CITY OF CHICAGO v. MORALES ET AL.
No. 97-1121
SUPREME COURT OF THE UNITED STATES
Argued December 9, 1998—Decided June 10, 1999
527 U.S. 41
Lawrence Rosenthal argued the cause for petitioner. With him on the briefs were Brian L. Crowe, Benna Ruth Solomon, Timothy W. Joranko, and Julian N. Henriques, Jr.
Harvey Grossman argued the cause for respondents. With him on the brief were Rita Fry, James H. Reddy, Richard J. O‘Brien, Jr., Barbara O‘Toole, and Steven R. Shapiro.*
*Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Waxman, Deputy Solicitor General Underwood, and James A. Feldman; for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, Robert C. Maier, and David M. Gormley, and by the Attorneys General for their respective jurisdictions as follows: William H. Pryor, Jr., of Alabama,
Briefs of amicus curiae urging affirmance were filed for the Chicago Alliance for Neighborhood Safety et al. by Stephen J. Schulhofer and Randolph N. Stone; for the Illinois Attorneys for Criminal Justice by Robert Hirschhorn and Steven A. Greenberg; for the National Association of Criminal Defense Lawyers by David M. Porter; for the National Black Police Association et al. by Elaine R. Jones, Theodore M. Shaw, George H. Kendall, Laura E. Hankins, Marc O. Beem, and Diane F. Klotnia; for the National Law Center on Homelessness & Poverty et al. by Robert M. Bruskin; and for See Forever/the Maya Angelou Public Charter School et al. by Louis R. Cohen, John Payton, and James Forman, Jr.
JUSTICE STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and V, and an opinion with respect to Parts III, IV, and VI, in which JUSTICE SOUTER and JUSTICE GINSBURG join.
In 1992, the Chicago City Council enacted the Gang Congrеgation Ordinance, which prohibits “criminal street gang
I
Before the ordinance was adopted, the city council‘s Committee on Police and Fire conducted hearings to explore the problems created by the city‘s street gangs, and more particularly, the consequences of public loitering by gang members. Witnesses included residents of the neighborhoods where gang members are most active, as well as some of the aldermen who represent those areas. Based on that evidence, the council made a series of findings that are included in the text of the ordinance and explain the reasons for its enactment.1
The council found that a continuing increase in criminal street gang activity was largely responsible for the city‘s rising murder rate, as well as an escalation of violent and drug related crimes. It noted that in many neighborhoods throughout the city, “the burgeoning presence of street gang members in public places has intimidated many law abiding citizens.” 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Furthermore, the council stated that gang members “‘establish control over identifiable areas ... by loitering in those areas and intimidating others from entering those areas; and ... [m]embers of criminal street gangs avoid arrest by committing no offense punishable under existing laws when they know the police are present....‘” Ibid. It further found that “loitering in public places by
The ordinance creates a criminal offense punishable by a fine of up to $500, imprisonment for not more than six months, and a requirement to perform up to 120 hours of community service. Commission of the offense involves four predicates. First, the police officer must reasonably believe that at least one of the two or more persons present in a “‘public place‘” is a “‘criminal street gang membe[r].‘” Second, the persons must be “loitering,” which the ordinance defines as “‘remain[ing] in any one place with no apparent purpose.‘” Third, the officer must then order “all” of the persons to disperse and remove themselves “‘from the area.‘” Fourth, a person must disobey the officer‘s order. If any person, whether a gang member or not, disobeys the officer‘s order, that person is guilty of violating the ordinance. Ibid.2
Two months after the ordinance was adopted, the Chicago Police Department promulgated General Order 92-4 to provide guidelines to govern its enforcement.3 That order purported to establish limitations on the enforcement discretion of police officers “to ensure that the anti-gang loitering ordinance is not enforced in an arbitrary or discriminatory way.” Chicago Police Department, General Order 92-4, reprinted in App. to Pet. for Cert. 65a. The limitations confine the authority to arrest gang members who violate the ordinance to sworn “members of the Gang Crime Section” and certain other designated officers,4 and establish detailed criteria for defining street gangs and membership in such gangs. Id., at 66a-67a. In addition, the order directs district commanders to “designate areas in which the presence of gang members has a demonstrable effect on the activities of law abiding persons in the surrounding community,” and provides that the ordinance “will be enforced only within the desig-3 4
II
During the three years of its enforcement,6 the police issued over 89,000 dispersal orders and arrested over 42,000 people for violating the ordinance.7 In the ensuing enforcement proceedings, 2 trial judges upheld the constitutionality of the ordinance, but 11 others ruled that it was invalid.8 In respondent Youkhana‘s case, the trial judge held that the “ordinance fails to notify individuals what conduct 6 7 8
The Illinois Appellate Court affirmed the trial court‘s ruling in the Youkhana case,10 consolidated and affirmed other pending appeals in accordance with Youkhana,11 and reversed the convictions of respondents Gutierrez, Morales, and others.12 The Appellate Court was persuaded that the ordinance impaired the freedom of assembly of nongang members in violation of the First Amendment to the Federal Constitution and Article I of the Illinois Constitution, that it was unconstitutionally vague, that it improperly criminalized status rather than conduct, and that it jeopardized rights guaranteed under the Fourth Amendment.13
The Illinois Supreme Court affirmed. It held “that the gang loitering ordinance violates due process of law in that it is impermissibly vague on its face and an arbitrary restriction on personal liberties.” 177 Ill. 2d, at 447, 687 N. E. 2d, at 59. The court did not reach the contentions that the ordinance “creates a status offense, permits arrests without probable cause or is overbroad.” Ibid.
In support of its vagueness holding, the court pointed out that the definition of “loitering” in the ordinance drew no distinction between innocent conduct and conduct calculated
We granted certiorari, 523 U. S. 1071 (1998), and now affirm. Like the Illinois Supreme Court, we conclude that the ordinance enacted by the city of Chicago is unconstitutionally vague.
III
The basic factual predicate for the city‘s ordinance is not in dispute. As the city argues in its brief, “the very presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways intimidates residents, who become afraid even to leave their homes and go about their business. That, in turn, imperils community residents’ sense of safety and security, detracts from property values, and can ultimately destabilizе entire neighborhoods.”16 The findings in the ordinance explain that it was motivated by these concerns. We have no doubt 16
We are confronted at the outset with the city‘s claim that it was improper for the state courts to conclude that the ordinance is invalid on its face. The city correctly points out that imprecise laws can be attacked on their face under two different doctrines.18 First, the overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when “judged in relation to the statute‘s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U. S. 601, 612-615 (1973). Second, even if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly vague because it fails to establish standards for the police and public that are sufficient to guard against the arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U. S. 352, 358 (1983).
While we, like the Illinois courts, conclude that the ordinance is invalid on its face, we do not rely on the overbreadth doctrine. We agree with the city‘s submission that the law does not have a sufficiently substantial impact on conduct
On the other hand, as the United States recognizes, the freedom to loiter for innocent purposes is part of the “liberty” protected by the Due Process Clause of the Fourteenth Amendment.19 We have expressly identified this “right to remove from one place to another according to inclination” as “an attribute of personal liberty” protected by the Constitution. Williams v. Fears, 179 U. S. 270, 274 (1900); see also Papachristou v. Jacksonville, 405 U. S. 156, 164 (1972).20
Indeed, it is apparent that an individual‘s decision to remain in a public place of his choice is as much a part of his liberty as the freedom of movement inside frontiers that is “a part of our heritage” Kent v. Dulles, 357 U. S. 116, 126 (1958), or the right to move “to whatsoever place one‘s own inclination may direct” identified in Blackstone‘s Commentaries. 1 W. Blackstone, Commentaries on the Laws of England 130 (1765).21
There is no need, however, to decide whether the impact of the Chicago ordinance on constitutionally protected liberty alone would suffice to support a facial challenge under the overbreadth doсtrine. Cf. Aptheker v. Secretary of State, 378 U. S. 500, 515-517 (1964) (right to travel); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 82-83 (1976) (abortion); Kolender v. Lawson, 461 U. S., at 355, n. 3, 358-360, and n. 9. For it is clear that the vagueness of this enactment makes a facial challenge appropriate. This is not an ordinance that “simply regulates business behavior and contains a scienter requirement.” See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982). It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U. S. 379, 395 (1979), and infringes on constitutionally protected rights, see id., at 391. When vagueness permeates the text of such a law, it is subject to facial attack.22
Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement. See Kolender v. Lawson, 461 U. S., at 357. Accordingly, we first consider whether the ordinance provides fair notice to the citizen and then discuss its potential for arbitrary enforcement.
IV
“It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits....” Giaccio v. Pennsylvania, 382 U. S. 399, 402-403 (1966). The Illinois Supreme Court recognized that the term “loiter” may have a common and accepted meaning, 177 Ill. 2d, at 451, 687 N. E. 2d, at 61, but the definition of that term in this ordinance—“to remain in any one place with no apparent purpose“—does not. It is difficult to imagine how
Since the city cannot conceivably have meant to criminalize each instance a citizen stands in public with a gang member, the vagueness that dooms this ordinance is not the product of uncertainty about the normal meaning of “loitering,” but rather about what loitering is covered by the ordinance and what is not. The Illinois Supreme Court emphasized the law‘s failure to distinguish between innocent conduct and conduct threatening harm.24 Its decision followed the precedent set by a number of state courts that have upheld ordinances that criminalize loitering combined with some other overt act or evidence of criminal intent.25 However, state
The city‘s principal response to this concern about adequate notice is that loiterers are not subject to sanction until after they have failed to comply with an officer‘s order to disperse. “[W]hatever problem is created by a law that criminalizes conduct people normally believe to be innocent is solved when persons receive actual notice from a police order of what they are expected to do.”27 We find this response unpersuasive for at least two reasons.
