Where I Stand — Mike O’Callaghan: A wise court decision

Friday, June 18, 1999 | 9:41 a.m.

Mike O'Callaghan is the Las Vegas Sun executive editor.

AS NEVADA Struggles with the courts over control of the literary garbage handed out to people along the Strip, the U.S. Supreme Court has told Chicago its anti-loitering law is unconstitutional. It was the most aggressive anti-gang measure in our nation and gang-related homicides dropped 26 percent in 1995, the last year it was in force. It worked, but left much to be desired in the eyes of the majority of justices, who ruled against it 6-3.

Justice Clarence Thomas was one of the three dissenters and expressed his dismay as follows:

"Today, the Court focuses extensively on the 'rights' of gang members and their companions. It can safely do so -- the people who will have to live with the consequences of today's opinion do not live in our neighborhoods. Rather, the people who will suffer from our lofty pronouncements are people like Ms. Susan Mary Jackson; people who have seen their neighborhoods literally destroyed by gangs and violence and drugs. They are good, decent people who must struggle to overcome their desperate situation, against all odds, in order to raise their families, earn a living and remain good citizens. As one resident described, 'There is only about maybe one or two percent of the people in the city causing these problems maybe, but it's keeping 98 percent of us in our houses and off the streets and afraid to shop.' "

Justice Thomas had quoted 88-year-old Jackson who, in support of the ordinance, had testified, "We used to have a nice neighborhood. We don't have it anymore. ... I am scared to go out in the daytime ... you can't pass because they are standing. I am afraid to go to the store. I don't go to the store because I am afraid. At my age if they look at me real hard, I be ready to holler."

Referring to the gangs, Chicago resident D'Ivory Gordon had told her City Council, "When I walk out my door, these guys are out there. ... They watch you. ... They know where you live. They know what time you leave, what time you come home. I am afraid of them. I have even come to the point now that I carry a meat cleaver to work with me. ... I don't want to hurt anyone, and I don't want to be hurt. We need to clean these corners up. Clean these communities up and take it back from them."

There's no doubt that Justice Thomas feels the pain of the people suffering at the hands of gangs. But Justice John Paul Stevens, writing for the majority, points out that the Chicago ordinance failed to meet the requirement of the Due Process Clause and was so vague that it failed to tell the public the conduct it prohibits. The ordinance said that to loiter is "to remain in one place with no apparent reason." Stevens writes, "It is difficult to imagine how any citizen of the city of Chicago standing in a public place with a group of people would know if he or she had an 'apparent purpose.' If she were talking to another person, would she have an apparent purpose? If she were frequently checking her watch and looking expectantly down the street, would she have an apparent purpose?"

Stevens continues on to give the city's response and disputes the thinking behind it when writing: "The city's principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer's order to disperse. 'Whatever problem is created by a law that criminalizes conduct people normally believe to be innocent is solved when persons receive actual notice from a police order of what they are expected to do. ...'

"First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. 'No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.' Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit. If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. ...

"Second, the terms of the dispersal order compound the inadequacy of the notice afforded by the ordinance. It provides that the officer 'shall order all such persons to disperse and remove themselves from the area.' This vague phrasing raises a host of questions. After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? ...

"This ordinance is therefore vague 'not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all. ...' "

So does this mean the end of Chicago's war against gangs, named Vice Lords, Latin Kings and Gangster Disciples? No, Mayor Richard Daley and the City Council are already at the drawing board to write an ordinance to satisfy the demands of the Supreme Court's majority. Chicago's open-ended ordinance was ripe for a challenge. Anti-loitering laws in California and Nevada cities are much narrower and meet the expectations of our nation's highest court.

I can, like Justice Thomas, sympathize with the residents suffering from the gangs. On the other hand, Justice Stevens has found more constitutional problems with the present ordinance than should be allowed to exist in our U.S. legal system.