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Constitutionality Of Anti-gang Laws

Laws aimed specifically at prosecuting members of gangs have come under attack due to a variety of constitutional theories. Anti-loitering laws have been challenged on several grounds, including First Amendment prohibitions against vagueness and overbreadth, FOURTH AMENDMENT proscriptions of unreasonable SEARCHES AND SEIZURES, and constitutional provisions that prevent the government from punishing individuals merely because of their status.

Vagueness has been the primary reason why the Supreme Court has determined that anti-loitering statutes have been unconstitutional. In Coates v. Cincinnati, 402 U.S. 611, 91 S. Ct. 1686, 29 L. Ed. 2d 214 (1971), the Court determined that an ordinance prohibiting people from assembling on a sidewalk in such a way that it would be annoying to passersby was unconstitutionally vague because its application was based on sole discretion of police officers to determine what was "annoying." One year later, in Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839, 31 L. Ed. 2d 110 (1972), the Court held that an ordinance which encouraged ARBITRARY and erratic arrests was also unconstitutionally vague. Likewise, in Kolender v. Lawson, 461 U.S. 352, 103 S. Ct. 1855, 75 L. Ed. 2d 903 (1983), the Court held that a California statute that allowed police to arrest individuals who could not show credible and reliable identification and account for their presence at a particular location was unconstitutional due to vagueness.

The Chicago City Council in 1992 enacted the Gang Congregation Ordinance that prohibited loitering among criminal street gang members at any public place. The ordinance allowed police officers to order any group of individuals who were congregated "with no apparent purpose" to disperse if the officer believed one of the group was a street gang member. In three years, Chicago police issued more than 89,000 dispersal orders and made more than 42,000 arrests under the ordinance.

In City of Chicago v. Morales, the Supreme Court, per Justice JOHN PAUL STEVENS, determined that the ordinance was unconstitutional due to vagueness for two primary reasons. First, according to the Court, the ordinance failed to provide fair notice of prohibited conduct. Noted the Court," 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'" under the ordinance. Accordingly, citizens, even those who appeared in public with a gang member, were not provided fair notice of the type of conduct proscribed under the ordinance. Second, the ordinance failed to provide minimum guidelines for enforcement. The determination of whether individuals were standing around with no apparent purpose was based on the discretion of the officer.

After the 1992 gang ordinance was declared unconstitutional the city of Chicago enacted a second Gang Congregation Ordinance in 2000. The second ordinance authorizes police to command gang members to disperse when they are congregated on streets for the purpose of establishing control over certain areas of the city.

Other efforts to curb gang violence have been ruled constitutional. In People ex rel. Gallo v. Acuna, 929 P.2d 596 (Cal. 1997), the city of San Jose successfully requested an INJUNCTION against local gangs based on violations of state public nuisance laws. The gang members brought suit, challenging that both the statute and the injunction violated the First Amendment. The California Supreme Court determined that neither the injunction nor the statute violated the gang members' associational rights and that the gang members' conduct qualified as a public nuisance under the statute. Several cities in California have sought and received temporary and permanent injunctions against local gangs preventing the gang members from congregating in public places.

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