WHEN LOITERING LAW FELL, CITIZENS LOST

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.

Mona Charen is a syndicated columnist based in Washington,
D.C.