suspected gang member. How would other alleged loiterers know whether police suspected one of them to be a gang member unless they could read an officer's mind, these analysts ask. Thus, it raises questions about fair warning, they say.
Supporters of the ordinance counter that the fair-warning issue is satisfied by the ordinance's second requirement for an arrest. Only those alleged loiterers who refuse to disperse are arrested. The police order to disperse is enough fair warning to satisfy constitutional standards, they say.
A disperse order is not enough, opponents counter. It does not tell potential arrest targets what they did to place themselves in jeopardy and how to avoid arrest in the future.
In addition, they say, the ordinance criminalizes the status of gang members who are targeted for summary banishment from a public area not because of crimes they are suspected of having committed but merely because of who they are.
The case is called Chicago v. Morales. A decision is expected by next summer.