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 (1)

   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 (2)

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) (3) in 1988, twenty-eight states and the District of Columbia have passed anti-gang ordinances. (4) 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. (5)

The United States Supreme Court joined the debate in City of Chicago v. Morales, (6) 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 continues to 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, (7) under which police issued more than 89,000 dispersal orders and made more than 42,000 arrests in three years. (8) 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. (9) Dividing six votes to three, the Court held that the "broad sweep" of the statute failed to adequately curtail police discretion. (10) 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. (11)

Although Morales was the Court's first word on modern anti-gang legislation, (12) 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. (13) 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. (14) Citing Morales, courts already have invalidated numerous ordinances. (15) 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 (16) 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, (17) the city created an ordinance that instead seeks scientific -- and discomforting -- precision. Applying only to particular "hot spots" and not to the entire city, (18) 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. (19) 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 to and 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. (20)

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, (21) 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, (22) 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.

I. GANGS: THE SOCIOLOGICAL AND POLITICAL CONTEXT

In order to understand how the legal system has responded to the threats posed by street gangs, one must first understand the context in which gang-related legal strategies operate. Accordingly, this section provides a brief sociological sketch of street gangs, (23) followed by a survey of state anti-gang ordinances and a comparison of the approaches taken by the state of California and the city of Chicago. The issue of how best to deal with gangs has mobilized and divided communities from coast to coast -- just as it divided the Court in Morales.

A. The Rise of Gangs and State Anti-Gang Ordinances

State and city officials insist that gangs represent a modern scourge requiring novel legal solutions. (24) Whether street gangs are a uniquely modern phenomenon or an age-old problem is a matter of debate. Sociologists assert that gangs have existed in the United States for more than a century, (25) and that their influence waxes in times of great political or economic change. (26) Law enforcement officials point out that while gangs may not be new, a variety of factors -- including increasing gang mobilization, (27) more lethal weaponry, (28) and a steady national appetite for drugs such as crack cocaine (29) -- have combined in a deadly brew in which gangs are flourishing as never before. A 1998 Justice Department study estimated there were more than 28,700 gangs with 780,200 members nationwide. (30) A report released in the summer of 2001 by the Department's juvenile justice office describes the last thirty years as having been marked by a "major escalation" of youth gang problems, with all fifty states now reporting gangs within their borders, compared to just nineteen states reporting gang problems in the 1970s. (31)

Although scholars do not agree on exactly what constitutes a gang, (32) they describe them as groups segregated by age and gender -- usually comprised of teen and young adult males -- that share a group identity, occupy territory, and engage in crime or other disruptive activity. (33) Gangs generally form in poor neighbor hoods (34) and, according to sociologists, are comprised disproportionately of racial or ethnic minorities. (35) As determined by one author of a compendium of gang research, eighty-five percent of street gang members are African-American, Hispanic, or Asian. (36) This assertion finds support in the most recent Justice Department gang survey, which reports that Hispanics predominate in gangs, making up forty-six percent of gang membership nationwide. (37) African-Americans represent another thirty-four percent of gang members and Asians six percent, (38) for a combined total of eighty-six percent minority membership in gangs. (39) The figures are based on surveys of police, who critics charge are too quick to stereotype minority youth as gang members. (40)

While some gangs are merely loose confederations, others are highly organized bodies with rules and constitutions. (41) Gangs attract their members with the promise of income and social support (42) to youth hailing from poor communities where both are in short supply. The bargain usually turns out poorly for gang members, who rarely earn much money and face increased risks of death, injury, and arrest as a result of gang involvement. (43)

In many places, political leaders and police officials have concluded that existing criminal offenses are inadequate to combat the criminality, including violence, drug dealing, and witness intimidation, which is said to accompany gangs. Thus, the response in state capitals from Juneau to Tallahassee, and in city halls across the country, has been to create new gang-related crimes. Since 1990, and increasingly during the past six years, states have expanded their criminal codes to prohibit gang recruitment, gang-related intimidation, and participation in gang-motivated crimes. They have enacted provisions making any crime committed on behalf of a gang a more serious offense than it otherwise would be, involving mandatory jail time and longer sentences. States have formed gang strike forces, created databases to track gang members, and ordered specialized gang training for police.

An examination of state gang ordinances (44) reveals that twenty-eight states and the District of Columbia now have gang-specific criminal laws, more than double the number estimated by a researcher in 1995. (45) Ten states have comprehensive or omnibus statutory schemes dealing with gangs, (46) many of them patterned after California's STEP Act or federal racketeering law. (47) Also popular are ordinances criminalizing gang recruitment. (48) The federal government has enacted one specifically anti-gang statute, (49) which enhances sentences for federal felonies determined to be gang-related. Nearly all these statutes have survived constitutional challenges, although recent Supreme Court decisions have cast doubt upon both gang loitering laws (50) and ordinances allowing judges to enhance penalties of gang members after they have been convicted of crimes. (51) Working in tandem with these laws, some municipalities have enacted anti-gang or anti-drug loitering ordinances. (52)

Legislators have gone beyond expansion of the criminal law, however. Anti-gang measures are creative and varied, spanning civil and criminal codes and the juvenile and adult criminal systems. These measures range from prohibitions on the tattooing of minors, (53) because gang symbols are popular tattoos, to ordinances that allow those suffering gang-related injury to force the eviction from housing of a gang member, (54) to provisions making parents civilly liable for encouraging their children's gang participation. (55) Some states specifically provide for the admission of expert testimony about gangs in criminal cases, (56) because gangs represent subcultures that can be complex and foreign to jurors.

Whether the new wave of anti-gang legislation is having any impact is difficult to ascertain. Some researchers have indicated that these statutes are little used by prosecutors, who prefer instead to rely on traditional crimes that they consider easier to prove. (57) Indeed, some have suggested that legislators often act without understanding gangs very well (58) and may be enacting gang-related ordinances primarily to send a message to constituents. (59) Indeed, the very idea of the anti-gang ordinance appears to have been born in 1988 in a hail of gunfire, followed by public outrage and political reaction.

B. Los Angeles: The Birthplace of the Anti-Gang Ordinance

On a January evening in 1988, a gang member spotted a rival in a trendy shopping and restaurant district adjacent to the University of California at Los Angeles. The young men exchanged taunts, then one drew a handgun and fired twice. A bullet struck and fatally wounded a twenty-seven-year-old bystander. (60) It was a shot that would ricochet, figuratively, from Los Angeles to the state capital in Sacramento and around the country.

The murder of Karen Toshima exposed a festering gang problem that many Los Angeles residents had previously assumed was confined to poverty-stricken neighborhoods such as South Central. (61) Within months, the city hired hundreds of additional police officers and pledged millions of dollars to bolster anti-gang efforts. (62) Police launched "Operation Hammer," arresting more than 1,400 minority youth, only to release many of them without charges. (63) Of more lasting impact, the murder helped propel gangs to the top of the state legislature's agenda. (64)

Gangs were not new in Los Angeles. The city is home to the Crips and Bloods, bitter rivals since their formation in the 1960s. (65) Hispanic gangs in the city have an even longer history. (66) While gangs were not novel, the legislature's response was. The STEP Act paired civil and criminal remedies, creating new substantive crimes and providing for civil injunctions and the use of public-nuisance law. Although the Act was thus somewhat akin to federal racketeering law, (67) it was unique nationally as a response to gang crime.

The core provision of STEP criminalizes active, knowing participation in a criminal street gang (68) and the willful promotion, furtherance, or assistance to the gang in committing a felony. (69) STEP also criminalizes the act of coercing participation in a street gang. (70) Further, it provides for the issuance of injunctions and civil damages when the government identifies property that gangs had been using to advance their criminal activities, (71) and for confiscation of firearms used in gang crime. (72) Anti-gang injunctions have been used numerous times since Los Angeles first sought one in 1987 against the Playboy Gangster Clips, (73) and were held constitutional by the California Supreme Court in the landmark case of People ex rel. Gallo v. Acuna. (74) Such injunctions typically constrain gang members' association with one another, the wearing of gang apparel and use of gang hand signs, harassing of residents or demands for entry into homes, and gang members' movement within an affected area. (75) Although the STEP Act has been amended several times, (76) none of the amendments has been as significant as Proposition 21, an initiative that garnered the support of sixty-two percent of California voters in March 2000 (77) but yet proved politically and racially divisive. (78) While crime in California, as nationwide, had been on the decline, the changes to the STEP Act were premised on predictions of a coming wave of "unprecedented" gang violence linked to rising numbers of violent juveniles. (79) Major changes included increased punishment for gang offenses, including making those convicted of gang-related homicide eligible for the death penalty, (80) the addition of a new crime of gang conspiracy, (81) and requirements that gang offenders report to local police for registration. (82) A provision allowing prosecutors to file adult charges against juveniles as young as fourteen years old without court approval was declared unconstitutional in February 2001, and now awaits review by the state's high court. (83) However, the referendum left unchanged STEP's influential civil remedies (84) as a possible alternative to Chicago's loitering-focused anti-gang efforts.

C. Chicago: Gang Loitering and Police Discretion

While Los Angeles squared off against gangs with ordinances and injunctions, Chicago chose a different path -- one that would lead to the defeat of its anti-gang loitering ordinance before the Supreme Court in Morales. Chicago's anti-gang strategy was centered on municipal ordinances, in contrast to California's creation of state laws, and focused on providing police with the power to arrest and briefly detain suspected gang members.

