Gang loitering, the court, and some realism about police patrol

Supreme Court Review

Volumn 1999, Issue , 1999, Pages 141-202

  Livingston, Debra ^a  

^a NONE

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EID: 0347172097     PISSN: 00819557     EISSN: None     Source Type: Book Series    
DOI: 10.1086/scr.1999.3109707     Document Type: Article

References (260)

1. 119 S Ct 1849 (1999).
2. For a general description of this phenomenon, see Debra Livingston, Police Discretion and the Quality of Life in Public Places: Courts, Communities, and the New Policing, 97 Colum L Rev 551, 562-84 (1997).
3. This argument was presented most powerfully in several articles by Tracey Meares and Dan Kahan, as well as in an amicus brief before the Supreme Court that they helped to draft. See, e.g., Dan M. Kahan and Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure, 86 Geo L J 1153, 1171-80 (1998); Tracey L. Meares and Dan M. Kahan, The Wages of Antiquated Procedural Thinking: A Critique of Chicago v. Morales, 1998 U Chi Legal F 197, 209-14; Chicago v Morales, No 97-1121, Brief Amicus Curiae of the Chicago Neighborhood Organizations in Support of Petitioner, at 1-5. The United States and approximately thirty-one states, as well as various community groups, governmental associations, and law enforcement organizations, also submitted briefs arguing that the Chicago ordinance represented a constitutionally appropriate response to the plague of gang violence besetting some Chicago neighborhoods. See, e.g., Brief for the United States as Amicus Curiae Supporting Petitioner, at 8-11 ("Brief for the United States Supporting Petitioner"); Brief Amicus Curiae of Ohio, et al, in Support of the Petitioner, at 1-6; Brief of the Center for the Community Interest as Amicus Curiae in Support of Petitioner, at 7-27; Brief of the U.S. Conference of Mayors, et al, as Amici Curiae in Support of Petitioner, at 2-7; Brief of Amici Curiae Natl Dist Attorneys Association and Intl Association of Chiefs of Police in Support of Petitioner, at 2-5.
4. This argument was presented most powerfully in several articles by Tracey Meares and Dan Kahan, as well as in an amicus brief before the Supreme Court that they helped to draft. See, e.g., Dan M. Kahan and Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure, 86 Geo L J 1153, 1171-80 (1998); Tracey L. Meares and Dan M. Kahan, The Wages of Antiquated Procedural Thinking: A Critique of Chicago v. Morales, 1998 U Chi Legal F 197, 209-14; Chicago v Morales, No 97-1121, Brief Amicus Curiae of the Chicago Neighborhood Organizations in Support of Petitioner, at 1-5. The United States and approximately thirty-one states, as well as various community groups, governmental associations, and law enforcement organizations, also submitted briefs arguing that the Chicago ordinance represented a constitutionally appropriate response to the plague of gang violence besetting some Chicago neighborhoods. See, e.g., Brief for the United States as Amicus Curiae Supporting Petitioner, at 8-11 ("Brief for the United States Supporting Petitioner"); Brief Amicus Curiae of Ohio, et al, in Support of the Petitioner, at 1-6; Brief of the Center for the Community Interest as Amicus Curiae in Support of Petitioner, at 7-27; Brief of the U.S. Conference of Mayors, et al, as Amici Curiae in Support of Petitioner, at 2-7; Brief of Amici Curiae Natl Dist Attorneys Association and Intl Association of Chiefs of Police in Support of Petitioner, at 2-5.
5. See, e.g., David Cole, Foreword: Discretion and Discrimination Reconsidered: A Response to the New Criminal Justice Scholarship, 87 Geo L J 1059, 1067 (1999). See also Albert W. Alschuler and Stephen J. Schulhofer, Antiquated Procedures or Bedrock Rights? A Response to Professors Meares and Kahan, 1998 U Chi Legal F 215, 216. This argument was also pressed in amicus briefs submitted by various civil rights organizations, law enforcement associations, and lawyers' groups. See, e.g., Brief of Amici Curiae Natl Black Police Association, et al, in Support of Respondents, pp 7-14; Brief Amicus Curiae of the Natl Association of Criminal Defense Lawyers in Support of the Respondents, pp 5-9; Brief of Chicago Alliance for Neighborhood Safety, et al, as Amici Curiae in Support of Respondents, pp 12-18 ("Chicago Alliance Brief in Support of Respondents").
6. See, e.g., David Cole, Foreword: Discretion and Discrimination Reconsidered: A Response to the New Criminal Justice Scholarship, 87 Geo L J 1059, 1067 (1999). See also Albert W. Alschuler and Stephen J. Schulhofer, Antiquated Procedures or Bedrock Rights? A Response to Professors Meares and Kahan, 1998 U Chi Legal F 215, 216. This argument was also pressed in amicus briefs submitted by various civil rights organizations, law enforcement associations, and lawyers' groups. See, e.g., Brief of Amici Curiae Natl Black Police Association, et al, in Support of Respondents, pp 7-14; Brief Amicus Curiae of the Natl Association of Criminal Defense Lawyers in Support of the Respondents, pp 5-9; Brief of Chicago Alliance for Neighborhood Safety, et al, as Amici Curiae in Support of Respondents, pp 12-18 ("Chicago Alliance Brief in Support of Respondents").
7. Morales, 119 S Ct at 1861-62.
8. For a statement by the Court that the facial vagueness doctrine is animated principally by a concern with limiting the potential for arbitrary enforcement, see Kolender v Lawson, 461 US 352, 357-58 (1983).
9. 392 US 1 (1968).
10. Id at 12.
11. 405 US 156 (1972).
12. For a description of the application of facial vagueness doctrine to a broad variety of "street order" laws in the 1960s and 1970s, see Livingston, 97 Colum L Rev at 595-601 (cited in note 2).
