D and others were charged under a new ordinance passed by the City of Chicago prohibiting gang members from loitering with one another in public places.
A City of Chicago commission found that gang members were loitering with one another in an effort to establish control over particular areas. This loitering had caused an increase in violent and drug related crimes. It also intimidated citizens and limited access to certain areas.
The elements of the crime…
First, a police officer must reasonably believe that at least one of the two or more persons present in a public place is a gang member.
Second, these persons must be loitering by remaining in one place with no apparent purpose.
Third, the officer must order these persons to disperse.
Finally, the order must be disobeyed.
D challenged the ordinance by stating that it broadly covered a significant amount of additional activity beyond what should be interpreted as loitering and was, therefore, unconstitutionally vague.
IL Supreme Court found it was too vague since it did not provide specific limits on the discretion of police officers to determine what conduct constituted loitering.
IL Supreme Court found for D, ordinance unconstitutional.
SCOTUS affirmed, found for D, ordinance unconstitutional.
Is a statute which provides penalties for criminal conduct unconstitutionally vague if it fails to give sufficient notice regarding the type of conduct prohibited.
A statute providing penalties for criminal conduct is unconstitutionally vague if it fails to give sufficient notice regarding the type of conduct prohibited.
First, the law fails to provide the type of notice that permits ordinary persons to understand the conduct prohibited.
This is because the order to disperse takes place before an officer knows whether the prohibited conduct has occurred and is an unjustifiable impairment of liberty if the loiterer is harmless and innocent.
Second, the wording of the law encourages arbitrary and discriminatory enforcement.
Police officers may exercise absolute discretion when assessing a group of bystanders for dispersal.
The limitations given by P are insufficient because they do not address the degree of discretion an officer may exercise.
Concurrence -- the law is unconstitutional because it lacks sufficient minimal standards to guide law enforcement officers. Could fix the law by adding that the loiterers must have a "harmful purpose."
Scalia -- Speed limits are limitations put on freedom. They prohibit otherwise harmless behavior for the public good. This ordinance seeks to do the same.