First, the purpose of the fair notice requirement is to enable the ordinary citizen to conform his or her conduct to the law. “No one may be required at peril of life, libеrty or property to speculate as to the meaning of penal statutes.” Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). Although it is true that a loiterer is not subject to criminal sanctions unless he or she disobeys a dispersal order, the loitering is the conduct that the ordinance is designed to prohibit.28 If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty. If the police are able to decide arbitrarily which members of the public they will order to disperse, then the Chicago ordinance becomes indistinguishable from the law we held invalid in Shuttlesworth v. Birmingham, 382 U. S. 87, 90 (1965).29
Second, the terms of the dispersal order compound the inadequacy of the notice afforded by the ordinance. It provides that the officer “shall order all such persons to disperse and remove themselves from the area.” App. to Pet. for Cert. 61a. This vague phrasing raises a host of questions. After such an order issues, how long must the loiterers remain apart? How far must they move? If each loiterer walks around the block and they meet again at the same location, are they subject to arrest or merely to being ordered to disperse again? As we do here, we have found vagueness in a criminal statute exacerbated by the use of the standards of “neighborhood” and “locality.” Connally v. General Constr. Co., 269 U. S. 385 (1926). We remarked in Connally that “[b]oth terms are elastic and, dependent upon circumstances, may be equally satisfied by areas measured by rods or by miles.” Id., at 395.
Lack of clarity in the description of the loiterer‘s duty to obey a dispersal order might not render the ordinance uncon-
V
The broad sweep of the ordinance also violates “‘the requirement that a legislature establish minimal guidelines to govern law enforcement.‘” Kolender v. Lawson, 461 U. S., at 358. There are no such guidelines in the ordinance. In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may—indeed, she “shall“—order them to disperse.
Recognizing that the ordinance does reach a substantial amount of innocent conduct, we turn, then, to its language to determine if it “necessarily entrusts lawmaking to the moment-to-moment judgment of the policeman on his beat.” Kolender v. Lawson, 461 U.S., at 360 (internal quotation marks omitted). As we discussed in the context of fair no-
As the Illinois Supreme Court interprets that definition, it “provides absolute discretion to police officers to decide what activities constitute loitering.” 177 Ill. 2d, at 457, 687 N. E. 2d, at 63. We have no authority to construe the language of a state statute more narrowly than the construction given by that State‘s highest court.31 “The power to determine the meaning of a statute carries with it the power to prescribe its extent and limitations as well as the method by which they shall be determined.” Smiley v. Kansas, 196 U. S. 447, 455 (1905).
Nevertheless, the city disputes the Illinois Supreme Court‘s interpretation, arguing that the text of the ordinance limits the officer‘s discretion in three ways. First, it does not permit the officer to issue a dispersal order to anyone who is moving along or who has an apparent purpose. Second, it does not permit an arrest if individuals obey a dispersal order. Third, no order can issue unless the officer reasonably believes that one of the loiterers is a member of a criminal street gang.
Even putting to one side our duty to defer to a state court‘s construction of the scope of a local enactment, we find each of these limitations insufficient. That the ordinance does not apply to people who are moving—that is, to activity that would not constitute loitering under any possible definition of the term—does not even address the question of how much discretion the police enjoy in deciding which stationary per-
Presumably an officer would have discretion to treat some purposes—perhaps a purpose to engage in idle conversation or simply to enjoy a cool breeze on a warm evening—as too frivolous to be apparent if he suspected a different ulterior motive. Moreover, an officer conscious of the city council‘s reasons for enacting the ordinance might well ignore its text and issue a dispersal order, even though an illicit purpose is actually apparent.
It is true, as the city argues, that the requirement that the officer reasonably believe that a grouр of loiterers contains a gang member does place a limit on the authority to order dispersal. That limitation would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect,33 or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members. But this ordinance, for reasons that are not explained in the findings of the city council, requires no harmful purpose and applies to nongang members as well as suspected gang members.34 It applies to everyone in the city
Ironically, the definition of loitering in the Chicago ordinance not only extends its scope to encompass harmless conduct, but also has the perverse consequence of excluding from its coverage much of the intimidating conduct that motivated its enactment. As the city council‘s findings demonstrate, the most harmful gang loitering is motivated either by an apparent purpose to publicize the gang‘s dominance of certain territory, thereby intimidating nonmembers, or by an equally apparent purpose to conceal ongoing commerce in illegal drugs. As the Illinois Supreme Court has not placed any limiting construction on the language in the ordinance, we must assume that the ordinance means what it says and that it has no application to loiterers whose purpose is apparent. The relative importance of its application to harmless loitering is magnified by its inapplicability to loitering that has an obviously threatening or illicit purpose.
Finally, in its opinion striking down the ordinance, the Illinois Supreme Court refused to accept the general order issued by the police department as a sufficient limitation on the “vast amount of discretion” granted to the police in its enforcement. We agree. See Smith v. Goguen, 415 U. S. 566, 575 (1974). That the police have adopted internal rules limiting their enforcement to certain designated areas in the city would not provide a defense to a loiterer who might be arrested elsewhere. Nor could a person who knowingly loitered with a well-known gang member anywhere in the city
VI
In our judgment, the Illinois Supreme Court correctly concluded that the ordinance does not provide sufficiently specific limits on the enforcement discretion of the police “to meet constitutional standards for definiteness and clarity.”35 177 Ill. 2d, at 459, 687 N. E. 2d, at 64. We recognize the serious and difficult problems testified to by the citizens of Chicago that led to the enactment of this ordinance. “We are mindful that the preservation of liberty depends in part on the maintenance of social order.” Houston v. Hill, 482 U. S. 451, 471-472 (1987). However, in this instance the city has enacted an ordinance that affords too much discretion to the police and too little notice to citizens who wish to use the рublic streets.
Accordingly, the judgment of the Supreme Court of Illinois is
Affirmed.
JUSTICE O‘CONNOR, with whom JUSTICE BREYER joins, concurring in part and concurring in the judgment.
I agree with the Court that Chicago‘s Gang Congregation Ordinance,
The ordinance at issue provides:
“Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remove themselves from the area. Any person who does not promptly obey such an order is in violation of this section.” App. to Pet. for Cert. 61a.
To “[l]oiter,” in turn, is defined in the ordinance as “to remain in any one place with no apparent purpose.” Ibid. The Illinois Supreme Court declined to adopt a limiting construction of the ordinance and concluded that the ordinance vested “absolute discretion to police officers.” 177 Ill. 2d 440, 457, 687 N. E. 2d 53, 63 (1997) (emphasis added). This Court is bound by the Illinois Supreme Court‘s construction of the ordinance. See Terminiello v. Chicago, 337 U. S. 1, 4 (1949).
As it has been construed by the Illinois court, Chicago‘s gang loitering ordinance is unconstitutionally vague because it lacks sufficient minimal standards to guide law enforce-
To be sure, there is no violation of the ordinance unless a person fails to obey promptly the order to disperse. But, a police officer cannot issue a dispersal order until he decides that a person is remaining in one place “with no apparent purpose,” and the ordinance provides no guidance to the officer on how to make this antecedent decision. Moreover, the requirement that police issue dispersal orders only when they “reasonably believ[e]” that a group of loiterers includes a gang member fails to cure the ordinance‘s vague aspects. If the ordinance applied only to persons reasonably believed to be gang members, this requirement might have cured the ordinance‘s vagueness because it would have directed the manner in which the order was issued by specifying to whom the order could be issued. Cf. ante, at 62. But, the Illinois Supreme Court did not construe the ordinance to be so limited. See 177 Ill. 2d, at 453-454, 687 N. E. 2d, at 62.
This vagueness consideration alone provides a sufficient ground for affirming the Illinois court‘s decision, and I agree
It is important to courts and legislatures alike that we characterize more clearly the narrow scope of today‘s holding. As the ordinance comes to this Court, it is unconstitutionally vague. Nevertheless, there remain open to Chicago reasonable alternatives to combat the very real threat posed by gang intimidation and violence. For example, the Court properly and expressly distinguishes the ordinance from laws that require loiterers to have a “harmful purpose,” see ibid., from laws that target only gang members, see ibid., and from laws that incorporate limits on the area and manner in which the laws may be enforced, see ante, at 62-63. In addition, the ordinance here is unlike a law that “directly prohibit[s]” the “‘presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways,’ that ‘intimidates residents.‘” Ante, at 51, 52 (quoting Brief for Petitioner 14). Indeed, as the plurality notes, the city of Chicago has several laws that do exactly this. See ante, at 52, n. 17. Chicago has even enacted a provision that “enables police officers to fulfill... their traditional functions,” including “preserving the public peace.” See post, at 106 (THOMAS, J., dissenting). Specifi-
In my view, the gang loitering ordinance could have been construed more narrowly. The term “loiter” might possibly be construed in a more limited fashion to mean “to remain in any one place with no apparent purpose other than to establish control over identifiable areas, to intimidate others from entering those areas, or to conceal illegal activities.” Such a definition would be consistent with the Chicago City Council‘s findings and would avoid the vagueness problems of the ordinance as construed by the Illinois Supreme Court. See App. to Pet. for Cert. 60a-61a. As noted above, so would limitations that restricted the ordinance‘s criminal penalties to gang members or that more carefully delineated the circumstances in which those penalties would apply to nongang members.