13. Papachristou, 405 US at 161-62, 168-71. The text of the Jacksonville ordinance provided in relevant part as follows: Rogues and vagabonds, or dissolute persons who go about begging, common gamblers persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses. 405 US at 158 n 1 (quoting ordinance).
14. Papachristou, 405 US at 161-62, 168-71. The text of the Jacksonville ordinance provided in relevant part as follows: Rogues and vagabonds, or dissolute persons who go about begging, common gamblers persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children shall be deemed vagrants and, upon conviction in the Municipal Court shall be punished as provided for Class D offenses. 405 US at 158 n 1 (quoting ordinance).
15. See, e.g., Morales, 119 S Ct at 1863 (opinion of Stevens, joined by Souter and Ginsburg); id at 1864-65 (O'Connor concurring in part and concurring in the judgment, joined by Breyer).
16. See Morales, 119 S Ct at 1861-63.
17. See Grayned v City of Rockford, 408 US 104, 108-09 (1972).
18. The majority in Morales concluded after parsing its language that the Chicago ordinance's loitering definition (which defined loitering to mean "remain[ing] in any one place with no apparent purpose") was impermissibly vague. See Morales, 119 S Ct at 1861-62.
19. John Calvin Jeffries, Jr., Legality, Vagueness, and the Construction of Penal Statutes, 71 Va L Rev 189, 196 (1985).
20. See Carolyn Rebecca Block, et al, Research Bulletin: Street Gangs and Crime 4 (Ill Criminal Justice Information Authority, Sept 1996) ("Street Gangs and Crime"). The Chicago Police Department designates an offense as street gang related when a preponderance of the evidence indicates "that the offense grew out of an street gang function." Id at 2. The gang membership of a perpetrator or victim is not alone enough to establish gang relatedness. Id.
21. See id at 5, 8. See also Carolyn Rebecca Block and Richard Block, Street Gang Crime in Chicago 4 (Natl Institute of Justice, Dec 1993) ("Street Gang Crime in Chicago").
22. See Street Gang Crime in Chicago at 1 (cited in note 18).
23. Street Gangs and Crime at 23 (cited in note 17).
24. Street Gang Crime in Chicago at 4 (cited in note 18).
25. See id at 8. See also Street Gangs and Crime at 20 (cited in note 17).
26. See Street Gang Crime in Chicago at 2, n 6 (cited in note 18).
27. See Street Gangs and Crime at 20 (cited in note 17).
28. See Alschuler and Schulhofer, 1998 U Chi Legal F at 217 (cited in note 4). See also Editorial, Anti-Gang Law Isn't the Answer, Chi Tribune 16 (May 20, 1992).
29. See Alschuler and Schulhofer, 1998 U Chi Legal F at 217 (cited in note 4). See also Editorial, Anti-Gang Law Isn't the Answer, Chi Tribune 16 (May 20, 1992).
30. Transcription of Proceedings before the Committee on Police and Fire of the Chicago City Council 168-69 (May 18, 1992) (statement of Desiree Davidson) ("May 18 Transcript")
31. Morales, 119 S Ct at 1880 (Thomas dissenting, joined by Rehnquist and Scalia) (quoting Transcription of Proceedings before the Committee on Police and Fire of the Chicago City Council 93-95 (May 15, 992)).
32. May 18 Transcript at 99 (statement of Harvey Grossman, Legal Director of the American Civil Liberties Union of Illinois) (cited in note 26).
33. Id at 175, 185-86 (statement of Gerald Cooper, Assistant Deputy Superintendent, Chicago Police Department).
34. Chicago Alliance Brief in Support of Respondents at 4 (cited in note 4).
35. Robert Davis, New Police Arrest Power Light City Council Fuse, Chi Tribune A1 (June 18, 1992).
36. See id. See also Alschuler and Schulhofer, 1998 U Chi Legal F at 220 (cited in note 4) (noting that eight African-American aldermen voted against the ordinance).
37. Fran Spielman, Loitering Ban Passes: Aldermen Bitterly Split on Anti-Gang Measures, Chi Sun-Times 1 (June 18, 1992) (quoting remarks of Ald. John Steele). See also id (remarks of Ald. Dorothy Tillman and Ald. Allan Streeter).
38. See Tracey L. Meares and Dan M. Kahan, Black, White and Gray: A Reply to Alschuler and Schulhofer, 1998 U Chi L F 245, 249-50. See also Jan Crawford Greenburg, Top Court Ruling Shows Way to a Legal Anti-Loitering Law, Chi Tribune 1 (June 11, 1999) (noting that "ordinance had widespread support in many communities plagued by gang violence, putting some activists at odds with the ACLU - a traditional ally").
39. See Tracey L. Meares and Dan M. Kahan, Black, White and Gray: A Reply to Alschuler and Schulhofer, 1998 U Chi L F 245, 249-50. See also Jan Crawford Greenburg, Top Court Ruling Shows Way to a Legal Anti-Loitering Law, Chi Tribune 1 (June 11, 1999) (noting that "ordinance had widespread support in many communities plagued by gang violence, putting some activists at odds with the ACLU - a traditional ally").
40. John Kass, Old Tactic Sought in Crime War, Chi Tribune A1 (May 15, 1992). See also Meares and Kahan, 1998 U Chi Legal F at 247-48 (cited in note 34).
41. John Kass, Old Tactic Sought in Crime War, Chi Tribune A1 (May 15, 1992). See also Meares and Kahan, 1998 U Chi Legal F at 247-48 (cited in note 34).
42. See Davis, New Police Arrest Power Lights City Council Fuse, Chi Tribune at A1 (cited in note 31).
43. Alschuler and Schulhofer, 1998 U Chi Legal F at 220 (cited in note 4). Four African-American aldermen did not vote. Id & n 33.
