COURT BATTLE IS FIGHT FOR STREETS

CHICAGO - On the streets west of Humboldt Park, in front of busy liquor stores and boarded-up churches, gang-bangers hang out day and night.

"They are out there 24-7," neighborhood activist Jimmy Simmons says. "They sell rock (crack cocaine), intimidate old ladies and recruit our kids. . . . They create fear, and that fear stifles our quality of life."

So why aren't the police arresting them?

They did, at one time.

From 1993 to 1995, police hauled in more than 43,000 suspected gang members under a novel "gang loitering" ordinance that allowed police to arrest gang members and those who loiter with them if they refuse to obey a police order to move on. Fewer than 1% of those arrested were ever prosecuted, but the police, City Council members and many neighbors say the unusual law helped clean up even the meanest of city
streets.

But three years ago, the law was struck down in state court as "vague and arbitrary." And now, in a major clash between individual rights and community interests, the Supreme Court will consider whether the Chicago law is constitutional.

The case will be heard in December or January, and how the court rules could determine the future of the "broken window" theory of community policing currently in vogue among the nation's law enforcement officials and urban leaders such as New York Mayor Rudy Giuiliani.

Attacking low-level disorder such as broken windows, loitering and aggressive panhandling, proponents say, will help preserve a neighborhood's quality of life and deter more-violent crime. "What we have here is 'broken windows' meets the Constitution," says Roger Conner of The Center for the Community Interest, which has helped dozens of cities enact and defend such laws. "Not allowing the police to do this means the gangs will win."

Tough call

Predicting the outcome of the court case is difficult. Since the 1960s, the Supreme Court has emphasized the rights of individuals over police, especially in cases where minorities were targets of police abuse. Anti-loitering and anti-vagrancy laws were often used as weapons against blacks in the South, and the court struck several down.

But times, and the Supreme Court itself, are different. And some minority communities, instead of opposing the laws, are asking for them.

To drive home that point, Chicago has taken the unusual step of presenting the court with petitions signed by 14,000 residents in favor of the gang ordinance. The city hopes to convince the court that community standards - which the court considers in other contexts, such as defining obscenity - matter in the context of fighting crime as well.

"Like other forms of order-maintenance policing," the residents said in a friend of the court brief, "the ordinance promotes obedience to the law primarily through its positive effect on community social norms."

The case is one of the most closely watched of the coming Supreme Court term. Cities across the USA struggling to deal with similar gang problems are intrigued by Chicago's novel approach. It has won support from a host of city, county and state organizations, as well as the attorneys general of 31 states and the Justice Department.

Law has its opponents

Despite broad support for the law, there are many in Chicago, including some community activists in areas hardest hit by gang violence, who oppose the approach.

When the City Council adopted the ordinance, 11 aldermen, all of them black or Hispanic, voted against it. And while Rep. Luis Gutierrez, D-Ill., supports the law, Rep. Jesse Jackson Jr., D-Ill., has joined the NAACP and the National Council of La Raza in opposing the ordinance.

"It's an anti-freedom-of-assembly law that has been applied mostly against young people of color," says Warren Friedman of the Chicago Alliance for Neighborhood Safety.

The American Civil Liberties Union, representing 66 people arrested under the ordinance, says the law gives police far too much discretion and violates cherished freedoms such as the right of association and the freedom to move freely and to travel. For example, the named plaintiff in the case, Jesus Morales, 17, was arrested while hobbling home from the hospital on crutches. Police stopped him because he was wearing blue and black, typical gang colors in Chicago. Another defendant, Gregorio Gutierrez, was jailed for 27 days after he was arrested standing on a corner with his brother and another man, eating a hot dog.

"The police are just arresting people willy-nilly," says Harvey Grossman, legal director of the the Illinois ACLU. He says current laws that prohibit intimidation or gathering for the purpose of committing crimes give police adequate power to keep gang members off the street, when they are acting in an illegal manner.

'Overwhelming' support'

But Mayor Richard Daley, who calls the estimated 100,000 members of Chicago gangs "the No. 1 menace to our cities," says the law is an important tool in the city's community policing strategy - as simple and as effective as removing grafitti or repairing broken windows. Besides, Daley says, "Community support was overwhelming - and it came from all parts of the city."

For Simmons, who is African-American, the issue is not racism but creating the sort of neighborhood where Burger King doesn't have to be convinced that it's safe to build a restaurant and developers don't have to be cajoled into building 16 townhouse units, as happened in West Humboldt Park, a blue-collar neighborhood midway between downtown and O'Hare International Airport.

It's also about creating an environment where residents feel safe standing in their yards or walking to the store without having to cross the street to avoid young toughs.

"Those judges who said this is discriminatory, they don't live down here. Let them come down one weekend and see how they like it," Simmons says. "I'm sure no one is selling crack in their neighborhoods."