The Illinois Supreme Court did not choose to give a limiting construction to Chicago‘s ordinance. To the extent it relied on our precedents, particularly Papachristou v. Jacksonville, 405 U. S. 156 (1972), as requiring it to hold the ordinance vague in all of its applications because it was intentionally drafted in a vague manner, the Illinois court misapplied our precedents. See 177 Ill. 2d, at 458-459, 687 N. E. 2d, at 64. This Court has never held that the intent of the drafters determines whether a law is vague. Nevertheless, we cannot impose a limiting construction that a state supreme court has declined to adopt. See Kolender v. Lawson, 461 U. S., at 355-356, n. 4 (noting that the Court has held that “‘[f]or the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation we must take the statute as though it read precisely as the highest court of the State has interpreted it‘” (citations and internal quotation marks omitted)); New Yorkv. Ferber, 458 U. S. 747, 769, n. 24 (1982) (noting that where the Court is “dealing with a state statute on direct review of a state-court decision that has construed the statute[,] [s]uch a construction is binding on us“). Accordingly, I join Parts I, II, and V of the Court‘s opinion and concur in the judgment.
JUSTICE KENNEDY, concurring in part and concurring in the judgment.
I join Parts I, II, and V of the Court‘s opinion and concur in the judgment.
I also share many of the concerns JUSTICE STEVENS expresses in Part IV with respect to the sufficiency of notice under the ordinance. As interpreted by the Illinois Supreme Court, the Chicago ordinance would reach a broad range of innocent conduct. For this reason it is not necessarily saved by the requirement that the citizen must disobey a police order to disperse before there is a violation.
We have not often examined these types of orders. Cf. Shuttlesworth v. Birmingham, 382 U. S. 87 (1965). It can be assumed, however, that some police commands will subject a citizen to prosecution for disobeying whether or not the citizen knows why the order is given. Illustrative examples include when the police tell a pedestrian not to enter a building and the reason is to avoid impeding a rescue team, or to protect a crime scene, or to secure an area for the protection of a public official. It does not follow, however, that any unexplained police order must be obeyed without notice of the lawfulness of the order. The predicate of an order to disperse is not, in my view, sufficient to eliminate doubts regarding the adequacy of notice under this ordinance. A citizen, while engaging in a wide array of innocent conduct, is not likely to know when he may be subject to a dispersal order based on the officer‘s own knowledge of the identity or affiliations of other persons with whom the citizen is con-
JUSTICE BREYER, concurring in part and concurring in the judgment.
The ordinance before us creates more than a “minor limitation upon the free state of nature.” Post, at 74 (SCALIA, J., dissenting) (emphasis added). The law authorizes a police officer to order any person to remove himself from any “location open to the public, whether publicly or privately owned,”
The first limitation cannot save the ordinance. Though it limits the number of persons subject to the law, it leaves many individuals, gang members and nongang members alike, subject to its strictures. Nor does it limit in any way the range of conduct that police may prohibit. The second limitation is, as the Court, ante, at 62, and JUSTICE O‘CONNOR, ante, at 65-66 (opinion concurring in part and concurring in judgment), point out, not a limitation at all. 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. To grant to a policeman virtually standardless discretion to close off major portions of the city to an innocent person is, in my view, to create a major, not a “minor,” “limitation upon the free state of nature.”
JUSTICE SCALIA‘s examples, post, at 81-83, reach a different conclusion because they assume a different basis for the law‘s constitutional invalidity. A statute, for example, might not provide fair warning to many, but an individual defendant might still have been aware that it prohibited the conduct in which he engaged. Cf., e. g., Parker v. Levy, 417 U. S. 733, 756 (1974) (“[O]ne who has received fair warning of the criminality of his own conduct from the statute in question is [not] entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit.
I concede that this case is unlike those First Amendment “overbreadth” cases in which this Court has permitted a facial challenge. In an overbreadth case, a defendant whose conduct clearly falls within the law and may be constitutionally prohibited can nonetheless have the law declared facially invalid to protect the rights of others (whose protected speech might otherwise be chilled). In the present case, the right that the defendants assert, the right to be free from the officer‘s exercise of unchecked discretion, is more clearly their own.
This case resembles Coates v. Cincinnati, 402 U. S. 611 (1971), where this Court declared facially unconstitutional on, among other grounds, the due process standard of vagueness an ordinance that prohibited persons assembled on a sidewalk from “conduct[ing] themselves in a manner annoying to persons passing by.” The Court explained:
“It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city‘s constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. ... It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed.” Id., at 614 (citation omitted).
JUSTICE SCALIA, dissenting.
The citizens of Chicago were once free to drive about the city at whatever speed they wished. At some point Chicagoans (or perhaps Illinoisans) decided this would not do, and imposed prophylactic speed limits designed to assure safe operation by the average (or perhaps even subaverage) driver with the average (or perhaps even subaverage) vehicle. This infringed upon the “freedom” of all citizens, but was not unconstitutional.
Similarly, the citizens of Chicago were once free to stand around and gawk at the scene of an accident. At some point Chicagoans discovered that this obstructed traffic and caused more accidents. They did not make the practice unlawful, but they did authorize police officers to order the crowd to disperse, and imposed penalties for refusal to obey such an order. Again, this prophylactic measure infringed upon the “freedom” of all citizens, but was not unconstitutional.
Until the ordinance that is before us today was adopted, the citizens of Chicago were free to stand about in public places with no apparent purpose—to engage, that is, in conduct that appeared to be loitering. In recent years, however, the city has been afflicted with criminal street gangs. As reflected in the record before us, these gangs congregated
The majority today invalidates this perfectly reasonable measure by ignoring our rules governing facial challenges, by elevating loitering to a constitutionally guaranteed right, and by discerning vagueness where, according to our usual standards, none exists.
I
Respondents’ consolidated appeal presents a facial challenge to the Chicago ordinance on vagueness grounds. When a facial challenge is successful, the law in question is declared to be unenforceable in all its applications, and not just in its particular application to the party in suit. To tell the truth, it is highly questionable whether federal courts have any business making such a declaration. The rationale for our power to review federal legislation for constitutionality, expressed in Marbury v. Madison, 1 Cranch 137 (1803), was that we had to do so in order to decide the case before us. But that rationale only extends so far as to require us to determine that the statute is unconstitutional as applied to this party, in the circumstances of this case.
“The second characteristic of judicial power is, that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by passing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority; he assumes a more important, and perhaps a more useful influence, than that of the magistrate; but he ceases to represent the judicial power.
“Whenever a law which the judge holds to be unconstitutional is invoked in a tribunal of the United States, he may refuse to admit it as a rule. . . . But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force. Those to whom it is prejudicial learn that means exist of overcoming its authority; and similar suits are multiplied, until it becomes powerless. . . . The political power which the Americans have intrusted to their courts of justice is therefore immense; but the evils of this power are considerably diminished by the impossibility of attacking the laws except through the courts of justice. . . . [W]hen a judge contests a law in an obscure debate on some particular case, the importance of his attack is concealed from public notice; his decision bears upon the interest of an individual, and the law is slighted only incidentally. Moreover, although it is censured, it is not abolished; its moral force may be diminished, but its authority is not taken away; and its final destruction can
be accomplished only by the reiterated attacks of judicial functionaries.” Democracy in America 73, 75-76 (R. Heffner ed. 1956).
As Justice Sutherland described our system in his opinion for a unanimous Court in Massachusetts v. Mellon, 262 U. S. 447, 488 (1923):
“We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right. . . . If a case for preventive relief be presented the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding.”
And as Justice Brennan described our system in his opinion for a unanimous Court in United States v. Raines, 362 U. S. 17, 20-22 (1960):
“The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies before them. ... This Court, as is the case with all federal courts, ‘has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of
constitutional law broader than is required by the precise facts to which it is to be applied.’ . . . Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. ... The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined.”
It seems to me fundamentally incompatible with this system for the Court not to be content to find that a statute is unconstitutional as applied to the person before it, but to go further and pronounce that the statute is unconstitutional in all applications. Its reasoning may well suggest as much, but to pronounce a holding on that point seems to me no more than an advisory opinion—which a federal court should never issue at all, see Hayburn‘s Case, 2 Dall. 409 (1792), and especially should not issue with regard to a constitutional question, as to which we seek to avoid even nonadvisory opinions, see, e. g., Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). I think it quite improper, in short, to ask the constitutional claimant before us: Do you just want us to say that this statute cannot constitutionally be applied to you in this case, or do you want to go for broke and try to get the statute pronounced void in all its applications?