44. See Chicago v Morales, 177 Ill 2d 440, 445, 687 NE2d 53 (1997) (quoting the ordinance's findings in full).
45. See Chicago v Morales, 177 Ill 2d 440, 445, 687 NE2d 53 (1997) (quoting the ordinance's findings in full).
46. Id.
47. Id.
48. Id.
49. Municipal Code of Chicago, § 8-4-015(a).
50. 18 USC §§ 1961-68.
51. Municipal Code of Chicago, § 8-4-015(c)(2) & (3).
52. Id at § 8-4-015(c)(3).
53. See id at § 8-4-015(c)(4).
54. Id at § 8-4-015(c)(a).
55. Id at § 8-4-015(a).
56. Id at § 8-4-015(b).
57. See id at § 8-4-015(e).
58. See Chicago Police Department, General Order No 92-4 at §§ I, II.
59. See id at § III.A.
60. See id at § IV.
61. See id at § V.
62. See id at § V.B.
63. Id at § VI.A.1.
64. Id.
65. See id.
66. See id at § III.C.
67. See id at § VI.C.1.
68. See id at § VI.C.3.c.
69. See Morales, 119 S Ct at 1855, n 6.
70. See id at 1855. Police made 5,251 arrests under the ordinance in 1993, 15,660 in 1994, and 22,056 in 1995. See id, n 7.
71. Meares and Kahan, 1998 U Chi Legal F at 252 (cited in note 34).
72. Robert Davis, Special Units to Police Loiterers: City Wants to Make New Anti-Gang Law Hold Up in Court, Chi Tribune 3 (June 19, 1992).
73. Alschuler and Schulhofer, 1998 U Chi Legal F at 220, n 35 (cited in note 4). Only thirteen of the nineteen African-American aldermen were present at this vote. The majority of those present, however, voted in favor of the resolution, and four of the six not present had voted in favor of the ordinance's passage in 1992. Based on the assumption that each of the six missing aldermen would not have changed his vote if present, Professors Meares and Kahan suggest that by 1998, a majority of African-American aldermen supported the ordinance. See Meares and Kahan, 1998 U Chi Legal F at 250, n 24 (cited in note 34).
74. Alschuler and Schulhofer, 1998 U Chi Legal F at 220, n 35 (cited in note 4). Only thirteen of the nineteen African-American aldermen were present at this vote. The majority of those present, however, voted in favor of the resolution, and four of the six not present had voted in favor of the ordinance's passage in 1992. Based on the assumption that each of the six missing aldermen would not have changed his vote if present, Professors Meares and Kahan suggest that by 1998, a majority of African-American aldermen supported the ordinance. See Meares and Kahan, 1998 U Chi Legal F at 250, n 24 (cited in note 34).
75. Alschuler and Schulhofer, 1998 U Chi Legal F at 237 (cited in note 4).
76. Chicago v Youkhana 277 Ill App 3d 101, 106-14, 660 NE2d 34 (1995).
77. Chicago v Youkhana 277 Ill App 3d 101, 106-14, 660 NE2d 34 (1995).
78. Morales, 177 Ill 2d at 447.
79. See Cass R. Sunstein, One Case at a Time 110 (Harv U Press, 1999).
80. Id at ix-x.
81. Id at ix.
82. Id.
83. Id at xi.
84. Kolender, 461 US at 357-58.
85. See Morales, 119 S Ct at 1861-62.
86. See id.
87. Id at 1862.
88. Id at 1861 (quoting Morales, 177 Ill 2d at 457).
89. Id at 1862.
90. Id at 1861 (quoting Kolender, 461 US at 359).
91. Id at 1859 (opinion of Stevens, joined by Souter and Ginsburg).
92. See id at 1860.
93. See id.
94. Id.
95. Id at 1857-58 (quoting Kent v Dulles, 357 US 116, 126 (1958)). The plurality rejected the view that Chicago's gang loitering ordinance violated First Amendment rights for two reasons. First, the ordinance's prohibition on loitering "with no apparent purpose," the plurality said, did not interfere with the First Amendment rights of those loitering for the apparent purpose of communicating ideas. Second, the ordinance, by not reaching associations for the purpose of engaging in core First Amendment activities or intimate human associations, failed to implicate any right protected by the right of association. See id at 1857.
96. Id at 1858 (citations omitted).
97. In a brief opinion concurring in part and concurring in the judgment, Justice Kennedy did note that he shared many of the plurality's concerns about the sufficiency of the notice provided by the ordinance. See id at 1865 (Kennedy concurring in part and concurring in the judgment).
98. Id at 1864 (O'Connor concurring in part and concurring in the judgment, joined by Breyer).
99. See id.
100. Id at 1864-65.
101. See id at 1864.
102. See id at 1867-72 (Scalia dissenting).
103. Id at 1869-71.
104. 481 US 739, 745 (1987).
105. Morales, 119 S Ct at 1858, n 22 (opinion of Stevens, joined by Souter and Ginsburg).
106. Id. In his opinion concurring in part and concurring in the judgment, Justice Breyer similarly suggested that facial invalidation for vagueness is proper whenever a law delegates so much discretion to police that it can fairly be said that "every application of the ordinance represents an exercise of unlimited discretion." Id at 1866 (Breyer concurring in part and concurring in the judgment) (emphasis added). He argued that in this sense, facial invalidation for vagueness is unlike those cases in which the Court has entertained a facial challenge for overbreadth in the First Amendment context. In the latter cases, "a defendant whose conduct clearly falls within the law and may be constitutionally prohibited can nonetheless have the law declared facially invalid to protect the rights of others (whose protected speech might otherwise be chilled)." A law permeated with vagueness, in contrast, confers so much unchecked discretion on enforcement authorities that it is "invalid in all its applications." Accordingly, the right that defendants assert in facial vagueness cases - namely, "the right to be free from the officer's exercise of unchecked discretion" - is, in Justice Breyer's view, "more clearly their own." Id.