Like Los Angeles, two major gang "nations" dominated Chicago. Forming the so-called "Folk Alliance" are the Black Gangster Disciples Nation and Latin Disciples; the "People Alliance" is comprised of the Latin Kings and Vice Lords. (85) According to researchers who have studied Chicago gangs, Chicago police classified 1,311 murders between 1965 and 1990 as gang-motivated and another 17,085 non-lethal offenses as gang-related. (86)

Prior to the enactment of the anti-gang loitering ordinance at issue in Morales, Chicago officials had at their disposal relatively few state statutes specifically addressing gang crime. The two that seemed most apt, outlawing mob action (87) and intimidation, (88) had suffered their own run-ins with the U.S. Supreme Court. In Boyle v. Landry, (89) a case stemming from 1967 civil rights demonstrations in which Chicago police were alleged to have routinely swept up demonstrators with no intent of prosecuting them, the Supreme Court upheld the constitutionality of the state's intimidation statute but left untouched a federal court order enjoining enforcement of a provision of the mob action statute. (90) Other state legislative responses came later, after the ordinance at issue in Morales. They include the Illinois Streetgang Terrorism Omnibus Prevention Act, (91) and, subsequently, a streetgang criminal drug conspiracy statute (92) and aggravated intimidation statute targeting gangs. (93) In what must have been a frustrating irony to Chicago officials, Justice Stevens, in rejecting the anti-gang ordinance in Morales, suggested Chicago already had plenty of prosecutorial tools at its disposal -- without acknowledging that the state drug conspiracy statute post-dated the Morales ordinance and that the mob action statute was partially unenforceable due to the federal injunction. (94)

Anxious to fill the legislative void, Chicago officials enacted the Gang Congregation Ordinance in 1992. The preamble speaks to the powerlessness city leaders felt before gang members. It states: "[M]embers of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know the police are present." (95) Interestingly, while public hearings featured a chorus of gang-fearing residents, (96) the ordinance attracted little enthusiasm from the Chicago Police Department. (97) In part, this lack of enthusiasm appears to have stemmed from concerns that, due to jail overcrowding, gang loiterers would be returned to the streets before the police arresting them were back on patrol. (98) The prime mover behind the passage of the ordinance -- and its post-Morales amended version -- appears to have been not police officials, but then-Mayor Richard Daley, who insisted the ordinance responded to community demand, including demand from minorities living in gang-infested neighborhoods. (99)

After its approval, the ordinance was enforced for three years. Across the country, cities and states watched the ordinance -- just as they are now observing its post-Morales successor (100) -- to see if Chicago had found an answer to what they consider the novel and resistant problem of gang crime. After years of experimentation by state and local governments, the next development in the gang wars was about to unfold in the United States Supreme Court.

II. THE INTERSECTION OF LEGAL DOCTRINES IN MORALES

As illustrated above, the Court entered a flurry of state and local anti-gang activity when it decided Morales in 1999. Gangs were migrating from their traditional urban bases to small town and rural America, bringing with them drug dealing, violence, and a dilemma of constitutional magnitude over how to control gang crime without trampling basic freedoms to associate, move within a city, and be governed by intelligible, fairly applied laws. The Supreme Court had a captive audience of state and municipal officials and civil libertarians as it moved to examine the constitutional issues raised by the anti-gang loitering law of the most gang-ridden American city: Chicago.

Rather than clarifying the debate, however, the Court generated only more confusion. Section II.A provides a brief synopsis of numerous opinions the justices generated in deciding Morales. Section II.B analyzes the case from three angles: vagueness doctrine, substantive due process, and equal protection.

A close reading of Morales in light of past vagueness doctrine decisions illuminates the important and evolving role that the second prong of vagueness doctrine has come to play in the Court's jurisprudence. The second prong, which proscribes arbitrary and discriminatory enforcement of criminal laws, was once a silent partner to the doctrine's better known component, which requires fair notice. However, the arbitrary and discriminatory enforcement prong has grown in strength with the Court's decisions in Kolender v. Lawson and, now, Morales.

Significantly, however, the new arbitrary enforcement jurisprudence is more than just substantive due process in disguise, as others have previously asserted. (101) It is not about creating a new due process "right to loiter," but instead is about a different Fourteenth Amendment concern: equal protection. With equal protection in the criminal law formally a weak and withered doctrine, a bare majority of the Court in Morales, and in Kolender before it, retooled the arbitrary enforcement prong of vagueness doctrine into a de facto equal protection guarantee as to the enforcement of criminal ordinances. The doctrine thus now has the potential to be an important check on the discretion of police and on the power of legislatures to enact statutes that will be enforced primarily against minorities, such as anti-gang laws.

A. The Supreme Court Enters the Debate

The Court mustered a majority for only three sections of Justice Stevens' Morales opinion -- two of which recited facts and procedural history. The brief holding (102) found Chicago's Gang Congregation Ordinance facially invalid under the Due Process Clause of the Fourteenth Amendment because it failed to establish "minimal guidelines to govern law enforcement." (103) Left unanswered were hard questions about the notice prong of vagueness doctrine, substantive due process, and standing for facial challenges. (104)

The six-justice majority (105) found the key flaw in the ordinance to be its definition of loitering: (106) "to remain in any one place with no apparent purpose." (107) Justice Breyer explained in his concurrence that the ordinance gave Chicago police carte blanche to determine who was violating the law:

   Since one always has some apparent purpose, the so-called limitation
   invites, in fact requires, the policeman to interpret the words "no
   apparent purpose" as meaning "no apparent purpose except for.... "And it is
   in the ordinance's delegation to the policeman of open-ended discretion to
   fill in that blank that the problem lies. (108)

The Court stated that it was bound by the Illinois Supreme Court's interpretation of the ordinance as granting broad discretion to police. (109) As a result, it found itself foreclosed from imposing a narrower construction that might have made the ordinance constitutional.

The majority noted other flaws in Chicago's Gang Congregation Ordinance as well. It cited the lack of a mens rea requirement, (110) and pointed out that the ordinance applied to non-gang, as well as gang, members. (111) Finally, the Court noted that the ordinance was also under-inclusive, in that it would not cover loitering with the apparent purpose to conceal drug trafficking or claim territory for a gang. (112)

Despite these problems, the Court generated only a plurality for the proposition that the ordinance violated the first prong of vagueness doctrine, which states that a law must be sufficiently clear so as to provide notice to citizens as to how they can lawfully order their behavior. (113) The three-justice plurality rejected the city's argument that dispersal orders provided notice, finding such orders unjustified impairments on liberty and stating that the orders were themselves vague. (114) Furthermore, only the plurality identified a constitutionally protected interest in loitering for innocent purposes. (115)

Perhaps sensitive to the puzzlement that the Court's opinions likely would evoke, Justice O'Connor went to great lengths to advise Chicago and other cities on how they might constitutionally stifle gangs. Like the majority, Justice O'Connor noted that one way of making such an ordinance constitutional was to include a mens rea requirement. (116) However, Justice O'Connor went further. First, she suggested that an ordinance that targeted only gang members would be constitutional (117) -- a proposition the majority had said was only "possibly" constitutional (118) and which the dissenters doubted altogether. (119) Second, in a statement that Chicago leaders seem particularly to have seized upon, Justice O'Connor stated that it would be proper to distinguish Chicago's ordinance from one that "incorporates limits on the area and manner in which the laws may be enforced." (120) Finally, she noted that the city could try to define loitering more narrowly. (121)

B. Analysis of Morales

Morales represents a train wreck of doctrine, in which procedural and substantive due process collide with issues of standing and overbreadth. Thus, beyond the practical difficulties of sorting out what the Court held from what the plurality asserted and what are merely dicta is the problem of untangling the doctrinal underpinnings of the case. Searching below the surface of the opinion is essential, however, in order to understand how the Court might approach gang and loitering ordinances in the future.

1. The Duality of Vagueness Doctrine

Traditionally, the dual prongs of vagueness doctrine were seen as conjoined: A statute that was written so poorly or broadly that it failed to give notice to citizens about what was prohibited also vested too much discretion in police to decide what conduct was illegal. (122) Of those cases decided squarely under the doctrine, most invalidated ordinances under both prongs. (123) However, Kolender, which was decided on the grounds of the arbitrary-enforcement prong alone, identified that prong as the more important of the two, (124) and helped breathe independent life into it. The development could hardly have been surprising. After all, notice had long been something of a legal fiction: (125) Holmes' "bad man," seeking to order his behavior to remain just within the bounds of the law, (126) would have had to examine not just state and municipal codes, but also legislative history and court opinions before he knew what behavior was verboten. Notice is, and always has been, a theoretical check and balance applied by courts to the product of legislatures. (127)

Kolender traced the concern for providing minimal guidelines to law enforcement back more than a century to United States v. Reese (128) -- and thus established a shaky pedigree for arbitrary-enforcement doctrine. A voting-rights case from 1875, Reese dealt with separation of powers, not vagueness or due process (the Fourteenth Amendment being adopted just seven years prior and hardly yet embraced). The Reese decision hinged on the Court's reluctance to adopt limiting interpretations of statutes because it considered that task too legislative. (129) Nowhere does Reese mention law enforcement, an executive function then only in its infancy as far as professional police departments were concerned.

Still, even though Kolender, like Morales, was based only on the arbitrary-enforcement prong, Kolender did not suggest any disunity between the two prongs. Indeed, Kolender failed to discuss the notice prong at all, and it was not clear until Morales that the two prongs could be decided differently. (130) In Morales, the Court untwined the prongs of doctrine, finding the Chicago statute provided adequate notice but fostered arbitrary and discriminatory enforcement. (131) The decision created an irony that did not escape the notice of Justice Scalia in dissent. "[T]he vagueness that causes notice to be inadequate is the very same vagueness that causes `too much discretion' to be lodged in the enforcing officer," Justice Scalia wrote. "Put another way: A law that gives the policeman clear guidance in all cases gives the public clear guidance in all cases as well." (132)

Not surprisingly, given the traditionally close relationship of the two prongs of doctrine, the plurality and majority had difficulty keeping the two inquiries separate. The majority concluded its analysis with a comment that suggested the two prongs are indeed interrelated. In explaining why Chicago's ordinance was not saved by police rules limiting the manner in which the ordinance was enforced, (133) the Court evoked a rationale that spoke not of arbitrary enforcement, but of notice. Even though the police order had limited enforcement of the ordinance to certain parts of the city that the police did not publicly identify, the Court said, a person could not "knowingly loiter[] with a well-known gang member anywhere in the city [and] safely assume that they would not be ordered to disperse." (134) Simply put, the person loitering with a gang member lacked notice. The plurality's opinion similarly suggested the conceptual difficulties of separating notice from arbitrary enforcement. In the notice section of its opinion, the plurality spoke against permitting the legislature to cast "a net large enough to catch all possible offenders," (135) leaving it to the courts -- or, today's fear, the police (136) -- to decide who really violated the ordinance. The opinion is a classic evocation of the bar against arbitrary and discriminatory enforcement of laws, not of vagueness doctrine's notice requirement.