I must acknowledge, however, that for some of the present century we have done just this. But until recently, at least, we have—except in free-speech cases subject to the doctrine of overbreadth, see, e. g., New York v. Ferber, 458 U. S. 747, 769-773 (1982)—required the facial challenge to be a go-for-broke proposition. That is to say, before declaring a statute to be void in all its applications (something we should not be doing in the first place), we have at least imposed upon the litigant the eminently reasonable requirement that he estab-
As we said in United States v. Salerno, 481 U. S. 739, 745 (1987):
“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circum-
stances exists under which the Act would bе valid. The fact that [a legislative Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” (Emphasis added.)2
This proposition did not originate with Salerno, but had been expressed in a line of prior opinions. See, e. g., Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 796 (1984) (opinion for the Court by STEVENS, J.) (statute not implicating First Amendment rights is invalid on its face if “it is unconstitutional in every conceivable application“); Schall v. Martin, 467 U. S. 253, 269, n. 18 (1984); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494-495, 497 (1982); United States v. National Dairy Products Corp., 372 U. S. 29, 31-32 (1963); Raines, 362 U. S., at 21. And the proposition has been reaffirmed in many cases and opinions since. See, e. g., Anderson v. Edwards, 514 U. S. 143, 155-156, n. 6 (1995) (unanimous Court); Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 699 (1995) (opinion for the Court by STEVENS, J.) (facial challenge asserts that a challenged statute or regulation is invalid “in every circumstance“); Reno v. Flores, 507 U. S. 292, 301 (1993); Rust v. Sullivan,
Nor does it violate “our rules governing facial challenges,” post, at 74 (SCALIA, J., dissenting), to forbid the city to apply the unconstitutional ordinance in this case. The reason why the ordinance is invalid explains how that is so. As I have said, I believe the ordinance violates the Constitution because it delegates too much discretion to a police officer to decide whom to order to move on, and in what circumstances. And I see no way to distinguish in the ordinance‘s terms between one application of that discretion and another. The ordinance is unconstitutional, not because a policeman applied this discretion wisely or poorly in a particular case, but rather because the policeman enjoys too much discretion in every case. And if every application of the ordinance represents an exercise of unlimited discretion, then the ordinance is invalid in all its applications. The city of Chicago may be able validly to apply some other law to the defendants in light of their conduct. But the city of Chicago may no more apply this law to the defendants, no matter how they behaved, than it could apply an (imaginary) statute that said, “It is a crime to do wrong,” even to the worst of murderers. See Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939) (“If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it“).
JUSTICE SCALIA‘s examples, post, at 81-83, reach a different conclusion because they assume a different basis for the law‘s constitutional invalidity. A statute, for example, might not provide fair warning to many, but an individual defendant might still have been aware that it prohibited the conduct in which he engaged. Cf., e. g., Parker v. Levy, 417 U. S. 733, 756 (1974) (“[O]ne who has received fair warning of the criminality of his own conduct from the statute in question is [not] entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit.
I concede that this case is unlike those First Amendment “overbreadth” cases in which this Court has permitted a facial challenge. In an overbreadth case, a defendant whose conduct clearly falls within the law and may be constitutionally prohibited can nonetheless have the law declared facially invalid to protect the rights of others (whose protected speech might otherwise be chilled). In the present case, the right that the defendants assert, the right to be free from the officer‘s exercise of unchecked discretion, is more clearly their own.
This case resembles Coates v. Cincinnati, 402 U. S. 611 (1971), where this Court declared facially unconstitutional on, among other grounds, the due process standard of vagueness an ordinance that prohibited persons assembled on a sidewalk from “conduct[ing] themselves in a manner annoying to persons passing by.” The Court explained:
“It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city‘s constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. . . . It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed.” Id., at 614 (citation omitted).
JUSTICE SCALIA, dissenting.
The citizens of Chicago were once free to drive about the city at whatever speed they wished. At some point Chicagoans (or perhaps Illinoisans) decided this would not do, and imposed prophylactic speed limits designed to assure safe operation by the average (or perhaps even subaverage) driver with the average (or perhaps even subaverage) vehicle. This infringed upon the “freedom” of all citizens, but was not unconstitutional.
Similarly, the citizens of Chicago were once free to stand around and gawk at the scene of an accident. At some point Chicagoans discovered that this obstructed traffic and caused more accidents. They did not make the practice unlawful, but they did authorize police officers to order the crowd to disperse, and imposed penalties for refusal to obey such an order. Again, this prophylactic measure infringed upon the “freedom” of all citizens, but was not unconstitutional.
Until the ordinance that is before us today was adopted, the citizens of Chicago were free to stand about in public places with no apparent purpose—to engage, that is, in conduct that appeared to be loitering. In recent years, however, the city has been afflicted with criminal street gangs. As reflected in the record before us, these gangs congregated
The majority today invalidates this perfectly reasonable measure by ignoring our rules governing facial challenges, by elevating loitering to a constitutionally guaranteed right, and by discerning vagueness where, according to our usual standards, none exists.
I
Respondents’ consolidated appeal presents a facial challenge to the Chicago ordinance on vagueness grounds. When a facial challenge is successful, the law in question is declared to be unenforceable in all its applications, and not just in its particular application to the party in suit. To tell the truth, it is highly questionable whether federal courts have any business making such a declaration. The rationale for our power to review federal legislation for constitutionality, expressed in Marbury v. Madison, 1 Cranch 137 (1803), was that we had to do so in order to decide the case before us. But that rationale only extends so far as to require us to determine that the statute is unconstitutional as applied to this party, in the circumstances of this case.
“The second characteristic of judicial power is, that it pronounces on special cases, and not upon general principles. If a judge, in deciding a particular point, destroys a general principle by passing a judgment which tends to reject all the inferences from that principle, and consequently to annul it, he remains within the ordinary limits of his functions. But if he directly attacks a general principle without having a particular case in view, he leaves the circle in which all nations have agreed to confine his authority; he assumes a more important, and perhaps a more useful influence, than that of the magistrate; but he ceases to represent the judicial power.
“Whenever a law which the judge holds to be unconstitutionаl is invoked in a tribunal of the United States, he may refuse to admit it as a rule. . . . But as soon as a judge has refused to apply any given law in a case, that law immediately loses a portion of its moral force. Those to whom it is prejudicial learn that means exist of overcoming its authority; and similar suits are multiplied, until it becomes powerless. . . . The political power which the Americans have intrusted to their courts of justice is therefore immense; but the evils of this power are considerably diminished by the impossibility of attacking the laws except through the courts of justice. . . . [W]hen a judge contests a law in an obscure debate on some particular case, the importance of his attack is concealed from public notice; his decision bears upon the interest of an individual, and the law is slighted only incidentally. Moreover, although it is censured, it is not abolished; its moral force may be diminished, but its authority is not taken away; and its final destruction can
be accomplished only by the reiterated attacks of judicial functionaries.” Democracy in America 73, 75-76 (R. Heffner ed. 1956).
As Justice Sutherland described our system in his opinion for a unanimous Court in Massachusetts v. Mellon, 262 U. S. 447, 488 (1923):
“We have no power per se to review and annul acts of Congress on the ground that they are unconstitutional. That question may be considered only when the justification for some direct injury suffered or threatened, presenting a justiciable issue, is made to rest upon such an act. Then the power exercised is that of ascertaining and declaring the law applicable to the controversy. It amounts to little more than the negative power to disregard an unconstitutional enactment, which otherwise would stand in the way of the enforcement of a legal right. . . . If a case for preventive relief be presented the court enjoins, in effect, not the execution of the statute, but the acts of the official, the statute notwithstanding.”
And as Justice Brennan described our system in his opinion for a unanimous Court in United States v. Raines, 362 U. S. 17, 20-22 (1960):
“The very foundation of the power of the federal courts to declare Acts of Congress unconstitutional lies in the power and duty of those courts to decide cases and controversies before them. ... This Court, as is the case with all federal courts, ‘has no jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered, one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other never to formulate a rule of
constitutional law broader than is required by the precise facts to which it is to be applied.’ . . . Kindred to these rules is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. ... The delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined.”
It seеms to me fundamentally incompatible with this system for the Court not to be content to find that a statute is unconstitutional as applied to the person before it, but to go further and pronounce that the statute is unconstitutional in all applications. Its reasoning may well suggest as much, but to pronounce a holding on that point seems to me no more than an advisory opinion—which a federal court should never issue at all, see Hayburn‘s Case, 2 Dall. 409 (1792), and especially should not issue with regard to a constitutional question, as to which we seek to avoid even nonadvisory opinions, see, e. g., Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). I think it quite improper, in short, to ask the constitutional claimant before us: Do you just want us to say that this statute cannot constitutionally be applied to you in this case, or do you want to go for broke and try to get the statute pronounced void in all its applications?