107. Id at 1875 (Scalia dissenting).
108. Id at 1877, n 11.
109. Id at 1876.
110. Id at 1885 (Thomas dissenting, joined by Rehnquist and Scalia) (quoting majority's citation to Kolender, 461 US at 359). Both dissents similarly chastised the majority for purporting to be bound by the Illinois Supreme Court's statement that the "apparent purpose" standard "provides absolute discretion to police officers" to decide what constitutes loitering. See id at 1876 (Scalia dissenting); id at 1887, n 11 (Thomas dissenting, joined by Rehnquist and Scalia). In the words of Justice Scalia, the Illinois Supreme Court's statement was nothing more than a characterization of the ordinace's language in light of that court's refusal to read any limitations into it: "It [was] not a construction of the language (to which we are bound) but a legal conclusion (to which we most assuredly are not bound)." Id at 1876 (Scalia dissenting).
111. Id at 1886 (Thomas dissenting, joined by Rehnquist and Scalia). See also id at 1875-76 (Scalia dissenting).
112. Id at 1875 (Scalia dissenting).
113. Id at 1881-83 (Thomas dissenting, joined by Rehnquist and Scalia) (quoting Washington v Glucksberg, 521 US 702, 721 (1997) (citation omitted)). See also id at 1872-73 (Scalia dissenting).
114. Id at 1872 (Scalia dissenting).
115. Id at 1880 (Thomas dissenting, joined by Rehnquist and Scalia).
116. Id.
117. Id at 1887.
118. Id.
119. Id.
120. See Richard H. Fallon, Jr., et al, The Federal Courts and the Federal System 212-13 (Foundation Press, 4th ed 1996) (nothing mixed signals sent by Court as to when facial invalidation for vagueness is appropriate). Compare Village of Hoffman Estates v Flipside, Hoffman Estates, Inc., 455 US 489, 494-95 (1982) ("[A]ssuming the enactment implicates no constitutionally protected conduct," a court should entertain a facial vagueness challenge " only if the enactment is impermissibly vague in all of its applications"), with Kolender, 461 US at 359, n 8 (permitting party to attack statute on ground that it would be impermissibly vague as applied to someone else and asserting that "[n]o authority cited by the dissent" supports argument that facial vagueness challenges are permitted only when statute is vague in all its applications).
121. See Richard H. Fallon, Jr., et al, The Federal Courts and the Federal System 212-13 (Foundation Press, 4th ed 1996) (nothing mixed signals sent by Court as to when facial invalidation for vagueness is appropriate). Compare Village of Hoffman Estates v Flipside, Hoffman Estates, Inc., 455 US 489, 494-95 (1982) ("[A]ssuming the enactment implicates no constitutionally protected conduct," a court should entertain a facial vagueness challenge " only if the enactment is impermissibly vague in all of its applications"), with Kolender, 461 US at 359, n 8 (permitting party to attack statute on ground that it would be impermissibly vague as applied to someone else and asserting that "[n]o authority cited by the dissent" supports argument that facial vagueness challenges are permitted only when statute is vague in all its applications).
122. See Richard H. Fallon, Jr., et al, The Federal Courts and the Federal System 212-13 (Foundation Press, 4th ed 1996) (nothing mixed signals sent by Court as to when facial invalidation for vagueness is appropriate). Compare Village of Hoffman Estates v Flipside, Hoffman Estates, Inc., 455 US 489, 494-95 (1982) ("[A]ssuming the enactment implicates no constitutionally protected conduct," a court should entertain a facial vagueness challenge " only if the enactment is impermissibly vague in all of its applications"), with Kolender, 461 US at 359, n 8 (permitting party to attack statute on ground that it would be impermissibly vague as applied to someone else and asserting that "[n]o authority cited by the dissent" supports argument that facial vagueness challenges are permitted only when statute is vague in all its applications).
123. Winters v New York, 333 US 507, 524 (1948) (Frankfurter dissenting).
124. Robert Force, Decriminalization of Breach of the Peace Statutes: A Nonpenal Approach to Order Maintenance, 46 Tulane L Rev 367, 399 (1972). For a more detailed description of these laws and their invalidation in the 1960s and 1970s, see Livingston, 97 Colum L Rev at 595-601 (cited in note 2).
125. Robert Force, Decriminalization of Breach of the Peace Statutes: A Nonpenal Approach to Order Maintenance, 46 Tulane L Rev 367, 399 (1972). For a more detailed description of these laws and their invalidation in the 1960s and 1970s, see Livingston, 97 Colum L Rev at 595-601 (cited in note 2).
126. For an explicit expression of this concern, see Papachristou, 405 US at 170 (noting that imprecise terms of ordinance "permit[ ] and encourage[ ] an arbitrary and discriminatory enforcement of the law").
127. Kolender, 461 US at 358 (quoting Smith v Goguen, 415 US 566, 575 (1974)).
128. Kolender, 461 US at 358 (quoting Smith v Goguen, 415 US 566, 575 (1974)).
129. See Jeffries, 71 Va L Rev at 215-16 (cited in note 16) (noting that vagueness doctrine is more commonly invoked against "street-cleaning" statutes than against laws criminalizing more serious conduct).
130. The lack of meaningful judicial review in this area was seen as particularly troublesome because of ongoing civel rights struggles in the South. Indeed, many of the cases pressing facial challenges to public order laws in the 1960s involved the use of such laws to suppress peaceful sit-ins and civil rights demonstrations in Southern states. For a more detailed discussion of the historical context in which these were decided, see Livingston, 97 Colum L Rev at 598-601 (cited in note).
131. Kolender, 461 US at 358 (quoting Shuttlesworth v City of Birmingham, 382 US 87, 90 (1965)).
132. Kolender, 461 US at 358 (quoting Shuttlesworth v City of Birmingham, 382 US 87, 90 (1965)).
133. Morales, 119 S Ct at 1863 (opinion of Stevens, joined by Souter and Ginsburg).
134. For an account of how discretion in criminal justice administration was only "discovered" beginning in the late 1950s and how thereafter it became better understood, see Samuel Walker, Taming the System 6-12 (Oxford U Press, 1993).