It is unclear from either Justice O'Connor's or Justice Kennedy's concurrences why they found the ordinance violated one prong of the doctrine, but not the other, (137) Justice Breyer's concurrence offers a clue: by basing its holding only on the arbitrary enforcement prong, the Court was able to entertain a facial challenge, whereas facial challenges are more difficult to sustain on notice grounds in cases, such as Morales, in which at least some of the defendants apparently were engaged in core prohibited conduct. (138) As Justice Breyer explained, when a policeman enjoys too much discretion to decide whether someone is loitering, that overly broad discretion is present in every case and thus facial challenges are appropriate. (139) Justice Breyer's concurrence therefore suggests that the Court disengaged the two prongs of vagueness doctrine not because they separate neatly conceptually -- they do not, as the examples above illustrate -- but because doing so helped to resolve thorny issues of standing.

Statutes challenged under the arbitrary enforcement prong thus now seem to enjoy a position as to standing formerly reserved for overbroad statutes, even when the statute -- as in Morales -- does not infringe First Amendment freedoms. (140) The question, then, is why. If not speech, does some other interest lurk beneath vagueness decisions in such cases, meriting the broader scope of judicial review once reserved only for overbroad statutes? We now turn to that question, and consider two possible answers: substantive due process and equal protection.

2. Vagueness Doctrine and Substantive Due Process

Because vagueness doctrine is a component of procedural due process, its core function theoretically is to serve as a check on the legal adequacy of the form of legislation: the words chosen by a legislature to frame the acts it seeks to criminalize also are intended to guide police in enforcing the law. However, scholars have argued that vagueness doctrine evolved decades ago from a procedural review to an evaluation of the legislation's substance. (141) This section briefly explores that argument before positing that equal protection, either instead of or in addition to substantive due process, undergirds many cases decided under the arbitrary enforcement prong of vagueness doctrine.

It has long been recognized that the line between procedural and substantive due process blurs in vagueness doctrine. (142) Indeed, many of the modern statutes invalidated under the doctrine touch upon fundamental rights, such as free speech (143) or the right to abortion, (144) thus leading to the confluence of vagueness doctrine and overbreadth. (145) Statutes in these protected areas receive stricter scrutiny under vagueness doctrine than do statutes regulating business. (146) Earlier in the century, it was just the opposite: when business regulation was controversial during the Lochner era, vagueness doctrine provided a mechanism for greater scrutiny of economic regulation, while playing a minor role in speech cases. (147) The doctrine thus has found reception among both liberal and conservative justices on the Court at different times and served to some extent as an empty vessel into which justices may pour concerns about substance.

In modern times, the Court has flirted with recognizing a substantive due process right to loiter, which would trigger stricter vagueness review. In the 1972 case of Papachristou v. City of Jacksonville, (148) Justice Douglas waxed eloquent about the virtues of wandering and strolling, calling them historical amenities not mentioned in the Constitution but vital to the American spirit. (149) Kolender, more than a decade later, found that a statute permitting police to ask people to present "credible and reliable" identification implicated both the First Amendment and "the constitutional right to freedom of movement." (150) Finally, in Morales, a plurality of Justices Stevens, Souter, and Ginsburg identified loitering "for innocent purposes" as a liberty interest protected by the Due Process Clause. (151) Still, the recognition of this "right" garnered only three votes. Justices O'Connor, Breyer, and Kennedy expressed no support for it, and even the plurality hedged, suggesting it could identify a right to loiter without implicating substantive due process. (152) Furthermore, the nature of the concern expressed by the Court majority -- arbitrary and discriminatory enforcement -- evokes less a desire to create a new positive right than to recognize a limit on the state's power. For example, the majority worried about the "vast" and "absolute" discretion that the ordinance conferred upon the Chicago police, and decried the lack of "limitation" on this discretion. (153) This failure adequately to constrain law enforcement was ultimately the ordinance's downfall, according to the Court, not its infringement on any particular constitutional right.

Of course, the language cuts both ways: by expressing the constitutional necessity of a (negative) limit, the justices also were necessarily protecting a (positive) right. Doing so under vagueness doctrine rather than substantive due process provided political cover during an era when it is controversial for judges to be seen as expanding rights via substantive due process. However, the context in which Morales and cases like it were decided -- including Papachristou and Kolender, as well as Shuttlesworth v. City of Birmingham (154) and Coates v. City of Cincinnati (155) -- suggests a dynamic other than substantive due process at work in arbitrary enforcement cases: race and the court's concern about discrimination.

3. The "Equal Protection" Strand of Vagueness Doctrine

The Court has gradually strengthened the arbitrary enforcement prong of vagueness doctrine, a development that reaches an apex in Morales. If this jurisprudence is not best captured under the rubric of substantive due process, which the Morales Court expressly denied, and if it seems to go beyond a merely procedural inquiry, what other doctrines could be at work? An examination of Morales illustrates that a connection has emerged between arbitrary enforcement and equal protection -- albeit a connection that the Court has not itself recognized.

Consider first the factual background to Morales. When Chicago police cracked down on suspected gang members, they swept up large numbers of minority arrestees, including Jesus Morales. (156) The American Civil Liberties Union, arguing on Morales' behalf, noted that the officer who arrested Morales admitted his suspicions were sparked when he observed Hispanic teens hanging out on a corner in a predominately white neighborhood. (157) The city never proved Morales was a gang member. (158)

From its inception, the 1992 Chicago anti-gang ordinance had been controversial, igniting a fuse of racial distrust that extends back generations in Chicago (159) -- and of this controversy the Court clearly was aware. In their amicus briefs, minority and civil rights groups, including a national association of African-American police officers, squared off against law enforcement, civic groups, and municipal leaders. The minority groups charged that the ordinance had been drafted to protect merchants and white residents and noted that some in Chicago's African-American community likened it to the "pass laws" that infringed the movement of South African blacks during apartheid. (160) Conversely, a coalition backing the ordinance asserted that it did not deserve the same searching scrutiny the Court had given to loitering laws in the 1960s and 1970s because African-Americans "are no longer so disenfranchised" and because the ordinance enjoyed broad community support, including among minorities. (161) Interestingly, the minority groups opposing the ordinance were adamant that although loitering ordinances had been enforced disproportionately against minorities in the past (and, they suggested, were being so enforced in Chicago in the present), the danger of racially discriminatory enforcement of an ordinance should not be a factor courts consider as part of a vagueness doctrine analysis. (162)

The Court gave only a few nods to the case's emotional, divisive backdrop. Justice Stevens noted in the plurality opinion that American vagrancy laws, which are a close cousin to anti-loitering ordinances, had been used in the antebellum era "to keep former slaves in a state of quasi slavery." (163) Race also arose obliquely during oral argument, when the justices sought clarification as to how many of Chicago's African-American political leaders had opposed the ordinance. (164)

Importantly, however, Morales was not the first time race and a loitering law had been linked. In fact, the Court had extensive experience with the confluence of vagueness doctrine and racial discrimination. In Papachristou, the Court had even explicitly grounded arbitrary enforcement jurisprudence on the concern that police vested with too much discretion would target anyone out of favor with the majority. (165) A standardless ordinance, the Court stated, "furnishes a convenient tool for `harsh and discriminatory enforcement by local prosecuting officials, against particular groups deemed to merit their displeasure,'" with the result that "the poor and the unpopular are permitted to `stand on a public sidewalk ... only at the whim of any police officer.'" (166)

Other precedents contained similar links. Although it did not mention vagueness, Shuttlesworth was rich with concern about arbitrary enforcement of ordinances in a South simmering with racial hostility. (167) In that 1971 case, the Court invalidated a loitering ordinance enforced against a group lingering outside a Birmingham, Alabama, store during an economic boycott by the city's black community. (168) Six years later in Coates, the Court rested on a blend of vagueness and overbreadth in striking down a city ordinance proscribing "annoying" behavior on sidewalks. (169) The Court noted that racially discriminatory enforcement of the ordinance had "figured prominently" in the city's 1967 race riots. (170) Just one year later, in Papachristou, the Court overturned a vagrancy statute upon which Jacksonville, Florida, police had based the arrest of two interracial couples for "prowling by auto." (171) In 1983, Kolender struck down a California ordinance requiring people who loiter or wander the streets to produce "credible and reliable identification" when stopped by police, (172) after the law was repeatedly enforced against an African-American man who frequented white neighborhoods. (173) Justice Brennan, in concurrence, worried that continued stops of African-Americans by police would inflame tensions in poor urban neighborhoods. (174)

In each of these seminal cases, a foundation for the development of arbitrary-enforcement doctrine, the Court invalidated ordinances used as vehicles for state racism or enforced primarily against minorities. (175) The Equal Protection Clause, the other tool for which the justices might have reached in striking down the ordinances, was unmentioned and today remains undeveloped as to criminal law. (176) The few cases in which equal protection claims have been litigated in a criminal context have involved prosecutors, (177) not police. One rare and dated exception is the Jim Crow-era case Wright v. Georgia, (178) in which the Court found an equal protection violation committed by police officers who arrested for breach of the peace several African-American youths peacefully playing basketball in a public park. (179) The officers had testified that they made the arrests to "enforce racial discrimination in the park." (180) Wright and United States v. Armstrong, (181) a failed 1996 equal protection challenge to the allegedly selective prosecution of blacks for federal drug crimes, were cited in a brief in support of Chicago filed by thirty-one states in the Morales case. (182) To the extent that equal protection concerns explain prior decisions under vagueness doctrine, the states asserted, equal protection law itself is available to strike down discriminatorily applied public-order statutes. (183)

While the equal protection and due process clauses are obviously close textual relatives, (184) and while equal protection doctrine is theoretically applicable to criminal cases, the paucity of equal protection decisions in the criminal law belies the states' confidence in the doctrine's functional availability to stop racially discriminatory law enforcement practices. Wright's influence has been felt in civil cases involving segregation, not, as the states would suggest, in criminal cases challenging police conduct. Furthermore, since Wright was decided, equal protection standards have changed. In the landmark case of Washington v. Davis, (185) the Court held that establishing an equal protection violation requires proof of discriminatory purpose and not just racially disparate impact from a policy or law. (186) This requirement seems virtually to assure a dead-end for many equal protection cases in the criminal arena, unless, like Wright, they involve bald and admitted racial bias. Furthermore, the discriminatory-purpose standard is a requirement the Court is likely to retain, given the chaos that would result if criminal statutes could be attacked on the basis of racially disparate impact alone. (187)

