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Do Anti-gang Laws Violate The Constitution?

The national aversion to gangs has sparked debate over FIRST AMENDMENT rights of gang members versus citizens' safety at home and on the streets. Anti-gang injunctions and the enactment of anti-gang loitering ordinances are the two most prominent legal weapons currently employed against gangs. Critics of these efforts, most notably the AMERICAN CIVIL LIBERTIES UNION (ACLU), contend that these initiatives violate the First Amendment's right of free association. Defenders of anti-gang initiatives reply that society's rights to peace and quiet and to be free from harm outweigh the gang members' First Amendment associational rights.

Critics reject the idea that public safety allows the government to tell citizens they may not associate with each other. As long as citizens are not committing a crime, the state cannot tell them not to stand on a street corner together or walk down the street. The Supreme Court has recognized that FREEDOM OF ASSOCIATION is on par with FREEDOM OF SPEECH and FREEDOM OF THE PRESS.

The Court has allowed municipalities to require permits for parades, sound trucks, and demonstrations, in the interest of public order. However, the courts have been careful not to abridge the right of unpopular assemblies or protests. In 1977, the largely Jewish suburb of Skokie, Illinois, enacted three ordinances designed to prevent a march through the city by the American Nazi Party. The ACLU sued the city, and a federal court ruled that Skokie had violated the First Amendment by denying the Nazis a permit to march (Collin v. Smith, 578 F.2d 1197 [7th Cir. 1978]).

Critics of anti-gang laws also argue that just because gang members are unpopular to a large segment of society does not give society the right to restrict their right to association. Why, for example, should the KU KLUX KLAN be allowed to march through an African-American neighborhood while persons in that neighborhood cannot congregate on a playground to talk or play sports?

Critics believe there are better alternatives to controlling illegal gang activity than loitering laws and community injunctions. The ACLU contends that anti-gang injunctions do not work and may even make things worse. The resources of law enforcement are concentrated in one area, causing the shift of criminal activity into other neighborhoods. In addition, arresting a gang member for violating a loitering ordinance will not change the underlying dynamic of gang activity in urban areas. Critics argue that these anti-gang efforts are a cynical, political ploy that has more to do with creating a tough-on-crime appearance than with effective law enforcement.

As an alternative, critics would emphasize community policing, increased resources for law enforcement, and efforts to improve the economic status of urban areas. They note that crime prevention and effective enforcement of criminal laws will do more to make a community safe than telling a suspected gang member to leave a street corner. In time, they believe, both the public and law enforcement will realize that solid, everyday police work produces better results.

Defenders of anti-gang initiatives contend that although First Amendment rights should be protected as much as possible, no constitutional right is absolute. In the case of gangs, the violence and criminal activity in certain parts of urban areas have reached a stage where normal law enforcement techniques do not work. Although the ACLU may say that individual rights must be protected, such a claim rings hollow when a gang can take over a neighborhood through violence and intimidation and yet evade law enforcement. In a crisis situation, additional steps must be taken to restore public confidence in the police and local government.

Restricting gang activity is not unconstitutional, argue defenders of the laws, because the Supreme Court has made it clear that no group of persons has the right to associate for wholly illegal aims. Moreover, associations engaging in both legal and illegal activities may still be regulated to the extent they engage in illegal activities. Defenders emphasize that the mere existence of an association is not sufficient to bring all that association's activities within scope of the First Amendment. Therefore, nonexpressive gang activities can be regulated.

Defenders also emphasize that injunctions and loitering ordinances are constitutional because they serve significant, and often compelling, government interests by reducing the threat to public health and safety caused by gang activities. They note that in the case of an INJUNCTION, gang members are free to conduct their expressive activities outside of the geographic area defined in the injunction. Thus, the injunction is likely to be upheld because it is narrowly tailored.

Though defenders believe these anti-gang initiatives will become important weapons for law enforcement, they acknowledge the danger of guilt by association. They believe, however, that this problem can be avoided if law enforcement officials adhere to constitutional standards in determining who should be subjected to anti-gang provisions. Judges must also carefully review evidence for each defendant to make sure the person has not been unfairly prosecuted.

Despite criticisms leveled by the ACLU and others, proponents of anti-gang laws adamantly support their use. While some of these initiatives may prove ineffective, law enforcement should be given the chance to test new ways of addressing destructive elements within their communities. Modifications can be made, and new initiatives plotted, but proponents insist that the law is necessary to protect the health and safety of citizens.


Perez, Silvia. 2001. "Alternatives in Fighting Street Gangs: Criminal Anti-Gang Ordinances v. Public Nuisance Laws." St. Thomas Law Review 13 (winter): 619–40.

Smith, Stephanie. 2000. "Civil Banishment of Gang Members: Circumventing Criminal Due Process Requirements?" University of Chicago Law Review 67 (fall): 1461–87.

Vertinsky, Liza. 1999. A Law and Economics Approach to Criminal Gangs. Aldershot, England; Brookfield, Vt.: Ashgate.

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