Vagrancy and Disorderly Conduct

The emergence of community policing in the 1980s produced renewed interest in order maintenance by police. Community policing is a policing philosophy that grew out of perceived inadequacies in earlier approaches to local law enforcement. Broadly, community policing holds that police can more effectively address crime and disorder when they develop working relationships with people in the communities they police. It draws upon the idea of community-police reciprocity "to redefine the overall purposes of policing, to alter the principal operating programs and technologies on which the police have relied, and to found the legitimacy and popularity of policing on new grounds" (Moore). Among other characteristics, police in a community policing regime focus more attention on crime prevention and the quality of life in local neighborhoods. They may place emphasis on foot patrols and community organizing. They are more open to community-nominated problems and priorities.

Hundreds of police departments across the country began experimenting with community policing in the 1980s and 1990s. This provoked new interest in order maintenance in part because police learned from consultation with community members that people were extremely concerned with "low-level" matters like chronic vandalism, loitering gang members, and unsafe parks. Perhaps the most important ingredient in the revival of interest in order maintenance, however, was a 1982 essay by James Q. Wilson and George Kelling entitled "Broken Windows."

"Broken Windows" argued that the narrow focus of many police departments on the investigation of serious crime had resulted in the atrophy of a vital police role in promoting the quality of life in local neighborhoods. The fear endemic in many big-city neighborhoods in the early 1980s, Wilson and Kelling argued, stemmed as much from fear of disorderly conditions as from a realistic appraisal of residents' likelihood of being victimized by serious crime. Residents' fear of disorder should nevertheless be addressed, they contended, because such fear weakens a neighborhood's informal social control mechanisms by causing fearful residents to retreat from public places and from intervention in the matters occurring there. This abandonment of public spaces, Wilson and Kelling argued, damages residents' quality of life and even renders neighborhoods more vulnerable to criminal invasion. Wilson and Kelling urged that patrol officers should be deployed on foot, at least in those neighborhoods where they might help strengthen informal social ties, that they should be significantly neighborhood-oriented, and, in particular, that patrol officers should attend to matters like abandoned property, accumulating litter, inebriates slumped on neighborhood sidewalks, and teenagers loitering or fighting in front of stores.

"Broken Windows" 's critique of dominant trends in American policing that had deemphasized the order maintenance function was extraordinarily influential. It helped to stimulate the community policing movement and to revive interest in many localities in addressing minor disorder. Beginning in the early 1990s, municipalities across the country began to enact ordinances or take other legal steps to ameliorate public order problems. Juvenile curfews, for instance, became the norm in major American cities (Ruefle and Reynolds). Anti-drug and prostitution loitering ordinances were enacted in many places, as were laws directed at aggressive panhandling, loitering in the vicinity of automatic teller machines, automobile cruising, and the like. These new laws were generally much more specific than the broad public order laws invalidated during the 1960s and 1970s. Significantly, they also received critical support in several places from African Americans who historically had been principal targets of repressive order maintenance policing but who now supported the measured use of public order laws by politically accountable police to address serious problems of crime and disorder (Kahan and Meares).

These developments raised the question of how courts would treat this new generation of public order laws. Several federal appellate courts rejected vagueness and other constitutional challenges to juvenile curfews in the 1990s, though in some places courts did invalidate such laws. Ordinances prohibiting automobile cruising and aggressive panhandling were generally upheld in the face of constitutional attack. Courts split, however, on the constitutionality of drug and prostitution loitering ordinances, with a number of judges viewing such laws as overly vague or overbroad.

The Supreme Court addressed the constitutionality of one of these new public order laws in Chicago v. Morales, 527 U.S. 41 (1999). The case involved a Chicago, Illinois, ordinance that authorized police to order any group of two or more people found loitering in public places to move along on pain of arrest, so long as at least one of the group was reasonably believed to be a member of a criminal street gang. The ordinance was enacted in 1992, during a period of extraordinary gang violence in Chicago. The Chicago City Council issued findings that were included in the text of the law to explain the reasons for its enactment. These findings asserted, among other things, that street gangs had "taken over" entire neighborhoods in Chicago by intimidating residents from using public places. The gang loitering law was directed at regaining control of these public areas.