One might therefore argue that the Court is accomplishing through the arbitrary enforcement prong of the vagueness doctrine what it cannot do through equal protection itself because of the high hurdle of the discriminatory purpose requirement. (188) Such a conclusion would effectively undermine recent development of the arbitrary enforcement prong -- a fear that may have caused the amici supporting Morales to recoil, disavowing the connection between race and vagueness doctrine even as they pointed out how Chicago's ordinance caused racial division in that city. (189)

Another perspective on the doctrine emerging from Kolender and Morales is also plausible. This second approach acknowledges the deep connection between the doctrine and equal protection, as posited above, but finds a legitimate role for arbitrary enforcement jurisprudence as a complement to or outgrowth of equal protection doctrine, rather than as a replacement for it. Despite the Court's attempts to cloak arbitrary enforcement with historical gravitas by tracing it back to Reese, (190) the doctrine is a uniquely modern one, born of necessity in an age where police wield great discretion. (191) Police discretion has become an important component of the modern legal regime largely because the number of criminal statutes has grown exponentially. (The anti-gang laws discussed in Section I provide just one example.) But whereas equal protection cases arise when legitimate laws meant to be broadly applicable are enforced in a purposefully discriminatory fashion, arbitrary enforcement cases are different: they involve laws of marginal or questionable legitimacy -- frequently public-order or vice-crime statutes -- that are unlikely to be enforced generally. Such laws are not as amenable to the checks and balances of the political system. Consider the political brakes that would stop a legislature from, say, reducing the speed limit to forty-five miles per hour and enforcing that limit. The motoring public would be outraged, likely leading to repeal of the measure and defeat of its proponents in the next election. Those brakes are much less reliable when the law in question is enforced primarily against a minority group or, especially, a small segment thereof, such as urban minority teenagers in the case of anti-gang laws.

The connection between equal protection concerns and the arbitrary enforcement prong finds support in numerous parallels between the two doctrines. Both purport to deal with discrimination and to meet it with heightened scrutiny when the discrimination is race-based and purposeful. Although vagueness doctrine does not require a showing of purpose, it accomplishes much the same end by examining the product of legislative draftsmanship and the motives and cost spreading behind it. On a more doctrinally technical level, the link may shed light on the relaxed standing requirements in arbitrary enforcement prong challenges. As one lower federal court has noted, (192) the restrictive Salerno test for facial challenges, (193) dismissed as dictum by the Morales plurality while embraced by Justice Scalia in dissent, (194) has not been applied in the major equal protection cases. (195) In other words, the relaxed standing rules for arbitrary enforcement cases are more akin to those for equal protection decisions than to other vagueness cases that do not also implicate overbreadth.

More importantly, though, identification of the connections between the arbitrary enforcement prong of vagueness doctrine and equal protection can assist those who seek to draft constitutional ordinances. The comparison illustrates that those criminal ordinances that disparately impact minority neighborhoods are significantly more likely to offend the Court's sense of fairness -- and to lead to sustained facial challenges -- than ordinances in which disparate enforcement is not a factor.

The difficulty is that in some cases, as with gangs, there may be no getting around these racial disparities in enforcement. Authorities consistently assert that many more minorities than whites are members of street gangs. (196) Race thus is bound up in gang crime in a way that it is not necessarily implicated by other crimes, such as vagrancy, failing to identify oneself to the police, or annoying a passersby on a sidewalk.

This nexus between gangs and race creates a special challenge for legislators and courts to navigate vagueness doctrine challenges to gang laws. The more specifically targeted to gangs a criminal law is, the more likely it is to result in arrests that are largely of minorities. If eighty-five percent of gang members are minorities, as research suggests, (197) then it would follow that eight or nine of every ten individuals arrested for any given gang crime will be minorities, assuming racially neutral enforcement of the law. Thus, even racially neutral enforcement of a gang-targeted criminal law will appear to be racially slanted and discriminatory. Making an anti-gang law more specific, targeted, and precise, as the Court in Morales suggested Chicago do in order to surmount vagueness hurdles, thus will only make matters worse: the retooled laws will continue to result in arrests that contain a disproportionately large number of minorities, appearing to implicate equal protection concerns.

In sum, cities face a seemingly irresolvable dilemma: a highly specific anti-gang ordinance will guide police adequately and survive a vagueness challenge but also have a racially disparate and divisive impact on the community, assuming over-representation of minority youth in street gangs. Vagueness doctrine, as it drifts toward equal protection, thus has become a conundrum. Increasingly precise laws, it seems, may be more odious than vaguer, more generally applicable ones when it comes to combating gang crime.

An examination of how courts and the city of Chicago are addressing the challenges of the constitutionality of anti-gang laws in the post-Morales era is the subject of the next section.

III. APPLICATION OF DOCTRINE TO CONTEXT: ANTI-GANG AND PUBLIC-ORDER ORDINANCES AFTER MORALES

In the aftermath of Morales, numerous federal and state courts have invalidated loitering and drug zone ordinances, while more targeted public-order measures have generally been upheld. As a result, as discussed in Section III.A, the Morales decision is affecting how communities confront non-violent street crime. Section III.B explores the new breed of super-targeted ordinances such as Chicago's "hot spots" law, unveiled in the late summer of 2000 in an effort to surmount the 1992 ordinance's vagueness problems. This article concludes that Chicago's second effort to fight gangs also is constitutionally flawed. While purporting to limit police discretion, it ironically vests near total control in top police officials to decide where the ordinance will be enforced. Further, because the ordinance's applicability is limited to some blocks and not others, the new Chicago ordinance behaves like an injunction without the court protections that accompany a true injunction, and brings to the surface the underlying connection in Morales between vagueness doctrine and equal protection.

A. Public Order and Loitering Ordinances in the Courts Post-Morales

Since the Supreme Court decided Morales in the spring of 1999, lower courts have applied the decision in dozens of challenges to criminal ordinances. A selective review of these cases -- focusing on challenges to loitering, public-order, or gang-related ordinances and rules -- helps elucidate Morales' place in vagueness jurisprudence and provides guidance for communities attempting to use the law in novel ways to combat gang crime. This review establishes that general loitering ordinances and those targeting narcotics-related loitering have faced renewed vulnerability (198) in the wake of Morales. Meanwhile, courts have upheld the constitutionality of more targeted public-order measures. In terms of gang-specific legislation, the early evidence is mixed as to whether Morales is compromising communities' efforts to fight gang crime.

1. Loitering Ordinances Post-Morales

Of the five loitering and loitering-related ordinances (199) so far found constitutionally infirm under Morales (200) the ordinance enjoined in Leal v. Town of Cicero (201) most implicated arbitrary enforcement, while also exposing more clearly than did Morales the racial tensions underlying loitering cases. At issue was Section 25-25 of the Cicero Code of Ordinances (202) which states: "No person shall obstruct or encumber any street corner or other public place in the town by lounging in or about the same after being requested to move on by any police officer." (203) Police in Cicero, a Chicago suburb locked in a notorious struggle with gangs, (204) arrested fifteen-year-old Javier Leal, who was standing on a sidewalk with two other Latino teenagers and refused to move on at the request of police. (205) The federal court struck down the ordinance as unconstitutionally vague, finding it akin to the Chicago ordinance at issue in Morales in terms of its failure to provide enforcement standards for police. (206) At the core of the court's concerns was racially discriminatory enforcement. The court stated:

   Without [statutory] guidelines, the public is at risk of having a police
   officer treat two individuals differently though they are engaged in the
   same conduct. For example, when the police officer requests the Latino
   youth standing on the street corner to "move on," but does not make the
   same request of the white adult male standing at the corner, the Latino
   youth is at risk of arrest while the white adult male is not. (207)

The connection between race and modern loitering ordinances challenged in the wake of Morales also was apparent in NAACP Anne Arundel County Branch v. City of Annapolis, (208) which held unconstitutional Annapolis, Maryland's Drug-Loitering Free Zones Ordinance. (209) On behalf of the plaintiffs, the NAACP stressed the unequal impact the ordinance would have on Annapolis's minority community. Each of eight areas either designated or pending designation as a Drug-Loitering Free Zone, which triggered the enforcement of the ordinance in those areas, was predominately African-American. (210) The court found that the ordinance lacked a mens rea requirement, (211) an omission that often sounds the death knell for loitering ordinances. It then declined to read a mens rea requirement into the ordinance, an activity that it said would have exceeded its power as a federal court reviewing a municipal ordinance. (212) Finally, the court rejected as vague under both the notice and arbitrary enforcement prongs a provision of the ordinance that condemned the "making [of] hand signals associated with drug related activity" and a provision that allowed the police to give a move-along order to those "engaging in a pattern of ... conduct normally associated by law enforcement agencies with the illegal distribution, purchase or possession of drugs." (213) The court also found the ordinance was overbroad because it could cover constitutionally protected activities. (214)

A similar effort by a Georgia community to combat drug-related loitering was struck down, post-Morales, by the Georgia Supreme Court in Johnson v. Athens-Clarke County. (215) An Athens-Clarke County municipal ordinance forbade narcotics-related loitering and loitering or prowling that "warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity." (216) The ordinance first broadly defined the offense of loitering or prowling, (217) then gave specific examples of behavior that would trigger arrest, including fleeing upon sight of a police officer, refusing to identify oneself, or concealing oneself or an object from a police officer. (218) Tyson Johnson had been arrested under the ordinance and convicted after police saw him four times in two days at an intersection they considered a "known drug area." (219) Citing Morales, the court held that the ordinance failed to provide notice as to what was a "known drug area" and that its admonition against "unlawful drug activity" offered no guidance to law enforcement. (220)

While not technically loitering ordinances, two related measures designed to restrict movement and drug-dealing in targeted urban areas were struck down by a federal court in Ohio (221) and a state appellate court in Virginia. (222) The ordinances, along with those discussed above, demonstrate the lengths to which cities will go in order to carve out zones where different -- and more restrictive -- laws apply to combat perceived crime problems.