I must acknowledge, however, that for some of the present century we have done just this. But until recently, at least, we have—except in free-speech cases subject to the doctrine of overbreadth, see, e. g., New York v. Ferber, 458 U. S. 747, 769-773 (1982)—required the facial challenge to be a go-for-broke proposition. That is to say, before declaring a statute to be void in all its applications (something we should not be doing in the first place), we have at least imposed upon the litigant the eminently reasonable requirement that he estab-
As we said in United States v. Salerno, 481 U. S. 739, 745 (1987):
“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circum-
stances exists under which the Act would be valid. The fact that [a legislative Act] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an ‘overbreadth’ doctrine outside the limited context of the First Amendment.” (Emphasis added.)2
This proposition did not originate with Salerno, but had been expressed in a line of prior opinions. See, e. g., Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 796 (1984) (opinion for the Court by STEVENS, J.) (statute not implicating First Amendment rights is invalid on its face if “it is unconstitutional in every conceivable application“); Schall v. Martin, 467 U. S. 253, 269, n. 18 (1984); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 494-495, 497 (1982); United States v. National Dairy Products Corp., 372 U. S. 29, 31-32 (1963); Raines, 362 U. S., at 21. And the proposition has been reaffirmed in many cases and opinions since. See, e. g., Anderson v. Edwards, 514 U. S. 143, 155-156, n. 6 (1995) (unanimous Court); Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 699 (1995) (opinion for the Court by STEVENS, J.) (facial challenge asserts that a challenged statute or regulation is invalid “in every circumstance“); Reno v. Flores, 507 U. S. 292, 301 (1993); Rust v. Sullivan,
When our normal criteria for facial challenges are applied, it is clear that the Justices in the majority have transposed the burden of proof. Instead of requiring respondents, who are challenging the ordinance, to show that it is invalid in all its applications, they have required petitioner to show that it is valid in all its applications. Both the plurality opinion and the concurrences display a lively imagination, creating hypothetical situations in which the law‘s application would (in their view) be ambiguous. But that creative role has been usurped from petitioner, who can defeat respondents’ facial challenge by conjuring up a single valid application of the law. My contribution would go something like this:5 Tony, a member of the Jets criminal street gang, is standing
Of course respondents would still be able to claim that the ordinance was vague as applied to them. But the ultimate demonstration of the inappropriateness of the Court‘s holding of facial invalidity is the fact that it is doubtful whether some of these respondents could even sustain an as-applied challenge on the basis of the majority‘s own criteria. For instance, respondent Jose Renteria—who admitted that he was a member of the Satan Disciples gang—was observed by the arresting officer loitering on a street corner with other gang members. The officer issued a dispersal order, but when she returned to the same corner 15 to 20 minutes later, Renteria was still there with his friends, whereupon he was arrested. In another example, respondent Daniel Washington and several others—who admitted they were members of the Vice Lords gang—were observed by the arresting officer loitering in the street, yelling at passing vehicles, stopping traffic, and preventing pedestrians from using
II
The plurality‘s explanation for its departure from the usual rule governing facial challenges is seemingly contained in the following statement: “[This] is a criminal law that contains no mens rea requirement... and infringes on constitutionally protected rights.... When vagueness permeates the text of such a law, it is subject to facial attack.” Ante, at 55 (emphasis added). The proposition is set forth with such assurance that one might suppose that it repeats some well-accepted formula in our jurisprudence: (Criminal law without mens rea requirement) + (infringement of constitutionally protected right) + (vagueness) = (entitlement to facial invalidation). There is no such formula; the plurality has made it up for this case, as the absence of any citation demonstrates.
But no matter. None of the three factors that the plurality relies upon exists anyway. I turn first to the support for the proposition that there is a constitutionally protected right to loiter—or, as the plurality more favorably describes
Of course every activity, even scratching one‘s head, can be called a “constitutional right” if one means by that term nothing more than the fact that the activity is covered (as all are) by the Equal Protection Clause, so that those who engage in it cannot be singled out without “rational basis.” See FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). But using the term in that sense utterly impoverishes our constitutional discourse. We would then need a new term for those activities—such as political speech or religious worship—that cannot be forbidden even with rational basis.
The plurality tosses around the term “constitutional right” in this renegade sense, because there is not the slightest evidence for the existence of a genuine constitutional right to loiter. JUSTICE THOMAS recounts the vast historical tradition of criminalizing the activity. Post, at 102-106 (dissenting opinion). It is simply not maintainable that the right to loiter would have been regarded as an essential attribute of liberty at the time of the framing or at the time of adoption of the Fourteenth Amendment. For the plurality, however, the historical practices of our people are nothing more than a speed bump on the road to the “right” result. Its opinion blithely proclaims: “Neither this history nor the scholarly
It would be unfair, however, to criticize the plurality‘s failed attempt to establish that loitering is a constitutionally protected right while saying nothing of the concurrences. The plurality at least makes an attempt. The concurrences, on the other hand, make no pretense at attaching their broad “vagueness invalidates” rule to a liberty interest. As far as appears from JUSTICE O‘CONNOR‘S and JUSTICE BREYER‘S opinions, no police officer may issue any order, affecting any insignificant sort of citizen conduct (except, perhaps, an order addressed to the unprotected class of “gang members“) unless the standards for the issuance of that order are precise. No modern urban society—and probably none since London got big enough to have sewers—could function under such a rule. There are innumerable reasons why it may be important for a constable to tell a pedestrian to “move on“—and even if it were possible to list in an ordinance all of the reasons that are known, many are simply unpredictable. Hence the (entirely reasonable) Rule of the city of New York which reads: “No person shall fail, neglect or refuse to comply with the lawful direction or command of any Police Officer, Urban Park Ranger, Parks Enforcement Patrol Officer or other [Parks and Recreation] Department employee, indicated verbally, by gesture or otherwise.” 56 RCNY §1-03(c)(1) (1996). It is one thing to uphold an “as-applied” challenge when a pedestrian disobeys such an order that is unreasonable—or even when a pedestrian asserting some true “liberty” interest (holding a political rally, for instance) disobeys such an order that is reasonable but unexplained. But to say that such a general ordinance permitting “lawful orders” is void in all its applications demands more than a safe and orderly society can reasonably deliver.
JUSTICE KENNEDY apparently recognizes this, since he acknowledges that “some police commands will subject a citizen to prosecution for disobeying whether or not the citizen knows why the order is given,” including, for example, an order “tell[ing] a pedestrian not to enter a building” when the reason is “to avoid impeding a rescue team.” Ante, at 69 (opinion concurring in part and concurring in judgment).
III
I turn next to that element of the plurality‘s facial-challenge formula which consists of the proposition that this criminal ordinance contains no mens rea requirement. The first step in analyzing this proposition is to determine what the actus reus, to which that mens rea is supposed to be attached, consists of. The majority believes that loitering forms part of (indeed, the essence of) the offense, and must be proved if conviction is to be obtained. See ante, at 47, 50-51, 53-55, 57-59, 60-61, 62-63 (plurality and majority opinions); ante, at 65, 66, 68 (O‘CONNOR, J., concurring in part and concurring in judgment); ante, at 69-70 (KENNEDY, J., concurring in part and concurring in judgment); ante, at 72-73 (BREYER, J., concurring in part and concurring in judgment). That is not what the ordinance provides. The
The only act of a defendant that is made punishable by the ordinance—or, indeed, that is even mentioned by the ordinance—is his failure to “promptly obey” an order to disperse. The question, then, is whether that actus reus must be accompanied by any wrongful intent—and of course it must. As the Court itself describes the requirement, “a person must disobey the officer‘s order.” Ante, at 47 (emphasis added). No one thinks a defendant could be successfully prosecuted under the ordinance if he did not hear the order to disperse, or if he suffered a paralysis that rendered his compliance impossible. The willful failure to obey a police order is wrongful intent enough.
IV
Finally, I address the last of the three factors in the plurality‘s facial-challenge formula: the proposition that the ordinance is vague. It is not. Even under the ersatz over-
The plurality relies primarily upon the first of these aspects. Since, it reasons, “the loitering is the conduct that the ordinance is designed to prohibit,” and “an officer may issue an order only after prohibited conduct has already occurred,” ante, at 58, 59, the order to disperse cannot itself serve “to apprise persons of ordinary intelligence of the prohibited conduct.” What counts for purposes of vagueness analysis, however, is not what the ordinance is “designed to prohibit,” but what it actually subjects to criminal penalty. As discussed earlier, that consists of nothing but the refusal to obey a dispersal order, as to which there is no doubt of adequate notice of the prohibited conduct. The plurality‘s suggestion that even the dispersal order itself is unconstitutionally vague, because it does not specify how far to disperse(!), see ante, at 59, scarcely requires a response.9 If it were true, it would render unconstitutional for vagueness many of the Presidential proclamations issued under that provision of the United States Code which requires the Pres-
For its determination of unconstitutional vagueness, the Court relies secondarily—and JUSTICE O‘CONNOR‘S and JUSTICE BREYER‘S concurrences exclusively—upon the second aspect of that doctrine, which requires sufficient specificity to prevent arbitrary and discriminatory law enforcement. See ante, at 60 (majority opinion); ante, at 65-66 (O‘CONNOR, J., concurring in part and concurring in judgment); ante, at 72 (BREYER, J., concurring in part and concurring in judgment). In discussing whether Chicago‘s ordinance meets that requirement, the Justices in the majority hide behind an artificial construct of judicial restraint. They point to the Supreme Court of Illinois’ statement that the “apparent purpose” standard “provides absolute discretion to police officers to decide what activities constitute loitering,” 177 Ill. 2d 440, 457, 687 N.E.2d 53, 63 (1997), and protest that it would be wrong to construe the language of the ordinance more narrowly than did the State‘s highest court. Ante, at
The criteria for issuance of a dispersal order under the Chicago ordinance could hardly be clearer. First, the law requires police officers to “reasonably believ[e]” that one of the group to which the order is issued is a “criminal street gang member.” This resembles a probable-cause standard, and the Chicago Police Department‘s General Order 92-4 (1992)—promulgated to govern enforcement of the ordinance—makes the probable-cause requirement explicit.10 Under the Order, officers must have probable cause to believe that an individual is a member of a criminal street gang, to be substantiated by the officer‘s “experience and knowledge of the alleged offenders” and by “specific, documented and reliable information” such as reliable witness testimony or an individual‘s admission of gang membership or display of distinctive colors, tattoos, signs, or other markings worn by members of particular criminal street gangs. App. to Pet. for Cert. 67a-69a, 71a-72a.
