Gang Loitering and Race

Article excerpt

When the United States Supreme Court held in City of Chicago v. Morales(1) that Chicago's anti-gang loitering ordinance--authorizing the police to disperse groups of loiterers containing criminal street gang members(2)--was unconstitutionally vague, Harvey Grossman, the attorney who had argued the case for the winning side, called the decision "a victory for `young men of color.'"(3) That may seem a strange thing to say about a case in which no claim of racial discrimination was made by the parties or passed upon by the Court,(4) but Mr. Grossman's reaction was far from idiosyncratic. Questions of racial fairness are consistently raised by the critics of anti-loitering and other public order laws.(5) Dorothy Roberts, for example, sees the Court's holding in Morales as reflecting a concern about the risk of racial bias in the enforcement of public order laws.(6) Under Chicago's anti-gang loitering ordinance, she contends, the potential for police abuse was especially high: "With no criminal conduct to go by, police officers probably used race as a critical factor in judging whether an individual might be a gang member."(7) The inevitable racial friction that this type of law will produce, Professor Roberts argues, reinforces patterns of racial subjugation.(8) David Cole makes a similar argument and adds that when minorities perceive this type of unfairness in the criminal justice system they "have less incentive to play by the rules, and accordingly, double standards in law enforcement actually contribute to criminal conduct in those neighborhoods that are already most at risk of criminal behavior for socioeconomic reasons."(9)

The decision in Morales makes the questions raised by Professors Roberts and Cole even more urgent. The Court found the ordinance vague because it permitted enforcement against loiterers engaged in entirely "innocent" activities, but added that a law directed at loitering by groups containing gang members would sufficiently limit enforcement discretion "if the ordinance only applied to loitering that had an apparently harmful purpose or effect...."(10) Justice O'Connor, in a concurring opinion joined by Justice Breyer, added that an anti-gang loitering law should be upheld if it defined loitering as "to remain in any one place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities."(11) Thus, the Court appears to have endorsed anti-loitering laws when loitering has an "apparently harmful purpose or effect"; a standard for judging loitering laws far more lenient than can be found in prior precedents.(12) Chicago has taken the Court's hint. The Chicago City Council recently enacted a new anti-gang loitering ordinance that authorizes police officers to order groups containing members of criminal street gangs to disperse when they are engaged in "gang loitering"(13). The new ordinance defines "gang loitering" as "remaining in any one place under circumstances that would warrant a reasonable person to believe that the purpose or effect of that behavior is to enable a criminal street gang to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities."(14) The new ordinance also defines "criminal street gang" in terms that track the federal racketeering statute's definition of "racketeering activity."(15) The City Council enacted a companion anti-drug loitering measure as well.(16)

While narrower than the original anti-gang loitering ordinance, these revised measures nevertheless provide a potent prophylactic policing tool: they authorize dispersal orders whenever the police reasonably believe that gang or drug activity is afoot. Indeed, a nationwide trend seems to be underway to enact anti-loitering laws as part of the movement toward community-oriented and order-maintenance policing.(17) And because laws drafted to comply with the Morales decision are likely to withstand attack on other grounds, future debate on the fairness of public order laws is likely to focus on whether they can be fairly applied to racial minorities. …