In Ohio, a federal court sitting in Cincinnati enjoined enforcement of a "drug exclusion zone" measure on the grounds that it implicated freedom of association and movement and resulted in double jeopardy -- a ruling currently on appeal to the United States Court of Appeals for the Sixth Circuit. (223) Johnson v. City of Cincinnati (224) involved a challenge by plaintiffs who had previously been convicted of drug crimes to a municipal ordinance that banned them, post-conviction, from entering areas of the city where illegal drug activity had been deemed problematic. (225) At the time of the legal challenge, only one area had been designated as an exclusion zone: over the Rhine, an impoverished downtown neighborhood that in April 2001 was the site of racial strife and rioting after police shot an unarmed African-American teen following a foot chase. (226)

The court in Johnson found the ban interfered with association rights because the plaintiffs could not lawfully enter the zones to visit family, nor even to confer with attorneys in those areas. (227) Further, the court found that the ordinance violated plaintiffs' right to movement. (228) Citing Kolender and the Morales plurality, the Ohio federal court held this right to be fundamental. (229) It noted that while a majority of the United States Supreme Court had not specifically identified intrastate travel as fundamental, "it has not denied it either." (230)

Similarly, a sharply divided panel of the Court of Appeals of Virginia, the state intermediate appellate court, found that procedures used by the city of Richmond's housing authority violated the First and Fourteenth Amendment rights of a defendant convicted of trespass on privatized streets adjacent to a public housing project. The defendant in Hicks v. Commonwealth (231) had been convicted of trespassing and denied use of the once-public streets adjacent to the project, which was home to the defendant's mother, child, and his child's mother. (232) The streets had been deeded by the city to the Richmond Redevelopment and Housing Authority, which owned the complex, (233) as part of an effort to combat drug-dealing there. (234) While the sidewalks were not blocked off, they were posted as no-trespassing; trespassers could be barred from future use of the streets by a "barment" procedure. (235) After an en banc rehearing, Virginia's Court of Appeals found that the privatized streets remained public fora and that the procedure for barring trespassers ran afoul of both the First and Fourteenth Amendments. (236) Likening the case to Morales, the majority said the procedures inhibited the constitutionally protected right to move from place to place or to remain in a public place without a "legitimate reason." (237)

2. Other Public Order Provisions

In contrast to the above cases, lower courts have upheld, against post-Morales vagueness challenges public-order statutes that target actions other than loitering. This indicates that the effect of the Morales decision so far appears limited to loitering ordinances generally, and not to more targeted statutes.

Just months after Morales was handed down, a state appeals court in City of Chicago v. Powell (238) upheld a Chicago ordinance aimed at curtailing drug sales and prostitution that had earlier been declared unconstitutionally vague in state trial Court. (239) The ordinance prohibits any person from "stand[ing] upon, us[ing] or occupy[ing] the public way to solicit any unlawful business," and from impeding pedestrians or cars in an attempt to solicit unlawful business. (240) The court first cut through the tangle of standing doctrine

after Morales -- with dubious celerity, given the complex gloss the Morales court had put on the matter -- by flatly rejecting a facial challenge to the ordinance because it did not implicate the First Amendment. (241) The court then held that the ordinance provided sufficient notice because "solicit" is so well understood that it need not be further defined and because the ordinance adequately defined "unlawful business." (242) Finally, the court distinguished Morales, finding no encouragement of arbitrary enforcement largely because the ordinance contained a mens rea requirement. (243)

In Betancourt v. Giuliani, (244) a federal court upheld against a vagueness challenge a section of the New York Administrative Code (245) barring obstructions in public places. The provision had been enforced against a homeless man who was sleeping on a park bench inside a tube of cardboard boxes. (246) The man argued that the provision, part of then-Mayor Rudolph Giuliani's 1994 quality-of-life campaign, (247) should be stringently reviewed because it imposed criminal penalties without a mens rea requirement and implicated the right to travel. (248) The court declined, finding that the ordinance focused on creating obstructions, not on loitering or movement. (249) It then proceeded to find that the provision, unlike that in Morales, guided police sufficiently by including a list of prohibitions. (250)

3. Gang-Specific Challenges in the Courts Post-Morales

The cases discussed have involved loitering and public-order statutes not primarily intended to target gangs, but closely related to anti-gang laws. In the wake of Morales, gang-oriented measures have been challenged in the lower federal courts and in state courts in several cases.

Two of the cases dealt with minors, the first again illustrating the racial dynamic in gang cases. In Fuller v. Decatur Public School Board of Education School District 61, (251) a federal district court upheld an Illinois school rule prohibiting "gang-like activities" in a challenge by six high school students, allegedly gang members, who were involved in a fistfight during a football game and subsequently expelled. (252) The students filed suit under 42 U.S.C. [section] 1983. They alleged, inter alia, that their equal protection rights had been violated because the school disciplinary practices were racially biased and that the school rule was facially vague. (253) Stressing that school officials have great latitude in establishing disciplinary rules, (254) the trial court held against the students on all counts and was affirmed by the Seventh Circuit. While acknowledging that it appeared that African-American students were much more likely to be expelled from the Decatur schools than were white students, the court found no evidence of racial animus in school disciplinary decisions. (255) As to the students' vagueness challenge, the court found Morales inapplicable, (256) holding that school disciplinary rules need not be as detailed as criminal statutes to survive a due process challenge. (257)

In Hodge v. Lynd, (258) a second gang case involving a minor, a youth expelled from a New Mexico county fair and rodeo succeeded on a Morales-based challenge that combined vagueness doctrine and substantive due process. A sheriff's deputy had ejected the youth from the fair after he refused to turn around a baseball cap he had been wearing backward, a method of dress local law enforcement associated with gangs. (259) When the boy returned to the fair, he was arrested for criminal trespass. (260) The federal trial court found that the county had a legitimate interest in fostering a safe, family-oriented environment at the fair, but said the dress code was not rationally related to that policy since wearing baseball caps backwards was fashionable among many area youths. (261) Citing Morales, the court further found that the county had established the dress code based on an impermissibly vague "zero tolerance gang rule" that banned clothing that "could be an indicator of gang activity." (262) The court enjoined the rule because it left too much discretion to police. (263)

Far away from the New Mexico county fair of Hodge, a state court similarly sought to constrain aggressive anti-gang efforts in New York City. In City of New York v. Andrews, (264) city officials sought an injunction to control prostitution in Queens that they alleged was being operated by members of the Bloods street gang. (265) While anti-gang civil injunctions have been used elsewhere, most notably in California, (266) this lawsuit was "extraordinary and unprecedented" for New York, Judge Arthur W. Lonschein declared. (267) He declined to issue the injunction, finding that while the city established the area was "plagued" by brazen prostitution, it did not prove that the defendants were responsible, that banning them from the area at night would improve the situation, or that the extant criminal law was incapable of dealing with the problem. (268)

In dicta, Judge Lonschein suggested the viability of the anti-gang civil injunction "may fairly be called into question" after Morales (269) -- an assertion that appears questionable. First, the Morales Court was dealing with a statute, not an injunction. Despite the functional closeness of the two forms, they are legally distinct and are evaluated under entirely different standards, as Judge Lonschein acknowledged in his opinion. (270) Second, the Supreme Court in Morales did not considerably strengthen the hand of gang members challenging the constitutionality of an anti-gang measure, outside the realm of loitering ordinances. (271) The Court's decision was narrow, and did not demonstrate majority support for a constitutional right to loiter. Additionally, it acknowledged that First Amendment rights of gang members were not infringed by the Chicago ordinance. Far from a blanket condemnation of legal efforts to constrain gangs, it indicated sympathy with communities battling gang problems. However, Judge Lonschein was prescient in noting the links between the two forms -- the anti-gang civil injunction and the anti-gang ordinance. It is to this connection that the Article now turns.

B. The New Breed of Gang and Drug Loitering Laws: Spanning the Law-Equity Divide

As Judge Lonschein noted in Andrews, the anti-gang civil injunction of Acuna and the anti-gang ordinance of Morales are functionally close cousins, despite the fact that they are on opposite sides of the civil-criminal and equity-law divides. The paradigm promises to be further stretched and tested by the post-Morales Gang Loitering Ordinance unveiled in the summer of 2000 by Chicago officials. That ordinance is examined below, both in the context of related ordinances, discussed supra in Section III.A. and on its own merits. This section concludes by analogizing the current crop of gang and drug-loitering laws, including Chicago's, to civil injunctions, and suggests the latter would be a more constitutionally sound and intellectually honest way of controlling targeted hot spots.

1. The New Chicago Ordinance in Context

The new Chicago ordinance, targeting gang hot spots in the city, grafts suggestions from the Morales opinions onto Chicago's old ordinance. The result is akin to narcotics loitering and drug-zone ordinances being enacted more and more often by municipalities -- and promptly being struck down by the courts on constitutional grounds. (272) This new breed of ordinance seeks to impose upon designated areas, usually areas believed to be gang hang-outs or hotbeds of drug dealing, a criminal law that is not applied elsewhere in the city.

Consider, for example, ordinances rejected by the courts in post-Morales challenges in just the past several years and discussed in the preceding section. The Annapolis ordinance rejected by the Maryland federal court in 2001 aimed to enforce an anti-drug-loitering provision that would apply only in designated zones of the city. (273) In Ohio, a Cincinnati ordinance struck down in 2001 by a federal court attempted to place zones of the city off-limits to those convicted of drug crimes, (274) thus targeting enforcement to specific areas and against specific individuals only. In both cases, the only areas targeted for the differential enforcement were predominately African-American. (275) Similarly, in Virginia, the City of Richmond attempted to impose a different regime of criminal laws on the streets around a housing project by privatizing the streets and sidewalks, a strategy rejected by a state appeals court. (276) Finally, the Georgia Supreme Court found that an Athens-Clarke County narcotics-loitering ordinance had been unconstitutionally applied by police to prohibit hanging out on what they believed to be a "known drug corner." (277) In each case, a zone of the city or street corner, selected either through formal legislative or executive process or informally by police, was singled out for the imposition of a criminal law not applicable elsewhere in the same community.

