Chicago’s new anti-gang loitering ordinance faced its first legal challenge Tuesday as attorneys for three men arrested in Pilsen argued the law unfairly targets minorities and sweeps up innocent citizens.
City lawyers, who rewrote the ordinance after the U.S. Supreme Court tossed out the old law in 1999, countered that the new version aimed at ousting gangs from street corners is clear and will survive any constitutional challenge.
Cook County Associate Judge Mark J. Ballard is expected to issue a written ruling on March 19.
The three men challenging the law were among the first arrestees under the new ordinance that took effect in summer 2000.
After the hearing, police said there have been 171 arrests since then and 22,410 people have been ordered to “disperse” from gang and drug hot spots. Anyone returning to a hot spot within three hours after being ordered to disperse faces arrest.
Charges were dropped or dismissed in more than 100 of the cases, 22 are pending and an estimated 16 have been convicted, said a spokeswoman for the city Law Department.
The high court ruled the old law, first enacted in 1992, was unconstitutional because it gave police too much discretion in targeting gang members for arrest. Defense attorneys for the three suspects–Alan Lopez, Miguel Perez and Antonio Correa–argued little has changed.
Critics say the law targets minorities and gives police broad powers to arrest or harass anyone they suspect of being in a gang.
Assistant public defender Richard Dvorak said the city “got lost” while trying to follow the Supreme Court’s “roadmap” to craft a new law.
Not only did the city fail to specify exactly what constitutes a crime under the ordinance, he told the court, but it also failed to craft a law narrow enough that police did not ensnare innocent people in its zeal to rid the city of gangs.
“We can’t allow the beat cop to serve as a constitutional scholar,” Dvorak said.
Lawrence Rosenthal, an attorney for the city who argued the case before the U.S. Supreme Court, said the new law so closely followed the directions of the high court that the justices essentially wrote the ordinance themselves.
The original law authorized police to arrest suspected gang members and their associates if they were loitering on street corners or in other public places with “no apparent purpose” and also refused orders to disperse.
The justices said that ordinance was too vague and affected too many innocent people. It was only in effect for three years but yielded more than 40,000 arrests.
Under the new law, the city’s target–gang members–remains the same. But it tried to more clearly spell out when, where and under what circumstances someone could be arrested.
The city has designated about 90 so-called “hot spots,” areas deemed troubled by gangs, drugs and violence. The list, which is complied by police and community leaders, is kept secret by the city. It is reviewed quarterly.
“The only time under this ordinance that anyone can be arrested is if they disobey the officer’s order to move on,” Rosenthal said.
“The uniformed police officer is enormously handicapped, because when he drives by the scene of a gang hot spot, the gang members simply pretend to be innocently loitering and other laws can’t be used” without endangering the lives of witnesses, he said.
Police said Lopez, Perez and Correa are admitted gang members. Police said the three were hanging out and flashing gang signs in a hot spot, a playlot near 18th and Throop Streets, on Aug. 17, 2000. They were told to leave but allegedly returned before the three hours was up and were arrested.
One of the chief problems with the ordinance, according to Dvorak, is that it does not clearly tell citizens where they can and cannot loiter. Nor, he said, does the ordinance clearly spell out what constitutes criminal behavior.
Public defender Camille Kozlowski told the court this creates a law that criminalizes not someone’s actions or intent, but what others, including police, “perceive” their intent to be. Being in a gang is not itself a crime, she said.
Also, by not releasing the list of hot spots or posting signs to identify them, “The city actively deceives its citizens,” Dvorak said. “I cannot think of a law more arbitrary and discriminatory, where you can do one thing on one block and it’s OK. When you do it on the next block, it’s not, and we’re (the city) not going to tell you where that imaginary line is.”
