Chicago v. Morales
Decided on June 10, 1999; 527 US 41

Chicago's Gang Congregation Ordinance which prohibits "criminal street gang members" from loitering in public places fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted and is thus unconstitutionally vague.


A. Issues Discussed:  Due process

B. Legal Question Presented:

Does the Chicago Gang Congregation Ordinance, which prohibits "criminal street gang members" from loitering in public places, violate the Due Process Clause of the Fourteenth Amendment to the Federal Constitution?

A. Background:

"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 eleven 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."

On certiorari, the U.S. Supreme Court affirmed the judgment of the Supreme Court of Illinois.
B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Harvey Grossman argued the cause for respondents. With him on the brief were Rita Fry, James H. Reddy, Richard J. O'Brien, Jr., Barbara O'Toole, and Steven R. Shapiro.

Briefs of amicus curiae urging affirmance were filed for the Chicago Alliance for Neighborhood Safety et al. by Stephen J. Schulhofer and Randolph N. Stone; for the Illinois Attorneys for Criminal Justice by Robert Hirschhorn and Steven A. Greenberg; for the National Association of Criminal Defense Lawyers by David M. Porter; for the National Black Police Association et al. by Elaine R. Jones, Theodore M. Shaw, George H. Kendall, Laura E. Hankins, Marc O. Beem, and Diane F. Klotnia; for the National Law Center on Homelessness & Poverty et al. by Robert M. Bruskin; and for See Forever/the Maya Angelou Public Charter School et al. by Louis R. Cohen, John Payton, and James Forman, Jr.
Lawrence Rosenthal argued the cause for petitioner. With him on the briefs were Brian L. Crowe, Benna Ruth Solomon, Timothy W. JorIndianaanko, and Julian N. Henriques, Jr.

Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Waxman, Deputy Solicitor General Underwood, and James A. Feldman; for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, Robert C. Maier, and David M. Gormley, and by the Attorneys General for their respective jurisdictions as follows: William H. Pryor, Jr., of Alabama, Bruce M. Botelho of Alaska, Grant Woods of Arizona, Daniel E. Lungren of California, Gale A. Norton of Colorado, John M. Bailey of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Thurbert E. Baker of Georgia, James E. Ryan of Illinois, Jeffrey A. Modisett of Indiana, Carla J. Stovall of Kansas, A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Michael C. Moore of Mississippi, Jeremiah W. (Jay) Nixon of Missouri, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, D. Michael Fisher of Pennsylvania, Carlos Lugo-Fiol of Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles M. Condon of South Carolina, Mark Barnett of South Dakota, Jan Graham of Utah, Julio A. Brady of the Virgin Islands, and Mark O. Earley of Virginia; for the Center for the Community Interest by Richard K. Willard and Roger L. Conner; for the Chicago Neighborhood Organizations by Michele L. Odorizzi and Jeffrey W. Sarles; for the Los Angeles County District Attorney by Gil Garcetti pro se, and Brent Dail Riggs; for the National District Attorneys Association et al. by Kristin Linsley Myles, Daniel P. Collins, William L. Murphy, and Wayne W. Schmidt; for the Washington Legal Foundation et al. by Daniel J. Popeo and Richard A. Samp; and for the U. S. Conference of Mayors et al. by Richard Ruda, Miguel A. Estrada, and Mark A. Perry.

"... The ordinance's broad sweep violates the requirement that a legislature establish minimal guidelines to govern law enforcement. 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 to determine what activities constitute loitering. This Court has no authority to construe the language of a state statute more narrowly than the State's highest court. The three features of the ordinance that, the city argues, limit the officer's discretion...are insufficient...

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. The freedom to loiter for innocent purposes is part of such 'liberty.'...

Because the ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted, it is impermissibly vague."

The United States Supreme Court affirmed the Supreme Court of Illinois judgment.

Justice Vote: 6 Pro vs. 3 Con
  • Stevens, J. Pro (Wrote majority opinion)
  • O'Connor, S. Pro (Wrote concurring opinion)
  • Kennedy, A. Pro (Wrote concurring opinion)
  • Breyer, S. Pro (Wrote concurring opinion)
  • Souter, D. Pro (Joined majority opinion)
  • Ginsburg, R. Pro (Joined majority opinion)
  • Scalia, A. Con (Wrote dissenting opinion)
  • Thomas, C. Con (Wrote dissenting opinion)
  • Rehnquist, W. Con (Joined dissenting opinion)

The ACLU, as counsel for respondent, urged affirmance of the judgment of the Supreme Court of Illinois; the Supreme Court affirmed in a 6-3 vote, giving the ACLU an apparent win.