Unlike the ordinance it adopted in 1992, Chicago's new gang loitering provision is more tightly worded. The new ordinance limits its application to gang members, (278) whereas the old ordinance applied to gang and non-gang members alike. Like the old ordinance, the new one contemplates a similar scheme: violators first will be asked by police to disperse; those that do not disperse will be subject to arrest, with penalties ranging up to a $500 fine and six months in jail. (279) In a nod to the Morales' plurality, however, the new ordinance requires more specific dispersal orders. Those ordered to disperse must move beyond "sight and hearing" of the spot where they had loitered and must remain away for at least three hours. (280)

The biggest change, however, is the definition of loitering. Whereas the ordinance struck down in Morales prohibited "remain[ing] in any one place with no apparent purpose," the new statute focuses specifically on "gang loitering," which it defines in the following manner:

   Gang loitering means remaining in any one place under circumstances that
   would warrant a reasonable person to believe that the purpose or effect of
   that behavior is to enable a criminal street gang to establish control over
   identifiable areas, to intimidate others from entering those areas, or to
   conceal illegal activities. (281)

This language is taken verbatim from dicta in Justice O'Connor's Morales concurrence. (282) Despite these changes, the ordinance still does not appear to contain a mens rea requirement, a flaw that also dogged the previous ordinance. It does mention "purpose," but not in the context of the actor's intent, which is the locus of mens rea. Rather, the element of purpose arises in the context of what others construe from observing the actor (i.e., whether his or her behavior appears purposeful to the reasonable person).

Although the ordinance is patterned on the one the Court struck down in Morales, it also contains entirely new provisions limiting enforcement to certain parts of the city -- "hot spots" in the jargon of policing theorists -- (283) much akin to the drug exclusion and anti-drug loitering zones discussed in the context of other municipal ordinances. (284) In adding these provisions, Chicago was responding, yet again, to Justice O'Connor. In particular, the city sought to adhere to a dictum in which Justice O'Connor stated that the old ordinance might have been less of an unconstitutional grant of discretion to police if it had incorporated limits on the area and manner of its enforcement. (285) The new ordinance thus states that the crime of gang loitering will be enforced only in designated public places to be determined by the Superintendent of Police. (286) He or she is to make these designations after consulting with police officials, representatives of the areas, community organizations, and participants in the Chicago Alternative Policing Strategy. (287) The designations do not have to be made public: In fact, the Chicago Police Department has insisted on keeping them secret so it can keep targets of the ordinance guessing. (288)

The lack of clarity in the Court's vagueness jurisprudence makes it difficult to say whether the Court would find the ordinance constitutional or not, especially given the opacity of the Morales concurrences, which were critical to the decision of that case. (289) While the new ordinance does use more specific language, the definition of "gang loitering" remains vulnerable to legal attack. For example, it is unclear what the city intended when it wrote of "establish[ing] control over identifiable areas" and "intimidat[ing] others from entering those areas." What constitutes an "identifiable area"? Does "establish[ing] control" mean posting gang members on street corners? Tagging buildings with graffiti? If the latter, would a "reasonable person" necessarily understand the symbolism of gang graffiti, which sociologists view as an elaborate means of inter- and intra-gang communication? (290) Further, what is included in "conceal[ing] illegal activities"? Scattering upon the appearance of a police officer? Making a hand-to-hand transfer of a small item? Can the act of concealing, without more, be constitutionally forbidden? Finally, because the ordinance allows the hot spots to be kept secret, it could raise notice problems in a more global respect, in that it creates heightened standards of police scrutiny for actions on some city blocks but not others.

Beyond the ordinary vagueness issues that could be raised, however, lurks a more novel concern: the ordinance delegates vast power to top police officials to determine where it will be enforced -- an unusual move by Chicago, given that the first ordinance was struck down for allowing too much police discretion. The difference between the two ordinances seems to be that, whereas the old ordinance vested discretion in the beat officer, the new ordinance shifts discretion to police officials at headquarters who designate the secret hot spots. Although police always exercise discretion as to what laws they will enforce and where, the twist in Chicago's second ordinance is that it is not even facially applicable citywide -- the sine qua non of an ordinance. (291) The spot, rather than general, applicability of the new ordinance implicates more clearly than did the old ordinance the concerns discussed above about the ability of legislatures to enact provisions that apply only to minority groups or segments thereof without facing the political accountability attending the passage of a generally applicable statute. (292)

While the targeted application of the new ordinance may resolve some problems of beat-level discretion by police, it is important to remember that the Court in Morales appears to have been motivated at least partly by equal protection concerns and the tradition of racial minorities bearing the brunt of enforcement of loitering statutes. Considered in this light, the new ordinance does not represent an improvement. Instead, it is worse than the first version struck down in Morales, in that it enables -- even codifies -- a more systemic targeting of the poor and racial minorities through the selection of enforcement hot spots by Chicago police. To date, those hot spots have been concentrated on the city's poor and heavily minority South and West sides. (293)

Such a targeted anti-gang loitering ordinance implicates both due process and equal protection, the two doctrines intertwined in Morales. In this new Chicago ordinance, the dilemma of crafting a constitutional anti-gang ordinance becomes starkly apparent. On the one hand, vagueness doctrine's evolving arbitrary-enforcement requirement, as articulated by the Court in Kolender and now Morales, demands a specific, clearly targeted ordinance that is not susceptible to discriminatory enforcement by police. On the other hand, laws that are too specific -- isolating enforcement only in particular hot spots and against particular groups -- run afoul of a fundamental tenet of due process: that the law is to be general in application. (294) Further, laws that are specific to gangs are bound to have unequal effects on minority communities, given the heavy Hispanic and African-American representation in street gangs as shown by researchers and government surveys.

2. The Next Step: Anti-Gang Ordinances v. Anti-Gang Injunctions

Given this dilemma, how should cities proceed in the face of a gang problem that has escalated? Are cities' hands tied by the logic of Morales, which demands specificity in criminal anti-gang ordinances but which also appears destined to reject ordinances that "zone" the criminal law, enforcing a law on one block and not another, and that target particular minority groups that are over-represented in gangs?

In fact, cities may have a way out of the dilemma. Instead of contorting the generalized criminal law with targeted drug zone or hot spots ordinances, as Chicago and other cities have, cities would be better advised to pursue a time-tested -- albeit controversial -- method for combating localized problems that do not rise to the level of violations of the extant criminal proscriptions. That method is the use of the anti-gang civil injunction, popularized in California and discussed in Section I.B.

First, consider the similarities between the anti-gang ordinance as it is evolving in Chicago and the anti-gang injunction as used in California. Both the Chicago ordinance and anti-gang civil injunctions are intended to break up gang control over certain areas. The objective is not so much to arrest and prosecute offenders as to remove them from places in which they have engaged in illegality or where they threaten to do so once police are gone. (295) But although the goals of the anti-gang injunction and the hot spots ordinance are similar, the mechanisms employed are much different. Hot spots ordinances like that adopted in Chicago attempt to achieve injunction-like results while circumventing the safeguards involved in a civil injunction.

The 1997 California case of People ex rel. Gallo v. Acuna (296) demonstrates how the anti-gang civil injunction works. In Acuna, prosecutors sought to use the general public nuisance laws to crack the hold that a street gang had over a four-square-block neighborhood of San Jose with the deceptively idyllic name Rocksprings. (297) A gang variously known as Varrio Sureno Town, Varrio Sureno Treces, or Varrio Sureno Locos had claimed the neighborhood as its tuff, according to the court, "openly drinking, smoking dope, sniffing toluene, (298) and even snorting cocaine laid out in neat lines on the hoods of residents' cars." (299) At base, though, the core concerns in Rocksprings were the same as those motivating Chicago in passing its anti-gang loitering ordinances -- drug trafficking and intimidation of residents. (300)

Prosecutors in Acuna sought and received a sweeping preliminary injunction from the superior court against thirty-eight named defendants, limiting their activities within Rocksprings. (301) The injunction was based on state public nuisance law, which allows the enjoining of activities that are injurious to public health, indecent or offensive to the senses of the community, or that interfere with property or obstruct the use of public parks or thoroughfares. (302) Public nuisance law is distinguishable from private nuisance law, which seeks to redress interference with an individual's use or enjoyment of property, in that public nuisance law generally involves activities that affect a large number of people. (303) In the gang context, prosecutors have used both general nuisance laws, as in Acuna, and gang-specific nuisance laws, which may allow the eviction of gang members from buildings they use to commit crimes. (304) Nuisance law also has been used by prosecutors to enjoin street gangs based on logs of daily disruptions they cause in neighborhoods, such as gunshots. (305)

The Acuna defendants appealed the preliminary injunction the prosecutors got against them, resulting in the state intermediate appellate court striking fifteen of the twenty-four provisions approved by the lower court as part of the preliminary injunction. (306) However, the city in turn appealed to the California Supreme Court and it reinstated two of the contested provisions. These provisions, at issue in Acuna, underscore just how broad a civil anti-gang injunction can be. One of the contested provisions forbade the defendants from "standing, sitting, walking, driving, gathering or appearing anywhere in public view with any other defendant or with any other known ... member" of the gang. (307) The other enjoined defendants from "confronting, intimidating, annoying, harassing, threatening, challenging, provoking, assaulting and/or battering any residents or patrons, or visitors to `Rocksprings' ... known to have complained about gang activities." (308) The court rejected a First Amendment challenge to the former provision, (309) and then rejected a vagueness challenge, as mens rea elements could be implied. (310) Further, it said it would be clear to the defendants what sort of behavior the city wanted to curtail by the latter provision -- behavior that included an alleged threat by a gang member to cut out a nine-year-old's tongue if her mother talked to police, and threats against a resident who complained that gang members had urinated in her garage. (311)

Although the injunction was broadly worded and sweeping, the court was careful to distinguish an injunction from a generalized criminal law. Generalized criminal laws are necessarily more general and are subject to attack through overbreadth doctrine for the chill they may exert on unnamed others. (312) By contrast, civil injunctions generally apply only to the named defendants, (313) address specific circumstances or behavior by those defendants, (314) and are subject to close and continuing scrutiny by the court, both when issued and, if a defendant is alleged to have violated the injunction, during contempt proceedings to enforce the injunction. (315)

In Acuna itself, the California Supreme Court engaged in a painstaking balancing exercise in order to determine whether to approve the challenged preliminary injunction provisions, weighing the interference with "public rights" posed by the gang (316) against the gang members' constitutional rights. (317) Quoting Montesquieu, Locke, and Madison, the court reached back centuries into English legal history to justify the use of public nuisance doctrine in urban America. (318) The court also examined the substantive limits on the injunction to see if they met the high bar for injunctions established by the United States Supreme Court in Madsen v. Women's Health Center, Inc., (319) which requires that injunctions burden no more speech than is necessary to serve a significant government interest. (320)

By achieving the same control over an area through an ordinance rather than an injunction, Chicago bypassed this particularized and careful inquiry that aims to match remedy to harm. (321) The courts are not required to analyze the problems caused by individuals in defined areas. Instead, Chicago has given its police carte blanche to bend a criminal law to the injunction-like goals of prohibiting certain activities of a defined group (gang members) in particular blocks of the city ("hot spots"). As a result, the ordinance is a more flexible tool for police, allowing much prompter dispersal than would an injunction. (322) However, the "hot spots" ordinance lacks the procedural safeguards courts have erected before specific individuals or neighborhoods can be targeted for enforcement of provisions that are not generally applicable.