135. See William Ruefle and Kenneth Mike Reynolds, Curfews and Delinquency in Major American Cities, 41 Crime & Delinquency 347, 353 (1995) (noting recent popularity of juvenile curfews).
136. See Morales, 177 Ill 2d at 445 (quoting City Council's findings).
137. It has also received some support in the academic literature See, e.g., Peter W. Poulos, Comment, Chicago's Ban on Gang Loitering: Making Sense of Vagueness and Overbreadth in Loitering Laws, 83 Cal L Rev 379, 340 (1995).
138. Morales, 119 S Ct at 1862.
139. Coates v Cincinnati, 402 US 611, 614 (1971).
140. See, e.g., Papachristou, 405 US at 163.
141. See e.g., E.L. v State, 619 S2d 252, 253 (Fla 1993) (invalidating drug loitering ordinance as vague); Wyche v State, 619 S2d 231, 236 (Fla 1993) (invalidating prostitution loitering ordinance for vagueness); City of Akron v Rowland, 67 Ohio St 3d 374, 381-86, 618 NE2d 138 (Ohio 1993) (invalidating drug loitering ordinance as vague).
142. See e.g., E.L. v State, 619 S2d 252, 253 (Fla 1993) (invalidating drug loitering ordinance as vague); Wyche v State, 619 S2d 231, 236 (Fla 1993) (invalidating prostitution loitering ordinance for vagueness); City of Akron v Rowland, 67 Ohio St 3d 374, 381-86, 618 NE2d 138 (Ohio 1993) (invalidating drug loitering ordinance as vague).
143. See e.g., E.L. v State, 619 S2d 252, 253 (Fla 1993) (invalidating drug loitering ordinance as vague); Wyche v State, 619 S2d 231, 236 (Fla 1993) (invalidating prostitution loitering ordinance for vagueness); City of Akron v Rowland, 67 Ohio St 3d 374, 381-86, 618 NE2d 138 (Ohio 1993) (invalidating drug loitering ordinance as vague).
144. See e.g., E.L. v State, 619 S2d 252, 253 (Fla 1993) (invalidating drug loitering ordinance as vague); Wyche v State, 619 S2d 231, 236 (Fla 1993) (invalidating prostitution loitering ordinance for vagueness); City of Akron v Rowland, 67 Ohio St 3d 374, 381-86, 618 NE2d 138 (Ohio 1993) (invalidating drug loitering ordinance as vague).
145. See Screws v United States, 325 US 91, 103-04 (1945).
146. Id at 104.
147. Goguen, 415 US at 575.
148. See Street Gangs and Crime at 7 (cited in note 17).
149. See Livingston, 97 Colum L Rev at 556, n 15 (cited in note 2) (juvenile curfews now in effect in nearly three-quarters of the nation's largest cities).
150. Ruefle and Reynolds, 41 Crime & Delinquency at 353 (cited in note 121).
151. See id.
152. Hutchins v District of Columbia, 188 F3d 531, 534 (DC Cir 1999). As the D.C. Circuit Court noted, by its terms, the curfew is not violated if the minor is: (1) accompanied by the minor's parent or guardian or any other person 21 years or older authorized by a parent to be a caretaker for the minor; (2) on an errand at the direction of the minor's parent, guardian, or caretaker, without any detour or stop; (3) in a vehicle involved in interstate travel; (4) engaged in certain employment activity, or going to or from employment, without any detour or stop; (5) involved in an emergency; (6) on the sidewalk that abuts the minor's or the nextdoor neighbor's residence, if the neighbor has not complained to the police; (7) in attendance at an official school, religious, or other recreational activity sponsored by the District of Columbia, a civic organization, or another similar entity that takes responsibility for the minor, or going to or from, without any detour or stop, such an activity supervised by adults; or (8) exercising First Amendment rights, including free exercise of religion, freedom of speech, and the right of assembly. Id at 535.
153. Id at 541.
154. See Schleifer v City of Charlottesville, 159 F3d 843, 853 (4th Cir 1998) (quoting Colten v Kentucky, 407 US 104, 110 (1972)). See also Qutb v Strauss, 11 F3d 488, 492 (5th Cir 1993) (rejecting equal protection challenge to a juvenile curfew). But see Nunez v City of San Diego, 114 F3d 935, 940-52 (9th Cir 1997) (holding that juvenile curfew was unconstitutionally vague and overbroad, and that curfew violated equal protection and parents' fundamental right to rear children without undue governmental interference).
155. See Schleifer v City of Charlottesville, 159 F3d 843, 853 (4th Cir 1998) (quoting Colten v Kentucky, 407 US 104, 110 (1972)). See also Qutb v Strauss, 11 F3d 488, 492 (5th Cir 1993) (rejecting equal protection challenge to a juvenile curfew). But see Nunez v City of San Diego, 114 F3d 935, 940-52 (9th Cir 1997) (holding that juvenile curfew was unconstitutionally vague and overbroad, and that curfew violated equal protection and parents' fundamental right to rear children without undue governmental interference).
156. See Schleifer v City of Charlottesville, 159 F3d 843, 853 (4th Cir 1998) (quoting Colten v Kentucky, 407 US 104, 110 (1972)). See also Qutb v Strauss, 11 F3d 488, 492 (5th Cir 1993) (rejecting equal protection challenge to a juvenile curfew). But see Nunez v City of San Diego, 114 F3d 935, 940-52 (9th Cir 1997) (holding that juvenile curfew was unconstitutionally vague and overbroad, and that curfew violated equal protection and parents' fundamental right to rear children without undue governmental interference).