Second, the ordinance requires that the group be “remain[ing] in any one place with no apparent purpose.” JUSTICE O‘CONNOR‘S assertion that this applies to “any person stand-
As for the phrase “with no apparent purpose“: JUSTICE O‘CONNOR again distorts this adjectival phrase, by separating it from the word that it modifies. “[A]ny person standing on the street,” her concurrenсe says, “has a general ‘purpose‘—even if it is simply to stand,” and thus “the ordinance permits police officers to choose which purposes are permissible.” Ante, at 66. But Chicago police officers enforcing the ordinance are not looking for people with no apparent purpose (who are regrettably in oversupply); they are looking for people who “remain in any one place with no apparent purpose“—that is, who remain there without any apparent reason for remaining there. That is not difficult to perceive.11
The Court‘s attempt to demonstrate the vagueness of the ordinance produces the following peculiar statement: “The ‘no apparent purpose’ standard for making [the decision to
Elsewhere, of course, the Court acknowledges the clear, objective commands of the ordinance, and indeed relies upon them to paint it as unfair:
“In any public place in the city of Chicago, persons who stand or sit in the company of a gang member may be ordered to disperse unless their purpose is apparent. The mandatory language in the enactment directs the police to issue an order without first making any inquiry about their possible purposes. It matters not whether the reason that a gang member and his father, for example, might loiter near Wrigley Field is to rob an unsuspecting fan or just to get a glimpse of Sammy Sosa leaving the ballpark; in either event, if their purpose is not apparent to a nearby police officer, she may—indeed, she ‘shall‘—order them to disperse.” Ante, at 60.
Quite so. And the fact that this clear instruction to the officers “reach[es] a substantial amount of innocent conduct,” ibid., would be invalidating if that conduct were constitutionally protected against abridgment, such as speech or the practice of religion. Remaining in one place is not so protected, and so (as already discussed) it is up to the citizens of Chicago—not us—to decide whether the tradeoff is worth it.12
JUSTICE BREYER‘S concurrence tries to perform the impossible feat of affirming our unquestioned rule that a criminal statute that is so vague as to give constitutionally inadequate notice to some violators may nonetheless be enforced against those whose conduct is clearly covered, see ante, at 71-72, citing Parker v. Levy, 417 U.S. 733 (1974), while at the same time asserting that a statute which “delegates too much discretion to a police officer” is invalid in all its applications, even where the officer uses his discretion “wisely,” ante, at 71. But the vagueness that causes notice to be inadequate is the very same vagueness that causes “too much discretion” to be lodged in the enforcing officer. Put another way: A law that gives the policeman clear guidance in all cases givеs the public clear guidance in all cases as well. Thus, what JUSTICE BREYER gives with one hand, he takes away with the other. In his view, vague statutes that nonetheless give adequate notice to some violators are not unenforceable against those violators because of inadequate notice, but are unenforceable against them “because the policeman enjoys too much discretion in every case,” ibid. This is simply contrary to our case law, including Parker v. Levy, supra.13
V
The plurality points out that Chicago already has several laws that reach the intimidating and unlawful gang-related conduct the ordinance was directed at. See ante, at 52, n. 17. The problem, of course, well recognized by Chicago‘s city council, is that the gang members cease their intimidating and unlawful behavior under the watchful eye of police officers, but return to it as soon as the police drive away. The only solution, the council concluded, was to clear the streets of congregations of gangs, their drug customers, and their associates.
JUSTICE O‘CONNOR‘S concurrence proffers the same empty solace of existing laws useless for the purpose at hand, see ante, at 67, 67-68, but seeks to be helpful by suggesting some measures similar to this ordinance that would be constitutional. It says that Chicago could, for example, enact a law that “directly prohibit[s] the presence of a large collection of obviously brazen, insistent, and lawless gang members and hangers-on on the public ways, that intimidates residents.” Ante, at 67 (internal quotation marks omitted). (If the majority considers the present ordinance too vague, it would be fun to see what it makes of “a large collection of obviously brazen, insistent, and lawless gang members.“) This prescription of the concurrence is largely a quotation from the plurality—which itself answers the concurrence‘s suggestion that such a law would be helpful by pointing out that the city already “has several laws that serve this purpose.” Ante, at 52, n. 17 (plurality opinion) (citing extant laws against “intimidation,” “streetgang criminal drug conspiracy,” and “mob action“). The problem, again, is that the intimidation and lawlessness do not occur when the police are in sight.
* * *
The fact is that the present ordinance is entirely clear in its application, cannot be violated except with full knowledge and intent, and vests no more discretion in the police than innumerable other measures authorizing police orders to preserve the public peace and safety. As suggested by their tortured analyses, and by their suggested solutions that bear no relation to the identified constitutional problem, the majority‘s real quarrel with the Chicago ordinance is simply that it permits (or indeed requires) too much harmless conduct by innocent citizens to be proscribed. As JUSTICE O‘CONNOR‘S concurrence says with disapprobation, “the ordinance applies to hundreds of thousands of persons who are not gang members, standing on any sidewalk or in any park, coffee shop, bar, or other location open to the public.” Ante, at 66 (internal quotation marks omitted).
But in our democratic system, how much harmless conduct to proscribe is not a judgment to be made by the courts. So long as constitutionally guaranteed rights are not affected,
I dissent from the judgment of the Court.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, dissenting.
The duly elected members of the Chicago City Council enacted the ordinance at issue as part of a larger effort to prevent gangs from establishing dominion over the public streets. By invalidating Chicago‘s ordinance, I fear that the Court has unnecessarily sentenced law-abiding citizens to lives of terror and misery. The ordinance is not vague. “[A]ny fool would know that a particular category of conduct would be within [its] reach.” Kolender v. Lawson, 461 U.S. 352, 370 (1983) (White, J., dissenting). Nor does it violate the Due Process Clause. The asserted “freedom to loiter for innocent purposes,” ante, at 53 (plurality opinion), is in no way “‘deeply rooted in this Nation‘s history and tradition,‘” Washington v. Glucksberg, 521 U.S. 702, 721 (1997) (citation omitted). I dissent.
I
The human costs exacted by criminal street gangs are inestimable. In many of our Nation‘s cities, gangs have “[v]ir-
The city of Chicago has suffered the devastation wrought by this national tragedy. Last year, in an effort to curb plummeting attendance, the Chicago Public Schools hired dozens of adults to escort children to school. The youngsters had become too terrified of gang violence to leave their homes alone. Martinez, Parents Paid to Walk Line Between Gangs and School, Chicago Tribune, Jan. 21, 1998, p. 1. The children‘s fears were not unfounded. In 1996, the Chicago Police Department estimated that there were 132 criminal street gangs in the city. Illinois Criminal Justice Information Authority, Research Bulletin: Street Gangs and Crime 4 (Sept. 1996). Between 1987 and 1994, these gangs were involved in 63,141 criminal incidents, including 21,689 nonlethal violent crimes and 894 homicides. Id., at 4-5.1 Many
Before enacting its ordinance, the Chicago City Council held extensive hearings on the problems of gang loitering. Concerned citizens appeared to testify poignantly as to how gangs disrupt their daily lives. Ordinary citizens like Ms. D‘Ivory Gordon explained that she struggled just to walk to work:
“When I walk out my door, these guys are out there.... They watch you. . . . They know where you live. They know what time you leave, what time you come home. I am afraid of them. I have even come to the point now that I carry a meat cleaver to work with me.... I don‘t want to hurt anyone, and I don‘t want to be hurt. We need to clean these corners up. Clean these communities up and take it back from them.” Transcript of Proceedings before the City Council of
Eighty-eight-year-old Susan Mary Jackson echoed her sentiments, testifying: “We used to have a nice neighborhood. We don‘t have it anymore. . . . I am scared to go out in the daytime. . . . [Y]ou can‘t pass because they are standing. I am afraid to go to the store. I don‘t go to the store because I am afraid. At my age if they look at me real hard, I be ready to holler.” Id., at 93-95. Another long-time resident testified:
“I have never had the terror that I feel everyday when I walk down the streets of Chicago. . . .
“I have had my windows broken out. I have had guns pulled on me. I have been threatened. I get intimidated on a daily basis, and it‘s come to the point where I say, well, do I go out today. Do I put my ax in my briefcase. Do I walk around dressed like a bum so I am not looking rich or got any money оr anything like that.” Id., at 124-125.
. . .
Following these hearings, the council found that “criminal street gangs establish control over identifiable areas . . . by loitering in those areas and intimidating others from entering those areas.” App. to Pet. for Cert. 60a. It further found that the mere presence of gang members “intimidate[s] many law abiding citizens” and “creates a justifiable fear for the safety of persons and property in the area.” Ibid. It is the product of this democratic process—the council‘s attempt to address these social ills—that we are asked to pass judgment upon today.
II
As part of its ongoing effort to curb the deleterious effects of criminal street gangs, the citizens of Chicago sensibly decided to return to basics. The ordinance does nothing more than confirm the well-established principle that the police
A
. . .
We recently reconfirmed that “[o]ur Nation‘s history, legal traditions, and practices . . . provide the crucial ‘guideposts for responsible decisionmaking’ . . . that direct and restrain our exposition of the Due Process Clause.” Glucksberg, 521 U. S., at 721 (quoting Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion)). Only laws that infringe “those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation‘s history and tradition‘” offend the Due Process Clause. Glucksberg, supra, at 720-721.