While it is hardly beloved by civil libertarians and can be misused, (323) the anti-gang injunction provides a more careful mechanism for prohibiting localized harm than does a statute such as Chicago's. Even the American Civil Liberties Union, the foe of anti-gang loitering ordinances nationwide, agreed in its Morales brief that the anti-gang injunction as used in Acuna was preferable to the anti-gang ordinance in Morales. (324) The injunction involves detailed findings of fact with respect to the individuals involved and applies only in a carefully delimited, publicly revealed area. (325) A court supervises the restrictions that apply, and can lift the injunction if circumstances warrant. By contrast, an anti-gang ordinance such as Chicago's delegates to police officials the responsibility for determining where the injunction-like ordinance will apply, for how long, and to which individuals it will be directed. This may seem little different from the discretion police exercise routinely to enforce an ordinance in one instance but not another. However, the key is that court scrutiny over the application of the ordinance is rendered much more difficult than it otherwise would be by the vast delegation of power to the police and the secrecy with which police designate "hot spots." The use of a criminal ordinance to achieve such injunctive-like results thus is an end run around the court protections involved in equitable relief, (326) protections designed to assure that extraordinary powers are appropriately limited.

The new Chicago hot spots ordinance turns on its head the usual debate, whereby commentators decry the use of civil measures in the criminal context because they fear their use skirts due process and jury-trial rights of the accused. (327) The Chicago ordinance points out that the danger can run both ways. When a city uses an ordinance like an injunction, applying the law on one block but not another, it evades careful judicial scrutiny that attaches to injunctions -- judicial oversight not thought to be necessary when the criminal statutes are general in nature and applicability, as has normally been the case.

C. Conclusion

Chicago is hardly alone in exploring new ways to stem gang crime. As this article has illustrated, cities and states have developed an array of approaches, using both criminal laws and civil injunctions to target gangs and enacting an array of targeted or zoned narcotics-loitering ordinances. Indeed, never before have so many gang-related ordinances appeared on the statute books nationwide. In large part, these measures appear driven by political leaders, sometimes in reaction to publicized incidents of violence, (328) rather than by police. (329)

By focusing on the anti-gang loitering ordinance as its key response to gangs, Chicago has exposed the raw nerve of racial tensions underlying modern criminal justice. It also has revealed weaknesses in the Supreme Court's ability to confront the constitutional problems underlying race and crime using modern constitutional doctrine, thus resulting in confusion as vagueness doctrine is bent to that task.

Despite their political popularity, anti-gang loitering ordinances such as those in Chicago are both unnecessary, given the variety of other tools at the city's disposal, and constitutionally troubling. The first Chicago ordinance, at issue in Morales, allowed vast police discretion that the Court found unconstitutional under vagueness doctrine, a procedural due process inquiry that has become a tapestry containing threads of substantive due process and equal protection. Although far from being decided neatly or coherently, the case appropriately rejected Chicago's ordinance. Chicago officials then developed a more tightly worded and specific ordinance that still manages to offend due process and equal protection guarantees. This new ordinance, applied only in gang hot spots in the city, melds the generalized criminal law with the anti-gang civil injunction, producing a powerful tool police officials can deploy on some blocks of the city but not others.

While Chicago's new ordinance may be more responsive to concerns about who can be arrested under the ordinance, it does nothing to assuage racial tensions underlying the gang problem -- indeed, it highlights those tensions. Further, it merely shifts discretion from the policeman on the beat to police officials at headquarters. Indeed, the new ordinance moves the criminal law in the opposite direction from what Justice Douglas visualized in 1972 -- the law as "the great mucilage that holds society together" (330) -- and closer to what a resident of a Chicago public housing project views as a system of "two laws," one for rich white neighborhoods and another for poor minority ones. (331)

Appendix A: Summary of Current Gang Ordinances (by State)

                          Gang         Gang           Gang
        Comprehensive   Recruit.   Intimidation   Participation
State     Gang Act       Ord. *       Ord. *         Ord. *

AK                         X
AZ                                      X               X
AR            X            X
CA            X
DC
FL            X
GA            X
IL            X                         X
IN                                      X               X
IA                         X                            X
KY                         X
LA            X
MA
MN
MS            X
MO            X
MT            X
NV
NJ                         X
NY
ND                         X
OH            X
OK                         X
SD
TN
TX                         X                            X
VA                         X                            X
WA                                      X
WI                         X
TOT.         10            10           4               5

          Other
          Gang-
         Specific    Nuisance
         Criminal    Prov(s).
          Ord. *     Targeting
State   ([dagger])     Gangs     Relevant Statutes

AK                               ALASKA STAT.
                                   [subsection] 11.61.160,
                                   11.61.165, 11.81.900(12)
                                   (Michie 2000)
AZ                               ARIZ. REV. STAT. ANN.
                                   [subsection] 13-105(7)-(8),
                                   13-1202(A)(3),
                                   13-2308 (West 2000)
AR                       X       ARK. CODE ANN.
                                   [subsection] 5-42-202,
                                   5-74-101-109, 5-74-201-203
                                   (Michie 1999)
CA                       X       CAL. PENAL CODE
                                   [subsection] 186.20--186.33
                                   (West 2001)
DC          X                    D.C. CODE ANN.
                                   [section] 48-1004 (2002)
FL          X            X       FLA. STAT. ANN.
                                   [subsection] 874.01--.09,
                                   877.04(3), 893.138 (West 2000)
GA          X            X       GA. CODE ANN.
                                   [subsection] 16-11-160--161,
                                   16-15-1--8,
                                   17-6-1(f)(4) (2000)
IL          X                    740 ILL. COMP. STAT. ANN.
                                   [subsection] 147/5-45, 720
                                   ILL. STAT ANN.
                                   [section] 5/12-6.2, 720 ILL.
                                   STAT. ANN. [section] 570/405.2
                                   (West 2001)
IN                               IND. CODE ANN.
                                   [subsection] 35-45-9-1--4
                                   (West 2001)
IA                       X       IOWA CODE ANN.
                                   [subsection] 657.2(6),
                                   723A.1--3 (West 2000)
KY                               KY. REV. STAT. ANN.
                                   [section] 506.140--150
                                   (Michie 2001)
LA          X            X       LA. REV. STAT. ANN.
                                   [subsection] 14:92.2(1)(a),
                                   15:1402--1407 (West 2001)
MA          X                    MASS. GEN. LAWS ch.
                                   265, [section] 44 (West 2000)
MN          X                    MINN. STAT. ANN.
                                   [section] 609.229 (West 2000)
MS                               MISS. CODE ANN.
                                   [subsection] 97-44-3--19 (2001)
MO                       X       MO. ANN. STAT.
                                   [subsection] 578.421--437
                                   (West 2000)
MT                               MONT. CODE ANN.
                                   [subsection] 45-8-402--408
                                   (2000)
NV          X                    NEV. REV. STAT. ANN.
                                   [subsection] 179.121, 193.168
                                   (Michie 1999)
NJ                               N.J. STAT. ANN.
                                   [section] 2C:33-28 (West 2001)
NY          X                    N.Y. PENAL LAW
                                   [subsection] 120.06-.07 (West
                                   2000)
ND          X                    N.D. CENT. CODE
                                   [subsection] 12.1-06.2-01--04
                                   (1999)
OH                       X       OHIO REV. CODE ANN.
                                   [subsection] 2923.41--47,
                                   3767.02 (West 2000)
OK                               OKLA. STAT. ANN. tit.
                                   21 [section] 856(D)--(F)
                                   (West 2001)
SD          X                    S.D. CODIFIED LAWS
                                   [subsection] 22-10-14--16
                                   (Michie 2000)
TN          X                    TENN. CODE ANN.
                                   [section] 40-35-121 (1999)
TX          X            X       TEX. CIV. PRAC. & REM. CODE ANN.
                                   [subsection] 125.062--.069
                                   (Vernon 1999), TEX.
                                   EDUC. CODE ANN.
                                   [section] 37.121 (Vernon
                                   1999), TEX. HEALTH
                                   & SAFETY CODE ANN.
                                   [section] 146.012(a)(1)(B)
                                   (Vernon 1999), TEX.
                                   PENAL CODE ANN.
                                   [subsection] 22.015, 71.01(d)
                                   71.02, 71.022 (Vernon 1999)
VA                               VA. CODE ANN.
                                   [subsection] 18.2-46.1--3
                                   (Michie 2000)
WA                               WASH. REV. CODE
                                   [section] 9A.46.120(2000)
WI          X            X       WISC. STAT.
                                   [subsection] 823.113, 895.77,
                                   939.625, 941.38 (2000)
TOT.        14          10

* Includes only states have gang participation, recruitment, and
intidimation ordinances and other gang-specific ordinances that
are not part of comprehensive or omnibus gang act.

([dagger]) Does not include civil provisions. A variety of states
have civil ordinances that, inter alia, establish grant programs,
mandate police training relative to gangs, provide for gang
intelligence databases, set forth rules relating to juvenile
transfer for gang-related crimes, or enumerate the duties and
rights of schools and school boards regarding gangs.

