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Kim Strosnider

excerpted from: Kim Strosnider, Anti-Gang Ordinances after City of Chicago V. Morales: the Intersection of Race, Vagueness Doctrine, and Equal Protection in the Criminal Law , 39 American Criminal Law Review 101-141, 101-104 (Winter, 2002) (331 Footnotes Omitted)

The rule of law, evenly applied to minorities as well as majorities, to the poor as well as the rich, is the great mucilage that holds society together. - Justice William O. Douglas, 1972

It seems there are two laws. There's one for this kind of area, and there's another for everyone else. - Resident of a Chicago public housing project, 2000


In the past decade, cities and states have redoubled their efforts to target street gangs as part of a high-profile blitz against street crime. Since California adopted its Street Terrorism Enforcement and Prevention Act (STEP Act) in 1988, twenty-eight states and the District of Columbia have passed anti-gang ordinances. Traditional gang strongholds like Chicago and Los Angeles also have been crafting ever-tougher measures, testing the line between civil order and civil rights in inner cities likened to war zones.

The United States Supreme Court joined the debate in City of Chicago v. Morales, when it struck down a controversial Chicago anti-gang loitering ordinance as void for vagueness under the Due Process Clause of the Fourteenth Amendment. Three years later, however, the Court's entry into one of the most important and divisive issues in urban criminal justice has resulted in increased confusion rather than clarity. The Court's vagueness jurisprudence, which frequently lies at the heart of challenges to anti-gang ordinances, has become entangled with other doctrines, including substantive due process, overbreadth, and, as this Article argues, equal protection.

This Article seeks to examine the influence of Morales and contextualize it by surveying anti-gang efforts nationwide. The Article explores how the case has shaped vagueness doctrine and how it continuesto influence communities' efforts to control gangs and to shape the public order - efforts that have disproportionate effects on Hispanic and African-American communities.

Morales, the case that thrust the nation's war on gangs before the Court, was an attack on the Chicago Gang Congregation Ordinance, under which police issued more than 89,000 dispersal orders and made more than 42,000 arrests in three years. The ordinance allowed police to arrest any group of two or more people who remained in a public place "with no apparent purpose" if the police "reasonably believe[d]" the group included a gang member and if the loiterers failed to disperse. Dividing six votes to three, the Court held that the "broad sweep" of the statute failed to adequately curtail police discretion. Significantly, however, the Justices failed to agree about whether the ordinance ran afoul of the other prong of vagueness doctrine - the requirement that a statute provide adequate notice to citizens about what is prohibited - and whether the Constitution protects a right to loiter.

Although Morales was the Court's first word on modern anti-gang legislation, it is unlikely to be its last; the Court generated six opinions and stretched vagueness doctrine nearly to its logical breaking point in reaching its conclusions. In the end, the Morales majority left little clear other than that the Chicago ordinance gave police too much discretion over whom to arrest. Its opinion harkened back to the Court's legendary effort to deal with obscenity: as with obscenity laws, the Court in effect indicated it could not define what constituted an unconstitutional anti-gang ordinance, but it knew one when it saw one - and it saw one in Chicago. In the ultimate irony, Morales demonstrated that the flaw in the Court's modern vagueness jurisprudence is that the doctrine itself is so vague.

Just how far cities and states can go in their anti-gang efforts after Morales therefore remains an open question - one now being tested in courts and debated in city councils and legislatures across the country. Citing Morales, courts already have invalidated numerous ordinances. Furthermore, legislative bodies are reviewing anti-gang ordinances for constitutional infirmities and passing new laws. Most striking has been Chicago's response. Dicta in Morales prompted the city to enact a new version of its anti-gang loitering law that likely is just as unconstitutional as the first. As it endeavored to avoid vagueness, the city created an ordinance that instead seeks scientific - and discomforting - precision. Applying only to particular "hot spots" and not to the entire city, this new breed of anti-gang ordinance threatens to blur an already fading line between the generalized criminal law and more particularized and targeted injunctions. Moreover, the ordinance promises to inflame racial tensions over the already sensitive issue of gangs, which tend to be concentrated in poor and minority neighborhoods. The new Chicago ordinance highlights the close connection between due process and equal protection in the Court's vagueness jurisprudence.

This Article explores the response of legislatures and courts to gangs in the era leading up toand following Morales. It analyzes Morales and the role it plays in the Court's evolving vagueness jurisprudence, and suggests that an entangled and unclear doctrine will lead to missteps by cities and states as they struggle to combat gang crime - missteps that have costly implications for civil liberties and race relations.

Section I surveys state anti-gang ordinances nationwide and then compares and contrasts the legal responses by Los Angeles and Chicago. In Los Angeles, the attack on gangs has been multi-pronged, including both civil and criminal measures; in Chicago, where researchers found industrial wastelands transformed into "gangland" as early as the 1920s, the focus has been on police power to stop and detain suspects. This section reveals the numerous methods communities are using to confront gangs - methods that invariably raise tough issues of race and class in law enforcement.

Section II analyzes Morales, the Court's only decision to date on modern anti-gang legislation, and discusses its relevance to the existing jurisprudence of vagueness doctrine. In Morales, as in the earlier case of Kolender v. Lawson, the two components of this once unitary doctrine have come untwined. Further, as Morales illustrates, the second prong of vagueness doctrine - dealing with arbitrary and discriminatory enforcement - has come to serve as a de facto equal protection guarantee as to public-order statutes implicating race.

Section III discusses the impact Morales is having on anti-gang and public-order laws now being reviewed in the courts, many of these laws contain allegations of racially discriminatory enforcement. Attention is then directed to Chicago's revised anti-gang ordinance, a targeted, injunction-like measure enforced only in gang "hot spots." Through the lens of this new type of ordinance, the connection between due process and equal protection concerns becomes clearer. The article concludes that Chicago's current approach exacerbates the problems that the Court found with its first anti-gang law rather than resolving them.

. J.D., Harvard Law School, 2001. The author thanks Professor William Stuntz of Harvard Law School for his suggestions and encouragement.