WASHINGTON -- Chicago's crackdown on criminal gangs, aimed at sweeping their members off the streets even when they are not breaking any laws, appeared to be in constitutional trouble in the Supreme Court yesterday.
Enough justices to form a solid majority reacted negatively to a 1992 Chicago anti-loitering ordinance that allows police to break up any sidewalk gathering that includes one known member of a "criminal street gang."
The ordinance was designed to stop gangs from assembling on street corners to claim territory, recruit members and intimidate neighbors with their presence.
The Chicago case is being followed by cities nationwide. Justice Department figures show there are 23,000 youth gangs, active in 98 percent of cities with populations of more than 100,000. Chicago's appeal has the support of the Clinton administration and 31 states.
A variety of gangs operate in Baltimore and figure frequently in prosecutions for drug crimes, according to city police. Local police also rely on anti-loitering and curfew laws to curb gang activity.
Though some justices expressed sympathy for ordinary citizens who stay inside their homes out of fear of gang violence in their neighborhoods, the court left the impression that it thinks Chicago is seeking to exert too much control over street life, including the activities of innocent bystanders.
Justice Sandra Day O'Connor, saying she was concerned about "the potential for arbitrariness by the police" in carrying out the ordinance, wondered why the city had not passed a law that focused directly on criminal activity by gang members.
She suggested that the Chicago ordinance could lead to the arrest of a citizen who was on the street "trying to persuade gang members to change their ways."
Justice Anthony M. Kennedy said he was troubled that the ordinance has "no standards" to guide police in deciding when to break up a street gathering. He noted that innocent citizens would not know when they were in a group that included a gang member, and thus might risk arrest.
Another justice, David H. Souter, complained that under the ordinance, a police order to break up a group of two or more on the sidewalk is authorized any time those in the crowd appear to have no "apparent purpose." Even people who are doing nothing but "watching cars go by" have some purpose, yet that might not be clear to an officer, Souter said.
Only Justice Antonin Scalia offered a strong defense of Chicago's ordinance, insisting that there is "no constitutional right to loiter."
Chief Justice William H. Rehnquist implied that he, too, supported the ordinance's constitutionality.
A lawyer for Chicago, Lawrence Rosenthal, warned of the threat that gang violence posed to Chicago and other cities.
"Street gangs terrorize neighborhoods," Rosenthal argued, and intimidate people not to cooperate with police in responding to nTC gang violence.
Saying there are 100,000 gang members in Chicago, Rosenthal said "the great virtue" of the anti-loitering ordinance is that citizens who are willing to call police to break up gang gatherings "get visible results" when the police promptly show up and act.
Chicago's ordinance, adopted six years ago, was in effect for about a year before it was blocked by the challenge to it in state courts.
It was struck down by the state Supreme Court last year; the city is asking the Supreme Court to revive it.
Harvey Grossman, a lawyer for the American Civil Liberties Union who was speaking for the ordinance challengers, said Chicago used it across the city when the ordinance was in force, moving 90,000 people off the streets through arrests for loitering.
When Scalia told him that Chicago police restricted the use of the ordinance to "certain neighborhoods, hot spots," Grossman replied that "thousands and thousands and thousands of areas" in the city have been designated for the sidewalk sweeps.
Pub Date: 12/10/98