157. See Schleifer v City of Charlottesville, 159 F3d 843, 853 (4th Cir 1998) (quoting Colten v Kentucky, 407 US 104, 110 (1972)). See also Qutb v Strauss, 11 F3d 488, 492 (5th Cir 1993) (rejecting equal protection challenge to a juvenile curfew). But see Nunez v City of San Diego, 114 F3d 935, 940-52 (9th Cir 1997) (holding that juvenile curfew was unconstitutionally vague and overbroad, and that curfew violated equal protection and parents' fundamental right to rear children without undue governmental interference).
158. See Robert Hanley, Authorities Turn to Curfews to Clear the Streets of Teen-Agers, NY Times B1 (Nov 8, 1993) (citing critics of curfews). See also Todd S. Purdum, Clinton Backs Plan to Deter Youthful Violence, NY Times A20 (May 31, 1996) (noting President Clinton's endorsement of juvenile curfews).
159. See Robert Hanley, Authorities Turn to Curfews to Clear the Streets of Teen-Agers, NY Times B1 (Nov 8, 1993) (citing critics of curfews). See also Todd S. Purdum, Clinton Backs Plan to Deter Youthful Violence, NY Times A20 (May 31, 1996) (noting President Clinton's endorsement of juvenile curfews).
160. See Egon Bittner, Aspects of Police Work 98 (Northeastern U Press, 1990) (noting that "young people in general" are "preferred targets of special police concern").
161. See Hanley, Authorities Turn to Curfews to Clear the Streets of Teen-Agers, NY Times at B1 (cited in note 138).
162. See Jerry Gray, New Jersey Plans to Forestall Suit on Race Profiling, NY Times A1 (Apr 30, 1999) (noting negotiations between Justice Department and New Jersey officials). See also Robert Cohen, Whitman Vows to Root Out Racial Profiling, Star-Ledger 24 (Apr 15, 1999) (reporting on statement by Governor Christine Whitman).
163. See Jerry Gray, New Jersey Plans to Forestall Suit on Race Profiling, NY Times A1 (Apr 30, 1999) (noting negotiations between Justice Department and New Jersey officials). See also Robert Cohen, Whitman Vows to Root Out Racial Profiling, Star-Ledger 24 (Apr 15, 1999) (reporting on statement by Governor Christine Whitman).
164. David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 Supreme Court Review 271, 313.
165. Id at 312. See also Henry L. Gates, Jr., Thirteen Ways of Looking at a Black Man, New Yorker 59 (Oct 23, 1995) (noting that "[t]here's a moving violation that many African-Americans know as D.W.B.: Driving While Black").
166. Sklansky, 1997 Supreme Court Review at 298-99 (cited in note 142).
167. This is despite the urging of Kenneth Culp Davis, who argued that "the vagueness of the enforcement policy is at least as important as the vagueness of a statute or ordinance, for it just as much permits and encourages arbitrary and discriminatory enforcement of the law." Kenneth Culp Davis, Police Discretion 137 (West, 1975).
168. 517 US 806 (1996).
169. Id at 808.
170. See id at 808, 815.
171. See id at 809.
172. See id at 808-09.
173. Id at 810.
174. Id at 814.
175. Id at 818-19.
176. Earl M. Sweeney, Traffic Enforcement: New Uses for an Old Tool, Police Chief 45 (July 1996).
177. See, e.g., Eric Pooley, One Good Apple, Time 54, 56 (Jan 15, 1996) (noting observation by one New York City police official that enforcement of public drinking law often permits officers to locate weapons on the people stopped).
178. See Ruben Castaneda, As D.C. Police Struggle On, Change Pays Off in New York, Washington Post A1 (Mar 30, 1996) (quoting New York City Deputy Police Commissioner).
179. This is not to say that police may exercise their discretion in a manner that discriminates on the basis of factors like race. As the Court has said, "the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause. . . . " Whren, 517 US at 813. It is impossible to view the Court's selective enforcement doctrine, however, as a robust control over the arbitrary exercise of police discretion First this doctrine addresses actual and intentional discrimination, rather than the potential for arbitrary and discriminatory enforcement that a given legal regime may create. Second defendants bear an "extremely heavy burden of proof" to overcome the presumption of regularity that attaches to criminal law enforcement. Wayne R. LaFave, Arrest 163 (Little Brown, 1965). See also United States v Armstrong, 517 US 456, 465 (1996) (to dispel presumption that law enforcement authorities have not violated equal protection, "a criminal defendant must present 'clear evidence to the contrary' ") (quoting United States v Chemical Foundation, Inc., Inc., 272 US 1, 14-15 (1926)).
180. This is not to say that police may exercise their discretion in a manner that discriminates on the basis of factors like race. As the Court has said, "the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause. . . . " Whren, 517 US at 813. It is impossible to view the Court's selective enforcement doctrine, however, as a robust control over the arbitrary exercise of police discretion First this doctrine addresses actual and intentional discrimination, rather than the potential for arbitrary and discriminatory enforcement that a given legal regime may create. Second defendants bear an "extremely heavy burden of proof" to overcome the presumption of regularity that attaches to criminal law enforcement. Wayne R. LaFave, Arrest 163 (Little Brown, 1965). See also United States v Armstrong, 517 US 456, 465 (1996) (to dispel presumption that law enforcement authorities have not violated equal protection, "a criminal defendant must present 'clear evidence to the contrary' ") (quoting United States v Chemical Foundation, Inc., Inc., 272 US 1, 14-15 (1926)).
181. This is not to say that police may exercise their discretion in a manner that discriminates on the basis of factors like race. As the Court has said, "the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause. . . . " Whren, 517 US at 813. It is impossible to view the Court's selective enforcement doctrine, however, as a robust control over the arbitrary exercise of police discretion First this doctrine addresses actual and intentional discrimination, rather than the potential for arbitrary and discriminatory enforcement that a given legal regime may create. Second defendants bear an "extremely heavy burden of proof" to overcome the presumption of regularity that attaches to criminal law enforcement. Wayne R. LaFave, Arrest 163 (Little Brown, 1965). See also United States v Armstrong, 517 US 456, 465 (1996) (to dispel presumption that law enforcement authorities have not violated equal protection, "a criminal defendant must present 'clear evidence to the contrary' ") (quoting United States v Chemical Foundation, Inc., Inc., 272 US 1, 14-15 (1926)).
