August 01, 1998
In the war against violent urban street gangs, police across the nation face a frustrating dilemma: however many criminal activities a gang may be involved in, it is a perfectly legal activity -- standing around in the street -- that is the key to a gang's grip on a neighborhood. By gathering every day on the same corner, a gang sends an unmistakable message to all that it rules its turf. The gang members may not look busy, but they are most certainly doing something: they are generating the fear that enables them to ravage a community without resistance.
In recent years, two innovative but controversial methods have emerged to prevent gangs from creating such a climate. In California, tbe use of anti-gang injunctions, prohibiting gang members from engaging in specified activities that would ordinarily be legal, has survived a constitutional challenge and become widespread throughout the state. And the City of Chicago has adopted an anti-gang loitering ordinance giving the police discretion to disperse an apparent gathering of gang members -- the fate of that ordinance is now in the hands of the U.S. Supreme Court.
Five years ago, a vicious gang known as the Varrio Sureno Locos "owned" the Rocksprings section of San Jose, Calif. Like a rowdy occupying army, the "Surenos" dealt drugs on tbe sidewalk, fired guns, smashed windows, blasted their music, urinated wherever they wanted and scribbled graffiti on every available surface. For the most part, neighborhood residents responded by staying locked indoors, too terrified even to call the police.
As is often the case with gangs, conventional law-enforcement methods failed to break the Surenos because witnesses to their crimes, including victims, were almost never willing to cooperate with police and prosecutors. But in 1993, the San Jose City Attorney's office found a novel way to shut the Surenos down using California's "public nuisance" law.
City attorneys convinced a state judge to declare the gang a public nuisance and issue a civil injunction barring 38 known members from engaging in 24 activities that facilitate crime. Some of the listed activities were already unlawful -- e.g., vandalism, trespass and public consumption of alcohol. But the injunction also barred the Surenos from carrying screwdrivers and marking pens, items that would be presumed harmless in the hands of an ordinary person, and from engaging in such seemingly mundane conduct as whistling and climbing trees. Even more controversially, the injunction proscribed several activities -- such as congregating in public with other gang members, wearing gang insignias and using gang hand signals -- that clearly implicate First Amendment rights of association and expression. Armed with the injunction, San Jose police no longer had to wait for the Surenos to commit violent or destructive crimes; they could arrest members for criminal contempt for engaging in any of the enjoined activities.
The results were swift and dramatic. In the first three months of the injunction, 911 calls from Rocksprings dropped by 45%. Arrests in Rocksprings dropped from 214 in the previous twelve months to 61 in the injunction's first year. Almost overnight, the menacing Surenos became a bad memory. Rocksprings was a neighborhood again.
But the gang didn't go down without a fight. With help from the American Civil Liberties Union and other lawyers, several gang members challenged the constitutionality of the injunction, and in 1995, California's 6th District Court of Appeal threw out all provisions of the injunction banning non-criminal activity. "Mere membership in a gang is not a crime," the court opined. "And non-criminal association by members cannot be enjoined on the basis of this membership alone." People v. Acuna, 48 Cal. App. 4th 641 (6th Dist. 1995).
By the time of the Sixth District ruling, cities across California had taken notice of San Jose's success and initiated similar nuisance abatement actions against local street gangs. With amicus support from the Cities of Los Angeles and Santa Clara, San Jose appealed to the California Supreme Court and won reinstatement of the entire injunction in early 1997. In an opinion by Justice Janice Rogers Brown, the Court forcefully rejected the 6th District's deference to the rights of gang members.
"Reconciliation of the community's right to security and protection with the individual's right to freedom must begin with the acknowledgment that the interests of the community are not invariably less important," Justice Brown asserted. "To hold that the liberty of the peaceful, industrious residents of Rocksprings must be forfeited to preserve the illusion of freedom for those whose ill conduct is deleterious to the community as a whole is to ignore half the political promise of the Constitution and the whole of its sense." People v. Acuna, 14 Cal. 4th 1090, 929 P.2d 596 (1997).
Last June, the U.S. Supreme Court denied certiorari in the San Jose case. However, the nation's high court will rule in the upcoming term on a Chicago anti-gang measure that empowers police officers to sweep congregated gang members off the street without a court order.
Anti-Gang Loitering Ordinances
Loitering laws, criminalizing public idleness or vagrancy, have a long and ignoble history in the United States and England. American courts have taken a dim view of loitering laws since the U.S. Supreme Court's decision in Papachristou v. Jacksonville, 405 U.S. 156 (1972), in which the Court held that such ordinances are unconstitutionally vague.
In 1992, Chicago became the first American city in decades to enact a new anti-loitering law. But rather than targeting vagrants like the ordinances of old, Chicago's "Gang Congregation Ordinance" was aimed squarely at the city's worsening street gang problem. It provides in part: "Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section." Chicago Municipal Code § 8-4-015.
The ordinance was enforced for three years before being struck down by an Illinois appellate court in 1995. In that time, some 43,000 arrests were made, and, to be sure, some of those arrested were not gang members and had been unfairly ordered to disperse. Unlike the California nuisance abatement procedure, the Chicago ordinance gave wide discretion to the officer on the beat, so perhaps some number of unjust arrests was inevitable. But the Police Department contends that its performance in applying the law improved markedly over the three years.
And there is this: in the last year of the ordinance's enforcement, Chicago's gang-related homicide rate dropped 26%; the following year, it began to climb again.
Last year, the Illinois Supreme Court affirmed the decision that struck down the ordinance. While acknowledging that "criminal street gangs are an expanding cancer in our society," the court cited Papachristou and concluded that "the city cannot empower the police to sweep undesirable persons from the public streets," and cannot make it a "crime to be a gang member in a public place." Chicago v. Morales, 687 N.E.2d 53 (III. 1997). In other words, the court found the Chicago law no better than a general ban on all loitering.
But this spring, the U.S. Supreme Court granted certiorari in Morales, perhaps signaling a willingness to narrow Papachristou. Chicago will not ask the Court to overrule its 1972 decision; rather, the City will urge the Court to make clear that Papachristou applies only in the vagrancy context, and not in the narrower and more compelling context of the modern war on street gangs. The City will argue that its interest in keeping gangs from taking over neighborhoods justifies the ordinance's restriction on liberty, and is certainly more compelling than any interest served by the ordinance struck down in Papachristou.
Thirteen states and the U. S. Conference of Mayors filed amicus briefs in support of Chicago's certiorari petition. Should the Court rule for the city next year, a nationwide flurry of identical ordinances is expected to follow.
It may strike some as folly for cities to combat murderous, drug-pushing street gangs by keeping them from hanging out in the street or carrying marker pens. But the anti-gang strategies of San Jose and Chicago follow the "broken windows" theory of law enforcement that has brought crime in many cities to 30-year lows. The idea is simply that the first step in preventing violent crime is to restore order and civility to our public spaces.
*Brian Stettin is a staff attorney for the Center for the Community Interest, a national public interest group that has filed amicus briefs in support of both the San Jose gang injunction and the Chicago loitering ordinance.