City of Chicago v. Youkhana, No. 1-93-3909

CourtUnited States Appellate Court of Illinois
Writing for the CourtBUCKLEY
Citation277 Ill.App.3d 101,660 N.E.2d 34
Parties, 213 Ill.Dec. 777 The CITY OF CHICAGO, Plaintiff-Appellant, v. James YOUKHANA, Fernando O. Cota, Jose A. Merced, Roosevelt McMullan, Jr., Johnny R. Newsome, Anthony D. Cordero, Julio M. Barroso, Hermie J. Khamo, Lamont J. Jordan, Lisa Gonzales, Florentine Soto, Renee Goodwill, Tasha White and Sabrina Brown, Defendants-Appellees.
Decision Date18 December 1995
Docket NumberNo. 1-93-3909

Page 34

660 N.E.2d 34
277 Ill.App.3d 101, 213 Ill.Dec. 777
The CITY OF CHICAGO, Plaintiff-Appellant,
v.
James YOUKHANA, Fernando O. Cota, Jose A. Merced, Roosevelt
McMullan, Jr., Johnny R. Newsome, Anthony D. Cordero, Julio
M. Barroso, Hermie J. Khamo, Lamont J. Jordan, Lisa
Gonzales, Florentine Soto, Renee Goodwill, Tasha White and
Sabrina Brown, Defendants-Appellees.
No. 1-93-3909.
Appellate Court of Illinois,
First District, First Division.
Dec. 18, 1995.

Page 35

[213 Ill.Dec. 778] [277 Ill.App.3d 103] Susan S. Sher, Corporation Counsel of the City of Chicago (Lawrence Rosenthal, Deputy Corporation Counsel, Benna Ruth Solomon, Chief Assistant Corporation Counsel, Stuart D. Fullerton, Assistant Corporation Counsel, of counsel), for appellant.

Harvey Grossman, The Roger Baldwin Foundation of ACLU, Inc., Chicago, and Rita A. Fry, Cook County Public Defender, Chicago (Eileen T. Pahl, Assistant Public Defender, of counsel), for appellees.

Henry Hyde, Philip Crane, Northwest Neighborhood Federation, Concerned Citizen Neighborhood Federation, Concerned Citizen Neighborhood Watch Organization--81st & 82nd, West Avalon Civic Group, and Marynook Homeowners Association, Lord Bissell [213 Ill.Dec. 779]

Page 36

& Brook, Chicago (Andrew Kochanowski, Fred L. Alvarez, Robert A. Badgley, of counsel); and Washington Legal Foundation, Washington, DC (Daniel J. Popeo, Richard A. Samp, of counsel), for amici curiae Washington Legal Foundation.

Jack O'Malley, Cook County State's Attorney, Chicago (Renee Goldfarb, Peter Fischer, Assistant State's Attorneys, of counsel), for amicus curiae County of Cook.

Justice BUCKLEY delivered the opinion of the court:

The City of Chicago (the City) prosecuted defendants for violating section 8-4-015 of the Municipal Code of Chicago, more commonly known as the "gang-loitering ordinance." (Chicago Municipal Code § 8-4-015 (1992).) Defendants moved to dismiss the City's action against them, and on September 29, 1993, the circuit court granted the defendants' motion, finding that the ordinance violated the United States and Illinois Constitutions. The City appeals the circuit court order, and we must affirm.

We base our decision on several grounds, the strongest of which is that this ordinance violates the freedoms of association, assembly and expression secured by the first amendment and article I, section 5, of the Illinois Constitution. The ordinance also suffers from the infirmity of being unconstitutionally vague, thus violating due process rights. Furthermore, we find that the ordinance unconstitutionally criminalizes status and allows arrests without probable cause in violation of the fourth amendment.

BACKGROUND

Like many other American cities, Chicago is home to criminal street gangs. In 1992, the City held hearings on the subject of gang-[277 Ill.App.3d 104] related crime. Based on these hearings, the City determined that criminal street-gang activity in Chicago was largely responsible for the increasing murder rate in the City. The City also concluded that the presence of gang members in public places is intimidating to law-abiding citizens. The City recognized that gangs operate by establishing control over identifiable areas, by loitering and intimidating others from entering those areas. However, by ceasing to commit crimes, such as drug dealing and vandalism, when police officers are present, the gang members avoid arrest while maintaining control over their territory. This obvious connection between gang crime and loitering led the City to enact the ordinance at issue here. The gang-loitering ordinance provides in pertinent part:

"(a) Whenever a police officer observes a person whom 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 (1992).

