687 N.E.2d 53 (Ill. 1997), 80479, City of Chicago v. Morales

Docket Nº:80479, 80485 and 80668.
Citation:687 N.E.2d 53, 177 Ill.2d 440, 227 Ill.Dec. 130
Party Name:The CITY OF CHICAGO, Appellant, v. Jesus MORALES et al., Appellees.
Case Date:October 17, 1997
Court:Supreme Court of Illinois
 
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687 N.E.2d 53 (Ill. 1997)

177 Ill.2d 440, 227 Ill.Dec. 130

The CITY OF CHICAGO, Appellant,

v.

Jesus MORALES et al., Appellees.

Nos. 80479, 80485 and 80668.

Supreme Court of Illinois.

October 17, 1997.

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[177 Ill.2d 443] [227 Ill.Dec. 134] Benna Ruth Solomon, Chief Assistant Corporation Counsel, Chicago, for City of Chicago in No. 80479.

Eileen T. Pahl, Assistant Public Defender, Chicago, for Jesus Morales, in No. 80479.

Fred L. Alvarez, Lord, Bissell & Brook, Chicago, for Northwest Neighborhood in No. 80479.

Peter D. Fischer, Asst. State's Attorney, Chicago, Richard A. Devine, State's Attorney Cook Co., Civil Appeals Div., Chicago, for County of Cook in No. 80479.

Steven J. Zick, Assistant Attorney General, Chicago, for the State in No. 80479.

Richard Samp, Washington Legal Foundation, Washington, for other party in No. 80479.

Chicago Corporation Counsel, Benna Ruth Solomon, Chief Assistant Corporation Counsel, Chicago, for City of Chicago in No. 80485.

Cook County Public Defender, Chicago, Eileen T. Pahl, Assistant Public Defender, Chicago, for Malcolm Ramsey in No. 80485.

Chicago Corporation Counsel, Chicago, Lawrence Rosenthal, Deputy Corporation Counsel, Chicago, for City of Chicago in No. 80668.

Harvey Grossman, Roger Baldwin Foundation of ACLU, Inc., Chicago, Cook County Public Defender, Chicago, Eileen T. Pahl, Assistant Public Defender, Chicago, for James Youkhana in No. 80668.

Justice NICKELS delivered the opinion of the court:

These consolidated appeals involve 70 defendants who were charged with violating the City of Chicago's Gang Congregation Ordinance (Chicago Municipal Code § 8-4-015 (added June 17, 1992)). In cause No. 80668, defendant Youkhana and 13 other defendants were charged with violating the ordinance. The Cook County circuit court granted defendants' motion to dismiss the city's actions against them, finding the ordinance [177 Ill.2d 444] unconstitutionally vague. The appellate court affirmed, holding the ordinance unconstitutional on several grounds. City of Chicago v. Youkhana, 277 Ill.App.3d 101, 213 Ill.Dec. 777, 660 N.E.2d 34.

In cause No. 80485, the Cook County circuit court dismissed the charges against defendant Ramsey and 49 other defendants, also finding the ordinance unconstitutional. In cause No. 80479, after separate bench trials in the Cook County circuit court, defendant Morales and five other defendants were found guilty of violating the ordinance and each sentenced to jail terms ranging from 1 to 27 days. The appellate court reversed the convictions of the Morales defendants based on its holding in Youkhana (Morales, Nos. 1-93-4039, 1-93-4351, 1-93-4356, 1-94-1542, 1-94-3065, 1-94-4062 cons. (unpublished order under Supreme Court Rule 23)), and affirmed the dismissal of the actions against the Ramsey defendants (Ramsey, Nos. 1-93-4125, 1-93-4126, 1-94-0220, 1-94-0876, 1-94-0877, 1-94-1541, 1-95-0191, 1-95-0246 cons. (unpublished order under Supreme Court Rule 23)). The appellate court granted the city's request for a certificate of importance in Youkhana (155 Ill.2d R. 316), and this court granted the city's petitions for leave to appeal in the other two causes (155 Ill.2d R. 315). We consolidated the three causes for purposes of this appeal.