182. This is not to say that police may exercise their discretion in a manner that discriminates on the basis of factors like race. As the Court has said, "the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause. . . . " Whren, 517 US at 813. It is impossible to view the Court's selective enforcement doctrine, however, as a robust control over the arbitrary exercise of police discretion First this doctrine addresses actual and intentional discrimination, rather than the potential for arbitrary and discriminatory enforcement that a given legal regime may create. Second defendants bear an "extremely heavy burden of proof" to overcome the presumption of regularity that attaches to criminal law enforcement. Wayne R. LaFave, Arrest 163 (Little Brown, 1965). See also United States v Armstrong, 517 US 456, 465 (1996) (to dispel presumption that law enforcement authorities have not violated equal protection, "a criminal defendant must present 'clear evidence to the contrary' ") (quoting United States v Chemical Foundation, Inc., Inc., 272 US 1, 14-15 (1926)).
183. Ornelas v United States, 517 US 690, 695 (1996).
184. Id.
185. See United States v Watson, 423 US 411, 414-24 (1976) (holding that warrantless felony arrests in public places are consistent with the Fourth Amendment).
186. See California v Acevedo, 500 US 565, 580 (1991) (holding that warrantless felony to believe evidence will be found in an automobile may search any container in automobile in which said evidence might be located); California v Carney, 471 US 386, 30 (1985) (holding that a motor home falls within "automobile exception" and may be searched without a warrant upon a finding of probable cause).
187. See California v Acevedo, 500 US 565, 580 (1991) (holding that warrantless felony to believe evidence will be found in an automobile may search any container in automobile in which said evidence might be located); California v Carney, 471 US 386, 30 (1985) (holding that a motor home falls within "automobile exception" and may be searched without a warrant upon a finding of probable cause).
188. See Warden v Hayden, 387 US 294, 298-99 (1967) (discussing "hot pursuit"); Johnson v United States, 333 US 10, 15 (1948) (discussing threat of destruction of evidence).
189. See Warden v Hayden, 387 US 294, 298-99 (1967) (discussing "hot pursuit"); Johnson v United States, 333 US 10, 15 (1948) (discussing threat of destruction of evidence).
190. Illinois v Gates, 462 US 213, 232 (1983).
191. 392 US at 1.
192. Reasonable suspicion that a person has committed a crime in the past will also legitimate a Terry detention, at least in some circumstances. See United States v Hensley, 469 US 221, 227-29 (1985). For a general description of Terry and its progeny, see Wayne R. LaFave and Jerold H. Israel, Criminal Procedure § 3.8 at 202-14 (West, 2d ed 1992).
193. Reasonable suspicion that a person has committed a crime in the past will also legitimate a Terry detention, at least in some circumstances. See United States v Hensley, 469 US 221, 227-29 (1985). For a general description of Terry and its progeny, see Wayne R. LaFave and Jerold H. Israel, Criminal Procedure § 3.8 at 202-14 (West, 2d ed 1992).
194. See Terry, 392 US at 12.
195. See Report of the Natl Advisory Commission on Civil Disorders 157-59 (1968).
196. Terry, 392 US at 25.
197. United States v Cortez, 449 US 411, 417 (1981). See also Terry, 392 US at 12 (noting "limatations of the judicial function in controlling the myriad daily situations in which policemen and citizens confront each other on the street").
198. United States v Cortez, 449 US 411, 417 (1981). See also Terry, 392 US at 12 (noting "limatations of the judicial function in controlling the myriad daily situations in which policemen and citizens confront each other on the street").
199. Morales, 119 S Ct 1861 (characterizing ordinance).
200. Id at 1885 (Thomas dissenting, joined by Rehnquist and Scalia).
201. Id at 1861 (majority opinion).
202. This point draws upon and profits from Peter Strauss's more extended discussion of the role of the delegation and void-for-vagueness doctrines in the context of administrative law See Peter L. Strauss, Legislative Theory and the Rule of Law: Some Comments on Rubin, 89 Colum L Rev 427, 441-45 (1989).
203. See Shuttlesworth, 382 US at 90 (quoting Cox v Louisiana, 379 US 536, 579 (1965)).
204. See Shuttlesworth, 382 US at 90 (quoting Cox v Louisiana, 379 US 536, 579 (1965)).
205. For an argument that law enforcement efforts directed specifically at gangs are often counterproductive because they have the unintended effect of transforming loosely associated groups of young people into more solidly bonded (and threatening) criminal organizations; see Malcolm W. Klein, Street Gang Cycles, in James Q. Wilson and Joan Petersilia, eds, Crime 217, 235 (ICS Press, 1995).
206. Morales, 119 S Ct at 1861 (quoting Morales, 177 Ill 2d at 457).
207. Morales, 119 S Ct at 1861 (quoting Morales, 177 Ill 2d at 457).
208. See Wisconsin v Mitchell, 508 US 476, 484 (1993) (noting that Court is not bound by such characterizations).
209. Morales, 119 S Ct at 1876 (Scalia dissenting). See also id at 1887 n 11 (Thomas dissenting, joined by Rehnquist and Scalia).