The plurality asserts that “the freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Process Clause of the Fourteenth Amendment.” Ante, at 53. Yet it acknowledges—as it must—that “antiloitering ordinances have long existed in this country.” Ante, at 53, n. 20; see also 177 Ill. 2d 440, 450, 687 N. E. 2d 53, 60 (1997) (case below) (“Loitering and vagrancy statutes have been utilized throughout American history in an attempt to prevent crime by removing ‘undesirable persons’ from public before they have the opportunity to engage in criminal activity“). In derogation of the framework we articulated only two Terms ago in Glucksberg, the plurality asserts that this history fails to “persuad[e] us that the right to engage in loitering that is entirely harmless . . . is not a part of the liberty protected by the Due Process Clause.” Ante, at 54,
The plurality‘s sweeping conclusion that this ordinance infringes upоn a liberty interest protected by the Fourteenth Amendment‘s Due Process Clause withers when exposed to the relevant history: Laws prohibiting loitering and vagrancy have been a fixture of Anglo-American law at least since the time of the Norman Conquest. See generally C. Ribton-Turner, A History of Vagrants and Vagrancy and Beggars and Begging (reprint 1972) (discussing history of English vagrancy laws); see also Papachristou v. Jacksonville, 405 U. S. 156, 161-162 (1972) (recounting history of vagrancy laws). The American colonists enacted laws modeled upon the English vagrancy laws, and at the time of the founding, state and local governments customarily criminalized loitering and other forms of vagrancy.2 Vagrancy laws
B
The Court concludes that the ordinance is also unconstitutionally vague because it fails to provide adequate standards to guide police discretion and because, in the plurality‘s view, it does not give residents adequate notice of how to conform their conduct to the confines of the law. I disagree on both counts.
1
At the outset, it is important to note that the ordinance does not criminalize loitering per se. Rather, it penalizes loiterers’ failure to obey a police officer‘s order to move along. A majority of the Court believes that this scheme vests too much discretion in police officers. Nothing could be further from the truth. Far from according officers too much discretion, the ordinance merely enables police officers to fulfill one of their traditional functions. Police officers are not, and have never been, simply enforcers of the criminal law. They wear other hats—importantly, they have long been vested with the responsibility for preserving the public peace. See, e. g., O. Allen, Duties and Liabilities of Sheriffs
In their role as peace officers, the police long have had the authority and the duty to order groups of individuals who threaten the public peace to disperse. For example, the 1887 police manual for the city of New York provided:
“It is hereby made the duty of the Police Force at all times of day and night, and the members of such Force are hereby thereunto empowered, to especially preserve the public peace, prevent crime, detect and arrest offenders, suppress riots, mobs and insurrections, disperse unlawful or dangerous assemblages, and assemblages which obstruct the free passage of public streets, sidewalks, parks and places.” Manual Containing the Rules and Regulations of the Police Department of the City of New York, Rule 414 (emphasis added).
See also J. Crocker, Duties of Sheriffs, Coroners and Constables § 48, p. 33 (2d ed. rev. 1871) (“Sheriffs are, ex officio, conservators of the peace within their respective counties, and it is their duty, as well as that of all constables, coroners, marshals and other peace officers, to prevent every breach of the peace, and to suppress every unlawful assembly, affray or riot which may happen in their presence” (emphasis added)). The authority to issue dispersal orders continues to play a commonplace and crucial role in police operations, particularly in urban areas.7 Even the ABA Standards for
In order to perform their peacekeeping responsibilities satisfactorily, the police inevitably must exercise discretion. Indeed, by empowering them to act as peace officers, the law assumes that the police will exercise that discretion responsibly and with sound judgment. That is not to say that the law should not provide objective guidelines for the police, but simply that it cannot rigidly constrain thеir every action. By directing a police officer not to issue a dispersal order unless he “observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place,” App. to Pet. for Cert. 61a, Chicago‘s ordinance strikes an appropriate balance between those two extremes. Just as we trust officers to rely on their experience and expertise in order to make spur-of-the-moment determinations about amorphous legal standards such as “probable cause”
The illogic of the Court‘s position becomes apparent when it opines that the ordinance‘s dispersal provision “would no doubt be sufficient if the ordinance only applied to loitering that had an apparently harmful purpose or effect, or possibly if it only applied to loitering by persons reasonably believed to be criminal gang members.” Ante, at 62 (footnote omitted). See also ante, at 67 (O‘CONNOR, J., concurring in part and concurring in judgment) (endorsing Court‘s proposal). With respect, if the Court believes that the ordinance is vague as written, this suggestion would not cure the vagueness problem. First, although the Court has suggested that a scienter requirement may mitigate a vagueness problem “with respect to the adequacy of notice to the complainant that his conduct is proscribed,” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982) (footnote omitted), the alternative proposal does not incorporate a scienter requirement. If the ordinance‘s prohibition were lim-
In concluding that the ordinance adequately channels police discretion, I do not suggest that a police officer enforcing the Gang Congregation Ordinance will never make a mistake. Nor do I overlook the possibility that a police officer, acting in bad faith, might enforce the ordinance in an arbitrary or discriminatory way. But our decisions should not turn on the proposition that such an event will be anything but rare. Instances of arbitrary or discriminatory enforcement of the ordinance, like any other law, are best addressed when (and if) they arise, rather than prophylactically through the disfavored mechanism of a facial challenge on vagueness grounds. See United States v. Salerno, 481 U. S. 739, 745 (1987) (“A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid“).
The plurality‘s conclusion that the ordinance “fails to give the ordinary citizen adequate notice of what is forbidden and what is permitted,” ante, at 60, is similarly untenable. There is nothing “vague” about an order to disperse.9 While “we can never expect mathematical certainty from our language,” Grayned v. City of Rockford, 408 U. S. 104, 110 (1972), it is safe to assume that the vast majority of people who are ordered by the police to “disperse and remove themselves from the area” will have little difficulty understanding how to comply. App. to Pet. for Cert. 61a.
Assuming that we are also obligated to consider whether the ordinance places individuals on notice of what conduct might subject them to such an order, respondents in this facial challenge bear the weighty burden of establishing that the statute is vague in all its applications, “in the sense that no standard of conduct is specified at all.” Coates v. Cincinnati, 402 U. S. 611, 614 (1971). I subscribe to the view of retired Justice White—“If any fool would know that a particular category of conduct would be within the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law, the enactment is not unconstitutional on its face.” Kolender, 461 U. S., at 370-371 (dissenting opinion). This is certainly such a case. As the Illinois Supreme Court recognized, “persons of ordinary intelligence may maintain a common and accepted
JUSTICE STEVENS’ contrary conclusion is predicated primarily on the erroneous assumption that the ordinance proscribes large amounts of constitutionally protected and/or innocent conduct. See ante, at 55, 56-57, 60. As already explained, supra, at 102-106, the ordinance does not proscribe constitutionally protected conduct—there is no fundamental right to loiter. It is also anomalous to characterize loitering as “innocent” conduct when it has been disfavored throughout American history. When a category of conduct has been consistently criminalized, it can hardly be considered “innocent.” Similarly, when a tеrm has long been used to describe criminal conduct, the need to subject it to the “more stringent vagueness test” suggested in Hoffman Estates, 455 U. S., at 499, dissipates, for there is no risk of a trap for the unwary. The term “loiter” is no different from terms such as “fraud,” “bribery,” and “perjury.” We expect people of ordinary intelligence to grasp the meaning of such legal terms despite the fact that they are arguably imprecise.10
The plurality also concludes that the definition of the term loiter—“to remain in any one place with no apparent pur-
*
Today, the Court focuses extensively on the “rights” of gang members and their companions. It can safely do so—the people who will have to live with the consequences of
Notes
The plurality asserts that in United States v. Salerno, 481 U. S. 739 (1987), which I discuss in text immediately following this footnote, the Court “entertained” a facial challenge even though “the defendants. . . did not claim that the statute was unconstitutional as applied to them.” Ante, at 55, n. 22. That is not so. The Court made it absolutely clear in Salerno that a facial challenge requires the assertion that “no set of circumstances exists under which the Act would be valid,” 481 U. S., at 745 (emphasis added). The footnoted statement upon which the plurality relies (“Nor have respondents claimed that the Act is unconstitutional because of the way it was applied to the particular facts of their case,” id., at 745, n. 3) was obviously meant to convey the fact that the defendants were not making, in addition to their facial challenge, an alternative as-applied challenge—i. e., asserting that even if the statute was not unconstitutional in all its applications it was at least unconstitutional in its particular application to them. In other words, a facial attack, since it requires unconstitutionality in all circumstances, necessarily presumes that the litigant presently before the court would be able to sustain an as-applied challenge. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 495 (1982) (“A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant‘s conduct before analyzing other hypothetical applications of the law“); Parker v. Levy, 417 U. S. 733, 756 (1974) (“One to whose conduct a statute clearly applies may not successfully challenge it for vagueness“).
The plurality asserts that in United States v. Salerno, 481 U. S. 739 (1987), which I discuss in text immediately following this footnote, the Court “entertained” a facial challenge even though “the defendants. . . did not claim that the statute was unconstitutional as applied to them.” Ante, at 55, n. 22. That is not so. The Court made it absolutely clear in Salerno that a facial challenge requires the assertion that “no set of circumstances exists under which the Act would be valid,” 481 U. S., at 745 (emphasis added). The footnoted statement upon which the plurality relies (“Nor have respondents claimed that the Act is unconstitutional because of the way it was applied to the particular facts of their case,” id., at 745, n. 3) was obviously meant to convey the fact that the defendants were not making, in addition to their facial challenge, an alternative as-applied challenge—i. e., asserting that even if the statute was not unconstitutional in all its applications it was at least unconstitutional in its particular application to them. In 1996 alone, gangs were involved in 225 homicides, which was 28 percent of the total homicides committed in the city. Chicago Police Department, Gang and Narcotic Related Violent Crime, City of Chicago: 1993-1997 (June 1998). Nationwide, law enforcement officials estimate that as many as 31,000 street gangs, with 846,000 members, exist. U. S. Dept. of Justice, Office of Justice Programs, Highlights of the 1996 National Youth Gang Survey (OJJDP Fact Sheet, No. 86, Nov. 1998).
