The Limits of Localism

In Chicago v. Morales, the Supreme Court struck down Chicago's Gang Congregation Ordinance, which barred "criminal street gang members from loitering with one another or with other persons in any public place." The stated purpose of the ordinance was to wrest control of public areas from gang members who, simply by their presence, intimidated the public and established control over identifiable areas of the city, namely certain inner-city streets, sidewalks, and corners. The ordinance required that police officers determine whether at least one of two or more persons present in a public place were members of a criminal street gang and whether these persons were loitering. Loitering was defined as "remain[ing] in any one place with no apparent purpose." According to the Supreme Court, "the [Chicago] police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance" in a three-year period. The ordinance's defeat was, in some ways, preordained.

Over twenty-five years earlier the Supreme Court had struck down similarly broad local vagrancy and loitering statutes as void for vagueness in a series of opinions culminating in Papachristou v. City of Jacksonville. These decisions, combined with the earlier constitutionalization of "street law" by the Warren Court, dramatically curtailed police authority to "move along" undesirables and informally discipline disorderly conduct.8 Indeed, the ordinance at issue in Morales appears to be a straightforward case of police overreaching, an uncontroversial case for Court intervention. At least according to proponents, however, the Gang Congregation Ordinance had significant support in the minority, highcrime, inner-city neighborhoods in which it was implemented. Advocates argue that these communities should have substantial autonomy to adopt norms that are responsive to local conditions.

State and federal courts should defer to such norms, even when they deviate from constitutional guarantees, because local residents are in a better position to balance liberty and order in light of local circumstances.