Note: Table excludes statutes that are not specifically oriented
toward gang crime and gang nuisances. It also does not include
statutes that only deal with gang involvement as an aggravating
factor in sentencing.

(1.) Papachristou v. City of Jacksonville, 405 U.S. 156, 171 (1972).

(2.) Gary Washburn & Eric Ferkenhoff, City Targets 86 Hot Spots for Gangs, Keeps List Secret, CHI. TRIB., Aug. 23, 2000, at A1.

(3.) CAL. PENAL CODE [subsection] 186.20 -- 186.33 (West 2001).

(4.) See discussion infra Section I.A and Appendix A. These survey results indicate that the number of states with criminal ordinances specifically targeting gangs has more than doubled in about five years. Cf. David R. Truman, The Jets and Sharks Are Dead: State Statutory Responses to Criminal Street Gangs, 73 WASH. U. L.Q. 683, 710 (1995) (finding thirteen states had enacted anti-gang statutes).

(5.) See, e.g., People ex rel. Gallo v. Acuna, 929 P.2d 596, 601 (Cal. 1997) (comparing neighborhood plagued by gangs to an urban war zone).

(6.) 527 U.S. 41 (1999).

(7.) CHI., IL., MUN. CODE [section] 8-4-015 (1992).

(8.) 527 U.S. at 49.

(9.) Id. at 47.

(10.) Id. at 60.

(11.) Id. at 53-60 (plurality opinion).

(12.) The Court had sixty years earlier struck down as unconstitutionally vague a statute criminalizing the status of "gangster." Lanzetta v. New Jersey, 306 U.S. 451, 452-58 (1939).

(13.) Cf. Jacobellis v. United States, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (explaining that "I know [obscenity] when I see it, and the motion picture involved in this case is not that").

(14.) See, e.g., Margaret Graham Tebo, Second City Tries Again: Chicago Hopes New Loitering Law Avoids Constitutional Defects, 86 A.B.A. J. 28 (June 2000) (discussing the new anti-loitering ordinance passed by the Chicago City Council in February 2000).

(15.) See discussion infra Section III.A. Morales has been used in successful challenges to, inter alia, loitering statutes, NAACP Anne Arundel County Branch v. City of Annapolis, 133 F. Supp. 2d 795 (D. Md. 2001), Leal v. Town of Cicero, 2000 WL 343232 (N.D. Ill. 2000), Johnson v. Athens-Clarke County, 529 S.E.2d 613 (Ga. 2000); a drug-exclusion-zone statute, Johnson v. City of Cincinnati, 119 F. Supp. 2d 735 (S.D. Ohio 2000); a trespass conviction based on a procedure barring unauthorized individuals from privatized streets, Hicks v. Commonwealth, 548 S.E.2d 249 (Va. Ct. App. 2001); and an anti-gang dress code, Hodge v. Lynd, 88 F. Supp. 2d 1234 (D.N.M. 2000).

(16.) 527 U.S. at 67-69 (O'Connor, J., concurring) (suggesting a narrower construction of Chicago's ordinance would have avoided vagueness problems).

(17.) See Washburn & Ferkenhoff, supra note 2 (quoting Deputy Corporation Counsel for Chicago as saying of the city's new anti-gang law: "We have followed a remarkably detailed map that the Supreme Court provided, which we believe reflects the Court's own view that these kinds of laws serve a proper purpose.").

(18.) The new ordinance empowers police to designate one- or two-block "hot spots" where officers can order the dispersal of those they suspect of engaging in narcotics dealing or designated gang activities. Rick Hepp, Police Enforcing New Anti-Loitering Law, CHI. TRIB., Aug. 22, 2000, at N1.

(19.) See generally John C. Coffee, Jr., Paradigms Lost: The Blurring of the Criminal and Civil Law Models--And What Can Be Done About It, 101 YALE L.J. 1875, 1875-93 (1992) (agreeing about the collapsing distinction between criminal and civil law, but urging its resistance); Kenneth Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 YALE L.J. 1795, 1796-1806 (1992) (discussing the rapid expansion of punitive civil sanctions as hybrids that do not fit neatly into either the criminal or civil paradigms); Carol S. Steiker, Foreword: Punishment and Procedure: Punishment Theory and the Criminal-Civil Procedural Divide, 85 GEO. L.J. 775, 780-83 (1997) (discussing how the criminal-civil distinction is embedded in the Constitution and American legal culture, but has rapidly been diminishing). These articles discuss the criminal-civil distinction, although not the statute-injunction distinction.

(20.) For a more optimistic view, see Debra Livingston, Gang Loitering, the Court, and Some Realism About Police Patrol, 1999 SUP. CT. REV. 141, 144 (stating that taken together the Morales opinions "do not foreclose, but in an important way expand the opportunity for further experimentation with laws regulating public disorder--even as the Court retains for itself a good deal of room to step in and limit this experimentation, if necessary, at some future point").

(21.) FREDERIC MILTON THRASHER, THE GANG: A STUDY OF 1,313 GANGS IN CHICAGO 5-22 (2d ed. 1936) (describing the different gangs throughout Chicago in the early part of the twentieth century).

(22.) 461 U.S. 352 (1983) (finding anti-loitering statute unconstitutional on the grounds of vagueness).

(23.) This article focuses on street gangs and not other distinct variants, such as prison gangs, hate groups, or organized crime syndicates. See, e.g., Malcolm W. Klein, Introduction to THE MODERN GANG READER, at viii (Malcolm W. Klein et al. eds., 1995) (noting distinctions).

(24.) See, e.g., Brief of Amicus Curiae State of Ohio et al. at 1, City of Chicago v. Morales, 527 U.S. 41 (1999) (No. 97-1121) [hereinafter States' Brief].

(25.) G. DAVID CURRY & SCOTT H. DECKER, CONFRONTING GANGS 13-15 (1998) (indicating youth gangs have existed in the United States since at least the 1870s and became involved in crime during the 1920s).

(26.) Id. (noting periods of gang growth in the 1890s, 1920s, and 1960s).

(27.) Gangs are said to have begun migrating from cities such as Los Angeles as early as 1985, due to decreasing crack cocaine prices, increasing competition among drug dealers in the city, and greater police pressure on gangs. Jerome H. Skolnick et al., Gang Organization and Migration, in GANGS: THE ORIGINS AND IMPACT OF CONTEMPORARY YOUTH GANGS IN THE UNITED STATES 202-04 (Scott Cummings & Daniel J. Monti eds., 1993).

(28.) See, e.g., Interim Hearing on Juvenile Gang Violence: Hearing on S.B. 2118 Before the Cal. Leg. Sen. Comm. on the Judiciary 6 (1986) [hereinafter Interim Hearing] (stating that gang members "do not walk around with zip guns and switchblade knives. That is part of a dimmed romantic past.... The weapon of choice ... is ... becoming the Uzi and Mac-10 machine gun") (statement of Ira Reiner, Los Angeles County District Attorney).

(29.) See, e.g., Claire M. Johnson et al., Gang Enforcement Problems and Strategies: National Survey Findings 6 (n.d.), available at http://www.ilj.org/publications.html (reporting that violent crime and drug dealing, especially dealing in cocaine, were the prevalent problems that police associated with gangs). According to this report by the Institute for Law and Justice, about three-quarters of street gangs sell cocaine. Id, at 7. Gangs usually get involved in street-level dealing, although some import drugs from source countries. Id. at 7-8. See also Sudhir Venkatesh, The Financial Activity of a Modern American Street Gang, in 1 LOOKING AT CRIME FROM THE STREET LEVEL: PLENARY PAPERS OF THE 1999 CONFERENCE ON CRIMINAL JUSTICE RESEARCH AND EVALUATION -- ENHANCING POLICY AND PRACTICE THROUGH RESEARCH, 3 (National Institute of Justice 1999) (examining financial records of defunct street gang and determining that seventy percent of revenue came from crack-cocaine dealing, with the balance from extortion and member dues). But see CURRY & DECKER, supra note 25, at 85 (indicating that researchers disagree about how organized gangs are with regard to drug sales).

(30.) U.S. DEP'T OF JUST., 1998 NATIONAL YOUTH GANG SURVEY 12 (2000) [hereinafter YOUTH GANG SURVEY].

(31.) WALTER B. MILLER, U.S. DEP'T OF JUST., THE GROWTH OF YOUTH GANG PROBLEMS IN THE UNITED STATES: 1970 -- 1998, at ix (2001).

(32.) See C. Ronald Huff, Preface to GANGS: THE ORIGINS AND IMPACT OF CONTEMPORARY YOUTH GANGS IN THE UNITED STATES, at vii (Scott Cummings & Daniel J. Monti eds., 1993) (claiming that no comprehensive definition of "gang" has ever been advanced); MILLER, supra note 31, at 7 (noting that how to define a youth gang "is one of the most contentious issues in the field of youth crime").

(33.) Huff, supra note 32, at vii (listing the traits researchers most often associate with gangs).

(34.) See, e.g., Johnson, supra note 29, at 8 (noting that "[r]esearchers have begun to recognize that troubled communities, which lack cohesiveness and organization, are rife for gang problems ...").

(35.) Huff, supra note 32, at viii-ix. See also Curry & Decker, supra note 25, at 73 (noting that over ninety percent of gang members are Latino or African American); Truman, supra note 4, at 696 (stating that minority membership is one of several identifiable trends concerning gang composition and behavior).

(36.) Klein, supra note 23, at viii.

(37.) YOUTH GANG SURVEY, supra note 30, at 20.

(38.) Id.

(39.) The survey also reports that twelve percent of gang members are white and describes the race of the balance as "other." Id. The way researchers define gangs may affect the statistics: most exclude hate groups, such as Neo-Nazis and skinheads, which are predominately white. See Klein, supra note 23 (affirming that most gangs are made up of minorities); see also YOUTH GANG SURVEY, supra note 30, at 6 (noting that "[r]espondents were asked to exclude motorcycle gangs, hate or ideology groups, prison gangs, and exclusively adult gangs").

(40.) For example, police in Los Angeles reportedly classified forty-seven percent of the city's African-American youth as gang members, and Denver police classified sixty-seven percent of that city's African-American youth as gang members. Brief of Amicus Curiae Chicago Alliance for Neighborhood