Loitering

Loitering

In general, loitering refers to the act of loafing about a specific location. States and localities in the United States have a long history of enforcing laws against loitering in public areas. Early U.S. antiloitering laws were identical to English laws regarding vagrancy. I have expressly identified this right to move from one place to another according to inclination as an attribute of personal liberty protected by the Constitution. Indeed, it is apparent that an individual's decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is a part of our heritage, or the right to move to whatsoever place one's own inclination may direct. (Levy, 2002) In this particular case, Jesus Morales and others had been found in violation of "the Gang Congregation Ordinance," which prohibited "criminal street gang members" from "loitering" with one another or with other persons in any public place.

As described by the Supreme Court, the Chicago City Council enacted this ordinance in 1992 after "explor[ing] the problems created by the city's street gangs, and more particularly, the consequences of public loitering by gang members."

Before the ordinance was adopted, the city council's Committee on Police and Fire conducted hearings.... Witnesses included residents of the neighborhoods where gang members are most active, as well as some of the aldermen who represent those areas. Based on that evidence, the council made a series of findings that are included in the text of the ordinance and explain the reasons for its enactment. (Levy, 2002) The council found that a continuing increase in criminal street gang activity was largely responsible for the city's rising murder rate, as well as an escalation of violent and drug-related crimes. It noted that in many neighborhoods throughout the city, "the burgeoning presence of street gang members in public places has intimidated many law-abiding citizens."

Furthermore, the council stated that gang members "establish control over identifiable areas by loitering in those areas and intimidating others from entering those areas, and members of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know the police are present." It further found that "loitering in public places by criminal street gang members creates a justifiable fear for the safety of persons and property in the area" and that "aggressive action is necessary to preserve the city's streets and other public places so that the public may use such places without fear." Moreover, the council concluded that the city "has an interest in discouraging all persons from loitering in public places with criminal gang members." (Levy, 2002)

The ordinance created a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. The following four conditions had to be satisfied to establish a violation of the ordinance:

First, the police officer must reasonably believe that at least one of ...