After the ordinance was adopted, the Chicago police department promulgated a general order to define the circumstances under which members of the department are permitted to enforce the ordinance. Authorized officers are directed to order persons loitering in a designated area "to disperse and remove themselves from the area" when there is probable cause to believe that at least one of those persons is a criminal

Page 37

[213 Ill.Dec. 780] street-gang member. The officers are then directed to arrest and charge "any person who does not promptly [277 Ill.App.3d 105] obey such an order." The order requires the arresting officer to complete the arrest report for each arrest, which provides specific reasons for a conclusion of probable cause that the arrestee was either a criminal street gang or a person loitering in a group with a gang member. General Order No. 92-4, at 3 (1992).

Probable cause to establish membership is substantiated by the officers' experience and knowledge of the alleged offenders and reliable information such as admission of membership, uses of gang symbols, or identification of reliable informants. (General Order No. 92-4, at 2 (1992).) The district commanders must maintain and update gang information files and ensure that they contain only names of individuals the department has concluded it has probable cause to believe are members of criminal street gangs operating within the district. The order also provides that the criminal street gangs in each area must be identified "on the basis of specific, documented and reliable information," such as officer observations, analysis of crime pattern information, and interviews with witnesses, admitted gang members and reliable informants.

According to the general order, the ordinance may be enforced only in portions of the City where loitering by street gangs has posed a demonstrable problem for the surrounding community. In deciding which areas to designate, district commanders must consult with knowledgeable members of the department and appropriate community groups. They must also use crime pattern information, citizen complaints, police observations, and the views of local public officials and other reliable members of the community.

On June 15, 1993, defendants, James Youkhana, Fernando O. Cota, Jose A. Merced, Roosevelt McMullan, Jr., Johnny R. Newsome, Anthony D. Cordero, Julio M. Barroso, Hermie J. Khamo, Lamont J. Jordan, Lisa Gonzales, and Florentine Soto, were arrested at 1433 West Carmen in Chicago and charged with violating the ordinance. According to the complaints filed against them, the defendants were "observed loitering at 1433 W. Carmen, a public place with one or more persons at least one of whom was member of the Latin Kings criminal street gang, and * * * failed to disperse and remove [themselves] from the area when ordered to do so by the [Police] [Officer] R. Day # 4476." Defendants Sabrina Brown, Tasha White, and Renee Goodwill were arrested on June 22, 1993, and charged with violating the ordinance by loitering in the vicinity of 1528 West Morse in Chicago. The arrest reports indicate that they are members of the Gangster Disciple street gang. After being warned to leave the area [277 Ill.App.3d 106] "at 2145 hrs," they were found to be loitering in the same area and refused to leave the area at 2200 hours. 1

Defendants moved to dismiss the complaints against them on the ground that the ordinance is unconstitutional on its face, and as applied, in that it violates their rights under the fourteenth, first, and fourth amendments of the United States Constitution and the corresponding sections of the Illinois Constitution. The municipal court granted the motion and this appeal followed.

DISCUSSION
I

The overbreadth doctrine "allows a defendant to challenge the validity of a statute on its face when the mere existence of the statute may inhibit the exercise of expressive or associational rights protected by the first amendment, even though those rights do not protect the activities of the defendant." (People v. Garrison (1980), 82 Ill.2d 444, 449, 45 Ill.Dec. 132, 135, 412 N.E.2d 483, 486, citing Bates v. State Bar (1977), 433 U.S. 350, 380, 97 S.Ct. 2691, 2707, 53 L.Ed.2d 810, 833; Broadrick v. Oklahoma (1973), 413 U.S. 601, 611-17, 93 S.Ct. 2908, 2915-18, 37 L.Ed.2d 830, 839-43.) A law is overbroad if it authorizes punishment of constitutionally protected conduct. City of

Page 38

[213 Ill.Dec. 781] Houston v. Hill (1987), 482 U.S. 451, 458, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398, 410.

