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CITY OF CHICAGO v. MORALES ET AL - 527 U.S. 41 (1999)





No.97-1121. Argued December 9, 1998-Decided June 10, 1999

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 11 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.

Held: The judgment is affirmed.

177 Ill. 2d 440, 687 N. E. 2d 53, affirmed.

JUSTICE STEVENS delivered the opinion of the Court with respect to Parts I, II, and V, concluding that the ordinance's broad sweep violates the requirement that a legislature establish minimal guidelines to govern law enforcement. Kolender v. Lawson, 461 U. S. 352, 358. 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 anyone place with no apparent purpose"-as giving officers absolute discretion to determine what activities constitute loitering. See id., at 359. This Court has no authority to construe the language of a state statute more narrowly than the State's highest court. See Smiley v. Kansas, 196 U. S. 447, 455. The three features of the ordinance that, the city argues, limit the officer's discretion-(l) it does not permit issuance of a dispersal order to anyone who is moving along or who has an apparent purpose; (2) it does not permit an arrest if individuals obey a dispersal order; and (3) no order can issue unless the officer reasonably believes that one of the loiterers is a gang mem-



ber-are insufficient. Finally, the Illinois Supreme Court is correct that General Order 92-4 is not a sufficient limitation on police discretion. See Smith v. Goguen, 415 U. S. 566, 575. Pp. 60-64.


1. 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. Kolender v. Lawson, 461 U. S., at 358. The freedom to loiter for innocent purposes is part of such "liberty." See, e. g., Kent v. Dulles, 357 U. S. 116, 126. The ordinance's vagueness makes a facial challenge appropriate. This is not an enactment that simply regulates business behavior and contains a scienter requirement. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499. It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U. S. 379, 395, and infringes on constitutionally protected rights, see id., at 391. Pp.51-56.

2. Because the ordinance fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted, it is impermissibly vague. See, e. g., Coates v. Cincinnati, 402 U. S. 611, 614. The term "loiter" may have a common and accepted meaning, but the ordinance's definition of that term-"to remain in anyone place with no apparent purpose" -does not. It is difficult to imagine how any Chicagoan standing in a public place with a group of people would know if he or she had an "apparent purpose." This vagueness about what loitering is covered and what is not dooms the ordinance. The city's principal response to the adequate notice concern-that loiterers are not subject to criminal sanction until after they have disobeyed a dispersal orderis unpersuasive for at least two reasons. First, the fair notice requirement's purpose is to enable the ordinary citizen to conform his or her conduct to the law. See Lanzetta v. New Jersey, 306 U. S. 451, 453. A dispersal order, which is issued only after prohibited conduct has occurred, cannot retroactively provide adequate notice of the boundary between the permissible and the impermissible applications of the ordinance. Second, the dispersal order's terms compound the inadequacy of the notice afforded by the ordinance, which vaguely requires that the officer "order all such persons to disperse and remove themselves from the area," and thereby raises a host of questions as to the duration and distinguishing features of the loiterers' separation. Pp. 56-60.

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