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Supreme Court Strikes Down Chicago’s Anti-Loitering Law

By David G. Savage

The Supreme Court struck down a Chicago anti-loitering law Thursday that authorized the police to sweep the streets of those who look to be gang members.

The 6-3 decision instead gave an unexpected endorsement to old-fashioned principles of civil liberties. Despite its laudable purpose, the Chicago law gave the police too much power, the high court ruled, and it punished the normally innocent act of standing on a public sidewalk.

In a free society, police cannot be given unchecked authority to arrest citizens, even those who might be gang members, the justices said. Officers need some evidence of wrongdoing before they intervene.

Those who loiter for the purpose of selling drugs, soliciting prostitution or intimidating others, for example, can be ordered to “move on” or face arrest, the court said. These laws are linked to a criminal offense.

By contrast, Chicago’s 1992 ordinance told police to go after young men who were seen “loitering with no apparent purpose.” Once warned to disperse, these persons faced arrest if they failed to move on to the officer’s satisfaction.

To make arrests or win convictions under the law, the city did not need to show that the young men had previously been convicted of a crime, had committed a crime during their arrest or were planning to commit an offense.

As Justice John Paul Stevens, a Chicago native, noted, the law would have permitted the arrest of two young men standing outside Wrigley Field, even if they were simply waiting to see Cubs star Sammy Sosa leave the park.

By 1995, Chicago police had issued 89,000 dispersal orders under the ordinance and made 42,000 arrests. Most of those arrested were black or Latino. That year, a state court in Illinois halted the city’s enforcement of the law and sent the case moving upward to the Supreme Court.

For the justices, the case became a classic test of individual freedom vs. public order.

A year ago, some prosecutors and conservative legal scholars said they were optimistic Chicago officials would prevail, believing a conservative-leaning Supreme Court was ready to give police a freer hand. The “gang menace” demanded a new, get-tough approach, city prosecutors said.

They argued that by controlling the sidewalks and public parks, the police could reduce crime and make the city livable for law-abiding residents of troubled neighborhoods. For those vulnerable citizens, they argued, it is not police power that is a threat but criminal street gangs.

In an angry dissent that he read in the court, Justice Antonin Scalia voiced that view. “I would trade my right to loiter any day in exchange for the liberation of my neighborhood,” he said.