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Jewish World Review June 21, 1999 /7 Tamuz, 5759

Mona Charen

Mona Charen
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Econophone

Taking back our streets

http://www.jewishworldreview.com --
THE CITY OF CHICAGO had a problem familiar to many other cities: gangs. Sporting their colors, tattoos and other identifiers, they liked to hang out in poor neighborhoods looking for trouble. Responding to the law-abiding citizens of those neighborhoods, who reported feeling intimidated and unsafe, the Chicago City Council passed an anti-loitering ordinance.

The ordinance made it a crime punishable by a fine of up to $500 and imprisonment for up to six months to "loiter," defined as "remaining in any one place with no apparent purpose."

The council provided four predicates for the law's application.

First, the police must reasonably believe that one of two or more people congregating in a public place is a criminal street-gang member. Second, the gang member or members must be loitering. Third, the officer must order them to disperse. Fourth, they must disobey the order. Then, and only then, can police make an arrest.

If that sounds reasonable to you, it only shows that you are not a modern jurist. The Supreme Court ruled 6-3 on June 10 that the ordinance violates the Constitution.

Writing for the majority, Justice John Paul Stevens tortures common sense to arrive at the conclusion that the ordinance was too vague to pass constitutional muster. Quoting precedent, the court noted that "It is established that a law fails to meet the requirements of the Due Process clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits." Yes, so far so good. But Stevens then argues that "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.'"

Really? Don't most people one passes on the street have an apparent purpose? They are usually hurrying someplace or other (not standing around), walking their dogs, jogging, pushing baby carriages or going for a stroll. It actually seems quite easy to pick out folks who are up to no good. It is probably particularly easy for police familiar with the neighborhood to know who's who and what's what.

The common behaviors of law-abiding citizens in public places stand in stark contrast to those of street gangs. In its brief to the Supreme Court, the City of Chicago described it this way: "The very presence of a large collection of obviously brazen, insistent and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils ... entire neighborhoods."

You bet it does. As Mayor Rudolph Giuliani has demonstrated so conclusively in New York, cracking down on small crimes like turnstile jumping or "squeegee men" has a profound effect on a city's morale and on overall crime rates. In the first place, many of those who are caught doing smaller crimes turn out to be carrying illegal weapons, which can be confiscated. But it is also the case that cracking down on quality-of-life crimes ("fixing broken windows," in the phrase of George Kelling) contributes to an overall feeling of order and thus discourages crime.

As Justice Antonin Scalia points out in his dissent (the phrase should be a macro in everyone's computer), the vagueness doctrine only applies if the conduct that might get swept into the law's purview is constitutionally protected, like speech. Loitering is not so protected, "and so ... it is up to the citizens of Chicago -- not us -- to decide whether the trade-off is worth it."

By the logic of the majority, Chicago's ordinance requiring gawkers to move along when ordered to do so by police might be unconstitutionally vague, too. Who's to say whether an onlooker was really gawking? Perhaps the Supreme Court will next find a constitutional right to gawk.

The point is this: Whenever the courts restrict the legislatures, they are arrogating to themselves the right to make the rules in this society and removing that right from us. Residents of Chicago will want to ponder that loss as they sit, barricaded in their homes, and gaze out at the punks who will once again rule outdoors.


JWR contributor Mona Charen reads all of her mail. Let her know what you think by clicking here. Please bear in mind, though, that while all letters are read, due to the heavy amount of traffic, not all letters can be answered.


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©1999, Creators Syndicate