Morales produced six different opinions. The lead opinion, by Justice John Paul Stevens, was joined in full by only two Justices and in part by three others. The Morales majority concluded, in an extremely narrow holding, that the Chicago ordinance's definition of loitering ("to remain in any one place with no apparent purpose") was unconstitutionally vague in that it failed to set sufficiently specific limitations on the enforcement discretion of Chicago police (527 U.S. at 60–65). A plurality composed of Justices Stevens, Ruth Bader Ginsburg, and David Souter went further to opine that the freedom to loiter for innocent purposes is an attribute of personal liberty protected by the Constitution's due process clause. These three Justices in effect concluded that loitering is a constitutionally protected activity and that there are thus limits on the ability of localities to regulate it.

On the whole, however, the Morales opinions suggested a willingness on the part of the Court to uphold many laws regulating the use of public spaces, including laws directed at activities like loitering. Three Justices dissented in Morales and concluded that Chicago's gang loitering law was plainly constitutional. Significantly, even the majority opinion concluded that loitering by gang members could be regulated. Indeed, this opinion asserted that an ordinance limited to loitering by gang members that had an apparently harmful purpose would satisfy the vagueness doctrine. In an opinion concurring in part and concurring in the judgment, Justice Sandra Day O'Connor, joined by Justice Stephen Breyer, suggested several additional ways in which Chicago might constitutionally prohibit gang members from loitering in public places so as to intimidate others from using them.

Morales thus offered municipalities room in which to continue to experiment with affording police new authority to address public order concerns. Indeed, in the wake of the Morales decision, the Chicago City Council enacted a new gang loitering ordinance on the lines suggested by the majority opinion.

This is not to conclude, however, that all problems in the administration of public order laws evaporated once state and local legislatures narrowed the scope of such laws. In fact, the new public order laws of the 1990s raised many of the same concerns associated with earlier vagrancy and disorderly conduct laws. These concerns sometimes centered on whether the criminal law was the most effective mechanism for dealing with specific public order problems. Many communities during this period successfully addressed some such problems with programs that involved noncriminal sanctions or that combined law enforcement with various forms of social service.

Perhaps the most consistent area of concern, however, involved the ways in which police exercise discretion in order maintenance. In many places, a new emphasis on public order in the 1990s did help renew public confidence in the ability of police to contribute to the well-being of the neighborhoods they serve. Elsewhere, however, police initiatives directed at crime and disorder provoked legitimate anxiety about police intrusiveness, particularly as directed at minorities and the homeless.

At the same time, it became increasingly evident during this decade that the judicial invalidation of reasonably specific public order laws was not the answer to police misuse of such laws. Because police decide when, where, and whether to enforce public order laws, they exercise considerable discretion in this area even when public order laws prohibit narrowly defined behaviors, and even when such laws are very precise. The proper exercise of this discretion, however, can be very beneficial to communities and need not lead to police abuse.

In the late 1990s, increased attention came to be paid to ways in which communities might exercise better political and administrative control over the performance of police order maintenance responsibilities. There was experimentation with civilian complaint review boards and early warning systems, both designed in part to alert police administrators to problem officers who might be misusing their authority. Attention was paid to guidelines that might inform police in the exercise of their discretion, as well as to the role elected officials might play in overseeing police departments. Mechanisms for the political and administrative constraint of police were still developing at the end of the decade. Commentators argued, however, that changes in political conditions since the 1960s related to the growing political power of minority communities rendered such mechanisms viable and, further, that such mechanisms constituted more reliable controls on police discretion than the search by judges for textural precision in public order laws (Kahan and Meares).