210. Brief for the United States Supporting Petitioner at 13 (cited in note 3).
211. Id at 12.
212. Chicago v Morales, No 97-1121, Brief for the Petitioner, at 22.
213. See US S Ct Official Tr, Chicago v Morales, No 97-1121 (Dec 9, 1998), at 20-21.
214. See Herman Goldstein, Policing a Free Society 105 (Ballinger, 1977).
215. See id at 72.
216. See Grayned, 408 US at 108-09.
217. Morales, 119 S Ct at 1861-62.
218. For a general theoretical discussion of factors influencing the choice between more or less punitive sanctions, see John C. Coffee, Paradigms Lost: The Blurring of the Criminal and Civil Law Models - and What Can Be Done About It, 11 Yale L J 1875, 1886 (1992).
219. Village of Hoffman Estates, 455 US at 498-99 (expressing more tolerance for vagueness in laws with civil rather than criminal penalties "because the consequences of imprecision are qualitatively less severe").
220. Albert J. Reiss, Jr., Consequences of Compliance and Deterrence Models of Law Enforcement for the Exercise of Police Discretion, L & Contemp Probs, Autumn 1984, at 83, 84 n 3. See also James Q. Wilson, Varieties of Police Behavior 16 (Harv U Press, 1968).
221. Albert J. Reiss, Jr., Consequences of Compliance and Deterrence Models of Law Enforcement for the Exercise of Police Discretion, L & Contemp Probs, Autumn 1984, at 83, 84 n 3. See also James Q. Wilson, Varieties of Police Behavior 16 (Harv U Press, 1968).
222. See Johnson, 333 US at 14 (discussing "competitive" nature of law enforcement).
223. See Samuel Walker, The Police in America 61-63 (McGraw-Hill, 2d ed 1992) (noting prevalence of "crime fighting" self-image among police in traditional departments).
224. It is impossible entirely to separate order maintenance from law enforcement motives in policing as it is presently constituted. By approaching gang members in public places to issue "move along" orders, for example, police may thereby gain the ability to conduct legitimate Terry frisks for safety purposes - frisks that may uncover evidence to be used in the prosecution of serious crime. See, e.g., Pooley, One Good Apple, Time at 56 (cited in note 155) (noting observation of New York City police official that enforcement of public drinking law in New York has permitted officers to locate weapons carried by people stopped on the street). The formulation of Chicago's gang loitering law, however, ameliorates the problem posed by the interaction of order maintenance and law enforcement responsibilities in ways that should have been considered by the Court.
225. See Johnson, 333 US at 14.
226. Morales, 119 S Ct at 1862.
227. See Chicago Police Department, General Order No 92-4 at §§ III.C, VI.C.1 (cited in note 51).
228. See Wesley G. Skogan, Everybody's Business, Boston Rev 15, 16 (Apr/May 1999).
229. Id at 15.
230. See Chicago Police Department, General Order No 92-4 at §§ III.C, VI.C.1 (cited in note 51).
231. See id at § VI.A.1 In oral argument, at least one Justice seemed to discount this administrative requirement because the police regulations did not provide for public designation of those parts of the city determined to be places where the public presence of gang members had resulted in "a demonstrable effect on the activities of law abiding persons in the surrounding community." See US S Ct Official Tr, Morales at 22-23 (cited in note 182) Even internal administrative requirements, however, can help constrain the potential for arbitrary police enforcement - and in this case without imposing the costs on borderline neighborhoods that would likely flow from any formal public designation of their gang-infested status.
232. See Chicago Police Department, General Order No 92-4 at § VI.C.3 (cited in note 51).
233. For a fuller discussion of the role of record keeping in enhancing police accountability, see Debra Livingston, Police Reform and the Department of Justice: An Essay on Accountability, 2 Buff Crim L Rev 815, 846-52 (1999).
234. Chicago Police Department, General Order No 92-4 at § VI.A.5 (cited in note 51).
235. See id at § VI.A.6.a.
236. 491 US 781, 795-96 (1989).
237. Morales, 119 S Ct at 1862.
238. See id at 1885 (Thomas dissenting, joined by Rehnquist and Scalia).
239. See David Dixon, Law in Policing 278 (Clarendon, 1997).
240. Bittner, Aspects of Police Work at 245 (cited in note 139).
241. See Morales, 119 S Ct at 1862.
242. Id at 1865 (O'Connor concurring in part and concurring in the judgment, joined by Breyer).
243. Id at 1879 (Scalia dissenting).
244. Id at 1863 (O'Connor concurring in part and concurring in the judgment, joined by Breyer) (quoting id at 1885 (Thomas dissenting, joined by Rehnquist and Scalia)).
245. Goldstein, Policing a Free Society at 93 (cited in note 183).
246. For a discussion of how police not provided with "explicit authority to deal effectively with the problems they encounter" often become "dirty workers" who furtively " '[do]what has to be done' through the exercise of their discretion," see George L. Kelling and Catherine M. Coles, Fixing Broken Windows 167 (Free Press, 1996).
247. See Dixon, Law in Policing at 267-68 (cited in note 207).
248. See Michael C. Dorf, Foreword: The Limits of Socratic Deliberation, 112 Harv L Rev 4, 51-79 (1998).
249. Davis, Police Discretion at 137-38 (cited in note 145) (italics added).
250. Id at 137-38.
251. See id at 138.
252. For a provocative theoretical account of the general conflict between accountability and the flexibility required for effectiveness in bureaucratic administration - as well as as proposal for transcending this conflict - see Michael C. Dorf and Charles F. Sabel, Drug Treatment Courts and Emergent Experimentalist Government, Vand L Rev (forthcoming 2000).
253. This analysis builds upon, but also partly departs from, my earlier work on this subject in Livingston, 97 Colum L Rev at 667-70 (cited in note 2).
254. For a general discussion of this approach to accountability, see Dorf and Sabel, Vand L Rev (cited in note 220).
255. Skogan, Everybody's Business, Boston Rev at 15 (Apr/May 1999) (cited in note 196).
256. See id.
257. Id.
258. Id at 16.
259. See generally Strauss, 89 Colum L Rev at 445 (cited in note 173).
260. See Morales, 119 S Ct at 1862.