BACKGROUND

In May 1992, the Chicago city council held hearings to explore the problems criminal street gangs present for the city's residents. Of particular concern was the problems gang members cause by loitering in public. Witnesses testified how gang members loiter as

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[227 Ill.Dec. 135] part of a strategy to claim territory, recruit new members, and intimidate rival gangs and ordinary community residents. Testimony revealed that street gangs are responsible for a variety of criminal activity, including drive-by shootings, drug dealing, and vandalism.

[177 Ill.2d 445] As a result of the hearings, the city council enacted the Gang Congregation Ordinance, more commonly known as the "gang loitering ordinance." The city council incorporated its findings in the preamble to the ordinance, as follows:

"WHEREAS, The City of Chicago, like other cities across the nation, has been experiencing an increasing murder rate as well as an increase in violent and drug related crimes; and

WHEREAS, The City Council has determined that the continuing increase in criminal street gang activity in the City is largely responsible for this unacceptable situation; and

WHEREAS, In many neighborhoods throughout the City, the burgeoning presence of street gang members in public places has intimidated many law abiding citizens; and

WHEREAS, One of the methods by which criminal street gangs establish control over identifiable areas is by loitering in those areas and intimidating others from entering those areas; and

WHEREAS, Members of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know the police are present, while maintaining control over identifiable areas by continued loitering; and

WHEREAS, The City Council has determined that loitering in public places by criminal street gang members creates a justifiable fear for the safety of persons and property in the area because of the violence, drug-dealing and vandalism often associated with such activity; and

WHEREAS, The City also has an interest in discouraging all persons from loitering in public places with criminal gang members; and

WHEREAS, Aggressive action is necessary to preserve the city's streets and other public places so that the public may use such places without fear[.]" Chicago Municipal Code § 8-4-015 (added June 17, 1992).

The gang loitering ordinance provides in pertinent part:

"(a) Whenever a police officer observes a person whom [177 Ill.2d 446] 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." Chicago Municipal Code § 8-4-015 (added June 17, 1992).

Each violation of the ordinance is punishable by a fine of up to $500, imprisonment for not more than six months, and the requirement to perform up to 120 hours of community service.

During the hearings, representatives of the Chicago law and police departments informed the city council that any limitations on the discretion police have in enforcing the ordinance would be best developed through police policy, rather than placing such limitations

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[227 Ill.Dec. 136] into the ordinance itself. Accordingly, after the gang loitering ordinance was enacted, the Chicago police department issued a general order which provides guidelines for enforcement of the ordinance. Among other things, the general order sets forth standards for identifying criminal street gangs and specifies criteria [177 Ill.2d 447] for establishing probable cause that an individual is a member of a criminal street gang. Chicago Police Department, General Order No. 92-4 (eff. August 8, 1992).

Once enforcement of the gang loitering ordinance began, the trial courts of Cook County disagreed as to its validity. Upon review, the appellate court held the ordinance unconstitutional on several grounds. First, the appellate court found the ordinance unconstitutionally overbroad because it violates the first amendment rights of association, assembly, and expression. In addition, the appellate court found that the ordinance was unconstitutionally vague. Next, the appellate court determined the ordinance criminalizes a person's status in violation of the eighth amendment. Finally, the appellate court determined the ordinance allows arrests without probable cause, in violation of the fourth amendment. Youkhana, 277 Ill.App.3d 101, 213 Ill.Dec. 777, 660 N.E.2d 34.

The city urges that the judgment of the appellate court be reversed because the gang loitering ordinance: (1) sufficiently defines criminal conduct such that it is not unconstitutionally vague; (2) is not overbroad because it is a permissible restriction of first amendment rights; (3) does not create a status offense; and (4) requires the police to establish probable cause of illegal conduct before an offender can be arrested.

We find 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. In doing so, we need not reach the issues that the ordinance creates a status offense, permits arrests without probable cause or is overbroad.

ANALYSIS

In construing a municipal ordinance, the same rules are applied as those which govern the construction of statutes. In re Application of the...

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