“(a) Whenever a police officer observes a person whom he reasonably believes to be a criminal street gang member loitering in any public place with one or more other persons, he shall order all such persons to disperse and remоve themselves from the area. Any person who does not promptly obey such an order is in violation of this section.
“(b) It shall be an affirmative defense to an alleged violation of this section that no person who was observed loitering was in fact a member of a criminal street gang.
“(c) As used in this Section:
“(1) ‘Loiter’ means to remain in any one place with no apparent purpose.
“(2) ‘Criminal street gang’ means any ongoing organization, association in fact or group of three or more persons, whether formal or informal, having as one of its substantial activities the commission of one or more of the criminal acts enumerated in paragraph (3), and whose members
“(5) ‘Public place’ means the public way and any other location open to the public, whether publicly or privately owned.
“(e) Any person who violates this Section is subject to a fine of not less than $100 and not more than $500 for each offense, or imprisonment for not more than six months, or both.
“In addition to or instead of the above penalties, any person who violates this section may be required to perform up to 120 hours of community service pursuant to section 1-4-120 of this Code.” Chicago Municipal Code § 8-4-015 (added June 17, 1992), reprinted in App. to Pet. for Cert. 61a-63a.
Salerno, a criminal case, repudiated the Court‘s statement in Kolender v. Lawson, 461 U. S. 352, 359, n. 8 (1983), to the effect that a facial challenge to a criminal statute could succeed “even when [the statute] could conceivably have had some valid application.” Kolender seems to have confused the standard for First Amendment overbreadth challenges with the standard governing facial challenges on all other grounds. See ibid. (citing the Court‘s articulation of the standard for First Amendment overbreadth challenges from Hoffman Estates, supra, at 494). As Salerno noted, supra, at 745, the overbreadth doctrine is a specialized exception to the general rule for facial challenges, justified in light of the risk that an overbroad statute will chill free expression. See, e. g., Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973). Salerno, a criminal case, repudiated the Court‘s statement in Kolender v. Lawson, 461 U. S. 352, 359, n. 8 (1983), to the effect that a facial challenge to a criminal statute could succeed “even when [the statute] could conceivably have had some valid application.” Kolender seems to have confused the standard for First Amendment overbreadth challenges with the standard governing facial challenges on all other grounds. See ibid. (citing the Court‘s articulation of the standard for First Amendment overbreadth challenges from Hoffman Estates, supra, at 494). As Salerno noted, supra, at 745, the overbreadth doctrine is a specialized exception to the general rule for facial challenges, justified in light of the risk that an overbroad statute will chill free expression. See, e. g., Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973). See, e. g., Act for the Restraint of idle and disorderly Persons (1784) (reprinted in 2 First Laws of the State of North Carolina 508-509 (J. Cushing comp. 1984)); Act for restraining, correcting, suppressing and punishing Rogues, Vagabonds, common Beggars, and other lewd, idle, dissolute, profane and disorderly Persons; and for setting them to work (reprinted in First Laws of the State of Connecticut 206-210 (J. Cushing comp. 1982)); Act for suppressing and punishing of Rogues, Vagabonds, common Beggars and other idle, disorderly and lewd persons (1788) (reprinted in First Laws of the Commonwealth of Massachusetts 347-349 (J. Cushing comp. 1981)); Act for better securing the payment of levies and restraint of vagrants, and for making provisions for the poor (1776) (reprinted in First Laws of the State of Virginia 44-45 (J. Cushing comp. 1982)); Act for the better ordering of the Police of the Town of Providence, of the Work-House in said Town (1796) (reprinted in 2 First Laws of the State of Rhode Island 362-367 (J. Cushing comp. 1983)); Act for the Promotion of Industry, and for the Suppression of Vagrants and Other Idle and Disorderly Persons (1787) (reprinted in First Laws of the State of South Carolina, Part 2, 431-433 (J. Cushing comp. 1981)); An act for the punishment of vagabond and other idle and disorderly persons (1764) (reprinted in First Laws of the State of Georgia 431-433 (J. Cushing comp. 1981)); Laws of the Colony of New York 4, ch. 1021 (1756); 1 Laws of the Commonwealth of Pennsylvania, ch. DLV (1767) (An Act to prevent the mischiefs arising from the increase of vagabonds, and other idle and disorderly persons, within this province); Laws of the State of Vermont § 10 (1797).The plurality contends that it does not matter whether the Salerno standard is federal law, since facial challenge is a species of third-party standing, and federal limitations upon third-party standing do not apply in an appeal from a state decision which takes a broader view, as the Illinois Supreme Court‘s opinion did here. Ante, at 55-56, n. 22. This is quite wrong. Disagreement over the Salerno rule is not a disagreement over the “standing” question whether the person challenging the statute can raise the rights of third parties: under both Salerno and the plurality‘s rule he can. The disagreement relates to how many third-party rights he must prove to be infringed by the statute before he can win: Salerno says “all” (in addition to his own rights), the plurality says “many.” That is not a question of standing but of substantive law. The notion that, if Salerno is the federal rule (a federal statute is not totally invalid unless it is invalid in all its applications), it can be altered by a state court (a federal statute is totally invalid if it is invalid in many of its applications), and that that alteration must be accepted by the Supreme Court of the United States is, to put it as gently as possible, remarkable. The plurality asserts that the Salerno standard for facial challenge “has never been the decisive factor in any decision of this Court.” Ante, at 55, n. 22. It means by that only this: in rejecting a facial challenge, the Court has never contented itself with identifying only one situation in which the challenged statute would be constitutional, but has mentioned several. But that is not at all remarkable, and casts no doubt upon the validity of the principle that Salerno and these many other cases enunciated. It is difficult to conceive of a statute that would be constitutional in only a single application—and hard to resist mentioning more than one.
The plurality contends that it does not matter whether the Salerno standard is federal law, since facial challenge is a species of third-party standing, and federal limitations upon third-party standing do not apply in an appeal from a state decision which takes a broader view, as the Illinois Supreme Court‘s opinion did here. Ante, at 55-56, n. 22. This is quite wrong. Disagreement over the Salerno rule is not a disagreement over the “standing” question whether the person challenging the statute can raise the rights of third parties: under both Salerno and the plurality‘s rule he can. The disagreement relates to how many third-party rights he must prove to be infringed by the statute before he can win: Salerno says “all” (in addition to his own rights), the plurality says “many.” That is not a question of standing but of substantive law. The notion that, if Salerno is the federal rule (a federal statute is not totally invalid unless it is invalid in all its applications), it can be altered by a state court (a federal statute is totally invalid if it is invalid in many of its applications), and that that alteration must be accepted by the Supreme Court of the United States is, to put it as gently as possible, remarkable. See, e. g.,
The city believes that the ordinance resulted in a significant decline in gang-related homicides. It notes that in 1995, the last year the ordinance was enforced, the gang-related homicide rate fell by 26%. In 1996, after the ordinance had been held invalid, the gang-related homicide rate rose 11%. Pet. for Cert. 9, n. 5. However, gang-related homicides fell by 19% in 1997, over a year after the suspension of the ordinance. Daley & Hillard, at 5. Given the myriad factors that influence levels of violence, it is difficult to evaluate the probative value of this statistical evidence, or to reach any firm conclusion about the ordinance‘s efficacy. Cf. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style, 97 Mich. L. Rev. 291, 296 (1998) (describing the “hotly contested debate raging among ... experts over the causes of the decline in crime in New York City and nationally“).
Ante, at 53, n. 19. The plurality bases its assertion of apparent concession upon a footnote in Part I of petitioner‘s brief which reads: “Of course, laws regulating social gatherings affect a liberty interest, and thus are subject to review under the rubric of substantive due process.... We address that doctrine in Part II below.” Brief for Petitioner 21-22, n. 13. If a careless reader were inclined to confuse the term “social gatherings” in this passage with “loitering,” his confusion would be eliminated by pursuing the reference to Part II of the brief, which says, in its introductory paragraph: “[A]s we explain below, substantive due process does not support the court‘s novel holding that the Constitution secures the right to stand still on the public way even when one is not engaged in speech, assembly, or other conduct that enjoys affirmative constitutional protection.” Id., at 39. For example, the following statutes provide a criminal penalty for the failure to obey a dispersal order:In 1903, the Illinois Legislature passed “An Act to regulate the speed of automobiles and other horseless conveyances upon the public streets, roads, and highways of the state of Illinois.” That statute, with some exceptions, set a speed limit of 15 miles per hour. See Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035 (1905). In 1900, there were 1,698,575 citizens of Chicago, 1 Twelfth Census of the United States 430 (1900) (Table 6), but
We need not, however, resolve the viability of Salerno‘s dictum, because this case comes to us from a state—not a federal—court. When asserting
Whether or not it would be appropriate for federal courts to apply the Salerno standard in some cases—a proposition which is doubtful—state courts need not apply prudential notions of standing created by this Court. See ASARCO Inc. v. Kadish, 490 U. S. 605, 618 (1989). JUSTICE SCALIA‘s assumption that state courts must apply the restrictive Salerno test is incorrect as a matter of law; moreover it contradicts “essential principles of federalism.” See Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 284 (1994).