The City argues that this ordinance is not overbroad because any expressive activity protected under the first amendment such as picketing and protesting is not implicated by the ordinance, as these activities have an apparent purpose. However, we agree with defendants' contention that the ordinance clearly implicates the first amendment rights of assembly, association, and expression.

In Coates v. City of Cincinnati (1971) 402 U.S. 611, 91 S.Ct. 1686, 29 L.Ed.2d 214, the United States Supreme Court found Cincinnati's loitering ordinance to be unconstitutionally broad. The ordinance made it a criminal offense...

To continue reading

Request your trial
22 practice notes
  • Chicago v Morales, 971121
    • United States
    • United States Supreme Court
    • June 10, 1999
    ...date of the general order in August 1992 and stopped enforcing it in December 1995, when it was held invalid in Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995). Tr. of Oral Arg. 43. 7. Brief for Petitioner 16. There were 5,251 arrests under the ordinance in 1993, 15,660 in......
  • City of Chicago v. Morales, Nos. 80479
    • United States
    • Supreme Court of Illinois
    • October 17, 1997
    ...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 In cause No. 80485, the Cook County circuit court dismissed the charges against defendant Ramsey and 49 other defenda......
  • People v. Fuller, No. 86104.
    • United States
    • Supreme Court of Illinois
    • July 1, 1999
    ...appellate court can, and does, decide important constitutional questions on a regular basis. See, e.g., City of Chicago v. Youkhana, 277 Ill.App.3d 101, 213 Ill.Dec. 777, 660 N.E.2d 34 (1995), aff'd sub nom. City of Chicago v. Morales, 177 Ill.2d 440, 227 Ill.Dec. 130, 687 N.E.2d 53 (1997),......
  • Manning v. Caldwell for City of Roanoke, No. 17-1320
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 16, 2019
    ...232 F.3d 1353, 1359–62 (11th Cir. 2000) ; Farber v. Rochford , 407 F. Supp. 529, 533–34 (N.D.Ill. 1975) ; City of Chicago v. Youkhana , 277 Ill.App.3d 101, 213 Ill.Dec. 777, 660 N.E.2d 34, 39–42 (1995), aff’d sub nom. 930 F.3d 307 City of Chicago v. Morales , 177 Ill.2d 440, 227 Ill.Dec. 13......
  • Request a trial to view additional results
22 cases
  • Chicago v Morales, 971121
    • United States
    • United States Supreme Court
    • June 10, 1999
    ...date of the general order in August 1992 and stopped enforcing it in December 1995, when it was held invalid in Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995). Tr. of Oral Arg. 43. 7. Brief for Petitioner 16. There were 5,251 arrests under the ordinance in 1993, 15,660 in......
  • City of Chicago v. Morales, Nos. 80479
    • United States
    • Supreme Court of Illinois
    • October 17, 1997
    ...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 In cause No. 80485, the Cook County circuit court dismissed the charges against defendant Ramsey and 49 other defenda......
  • People v. Fuller, No. 86104.
    • United States
    • Supreme Court of Illinois
    • July 1, 1999
    ...appellate court can, and does, decide important constitutional questions on a regular basis. See, e.g., City of Chicago v. Youkhana, 277 Ill.App.3d 101, 213 Ill.Dec. 777, 660 N.E.2d 34 (1995), aff'd sub nom. City of Chicago v. Morales, 177 Ill.2d 440, 227 Ill.Dec. 130, 687 N.E.2d 53 (1997),......
  • Manning v. Caldwell for City of Roanoke, No. 17-1320
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • July 16, 2019
    ...232 F.3d 1353, 1359–62 (11th Cir. 2000) ; Farber v. Rochford , 407 F. Supp. 529, 533–34 (N.D.Ill. 1975) ; City of Chicago v. Youkhana , 277 Ill.App.3d 101, 213 Ill.Dec. 777, 660 N.E.2d 34, 39–42 (1995), aff’d sub nom. 930 F.3d 307 City of Chicago v. Morales , 177 Ill.2d 440, 227 Ill.Dec. 13......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT