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City of Chicago v. Morales, 527 = U.S. 41,=20 119 S.Ct. 1849, 144 L.Ed.2d 67 (U.S. 06/10/1999)

[1]	United States Supreme = Court
[2]	No. 97-1121
[3]	527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67, 1999.SCT.42108=20 <http://www.versuslaw.com>, 67 USLW 4415, 99 Cal. Daily = Op.=20 Serv. 4488
[4]	June 10, 1999
[5]	CITY OF CHICAGO, PETITIONER v. JESUS MORALES ET AL.=20
[6]	SYLLABUS BY THE COURT
[7]	Syllabus
[8]	OCTOBER TERM, 1998
[9]	CHICAGO v. MORALES
[10]	NOTE: Where it is feasible, a syllabus (headnote) will be = released, as=20 is being done in connection with this case, at the time the = opinion is=20 issued. The syllabus constitutes no part of the opinion of the = Court but=20 has been prepared by the Reporter of Decisions for the convenience = of the=20 reader. See United States v. Detroit Timber & Lumber Co., 200 = U. S.=20 321, 337.
[11]	SUPREME COURT OF THE UNITED STATES
[12]	CITY OF CHICAGO v. MORALES et al.
[13]	certiorari to the supreme court of illinois
[14]	No. 97-1121.
[15]	Argued December 9, 1998
[16]	Decided June 10, 1999
[17]	Chicago's Gang Congregation Ordinance prohibits "criminal street = gang=20 members" from loitering in public places. Under the ordinance, if = a police=20 officer observes a person whom he reasonably believes to be a gang = member=20 loitering in a public place with one or more persons, he shall = order them=20 to disperse. Anyone who does not promptly obey such an order has = violated=20 the ordinance. The police department's General Order 92-4 purports = to=20 limit officers' enforcement discretion by confining arrest = authority to=20 designated officers, establishing detailed criteria for defining = street=20 gangs and membership therein, and providing for designated, but = publicly=20 undisclosed, enforcement areas. Two trial Judges upheld the = ordinance's=20 constitutionality, but eleven others ruled it invalid. The = Illinois=20 Appellate Court affirmed the latter cases and reversed the = convictions in=20 the former. The State Supreme Court affirmed, holding that the = ordinance=20 violates due process in that it is impermissibly vague on its face = and an=20 arbitrary restriction on personal liberties.
[18]	Held: The judgment is affirmed.
[19]	177 Ill. 2d 440, 687 N. E. 2d 53, affirmed.
[20]	Justice Stevens delivered the opinion of the Court with respect = to=20 Parts I, II, and V, concluding that the ordinance's broad sweep = violates=20 the requirement that a legislature establish minimal guidelines to = govern=20 law enforcement. Kolender v. Lawson, 461 U. S. 352, 358. The = ordinance=20 encompasses a great deal of harmless behavior: In any public place = in=20 Chicago, persons in the company of a gang member "shall" be = ordered to=20 disperse if their purpose is not apparent to an officer. Moreover, = the=20 Illinois Supreme Court interprets the ordinance's loitering = definition=20 --"to remain in any one place with no apparent purpose" -- as = giving=20 officers absolute discretion to determine what activities = constitute=20 loitering. See id., at 359. This Court has no authority to = construe the=20 language of a state statute more narrowly than the State's highest = court.=20 See Smiley v. Kansas, 196 U. S. 447, 455. The three features of = the=20 ordinance that, the city argues, limit the officer's discretion -- = (1) it=20 does not permit issuance of a dispersal order to anyone who is = moving=20 along or who has an apparent purpose; (2) it does not permit an = arrest if=20 individuals obey a dispersal order; and (3) no order can issue = unless the=20 officer reasonably believes that one of the loiterers is a gang = member --=20 are insufficient. Finally, the Illinois Supreme Court is correct = that=20 General Order 92-4 is not a sufficient limitation on police = discretion.=20 See Smith v. Goguen, 415 U. S. 566, 575. Pp. = 16-20.
[21]	Justice Stevens, joined by Justice Souter and Justice Ginsburg,=20 concluded in Parts III, IV, and VI:
[22]	1. It was not improper for the state courts to conclude that the = ordinance, which covers a significant amount of activity in = addition to=20 the intimidating conduct that is its factual predicate, is invalid = on its=20 face. An enactment may be attacked on its face as impermissibly = vague if,=20 inter alia, it fails to establish standards for the police and = public that=20 are sufficient to guard against the arbitrary deprivation of = liberty.=20 Kolender v. Lawson, 461 U. S., at 358. The freedom to loiter for = innocent=20 purposes is part of such "liberty." See, e.g., Kent v. Dulles, 357 = U. S.=20 116, 126. The ordinance's vagueness makes a facial challenge = appropriate.=20 This is not an enactment that simply regulates business behavior = and=20 contains a scienter requirement. See Hoffman Estates v. Flip-side, = Hoffman=20 Estates, Inc., 455 U. S. 489, 499. It is a criminal law that = contains no=20 mens rea requirement, see Colautti v. Franklin, 439 U. S. 379, = 395, and=20 infringes on constitutionally protected rights, see id., at 391. = Pp.=20 7-12.
[23]	2. Because the ordinance fails to give the ordinary citizen = adequate=20 notice of what is forbidden and what is permitted, it is = impermissibly=20 vague. See, e.g., Coates v. Cincinnati, 402 U. S. 611, 614. The = term=20 "loiter" may have a common and accepted meaning, but the = ordinance's=20 definition of that term -- "to remain in any one place with no = apparent=20 purpose" -- does not. It is difficult to imagine how any Chicagoan = standing in a public place with a group of people would know if he = or she=20 had an "apparent purpose." This vagueness about what loitering is = covered=20 and what is not dooms the ordinance. The city's principal response = to the=20 adequate notice concern --that loiterers are not subject to = criminal=20 sanction until after they have disobeyed a dispersal order -- is=20 unpersuasive for at least two reasons. First, the fair notice=20 requirement's purpose is to enable the ordinary citizen to conform = his or=20 her conduct to the law. See Lanzetta v. New Jersey, 306 U. S. 451, = 453. A=20 dispersal order, which is issued only after prohibited conduct has = occurred, cannot retroactively provide adequate notice of the = boundary=20 between the permissible and the impermissible applications of the=20 ordinance. Second, the dispersal order's terms compound the = inadequacy of=20 the notice afforded by the ordinance, which vaguely requires that = the=20 officer "order all such persons to disperse and remove themselves = from the=20 area," and thereby raises a host of questions as to the duration = and=20 distinguishing features of the loiterers' separation. Pp.=20 12-16.
[24]	Justice O'Connor, joined by Justice Breyer, concluded that, as=20 construed by the Illinois Supreme Court, the Chicago ordinance is=20 unconstitutionally vague because it lacks sufficient minimal = standards to=20 guide law enforcement officers; in particular, it fails to provide = any=20 standard by which police can Judge whether an individual has an = "apparent=20 purpose." This vagueness alone provides a sufficient ground for = affirming=20 the judgment below, and there is no need to consider the other = issues=20 briefed by the parties and addressed by the plurality. It is = important to=20 courts and legislatures alike to characterize more clearly the = narrow=20 scope of the Court's holding. Chicago still has reasonable = alternatives to=20 combat the very real threat posed by gang intimidation and = violence,=20 including, e.g., adoption of laws that directly prohibit the = congregation=20 of gang members to intimidate residents, or the enforcement of = existing=20 laws with that effect. Moreover, the ordinance could have been = construed=20 more narrowly to avoid the vagueness problem, by, e.g., adopting=20 limitations that restrict the ordinance's criminal penalties to = gang=20 members or interpreting the term "apparent purpose" narrowly and = in light=20 of the Chicago City Council's findings. This Court, however, = cannot impose=20 a limiting construction that a state supreme court has declined to = adopt.=20 See, e.g., Kolender v. Lawson, 461 U. S. 352, 355-356, n. 4. The = Illinois=20 Supreme Court misapplied this Court's precedents, particularly=20 Papachristou v. Jacksonville, 405 U. S. 156, to the extent it read = them as=20 requiring it to hold the ordinance vague in all of its = applications. Pp.=20 1-5.
[25]	Justice Kennedy concluded that, as interpreted by the Illinois = Supreme=20 Court, the Chicago ordinance unconstitutionally reaches a broad = range of=20 innocent conduct, and, therefore, is not necessarily saved by the=20 requirement that the citizen disobey a dispersal order before = there is a=20 violation. Although it can be assumed that disobeying some police = commands=20 will subject a citizen to prosecution whether or not the citizen = knows why=20 the order is given, it does not follow that any unexplained police = order=20 must be obeyed without notice of its lawfulness. The predicate of = a=20 dispersal order is not sufficient to eliminate doubts regarding = the=20 adequacy of notice under this ordinance. A citizen, while engaging = in a=20 wide array of innocent conduct, is not likely to know when he may = be=20 subject to such an order based on the officer's own knowledge of = the=20 identity or affiliations of other persons with whom the citizen is = congregating; nor may the citizen be able to assess what an = officer might=20 conceive to be the citizen's lack of an apparent purpose. Pp.=20 1-2.
[26]	Justice Breyer concluded that the ordinance violates the = Constitution=20 because it delegates too much discretion to the police, and it is = not=20 saved by its limitations requiring that the police reasonably = believe that=20 the person ordered to disperse (or someone accompanying him) is a = gang=20 member, and that he remain in the public place "with no apparent = purpose."=20 Nor does it violate this Court's usual rules governing facial = challenges=20 to forbid the city to apply the unconstitutional ordinance in this = case.=20 There is no way to distinguish in the ordinance's terms between = one=20 application of unlimited police discretion and another. It is=20 unconstitutional, not because a policeman applied his discretion = wisely or=20 poorly in a particular case, but rather because the policeman = enjoys too=20 much discretion in every case. And if every application of the = ordinance=20 represents an exercise of unlimited discretion, then the ordinance = is=20 invalid in all its applications. See Lanzetta v. New Jersey, 306 = U. S.=20 451, 453. Contrary to Justice Scalia's suggestion, the ordinance = does not=20 escape facial invalidation simply because it may provide fair = warning to=20 some individual defendants that it prohibits the conduct in which = they are=20 engaged. This ordinance is unconstitutional, not because it = provides=20 insufficient notice, but because it does not provide sufficient = minimal=20 standards to guide the police. See Coates v. Cincinnati, 402 U. S. = 611,=20 614. Pp. 1-5.
[27]	Stevens, J., announced the judgment of the Court and delivered = the=20 opinion of the Court with respect to Parts I, II, and V, in which=20 O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, and = an=20 opinion with respect to Parts III, IV, and VI, in which Souter and = Ginsburg, JJ., joined. O'Connor, J., filed an opinion Concurring = in part=20 and Concurring in the judgment, in which Breyer, J., joined. = Kennedy, J.,=20 and Breyer, J., filed opinions Concurring in part and Concurring = in the=20 judgment. Scalia, J., filed a Dissenting opinion. Thomas, J., = filed a=20 Dissenting opinion, in which Rehnquist, C. J., and Scalia, J.,=20 joined.
[28]	Court Below: 177 Ill. 2d 440, 687 N. E. 2d = 53
[29]	Opinion of the Court
[30]	CHICAGO v. MORALES
[31]	____ U. S. ____ (1999)
[32]	On Writ Of Certiorari To The Supreme Court Of = Illinois
[33]	Justice Stevens announced the judgment of the Court and = delivered the=20 opinion of the Court with respect to Parts I, II, and V, and an = opinion=20 with respect to Parts III, IV, and VI, in which Justice Souter and = Justice=20 Ginsburg join.
[34]	In 1992, the Chicago City Council enacted the Gang Congregation=20 Ordinance, which prohibits "criminal street gang members" from = "loitering"=20 with one another or with other persons in any public place. The = question=20 presented is whether the Supreme Court of Illinois correctly held = that the=20 ordinance violates the Due Process Clause of the Fourteenth = Amendment to=20 the Federal Constitution.
[35]	I.
[36]	Before the ordinance was adopted, the city council's Committee = on=20 Police and Fire conducted hearings to explore the problems created = by the=20 city's street gangs, and more particularly, the consequences of = public=20 loitering by gang members. Witnesses included residents of the=20 neighborhoods where gang members are most active, as well as some = of the=20 aldermen who represent those areas. Based on that evidence, the = council=20 made a series of findings that are included in the text of the = ordinance=20 and explain the reasons for its enactment.*f= n1
[37]	The council found that a continuing increase in criminal street = gang=20 activity was largely responsible for the city's rising murder = rate, as=20 well as an escalation of violent and drug related crimes. It noted = that in=20 many neighborhoods throughout the city, "the burgeoning presence = of street=20 gang members in public places has intimidated many law abiding = citizens."=20 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58 (1997). Furthermore, the = council=20 stated that gang members "establish control over identifiable = areas ... by=20 loitering in those areas and intimidating others from entering = those=20 areas; and . . . [m]embers of criminal street gangs avoid arrest = by=20 committing no offense punishable under existing laws when they = know the=20 police are present . . . ." Ibid. It further found that "loitering = in=20 public places by criminal street gang members creates a = justifiable fear=20 for the safety of persons and property in the area" and that = "[a]ggressive=20 action is necessary to preserve the city's streets and other = public places=20 so that the public may use such places without fear." Moreover, = the=20 council concluded that the city "has an interest in discouraging = all=20 persons from loitering in public places with criminal gang = members."=20 Ibid.
[38]	The ordinance creates a criminal offense punishable by a fine of = up to=20 $500, imprisonment for not more than six months, and a requirement = to=20 perform up to 120 hours of community service. Commission of the = offense=20 involves four predicates. First, the police officer must = reasonably=20 believe that at least one of the two or more persons present in a = "public=20 place" is a "criminal street gang membe[r]." Second, the persons = must be=20 "loitering," which the ordinance defines as "remain[ing] in any = one place=20 with no apparent purpose." Third, the officer must then order = "all" of the=20 persons to disperse and remove themselves "from the area." Fourth, = a=20 person must disobey the officer's order. If any person, whether a = gang=20 member or not, disobeys the officer's order, that person is guilty = of=20 violating the ordinance. Ibid.*f= n2
[39]	Two months after the ordinance was adopted, the Chicago Police=20 Department promulgated General Order 92-4 to provide guidelines to = govern=20 its enforcement.f= n3=20 That order purported to establish limitations on the enforcement=20 discretion of police officers "to ensure that the anti-gang = loitering=20 ordinance is not enforced in an arbitrary or discriminatory way." = Chicago=20 Police Department, General Order 92-4, reprinted in App. to Pet. = for Cert.=20 65a. The limitations confine the authority to arrest gang members = who=20 violate the ordinance to sworn "members of the Gang Crime Section" = and=20 certain other designated officers,f= n4=20 and establish detailed criteria for defining street gangs and = membership=20 in such gangs. Id., at 66a-67a. In addition, the order directs = district=20 commanders to "designate areas in which the presence of gang = members has a=20 demonstrable effect on the activities of law abiding persons in = the=20 surrounding community," and provides that the ordinance "will be = enforced=20 only within the designated areas." Id., at 68a-69a. The city, = however,=20 does not release the locations of these "designated areas" to the=20 public.*f= n5
[40]	II.
[41]	During the three years of its enforcement,f= n6=20 the police issued over 89,000 dispersal orders and arrested over = 42,000=20 people for violating the ordinance.f= n7=20 In the ensuing enforcement proceedings, two trial Judges upheld = the=20 constitutionality of the ordinance, but eleven others ruled that = it was=20 invalid.f= n8=20 In respondent Youkhana's case, the trial Judge held that the = "ordinance=20 fails to notify individuals what conduct is prohibited, and it = encourages=20 arbitrary and capricious enforcement by police."f= n9
[42]	The Illinois Appellate Court affirmed the trial court's ruling = in the=20 Youkhana case,= fn10=20 consolidated and affirmed other pending appeals in accordance with = Youkhana,= fn11=20 and reversed the convictions of respondents Gutierrez, Morales, = and=20 others.= fn12=20 The Appellate Court was persuaded that the ordinance impaired the = freedom=20 of assembly of non-gang members in violation of the First = Amendment to the=20 Federal Constitution and Article I of the Illinois Consti- tution, = that it=20 was unconstitutionally vague, that it improperly criminalized = status=20 rather than conduct, and that it jeopardized rights guaranteed = under the=20 Fourth Amendment.= fn13
[43]	The Illinois Supreme Court affirmed. It held "that the gang = loitering=20 ordinance violates due process of law in that it is impermissibly = vague on=20 its face and an arbitrary restriction on personal liberties." 177 = Ill. 2d,=20 at 447, 687 N. E. 2d, at 59. The court did not reach the = contentions that=20 the ordinance "creates a status offense, permits arrests without = probable=20 cause or is overbroad." Ibid.
[44]	In support of its vagueness holding, the court pointed out that = the=20 definition of "loitering" in the ordinance drew no distinction = between=20 innocent conduct and conduct calculated to cause harm.= fn14=20 "Moreover, the definition of `loiter' provided by the ordinance = does not=20 assist in clearly articulating the proscriptions of the = ordinance." Id.,=20 at 451-452, 687 N. E. 2d, at 60-61. Furthermore, it concluded that = the=20 ordinance was "not reasonably susceptible to a limiting = construction which=20 would affirm its validity."= fn15
[45]	We granted certiorari, 523 U. S. ___ (1998) , and now affirm. = Like the=20 Illinois Supreme Court, we conclude that the ordinance enacted by = the city=20 of Chicago is unconstitutionally vague.
[46]	III.
[47]	The basic factual predicate for the city's ordinance is not in=20 dispute. As the city argues in its brief, "the very presence of a = large=20 collection of obviously brazen, insistent, and lawless gang = members and=20 hangers-on on the public ways intimidates residents, who become = afraid=20 even to leave their homes and go about their business. That, in = turn,=20 imperils community residents' sense of safety and security, = detracts from=20 property values, and can ultimately destabilize entire = neighborhoods."= fn16=20 The findings in the ordinance explain that it was motivated by = these=20 concerns. We have no doubt that a law that directly prohibited = such=20 intimidating conduct would be constitutional,= fn17=20 but this ordinance broadly covers a significant amount of = additional=20 activity. Uncertainty about the scope of that additional coverage = provides=20 the basis for respondents' claim that the ordinance is too=20 vague.
[48]	We are confronted at the outset with the city's claim that it = was=20 improper for the state courts to conclude that the ordinance is = invalid on=20 its face. The city correctly points out that imprecise laws can be = attacked on their face under two different doctrines.*= fn18=20 First, the overbreadth doctrine permits the facial invalidation of = laws=20 that inhibit the exercise of First Amendment rights if the = impermissible=20 applications of the law are substantial when "Judged in relation = to the=20 statute's plainly legitimate sweep." Broadrick v. Oklahoma, 413 U. = S. 601,=20 612-615 (1973). Second, even if an enactment does not reach a = substantial=20 amount of constitutionally protected conduct, it may be = impermissibly=20 vague because it fails to establish standards for the police and = public=20 that are sufficient to guard against the arbitrary deprivation of = liberty=20 interests. Kolender v. Lawson, 461 U. S. 352, 358 = (1983).
[49]	While we, like the Illinois courts, conclude that the ordinance = is=20 invalid on its face, we do not rely on the overbreadth doctrine. = We agree=20 with the city's submission that the law does not have a = sufficiently=20 substantial impact on conduct protected by the First Amendment to = render=20 it unconstitutional. The ordinance does not prohibit speech. = Because the=20 term "loiter" is defined as remaining in one place "with no = apparent=20 purpose," it is also clear that it does not prohibit any form of = conduct=20 that is apparently intended to convey a message. By its terms, the = ordinance is inapplicable to assemblies that are designed to = demonstrate a=20 group's support of, or opposition to, a particular point of view. = Cf.=20 Clark v. Community for Creative Non&nbhyph;Violence, 468 U. S. = 288=20 (1984); Gregory v. Chicago, 394 U. S. 111 (1969). Its impact on = the social=20 contact between gang members and others does not impair the First=20 Amendment "right of association" that our cases have recognized. = See=20 Dallas v. Stanglin, 490 U. S. 19, 23-25 (1989).
[50]	On the other hand, as the United States recognizes, the freedom = to=20 loiter for innocent purposes is part of the "liberty" protected by = the Due=20 Process Clause of the Fourteenth Amendment.= fn19=20 We have expressly identified this "right to remove from one place = to=20 another according to inclination" as "an attribute of personal = liberty"=20 protected by the Constitution. Williams v. Fears, 179 U. S. 270, = 274=20 (1900); see also Papachristou v. Jacksonville, 405 U. S. 156, 164=20 (1972).= fn20=20 Indeed, it is apparent that an individual's decision to remain in = a public=20 place of his choice is as much a part of his liberty as the = freedom of=20 movement inside frontiers that is "a part of our heritage" Kent v. = Dulles,=20 357 U. S. 116, 126 (1958), or the right to move "to whatsoever = place one's=20 own inclination may direct" identified in Blackstone's = Commentaries. 1 W.=20 Blackstone, Commentaries on the Laws of England 130 (1765).*= fn21
[51]	There is no need, however, to decide whether the impact of the = Chicago=20 ordinance on constitutionally protected liberty alone would = suffice to=20 support a facial challenge under the overbreadth doctrine. Cf. = Aptheker v.=20 Secretary of State, 378 U. S. 500, 515-517 (1964) (right to = travel);=20 Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 82-83 = (1976)=20 (abortion); Kolender v. Lawson, 461 U. S., at 358-360, nn. 3, 9. = For it is=20 clear that the vagueness of this enactment makes a facial = challenge=20 appropriate. This is not an ordinance that "simply regulates = business=20 behavior and contains a scienter requirement." See Hoffman Estates = v.=20 Flip-side, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982). It is = a=20 criminal law that contains no mens rea requirement, see Colautti = v.=20 Franklin, 439 U. S. 379, 395 (1979), and infringes on = constitutionally=20 protected rights, see id., at 391. When vagueness permeates the = text of=20 such a law, it is subject to facial attack.*= fn22
[52]	Vagueness may invalidate a criminal law for either of two = independent=20 reasons. First, it may fail to provide the kind of notice that = will enable=20 ordinary people to understand what conduct it prohibits; second, = it may=20 authorize and even encourage arbitrary and discriminatory = enforcement. See=20 Kolender v. Lawson, 461 U. S., at 357. Accordingly, we first = consider=20 whether the ordinance provides fair notice to the citizen and then = discuss=20 its potential for arbitrary enforcement.
[53]	IV.
[54]	"It is established that a law fails to meet the requirements of = the=20 Due Process Clause if it is so vague and standardless that it = leaves the=20 public uncertain as to the conduct it prohibits . . . ." Giaccio = v.=20 Pennsylvania, 382 U. S. 399, 402-403 (1966). The Illinois Supreme = Court=20 recognized that the term "loiter" may have a common and accepted = meaning,=20 177 Ill. 2d, at 451, 687 N. E. 2d, at 61, but the definition of = that term=20 in this ordinance -- "to remain in any one place with no apparent = purpose"=20 -- does not. It is difficult to imagine how any citizen of the = city of=20 Chicago standing in a public place with a group of people would = know if he=20 or she had an "apparent purpose." If she were talking to another = person,=20 would she have an apparent purpose? If she were frequently = checking her=20 watch and looking expectantly down the street, would she have an = apparent=20 purpose?*= fn23
[55]	Since the city cannot conceivably have meant to criminalize each = instance a citizen stands in public with a gang member, the = vagueness that=20 dooms this ordinance is not the product of uncertainty about the = normal=20 meaning of "loitering," but rather about what loitering is covered = by the=20 ordinance and what is not. The Illinois Supreme Court emphasized = the law's=20 failure to distinguish between innocent conduct and conduct = threatening=20 harm.= fn24=20 Its decision followed the precedent set by a number of state = courts that=20 have upheld ordinances that criminalize loitering combined with = some other=20 overt act or evidence of criminal intent.= fn25=20 However, state courts have uniformly invalidated laws that do not = join the=20 term "loitering" with a second specific element of the crime.*= fn26
[56]	The city's principal response to this concern about adequate = notice is=20 that loiterers are not subject to sanction until after they have = failed to=20 comply with an officer's order to disperse. "[W]hatever problem is = created=20 by a law that criminalizes conduct people normally believe to be = innocent=20 is solved when persons receive actual notice from a police order = of what=20 they are expected to do."*= fn27=20 We find this response unpersuasive for at least two = reasons.
[57]	First, the purpose of the fair notice requirement is to enable = the=20 ordinary citizen to conform his or her conduct to the law. "No one = may be=20 required at peril of life, liberty or property to speculate as to = the=20 meaning of penal statutes." Lanzetta v. New Jersey, 306 U. S. 451, = 453=20 (1939). Although it is true that a loiterer is not subject to = criminal=20 sanctions unless he or she disobeys a dispersal order, the = loitering is=20 the conduct that the ordinance is designed to prohibit.= fn28=20 If the loitering is in fact harmless and innocent, the dispersal = order=20 itself is an unjustified impairment of liberty. If the police are = able to=20 decide arbitrarily which members of the public they will order to=20 disperse, then the Chicago ordinance becomes indistinguishable = from the=20 law we held invalid in Shuttlesworth v. Birmingham, 382 U. S. 87, = 90=20 (1965).= fn29=20 Because an officer may issue an order only after prohibited = conduct has=20 already occurred, it cannot provide the kind of advance notice = that will=20 protect the putative loiterer from being ordered to disperse. Such = an=20 order cannot retroactively give adequate warning of the boundary = between=20 the permissible and the impermissible applications of the law.*= fn30
[58]	Second, the terms of the dispersal order compound the inadequacy = of=20 the notice afforded by the ordinance. It provides that the officer = "shall=20 order all such persons to disperse and remove themselves from the = area."=20 App. to Pet. for Cert. 61a. This vague phrasing raises a host of=20 questions. After such an order issues, how long must the loiterers = remain=20 apart? How far must they move? If each loiterer walks around the = block and=20 they meet again at the same location, are they subject to arrest = or merely=20 to being ordered to disperse again? As we do here, we have found = vagueness=20 in a criminal statute exacerbated by the use of the standards of=20 "neighborhood" and "locality." Connally v. General Constr. Co., = 269 U. S.=20 385 (1926). We remarked in Connally that "[b]oth terms are elastic = and,=20 dependent upon circumstances, may be equally satisfied by areas = measured=20 by rods or by miles." Id., at 395.
[59]	Lack of clarity in the description of the loiterer's duty to = obey a=20 dispersal order might not render the ordinance unconstitutionally = vague if=20 the definition of the forbidden conduct were clear, but it does = buttress=20 our Conclusion that the entire ordinance fails to give the = ordinary=20 citizen adequate notice of what is forbidden and what is = permitted. The=20 Constitution does not permit a legislature to "set a net large = enough to=20 catch all possible offenders, and leave it to the courts to step = inside=20 and say who could be rightfully detained, and who should be set at = large."=20 United States v. Reese, 92 U. S. 214, 221 (1876). This ordinance = is=20 therefore vague "not in the sense that it requires a person to = conform his=20 conduct to an imprecise but comprehensible normative standard, but = rather=20 in the sense that no standard of conduct is specified at all." = Coates v.=20 Cincinnati, 402 U. S. 611, 614 (1971).
[60]	V.
[61]	The broad sweep of the ordinance also violates " `the = requirement that=20 a legislature establish minimal guidelines to govern law = enforcement.' "=20 Kolender v. Lawson, 461 U. S., at 358. There are no such = guidelines in the=20 ordinance. In any public place in the city of Chicago, persons who = stand=20 or sit in the company of a gang member may be ordered to disperse = unless=20 their purpose is apparent. The mandatory language in the enactment = directs=20 the police to issue an order without first making any inquiry = about their=20 possible purposes. It matters not whether the reason that a gang = member=20 and his father, for example, might loiter near Wrigley Field is to = rob an=20 unsuspecting fan or just to get a glimpse of Sammy Sosa leaving = the=20 ballpark; in either event, if their purpose is not apparent to a = nearby=20 police officer, she may -- indeed, she "shall" -- order them to=20 disperse.
[62]	Recognizing that the ordinance does reach a substantial amount = of=20 innocent conduct, we turn, then, to its language to determine if = it=20 "necessarily entrusts lawmaking to the moment-to-moment judgment = of the=20 policeman on his beat." Kolender v. Lawson, 461 U. S., at 359 = (internal=20 quotation marks omitted). As we discussed in the context of fair = notice,=20 see supra, at 12, the principal source of the vast discretion = conferred on=20 the police in this case is the definition of loitering as "to = remain in=20 any one place with no apparent purpose."
[63]	As the Illinois Supreme Court interprets that definition, it = "provides=20 absolute discretion to police officers to determine what = activities=20 constitute loitering." 177 Ill. 2d, at 457, 687 N. E. 2d, at 63. = We have=20 no authority to construe the language of a state statute more = narrowly=20 than the construction given by that State's highest court.*= fn31=20 "The power to determine the meaning of a statute carries with it = the power=20 to prescribe its extent and limitations as well as the method by = which=20 they shall be determined." Smiley v. Kansas, 196 U. S. 447, 455=20 (1905).
[64]	Nevertheless, the city disputes the Illinois Supreme Court's=20 interpretation, arguing that the text of the ordinance limits the=20 officer's discretion in three ways. First, it does not permit the = officer=20 to issue a dispersal order to anyone who is moving along or who = has an=20 apparent purpose. Second, it does not permit an arrest if = individuals obey=20 a dispersal order. Third, no order can issue unless the officer = reasonably=20 believes that one of the loiterers is a member of a criminal = street=20 gang.
[65]	Even putting to one side our duty to defer to a state court's=20 construction of the scope of a local enactment, we find each of = these=20 limitations insufficient. That the ordinance does not apply to = people who=20 are moving -- that is, to activity that would not constitute = loitering=20 under any possible definition of the term -- does not even address = the=20 question of how much discretion the police enjoy in deciding which = stationary persons to disperse under the ordinance.*= fn32=20 Similarly, that the ordinance does not permit an arrest until = after a=20 dispersal order has been disobeyed does not provide any guidance = to the=20 officer deciding whether such an order should issue. The "no = apparent=20 purpose" standard for making that decision is inherently = subjective=20 because its application depends on whether some purpose is = "apparent" to=20 the officer on the scene.
[66]	Presumably an officer would have discretion to treat some = purposes=20 --perhaps a purpose to engage in idle conversation or simply to = enjoy a=20 cool breeze on a warm evening -- as too frivolous to be apparent = if he=20 suspected a different ulterior motive. Moreover, an officer = conscious of=20 the city council's reasons for enacting the ordinance might well = ignore=20 its text and issue a dispersal order, even though an illicit = purpose is=20 actually apparent.
[67]	It is true, as the city argues, that the requirement that the = officer=20 reasonably believe that a group of loiterers contains a gang = member does=20 place a limit on the authority to order dispersal. That limitation = would=20 no doubt be sufficient if the ordinance only applied to loitering = that had=20 an apparently harmful purpose or effect,= fn33=20 or possibly if it only applied to loitering by persons reasonably = believed=20 to be criminal gang members. But this ordinance, for reasons that = are not=20 explained in the findings of the city council, requires no harmful = purpose=20 and applies to non-gang members as well as suspected gang = members.= fn34=20 It applies to everyone in the city who may remain in one place = with one=20 suspected gang member as long as their purpose is not apparent to = an=20 officer observing them. Friends, relatives, teachers, counselors, = or even=20 total strangers might unwittingly engage in forbidden loitering if = they=20 happen to engage in idle conversation with a gang = member.
[68]	Ironically, the definition of loitering in the Chicago ordinance = not=20 only extends its scope to encompass harmless conduct, but also has = the=20 perverse consequence of excluding from its coverage much of the=20 intimidating conduct that motivated its enactment. As the city = council's=20 findings demonstrate, the most harmful gang loitering is motivated = either=20 by an apparent purpose to publicize the gang's dominance of = certain=20 territory, thereby intimidating nonmembers, or by an equally = apparent=20 purpose to conceal ongoing commerce in illegal drugs. As the = Illinois=20 Supreme Court has not placed any limiting construction on the = language in=20 the ordinance, we must assume that the ordinance means what it = says and=20 that it has no application to loiterers whose purpose is apparent. = The=20 relative importance of its application to harmless loitering is = magnified=20 by its inapplicability to loitering that has an obviously = threatening or=20 illicit purpose.
[69]	Finally, in its opinion striking down the ordinance, the = Illinois=20 Supreme Court refused to accept the general order issued by the = police=20 department as a sufficient limitation on the "vast amount of = discretion"=20 granted to the police in its enforcement. We agree. See Smith v. = Goguen,=20 415 U. S. 566, 575 (1974). That the police have adopted internal = rules=20 limiting their enforcement to certain designated areas in the city = would=20 not provide a defense to a loiterer who might be arrested = elsewhere. Nor=20 could a person who knowingly loitered with a well-known gang = member=20 anywhere in the city safely assume that they would not be ordered = to=20 disperse no matter how innocent and harmless their loitering might = be.
[70]	VI.
[71]	In our judgment, the Illinois Supreme Court correctly concluded = that=20 the ordinance does not provide sufficiently specific limits on the = enforcement discretion of the police "to meet constitutional = standards for=20 definiteness and clarity."*= fn35=20 177 Ill. 2d, at 459, 687 N. E. 2d, at 64. We recognize the serious = and=20 difficult problems testified to by the citizens of Chicago that = led to the=20 enactment of this ordinance. "We are mindful that the preservation = of=20 liberty depends in part on the maintenance of social order." = Houston v.=20 Hill, 482 U. S. 451, 471-472 (1987). However, in this instance the = city=20 has enacted an ordinance that affords too much discretion to the = police=20 and too little notice to citizens who wish to use the public=20 streets.
[72]	Accordingly, the judgment of the Supreme Court of Illinois=20 is
[73]	Affirmed.
[74]	Opinion of O'Connor, J.
[75]	CHICAGO v. MORALES
[76]	____ U. S. ____ (1999)
[77]	SUPREME COURT OF THE UNITED STATES
[78]	No. 97-1121
[79]	CITY OF CHICAGO, PETITIONER v. JESUS MORALES et = al.
[80]	on writ of certiorari to the supreme court of = illinois
[81]	[June 10, 1999]
[82]	Justice O'Connor, with whom Justice Breyer joins, Concurring in = part=20 and Concurring in the judgment.
[83]	I agree with the Court that Chicago's Gang Congregation = Ordinance,=20 Chicago Municipal Code =C2=A78-4-015 (1992) (gang loitering = ordinance or=20 ordinance) is unconstitutionally vague. A penal law is void for = vagueness=20 if it fails to "define the criminal offense with sufficient = definiteness=20 that ordinary people can understand what conduct is prohibited" or = fails=20 to establish guidelines to prevent "arbitrary and discriminatory=20 enforcement" of the law. Kolender v. Lawson, 461 U. S. 352, 357 = (1983). Of=20 these, "the more important aspect of vagueness doctrine `is ... = the=20 requirement that a legislature establish minimal guidelines to = govern law=20 enforcement.' " Id., at 358 (quoting Smith v. Goguen, 415 U. S. = 566,=20 574-575 (1974)). I share Justice Thomas' concern about the = consequences of=20 gang violence, and I agree that some degree of police discretion = is=20 necessary to allow the police "to perform their peacekeeping=20 responsibilities satisfactorily." See post, at 12 (dissenting = opinion). A=20 criminal law, however, must not permit policemen, prosecutors, and = juries=20 to conduct " `a standardless sweep ... to pursue their personal=20 predilections.' " Kolender v. Lawson, supra, at 358 (quoting Smith = v.=20 Goguen, supra, at 575).
[84]	The ordinance at issue provides:
[85]	"Whenever a police officer observes a person whom he reasonably=20 believes to be a criminal street gang member loitering in any = public place=20 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=20 promptly obey such an order is in violation of this section." App. = to Pet.=20 for Cert. 61a.
[86]	To "[l]oiter," in turn, is defined in the ordinance as "to = remain in=20 any one place with no apparent purpose." Ibid. The Illinois = Supreme Court=20 declined to adopt a limiting construction of the ordinance and = concluded=20 that the ordinance vested "absolute discretion to police = officers." 177=20 Ill. 2d 440, 457, 687 N. E. 2d 53, 63 (1997) (emphasis added). = This Court=20 is bound by the Illinois Supreme Court's construction of the = ordinance.=20 See Terminiello v. Chicago, 337 U. S. 1, 4 = (1949).
[87]	As it has been construed by the Illinois court, Chicago's gang=20 loitering ordinance is unconstitutionally vague because it lacks=20 sufficient minimal standards to guide law enforcement officers. In = particular, it fails to provide police with any standard by which = they can=20 Judge whether an individual has an "apparent purpose." Indeed, = because any=20 person standing on the street has a general "purpose" -- even if = it is=20 simply to stand --the ordinance permits police officers to choose = which=20 purposes are permissible. Under this construction the police do = not have=20 to decide that an individual is "threaten[ing] the public peace" = to issue=20 a dispersal order. See post, at 11 (Thomas, J., Dissenting). Any = police=20 officer in Chicago is free, under the Illinois Supreme Court's=20 construction of the ordinance, to order at his whim any person = standing in=20 a public place with a suspected gang member to disperse. Further, = as=20 construed by the Illinois court, the ordinance applies to hundreds = of=20 thousands of persons who are not gang members, standing on any = sidewalk or=20 in any park, coffee shop, bar, or "other location open to the = public,=20 whether publicly or privately owned." Chicago Municipal Code=20 =C2=A78-4-015(c)(5) (1992).
[88]	To be sure, there is no violation of the ordinance unless a = person=20 fails to obey promptly the order to disperse. But, a police = officer cannot=20 issue a dispersal order until he decides that a person is = remaining in one=20 place "with no apparent purpose," and the ordinance provides no = guidance=20 to the officer on how to make this antecedent decision. Moreover, = the=20 requirement that police issue dispersal orders only when they = "reasonably=20 believ[e]" that a group of loiterers includes a gang member fails = to cure=20 the ordinance's vague aspects. If the ordinance applied only to = persons=20 reasonably believed to be gang members, this requirement might = have cured=20 the ordinance's vagueness because it would have directed the = manner in=20 which the order was issued by specifying to whom the order could = be=20 issued. Cf. ante, at 18-19. But, the Illinois Supreme Court did = not=20 construe the ordinance to be so limited. See 177 Ill. 2d, at = 453-454, 687=20 N. E. 2d, at 62.
[89]	This vagueness consideration alone provides a sufficient ground = for=20 affirming the Illinois court's decision, and I agree with Part V = of the=20 Court's opinion, which discusses this consideration. See ante, at = 18=20 ("[T]hat the ordinance does not permit an arrest until after a = dispersal=20 order has been disobeyed does not provide any guidance to the = officer=20 deciding whether such an order should issue"); ante, at 18-19 ("It = is true=20 ... that the requirement that the officer reasonably believe that = a group=20 of loiterers contains a gang member does place a limit on the = authority to=20 order dispersal. That limitation would no doubt be sufficient if = the=20 ordinance only applied to loitering that had an apparently harmful = purpose=20 or effect, or possibly if it only applied to loitering by persons=20 reasonably believed to be criminal gang members"). Accordingly, = there is=20 no need to consider the other issues briefed by the parties and = addressed=20 by the plurality. I express no opinion about = them.
[90]	It is important to courts and legislatures alike that we = characterize=20 more clearly the narrow scope of today's holding. As the ordinance = comes=20 to this Court, it is unconstitutionally vague. Nevertheless, there = remain=20 open to Chicago reasonable alternatives to combat the very real = threat=20 posed by gang intimidation and violence. For example, the Court = properly=20 and expressly distinguishes the ordinance from laws that require = loiterers=20 to have a "harmful purpose," see id., at 18, from laws that target = only=20 gang members, see ibid., and from laws that incorporate limits on = the area=20 and manner in which the laws may be enforced, see ante, at 19. In=20 addition, the ordinance here is unlike a law that "directly = prohibit[s]"=20 the " `presence of a large collection of obviously brazen, = insistent, and=20 lawless gang members and hangers-on on the public ways,' " that "=20 `intimidates residents.' " Ante, at 7 (quoting Brief for = Petitioner 14).=20 Indeed, as the plurality notes, the city of Chicago has several = laws that=20 do exactly this. See ante, at 7-8, n. 17. Chicago has even enacted = a=20 provision that "enables police officers to fulfill ... their = traditional=20 functions," including "preserving the public peace." See post, at = 10=20 (Thomas, J., Dissenting). Specifically, Chicago's general = disorderly=20 conduct provision allows the police to arrest those who knowingly=20 "provoke, make or aid in making a breach of peace." See Chicago = Municipal=20 Code =C2=A78-4-010 (1992).
[91]	In my view, the gang loitering ordinance could have been = construed=20 more narrowly. The term "loiter" might possibly be construed in a = more=20 limited fashion to mean "to remain in any one place with no = apparent=20 purpose other than to establish control over identifiable areas, = to=20 intimidate others from entering those areas, or to conceal illegal = activities." Such a definition would be consistent with the = Chicago City=20 Council's findings and would avoid the vagueness problems of the = ordinance=20 as construed by the Illinois Supreme Court. See App. to Pet. for = Cert.=20 60a-61a. As noted above, so would limitations that restricted the=20 ordinance's criminal penalties to gang members or that more = carefully=20 delineated the circumstances in which those penalties would apply = to=20 nongang members.
[92]	The Illinois Supreme Court did not choose to give a limiting=20 construction to Chicago's ordinance. To the extent it relied on = our=20 precedents, particularly Papachristou v. Jacksonville, 405 U. S. = 156=20 (1972), as requiring it to hold the ordinance vague in all of its=20 applications because it was intentionally drafted in a vague = manner, the=20 Illinois court misapplied our precedents. See 177 Ill. 2d, at = 458-459, 687=20 N. E. 2d, at 64. This Court has never held that the intent of the = drafters=20 determines whether a law is vague. Nevertheless, we cannot impose = a=20 limiting construction that a state supreme court has declined to = adopt.=20 See Kolender, 461 U. S., at 355-356, n. 4 (noting that the Court = has held=20 that " `[f]or the purpose of determining whether a state statute = is too=20 vague and indefinite to constitute valid legislation we must take = the=20 statute as though it read precisely as the highest court of the = State has=20 interpreted it' " (citations and internal quotation marks = omitted)); New=20 York v. Ferber, 458 U. S. 747, 769, n. 24 (1982) (noting that = where the=20 Court is "dealing with a state statute on direct review of a = state-court=20 decision that has construed the statute[,] [s]uch a construction = is=20 binding on us"). Accordingly, I join Parts I, II, and V of the = Court's=20 opinion and concur in the judgment.
[93]	Kennedy, J., Concurring
[94]	CHICAGO v. MORALES
[95]	____ U. S. ____ (1999)
[96]	SUPREME COURT OF THE UNITED STATES
[97]	No. 97-1121
[98]	CITY OF CHICAGO, PETITIONER v. JESUS MORALES et = al.
[99]	on writ of certiorari to the supreme court of = illinois
[100]	[June 10, 1999]
[101]	Justice Kennedy, Concurring in part and Concurring in the=20 judgment.
[102]	I join Parts I, II, and V of Justice Stevens' = opinion.
[103]	I also share many of the concerns he expresses in Part IV with = respect=20 to the sufficiency of notice under the ordinance. As interpreted = by the=20 Illinois Supreme Court, the Chicago ordinance would reach a broad = range of=20 innocent conduct. For this reason it is not necessarily saved by = the=20 requirement that the citizen must disobey a police order to = disperse=20 before there is a violation.
[104]	We have not often examined these types of orders. Cf. = Shuttlesworth v.=20 Birmingham, 382 U. S. 87 (1965). It can be assumed, however, that = some=20 police commands will subject a citizen to prosecution for = disobeying=20 whether or not the citizen knows why the order is given. = Illustrative=20 examples include when the police tell a pedestrian not to enter a = building=20 and the reason is to avoid impeding a rescue team, or to protect a = crime=20 scene, or to secure an area for the protection of a public = official. It=20 does not follow, however, that any unexplained police order must = be obeyed=20 without notice of the lawfulness of the order. The predicate of an = order=20 to disperse is not, in my view, sufficient to eliminate doubts = regarding=20 the adequacy of notice under this ordinance. A citizen, while = engaging in=20 a wide array of innocent conduct, is not likely to know when he = may be=20 subject to a dispersal order based on the officer's own knowledge = of the=20 identity or affiliations of other persons with whom the citizen is = congregating; nor may the citizen be able to assess what an = officer might=20 conceive to be the citizen's lack of an apparent = purpose.
[105]	Opinion of Breyer, J.
[106]	CHICAGO v. MORALES
[107]	____ U. S. ____ (1999)
[108]	SUPREME COURT OF THE UNITED STATES
[109]	No. 97-1121
[110]	CITY OF CHICAGO, PETITIONER v. JESUS MORALES et = al.
[111]	on writ of certiorari to the supreme court of = illinois
[112]	[June 10, 1999]
[113]	Justice Breyer, Concurring in part and Concurring in the=20 judgment.
[114]	The ordinance before us creates more than a "minor limitation = upon the=20 free state of nature." Post, at 2 (Scalia, J., Dissenting) = (emphasis=20 added). The law authorizes a police officer to order any person to = remove=20 himself from any "location open to the public, whether publicly or = privately owned," Chicago Municipal Code =C2=A78-4-015(c)(5) = (1992). i.e., any=20 sidewalk, front stoop, public park, public square, lakeside = promenade,=20 hotel, restaurant, bowling alley, bar, barbershop, sports arena, = shopping=20 mall, etc., but with two, and only two, limitations: First, that = person=20 must be accompanied by (or must himself be) someone police = reasonably=20 believe is a gang member. Second, that person must have remained = in that=20 public place "with no apparent purpose." = =C2=A78-4-015(c)(1).
[115]	The first limitation cannot save the ordinance. Though it limits = the=20 number of persons subject to the law, it leaves many individuals, = gang=20 members and nongang members alike, subject to its strictures. Nor = does it=20 limit in any way the range of conduct that police may prohibit. = The second=20 limitation is, as Justice Stevens, ante at 18, and Justice = O'Connor, ante=20 at 2, point out, not a limitation at all. Since one always has = some=20 apparent purpose, the so-called limitation invites, in fact = requires, the=20 policeman to interpret the words "no apparent purpose" as meaning = "no=20 apparent purpose except for ... ." And it is in the ordinance's = delegation=20 to the policeman of open-ended discretion to fill in that blank = that the=20 problem lies. To grant to a policeman virtually standardless = discretion to=20 close off major portions of the city to an innocent person is, in = my view,=20 to create a major, not a "minor," "limitation upon the free state = of=20 nature."
[116]	Nor does it violate "our rules governing facial challenges," = post, at=20 2 (Scalia, J., Dissenting), to forbid the city to apply the=20 unconstitutional ordinance in this case. The reason why the = ordinance is=20 invalid explains how that is so. As I have said, I believe the = ordinance=20 violates the Constitution because it delegates too much discretion = to a=20 police officer to decide whom to order to move on, and in what=20 circumstances. And I see no way to distinguish in the ordinance's = terms=20 between one application of that discretion and another. The = ordinance is=20 unconstitutional, not because a policeman applied this discretion = wisely=20 or poorly in a particular case, but rather because the policeman = enjoys=20 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=20 able validly to apply some other law to the defendants in light of = their=20 conduct. But the city of Chicago may no more apply this law to the = defendants, no matter how they behaved, than could it apply an = (imaginary)=20 statute that said, "It is a crime to do wrong," even to the worst = of=20 murderers. See Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939) = ("If on=20 its face the challenged provision is repugnant to the due process = clause,=20 specification of details of the offense intended to be charged = would not=20 serve to validate it").
[117]	Justice Scalia's examples, post, at 10-11, reach a different=20 Conclusion because they assume a different basis for the law's=20 constitutional invalidity. A statute, for example, might not = provide fair=20 warning to many, but an individual defendant might still have been = aware=20 that it prohibited the conduct in which he engaged. Cf., e.g., = Parker v.=20 Levy, 417 U. S. 733, 756 (1974) ("[O]ne who has received fair = warning of=20 the criminality of his own conduct from the statute in question is = [not]=20 entitled to attack it because the language would not give similar = fair=20 warning with respect to other conduct which might be within its = broad and=20 literal ambit. One to whose conduct a statute clearly applies may = not=20 successfully challenge it for vagueness"). But I believe this = ordinance is=20 unconstitutional, not because it provides insufficient notice, but = because=20 it does not provide "sufficient minimal standards to guide law = enforcement=20 officers." See ante, at 2 (O'Connor, J., Concurring in part and = Concurring=20 in judgment).
[118]	I concede that this case is unlike those First Amendment = "overbreadth"=20 cases in which this Court has permitted a facial challenge. In an=20 overbreadth case, a defendant whose conduct clearly falls within = the law=20 and may be constitutionally prohibited can nonetheless have the = law=20 declared facially invalid to protect the rights of others (whose = protected=20 speech might otherwise be chilled). In the present case, the right = that=20 the defendants assert, the right to be free from the officer's = exercise of=20 unchecked discretion, is more clearly their own.
[119]	This case resembles Coates v. Cincinnati, 402 U. S. 611 (1971), = where=20 this Court declared facially unconstitutional on, among other = grounds, the=20 due process standard of vagueness an ordinance that prohibited = persons=20 assembled on a sidewalk from "conduct[ing] themselves in a manner = annoying=20 to persons passing by." The Court explained:
[120]	"It is said that the ordinance is broad enough to encompass many = types=20 of conduct clearly within the city's constitutional power to = prohibit. And=20 so, indeed, it is. The city is free to prevent people from = blocking=20 sidewalks, obstructing traffic, littering streets, committing = assaults, or=20 engaging in countless other forms of antisocial conduct. It can do = so=20 through the enactment and enforcement of ordinances directed with=20 reasonable specificity toward the conduct to be prohibited. . . . = It=20 cannot constitutionally do so through the enactment and = enforcement of an=20 ordinance whose violation may entirely depend upon whether or not = a=20 policeman is annoyed." Id., at 614 (citation = omitted).
[121]	The ordinance in Coates could not constitutionally be applied = whether=20 or not the conduct of the particular defendants was indisputably=20 "annoying" or of a sort that a different, more specific ordinance = could=20 constitutionally prohibit. Similarly, here the city might have = enacted a=20 different ordinance, or the Illinois Supreme Court might have = interpreted=20 this ordinance differently. And the Constitution might well have = permitted=20 the city to apply that different ordinance (or this ordinance as=20 interpreted differently) to circumstances like those present here. = See=20 ante, at 4 (O'Connor, J., Concurring in part and Concurring in = judgment).=20 But this ordinance, as I have said, cannot be constitutionally = applied to=20 anyone.
[122]	Scalia, J., Dissenting
[123]	CHICAGO v. MORALES
[124]	____ U. S. ____ (1999)
[125]	SUPREME COURT OF THE UNITED STATES
[126]	No. 97-1121
[127]	CITY OF CHICAGO, PETITIONER v. JESUS MORALES et = al.
[128]	on writ of certiorari to the supreme court of = illinois
[129]	[June 10, 1999]
[130]	Justice Scalia, Dissenting.
[131]	The citizens of Chicago were once free to drive about the city = at=20 whatever speed they wished. At some point Chicagoans (or perhaps=20 Illinoisans) decided this would not do, and imposed prophylactic = speed=20 limits designed to assure safe operation by the average (or = perhaps even=20 subaverage) driver with the average (or perhaps even subaverage) = vehicle.=20 This infringed upon the "freedom" of all citizens, but was not=20 unconstitutional.
[132]	Similarly, the citizens of Chicago were once free to stand = around and=20 gawk at the scene of an accident. At some point Chicagoans = discovered that=20 this obstructed traffic and caused more accidents. They did not = make the=20 practice unlawful, but they did authorize police officers to order = the=20 crowd to disperse, and imposed penalties for refusal to obey such = an=20 order. Again, this prophylactic measure infringed upon the = "freedom" of=20 all citizens, but was not unconstitutional.
[133]	Until the ordinance that is before us today was adopted, the = citizens=20 of Chicago were free to stand about in public places with no = apparent=20 purpose -- to engage, that is, in conduct that appeared to be = loitering.=20 In recent years, however, the city has been afflicted with = criminal street=20 gangs. As reflected in the record before us, these gangs = congregated in=20 public places to deal in drugs, and to terrorize the neighborhoods = by=20 demonstrating control over their "turf." Many residents of the = inner city=20 felt that they were prisoners in their own homes. Once again, = Chicagoans=20 decided that to eliminate the problem it was worth restricting = some of the=20 freedom that they once enjoyed. The means they took was similar to = the=20 second, and more mild, example given above rather than the first:=20 Loitering was not made unlawful, but when a group of people = occupied a=20 public place without an apparent purpose and in the company of a = known=20 gang member, police officers were authorized to order them to = disperse,=20 and the failure to obey such an order was made unlawful. See = Chicago=20 Municipal Code =C2=A78-4-015 (1992). The minor limitation upon the = free state=20 of nature that this prophylactic arrangement imposed upon all = Chicagoans=20 seemed to them (and it seems to me) a small price to pay for = liberation of=20 their streets.
[134]	The majority today invalidates this perfectly reasonable measure = by=20 ignoring our rules governing facial challenges, by elevating = loitering to=20 a constitutionally guaranteed right, and by discerning vagueness = where,=20 according to our usual standards, none exists.
[135]	I.
[136]	Respondents' consolidated appeal presents a facial challenge to = the=20 Chicago Ordinance on vagueness grounds. When a facial challenge is = successful, the law in question is declared to be unenforceable in = all its=20 applications, and not just in its particular application to the = party in=20 suit. To tell the truth, it is highly questionable whether federal = courts=20 have any business making such a declaration. The rationale for our = power=20 to review federal legislation for constitutionality, expressed in = Marbury=20 v. Madison, 1 Cranch 137 (1803), was that we had to do so in order = to=20 decide the case before us. But that rationale only extends so far = as to=20 require us to determine that the statute is unconstitutional as = applied to=20 this party, in the circumstances of this case.
[137]	That limitation was fully grasped by Tocqueville, in his famous=20 chapter on the power of the judiciary in American = society:
[138]	"The second characteristic of judicial power is, that it = pronounces on=20 special cases, and not upon general principles. If a Judge, in = deciding a=20 particular point, destroys a general principle by passing a = judgment which=20 tends to reject all the inferences from that principle, and = consequently=20 to annul it, he remains within the ordinary limits of his = functions. But=20 if he directly attacks a general principle without having a = particular=20 case in view, he leaves the circle in which all nations have = agreed to=20 confine his authority; he assumes a more important, and perhaps a = more=20 useful influence, than that of the magistrate; but he ceases to = represent=20 the judicial power."
[139]	"Whenever a law which the Judge holds to be unconstitutional is=20 invoked in a tribunal of the United States, he may refuse to admit = it as a=20 rule ... . But as soon as a Judge has refused to apply any given = law in a=20 case, that law immediately loses a portion of its moral force. = Those to=20 whom it is prejudicial learn that means exist of overcoming its = authority;=20 and similar suits are multiplied, until it becomes powerless. ... = The=20 political power which the Americans have entrusted to their courts = of=20 Justice is therefore immense; but the evils of this power are = considerably=20 diminished by the impossibility of attacking the laws except = through the=20 courts of Justice. ... [W]hen a Judge contests a law in an obscure = debate=20 on some particular case, the importance of his attack is concealed = from=20 public notice; his decision bears upon the interest of an = individual, and=20 the law is slighted only incidentally. Moreover, although it is = censured,=20 it is not abolished; its moral force may be diminished, but its = authority=20 is not taken away; and its final destruction can be accomplished = only by=20 the reiterated attacks of judicial functionaries." Democracy in = America=20 73, 75-76 (R. Heffner ed. 1956).
[140]	As Justice Sutherland described our system in his opinion for a=20 unanimous Court in Massachusetts v. Mellon, 262 U. S. 447, 488=20 (1923):
[141]	"We have no power per se to review and annul acts of Congress on = the=20 ground that they are unconstitutional. That question may be = considered=20 only when the justification for some direct injury suffered or = threatened,=20 presenting a justiciable issue, is made to rest upon such an act. = Then the=20 power exercised is that of ascertaining and declaring the law = applicable=20 to the controversy. It amounts to little more than the negative = power to=20 disregard an unconstitutional enactment, which otherwise would = stand in=20 the way of the enforcement of a legal right. . . . If a case for=20 preventive relief be presented the court enjoins, in effect, not = the=20 execution of the statute, but the acts of the official, the = statute=20 notwithstanding."
[142]	And as Justice Brennan described our system in his opinion for a = unanimous Court in United States v. Raines, 362 U. S. 17, 21-22=20 (1960):
[143]	"The very foundation of the power of the federal courts to = declare=20 Acts of Congress unconstitutional lies in the power and duty of = those=20 courts to decide cases and controversies before them. . . . This = Court, as=20 is the case with all federal courts, `has no jurisdiction to = pronounce any=20 statute, either of a State or of the United States, void, because=20 irreconcilable with the Constitution, except as it is called upon = to=20 adJudge the legal rights of litigants in actual controversies. In = the=20 exercise of that jurisdiction, it is bound by two rules, to which = it has=20 rigidly adhered, one, never to anticipate a question of = constitutional law=20 in advance of the necessity of deciding it; the other never to = formulate a=20 rule of constitutional law broader than is required by the precise = facts=20 to which it is to be applied'. . . . Kindred to these rules is the = rule=20 that one to whom application of a statute is constitutional will = not be=20 heard to attack the statute on the ground that impliedly it might = also be=20 taken as applying to other persons or other situations in which = its=20 application might be unconstitutional. . . . The delicate power of = pronouncing an Act of Congress unconstitutional is not to be = exercised=20 with reference to hypothetical cases thus = imagined."
[144]	It seems to me fundamentally incompatible with this system for = the=20 Court not to be content to find that a statute is unconstitutional = as=20 applied to the person before it, but to go further and pronounce = that the=20 statute is unconstitutional in all applications. Its reasoning may = well=20 suggest as much, but to pronounce a holding on that point seems to = me no=20 more than an advisory opinion -- which a federal court should = never issue=20 at all, see Hayburn's Case, 2 Dall. 409 (1792), and especially = should not=20 issue with regard to a constitutional question, as to which we = seek to=20 avoid even nonadvisory opinions, see, e.g., Ashwander v. TVA, 297 = U. S.=20 288, 347 (1936) (Brandeis, J., Concurring). I think it quite = improper, in=20 short, to ask the constitutional claimant before us: Do you just = want us=20 to say that this statute cannot constitutionally be applied to you = in this=20 case, or do you want to go for broke and try to get the statute = pronounced=20 void in all its applications?
[145]	I must acknowledge, however, that for some of the present = century we=20 have done just this. But until recently, at least, we have -- = except in=20 free-speech cases subject to the doctrine of overbreadth, see, = e.g., New=20 York v. Ferber, 458 U. S. 747, 769-773 (1982) -- required the = facial=20 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=20 should not be doing in the first place), we have at least imposed = upon the=20 litigant the eminently reasonable requirement that he establish = that the=20 statute was unconstitutional in all its applications. (I say that = is an=20 eminently reasonable requirement, not only because we should not = be=20 holding a statute void in all its applications unless it is=20 unconstitutional in all its applications, but also because unless = it is=20 unconstitutional in all its applications we do not even know, = without=20 conducting an as-applied analysis, whether it is void with regard = to the=20 very litigant before us --whose case, after all, was the occasion = for=20 undertaking this inquiry in the first place.*= fn36)
[146]	As we said in United States v. Salerno, 481 U. S. 739, 745=20 (1987):
[147]	"A facial challenge to a legislative Act is, of course, the most = difficult challenge to mount successfully, since the challenger = must=20 establish that no set of circumstances exists under which the Act = would be=20 valid. The fact that [a legislative Act] might operate = unconstitutionally=20 under some conceivable set of circumstances is insufficient to = render it=20 wholly invalid, since we have not recognized an `overbreadth' = doctrine=20 outside the limited context of the First Amendment." (Emphasis = added.)*= fn37
[148]	This proposition did not originate with Salerno, but had been=20 expressed in a line of prior opinions. See, e.g., Members of City = Council=20 of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 796 (1984) = (opinion for the Court by Stevens, J.) (statute not implicating = First=20 Amendment rights is invalid on its face if "it is unconstitutional = in=20 every conceivable application"); Schall v. Martin, 467 U. S. 253, = 269, n.=20 18 (1984); Hoffman Estates v. Flip-side, Hoffman Estates, Inc., = 455 U. S.=20 489, 494-495, 497 (1982); United States v. National Dairy Products = Corp.,=20 372 U. S. 29, 31-32 (1963); Raines, supra, at 21. And the = proposition has=20 been reaffirmed in many cases and opinions since. See, e.g., = Anderson v.=20 Edwards, 514 U. S. 143, 155-156, n. 6 (1995) (unanimous Court); = Babbitt v.=20 Sweet Home Chapter of Communities for Great Oregon, 515 U. S. 687, = 699=20 (1995) (opinion for the Court by Stevens, J.) (facial challenge = asserts=20 that a challenged statute or regulation is invalid "in every=20 circumstance"); Reno v. Flores, 507 U. S. 292, 301 (1993); Rust v. = Sullivan, 500 U. S. 173, 183 (1991); Ohio v. Akron Center for = Reproductive=20 Health, 497 U. S. 502, 514 (1990) (opinion of Kennedy, J.); = Webster v.=20 Reproductive Health Servs., 492 U. S. 490, 523-524 (1989) = (O'Connor, J.,=20 Concurring in part and Concurring in judgment); New York State = Club Assn.,=20 Inc. v. City of New York, 487 U. S. 1, 11-12 (1988).= fn38=20 Unsurprisingly, given the clarity of our general jurisprudence on = this=20 point, the Federal Courts of Appeals all apply the Salerno = standard in=20 adjudicating facial challenges.= fn39
[149]	I am aware, of course, that in some recent facial-challenge = cases the=20 Court has, without any attempt at explanation, created entirely = irrational=20 exceptions to the "unconstitutional in every conceivable = application"=20 rule, when the statutes at issue concerned hot-button social = issues on=20 which "informed opinion" was zealously united. See Romer v. Evans, = 517 U.=20 S. 620, 643 (1996) (Scalia, J., Dissenting) (homosexual rights); = Planned=20 Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 895 (1992) = (abortion rights). But the present case does not even lend itself = to such=20 a "political correctness" exception -- which, though illogical, is = at=20 least predictable. It is not =C3=A0 la mode to favor gang members = and=20 associated loiterers over the beleaguered law-abiding residents of = the=20 inner city.
[150]	When our normal criteria for facial challenges are applied, it = is=20 clear that the Justices in the majority have transposed the burden = of=20 proof. Instead of requiring the respondents, who are challenging = the=20 Ordinance, to show that it is invalid in all its applications, = they have=20 required the petitioner to show that it is valid in all its = applications.=20 Both the plurality opinion and the concurrences display a lively=20 imagination, creating hypothetical situations in which the law's=20 application would (in their view) be ambiguous. But that creative = role has=20 been usurped from the petitioner, who can defeat the respondents' = facial=20 challenge by conjuring up a single valid application of the law. = My=20 contribution would go something like this*= fn40:=20 Tony, a member of the Jets criminal street gang, is standing = alongside and=20 chatting with fellow gang members while staking out their turf at=20 Promontory Point on the South Side of Chicago; the group is = flashing gang=20 signs and displaying their distinctive tattoos to passersby. = Officer=20 Krupke, applying the Ordinance at issue here, orders the group to=20 disperse. After some speculative Discussion (probably irrelevant = here)=20 over whether the Jets are depraved because they are deprived, Tony = and the=20 other gang members break off further conversation with the = statement --=20 not entirely coherent, but evidently intended to be rude -- "Gee, = Officer=20 Krupke, krup you." A tense standoff ensues until Officer Krupke = arrests=20 the group for failing to obey his dispersal order. Even assuming = (as the=20 Justices in the majority do, but I do not) that a law requiring = obedience=20 to a dispersal order is impermissibly vague unless it is clear to = the=20 objects of the order, before its issuance, that their conduct = justifies=20 it, I find it hard to believe that the Jets would not have known = they had=20 it coming. That should settle the matter of respondents' facial = challenge=20 to the Ordinance's vagueness.
[151]	Of course respondents would still be able to claim that the = Ordinance=20 was vague as applied to them. But the ultimate demonstration of = the=20 inappropriateness of the Court's holding of facial invalidity is = the fact=20 that it is doubtful whether some of these respondents could even = sustain=20 an as-applied challenge on the basis of the majority's own = criteria. For=20 instance, respondent Jose Renteria -- who admitted that he was a = member of=20 the Satan Disciples gang -- was observed by the arresting officer=20 loitering on a street corner with other gang members. The officer = issued a=20 dispersal order, but when she returned to the same corner 15 to 20 = minutes=20 later, Renteria was still there with his friends, whereupon he was = arrested. In another example, respondent Daniel Washington and = several=20 others -- who admitted they were members of the Vice Lords gang -- = were=20 observed by the arresting officer loitering in the street, yelling = at=20 passing vehicles, stopping traffic, and preventing pedestrians = from using=20 the sidewalks. The arresting officer issued a dispersal order, = issued=20 another dispersal order later when the group did not move, and = finally=20 arrested the group when they were found loitering in the same = place still=20 later. Finally, respondent Gregorio Gutierrez -- who had = previously=20 admitted to the arresting officer his membership in the Latin = Kings gang=20 -- was observed loitering with two other men. The officer issued a = dispersal order, drove around the block, and arrested the men = after=20 finding them in the same place upon his return. See Brief for = Petitioner=20 7, n. 5; Brief for United States as Amicus Curiae 16, n. 11. Even = on the=20 majority's assumption that to avoid vagueness it must be clear to = the=20 object of the dispersal order ex ante that his conduct is covered = by the=20 Ordinance, it seems most improbable that any of these as-applied=20 challenges would be sustained. Much less is it possible to say = that the=20 Ordinance is invalid in all its applications.
[152]	II.
[153]	The plurality's explanation for its departure from the usual = rule=20 governing facial challenges is seemingly contained in the = following=20 statement: "[This] is a criminal law that contains no mens rea = requirement=20 ... and infringes on constitutionally protected rights ... . When=20 vagueness permeates the text of such a law, it is subject to = facial=20 attack." Ante, at 11 (emphasis added). The proposition is set = forth with=20 such assurance that one might suppose that it repeats some = well-accepted=20 formula in our jurisprudence: (Criminal law without mens rea = requirement)=20 + (infringement of constitutionally protected right) + (vagueness) = =3D=20 (entitlement to facial invalidation). There is no such formula; = the=20 plurality has made it up for this case, as the absence of any = citation=20 demonstrates.
[154]	But no matter. None of the three factors that the plurality = relies=20 upon exists anyway. I turn first to the support for the = proposition that=20 there is a constitutionally protected right to loiter -- or, as = the=20 plurality more favorably describes it, for a person to "remain in = a public=20 place of his choice." Ibid. The plurality thinks much of this = Fundamental=20 Freedom to Loiter, which it contrasts with such lesser, = constitutionally=20 unprotected, activities as doing (ugh!) business: "This is not an=20 ordinance that simply regulates business behavior and contains a = scienter=20 requirement. . . . It is a criminal law that contains no mens rea=20 requirement . . . and infringes on constitutionally protected = rights."=20 Ibid. (internal quotation marks omitted). (Poor Alexander = Hamilton, who=20 has seen his "commercial republic" devolve, in the eyes of the = plurality,=20 at least, into an "indolent republic," see The Federalist No. 6, = p. 56;=20 No. 11, pp. 84-91 (C. Rossiter ed. 1961).)
[155]	Of course every activity, even scratching one's head, can be = called a=20 "constitutional right" if one means by that term nothing more than = the=20 fact that the activity is covered (as all are) by the Equal = Protection=20 Clause, so that those who engage in it cannot be singled out = without=20 "rational basis." See FCC v. Beach Communications, Inc., 508 U. S. = 307,=20 313 (1993). But using the term in that sense utterly impoverishes = our=20 constitutional discourse. We would then need a new term for those=20 activities -- such as political speech or religious worship -- = that cannot=20 be forbidden even with rational basis.
[156]	The plurality tosses around the term "constitutional right" in = this=20 renegade sense, because there is not the slightest evidence for = the=20 existence of a genuine constitutional right to loiter. Justice = Thomas=20 recounts the vast historical tradition of criminalizing the = activity.=20 Post, at 5-9. It is simply not maintainable that the right to = loiter would=20 have been regarded as an essential attribute of liberty at the = time of the=20 framing or at the time of adoption of the Fourteenth Amendment. = For the=20 plurality, however, the historical practices of our people are = nothing=20 more than a speed bump on the road to the "right" result. Its = opinion=20 blithely proclaims: "Neither this history nor the scholarly = compendia in=20 Justice Thomas' Dissent, post, at 5-9, persuades us that the right = to=20 engage in loitering that is entirely harmless in both purpose and = effect=20 is not a part of the liberty protected by the Due Process Clause." = Ante,=20 at 10, n. 20. The entire practice of using the Due Process Clause = to add=20 judicially favored rights to the limitations upon democracy set = forth in=20 the Bill of Rights (usually under the rubric of so-called = "substantive due=20 process") is in my view judicial usurpation. But we have, recently = at=20 least, sought to limit the damage by tethering the courts' = "right-making"=20 power to an objective criterion. In Washington v. Glucksberg, 521 = U. S.=20 702, 720-721 (1997), we explained our "established method" of = substantive=20 due process analysis: carefully and narrowly describing the = asserted=20 right, and then examining whether that right is manifested in = "[o]ur=20 Nation's history, legal traditions, and practices." See also = Collins v.=20 Harker Heights, 503 U. S. 115, 125-126 (1992); Michael H. v. = Gerald D.,=20 491 U. S. 110, 122-123 (1989); Moore v. East Cleveland, 431 U. S. = 494,=20 502-503 (1977). The plurality opinion not only ignores this = necessary=20 limitation, but it leaps far beyond any substantive-due-process = atrocity=20 we have ever committed, by actually placing the burden of proof = upon the=20 defendant to establish that loitering is not a "fundamental = liberty." It=20 never does marshal any support for the proposition that loitering = is a=20 constitutional right, contenting itself with a (transparently = inadequate)=20 explanation of why the historical record of laws banning loitering = does=20 not positively contradict that proposition,= fn41=20 and the (transparently erroneous) assertion that the City of = Chicago=20 appears to have conceded the point.= fn42=20 It is enough for the members of the plurality that "history ... = [fails to]=20 persuad[e] us that the right to engage in loitering that is = entirely=20 harmless in both purpose and effect is not a part of the liberty = protected=20 by the Due Process Clause," ante, at 10, n. 20 (emphasis added); = they=20 apparently think it quite unnecessary for anything to persuade = them that=20 it is.*= fn43
[157]	It would be unfair, however, to criticize the plurality's failed = attempt to establish that loitering is a constitutionally = protected right=20 while saying nothing of the concurrences. The plurality at least = makes an=20 attempt. The concurrences, on the other hand, make no pretense at=20 attaching their broad "vagueness invalidates" rule to a liberty = interest.=20 As far as appears from Justice O'connor's and Justice Breyer's = opinions,=20 no police officer may issue any order, affecting any insignificant = sort of=20 citizen conduct (except, perhaps, an order addressed to the = unprotected=20 class of "gang members") unless the standards for the issuance of = that=20 order are precise. No modern urban society -- and probably none = since=20 London got big enough to have sewers -- could function under such = a rule.=20 There are innumerable reasons why it may be important for a = constable to=20 tell a pedestrian to "move on" -- and even if it were possible to = list in=20 an ordinance all of the reasons that are known, many are simply=20 unpredictable. Hence the (entirely reasonable) Rule of the City of = New=20 York which reads: "No person shall fail, neglect or refuse to = comply with=20 the lawful direction or command of any Police Officer, Urban Park = Ranger,=20 Parks Enforcement Patrol Officer or other [Parks and Recreation]=20 Department employee, indicated by gesture or otherwise." 56 RCNY=20 =C2=A71-03(c)(1) (1996). It is one thing to uphold an "as applied" = challenge=20 when a pedestrian disobeys such an order that is unreasonable -- = or even=20 when a pedestrian asserting some true "liberty" interest (holding = a=20 political rally, for instance) disobeys such an order that is = reasonable=20 but unexplained. But to say that such a general ordinance = permitting=20 "lawful orders" is void in all its applications demands more than = a safe=20 and orderly society can reasonably deliver.
[158]	Justice Kennedy apparently recognizes this, since he = acknowledges that=20 "some police commands will subject a citizen to prosecution for = disobeying=20 whether or not the citizen knows why the order is given," = including, for=20 example, an order "tell[ing] a pedestrian not to enter a building" = when=20 the reason is "to avoid impeding a rescue team." Ante, at 1. But = his only=20 explanation of why the present interference with the "right to = loiter"=20 does not fall within that permitted scope of action is as follows: = "The=20 predicate of an order to disperse is not, in my view, sufficient = to=20 eliminate doubts regarding the adequacy of notice under this = ordinance."=20 Ibid. I have not the slightest idea what this means. But I do = understand=20 that the follow-up explanatory sentence, showing how this = principle=20 invalidates the present ordinance, applies equally to the = rescue-team=20 example that Justice Kennedy thinks is constitutional -- as is=20 demonstrated by substituting for references to the facts of the = present=20 case (shown in italics) references to his rescue-team hypothetical = (shown=20 in brackets): "A citizen, while engaging in a wide array of = innocent=20 conduct, is not likely to know when he may be subject to a = dispersal order=20 [order not to enter a building] based on the officer's own = knowledge of=20 the identity or affiliations of other persons with whom the = citizen is=20 congregating [what is going on in the building]; nor may the = citizen be=20 able to assess what an officer might conceive to be the citizen's = lack of=20 an apparent purpose [the impeding of a rescue team]." = Ibid.
[159]	III.
[160]	I turn next to that element of the plurality's facial-challenge=20 formula which consists of the proposition that this criminal = ordinance=20 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=20 supposed to be attached, consists of. The majority believes that = loitering=20 forms part of (indeed, the essence of) the offense, and must be = proved if=20 conviction is to be obtained. See ante, at 2, 6, 9-13, 14-15, = 16-18=20 (plurality and majority opinions); ante, at 2-3, 4 (O'Connor, J.,=20 Concurring in part and Concurring in judgment); ante, at 1-2 = (Kennedy, J.,=20 Concurring in part and Concurring in judgment); ante, at 3-4 = (Breyer, J.,=20 Concurring in part and Concurring in judgment). That is not what = the=20 Ordinance provides. The only part of the Ordinance that refers to=20 loitering is the portion that addresses, not the punishable = conduct of the=20 defendant, but what the police officer must observe before he can = issue an=20 order to disperse; and what he must observe is carefully defined = in terms=20 of what the defendant appears to be doing, not in terms of what = the=20 defendant is actually doing. The Ordinance does not require that = the=20 defendant have been loitering (i.e., have been remaining in one = place with=20 no purpose), but rather that the police officer have observed him=20 remaining in one place without any apparent purpose. Someone who = in fact=20 has a genuine purpose for remaining where he is (waiting for a = friend, for=20 example, or waiting to hold up a bank) can be ordered to move on = (assuming=20 the other conditions of the Ordinance are met), so long as his = remaining=20 has no apparent purpose. It is likely, to be sure, that the = Ordinance will=20 come down most heavily upon those who are actually loitering = (those who=20 really have no purpose in remaining where they are); but that = activity is=20 not a condition for issuance of the dispersal = order.
[161]	The only act of a defendant that is made punishable by the = Ordinance=20 -- or, indeed, that is even mentioned by the Ordinance -- is his = failure=20 to "promptly obey" an order to disperse. The question, then, is = whether=20 that actus reus must be accompanied by any wrongful intent -- and = of=20 course it must. As the Court itself describes the requirement, "a = person=20 must disobey the officer's order." Ante, at 3 (emphasis added). No = one=20 thinks a defendant could be successfully prosecuted under the = Ordinance if=20 he did not hear the order to disperse, or if he suffered a = paralysis that=20 rendered his compliance impossible. The willful failure to obey a = police=20 order is wrongful intent enough.
[162]	IV.
[163]	Finally, I address the last of the three factors in the = plurality's=20 facial-challenge formula: the proposition that the Ordinance is = vague. It=20 is not. Even under the ersatz overbreadth standard applied in = Kolender v.=20 Lawson, 461 U. S. 352, 358 n. 8 (1983), which allows facial = challenges if=20 a law reaches "a substantial amount of constitutionally protected=20 conduct," respondents' claim fails because the Ordinance would not = be=20 vague in most or even a substantial number of applications. A law = is=20 unconstitutionally vague if its lack of definitive standards = either (1)=20 fails to apprise persons of ordinary intelligence of the = prohibited=20 conduct, or (2) encourages arbitrary and discriminatory = enforcement. See,=20 e.g., Grayned v. City of Rockford, 408 U. S. 104, 108=20 (1972).
[164]	The plurality relies primarily upon the first of these aspects. = Since,=20 it reasons, "the loitering is the conduct that the ordinance is = designed=20 to prohibit," and "an officer may issue an order only after = prohibited=20 conduct has already occurred," ante, at 14, 15, the order to = disperse=20 cannot itself serve "to apprise persons of ordinary intelligence = of the=20 prohibited conduct." What counts for purposes of vagueness = analysis,=20 however, is not what the Ordinance is "designed to prohibit," but = what it=20 actually subjects to criminal penalty. As discussed earlier, that = consists=20 of nothing but the refusal to obey a dispersal order, as to which = there is=20 no doubt of adequate notice of the prohibited conduct. The = plurality's=20 suggestion that even the dispersal order itself is = unconstitutionally=20 vague, because it does not specify how far to disperse (!), see = ante, at=20 15, scarcely requires a response.*= fn44=20 If it were true, it would render unconstitutional for vagueness = many of=20 the Presidential proclamations issued under that provision of the = United=20 States Code which requires the President, before using the militia = or the=20 Armed Forces for law enforcement, to issue a proclamation ordering = the=20 insurgents to disperse. See 10 U. S. C. =C2=A7334. President = Eisenhower's=20 proclamation relating to the obstruction of court-ordered = enrollment of=20 black students in public schools at Little Rock, Arkansas, read as = follows: "I . . . command all persons engaged in such obstruction = of=20 Justice to cease and desist therefrom, and to disperse forthwith." = Presidential Proclamation No. 3204, 3 CFR 132 (1954-1958 Comp.). = See also=20 Presidential Proclamation No. 3645, 3 CFR 103 (1964-1965 Comp.) = (ordering=20 those obstructing the civil rights march from Selma to Montgomery, = Alabama, to "disperse ... forthwith"). See also Boos v. Barry, 485 = U. S.=20 312, 331 (1988) (rejecting overbreadth/vagueness challenge to a = law=20 allowing police officers to order congregations near foreign = embassies to=20 disperse); Cox v. Louisiana, 379 U. S. 536, 551 (1965) (rejecting=20 vagueness challenge to the dispersal-order prong of a = breach-of-the-peace=20 statute and describing that prong as "narrow and = specific").
[165]	For its determination of unconstitutional vagueness, the Court = relies=20 secondarily -- and Justice O'Connor's and Justice Breyer's = concurrences=20 exclusively -- upon the second aspect of that doctrine, which = requires=20 sufficient specificity to prevent arbitrary and discriminatory law = enforcement. See ante, at 16 (majority opinion); ante, at 2 = (O'Connor, J.,=20 Concurring in part and Concurring in judgment); ante, at 3 = (Breyer, J.,=20 Concurring in part and Concurring in judgment). In discussing = whether=20 Chicago's Ordinance meets that requirement, the Justices in the = majority=20 hide behind an artificial construct of judicial restraint. They = point to=20 the Supreme Court of Illinois' statement that the "apparent = purpose"=20 standard "provides absolute discretion to police officers to = decide what=20 activities constitute loitering," 687 N. E. 2d 53, 63 (1997), and = protest=20 that it would be wrong to construe the language of the Ordinance = more=20 narrowly than did the State's highest court. Ante, at 17, 19 = (majority=20 opinion); ante, at 4-5 (O'Connor, J., Concurring in part and = Concurring in=20 judgment). The "absolute discretion" statement, however, is = nothing more=20 than the Illinois Supreme Court's characterization of what the = language=20 achieved -- after that court refused (as I do) to read in any = limitations=20 that the words do not fairly contain. It is not a construction of = the=20 language (to which we are bound) but a legal Conclusion (to which = we most=20 assuredly are not bound).
[166]	The criteria for issuance of a dispersal order under the Chicago = Ordinance could hardly be clearer. First, the law requires police = officers=20 to "reasonably believ[e]" that one of the group to which the order = is=20 issued is a "criminal street gang member." This resembles a = probable-cause=20 standard, and the Chicago Police Department's General Order 92-4 = (1992)=20 --promulgated to govern enforcement of the Ordinance -- makes the = probable=20 cause requirement explicit.*= fn45=20 Under the Order, officers must have probable cause to believe that = an=20 individual is a member of a criminal street gang, to be = substantiated by=20 the officer's "experience and knowledge of the alleged offenders" = and by=20 "specific, documented and reliable information" such as reliable = witness=20 testimony or an individual's admission of gang membership or = display of=20 distinctive colors, tattoos, signs, or other markings worn by = members of=20 particular criminal street gangs. App. to Pet. for Cert. 67a-69a,=20 71a-72a.
[167]	Second, the Ordinance requires that the group be "remain[ing] in = one=20 place with no apparent purpose." Justice O'Connor's assertion that = this=20 applies to "any person standing in a public place," ante, at 2, is = a=20 distortion. The Ordinance does not apply to "standing," but to=20 "remain[ing]" -- a term which in this context obviously means = "[to] endure=20 or persist," see American Heritage Dictionary 1525 (1992). There = may be=20 some ambiguity at the margin, but "remain[ing] in one place" = requires more=20 than a temporary stop, and is clear in most of its applications, = including=20 all of those represented by the facts surrounding the respondents' = arrests=20 described supra, at 12.
[168]	As for the phrase "with no apparent purpose": Justice O'Connor = again=20 distorts this adjectival phrase, by separating it from the word = that it=20 modifies. "[A]ny person standing on the street," her concurrence = says,=20 "has a general `purpose' -- even if it is simply to stand," and = thus "the=20 ordinance permits police officers to choose which purposes are=20 permissible." Ante, at 2. But Chicago police officers enforcing = the=20 Ordinance are not looking for people with no apparent purpose (who = are=20 regrettably in oversupply); they are looking for people who = "remain in any=20 one place with no apparent purpose" -- that is, who remain there = without=20 any apparent reason for remaining there. That is not difficult to=20 perceive.*= fn46
[169]	The Court's attempt to demonstrate the vagueness of the = Ordinance=20 produces the following peculiar statement: "The `no apparent = purpose'=20 standard for making [the decision to issue an order to disperse] = is=20 inherently subjective because its application depends on whether = some=20 purpose is `apparent' to the officer on the scene." Ante, at 18. = In the=20 Court's view, a person's lack of any purpose in staying in one = location is=20 presumably an objective factor, and what the Ordinance requires as = a=20 condition of an order to disperse -- the absence of any apparent = purpose=20 --is a subjective factor. This side of the looking glass, just the = opposite is true.
[170]	Elsewhere, of course, the Court acknowledges the clear, = objective=20 commands of the Ordinance, and indeed relies upon them to paint it = as=20 unfair:
[171]	"By its very terms, the ordinance encompasses a great deal of = harmless=20 behavior. In any public place in the city of Chicago, persons who = stand or=20 sit in the company of a gang member may be ordered to disperse = unless=20 their purpose is apparent. The mandatory language in the enactment = directs=20 the police to issue an order without first making any inquiry = about their=20 possible purposes. It matters not whether the reason that a gang = member=20 and his father, for example, might loiter near Wrigley Field is to = rob an=20 unsuspecting fan or just to get a glimpse of Sammy Sosa leaving = the=20 ballpark; in either event, if their purpose is not apparent to a = nearby=20 police officer, she may -- indeed, she `shall' -- order them to = disperse."=20 Ante, at 16.
[172]	Quite so. And the fact that this clear instruction to the = officers=20 "encompasses a great deal of harmless behavior" would be = invalidating if=20 that harmless behavior were constitutionally protected against = abridgment,=20 such as speech or the practice of religion. Remaining in one place = is not=20 so protected, and so (as already discussed) it is up to the = citizens of=20 Chicago -- not us -- to decide whether the trade-off is worth=20 it.
[173]	The Court also asserts -- in apparent contradiction to the = passage=20 just quoted -- that the "apparent purpose" test is too elastic = because it=20 presumably allows police officers to treat de minimis "violations" = as not=20 warranting enforcement.*= fn47=20 See ante, at 18-19. But such discretion --and, for that matter, = the=20 potential for ultra vires action -- is no different with regard to = the=20 enforcement of this clear ordinance than it is with regard to the=20 enforcement of all laws in our criminal-Justice system. Police = officers=20 (and prosecutors, see Bordenkircher v. Hayes, 434 U. S. 357, 364 = (1978)),=20 have broad discretion over what laws to enforce and when. As we = said in=20 Whren v. United States, 517 U. S. 806, 818 (1996), "we are aware = of no=20 principle that would allow us to decide at what point a code of = law=20 becomes so expansive and so commonly violated that infraction = itself can=20 no longer be the ordinary measure of the lawfulness of=20 enforcement."
[174]	Justice Breyer's concurrence tries to perform the impossible = feat of=20 affirming our unquestioned rule that a criminal statute that is so = vague=20 as to give constitutionally inadequate notice to some violators = may=20 nonetheless be enforced against those whose conduct is clearly = covered,=20 see ante, at 3, citing Parker v. Levy, 417 U. S. 733 (1974), while = at the=20 same time asserting that a statute which "delegates too much = discretion to=20 a police officer" is invalid in all its applications, even where = the=20 officer uses his discretion "wisely," ante, at 2. But the = vagueness that=20 causes notice to be inadequate is the very same vagueness that = causes "too=20 much discretion" to be lodged in the enforcing officer. Put = another way: A=20 law that gives the policeman clear guidance in all cases gives the = public=20 clear guidance in all cases as well. Thus, what Justice Breyer = gives with=20 one hand, he takes away with the other. In his view, vague = statutes that=20 nonetheless give adequate notice to some violators are not = unenforceable=20 against those violators because of inadequate notice, but are=20 unenforceable against them "because the policeman enjoys too much=20 discretion in every case," ibid. This is simply contrary to our = case-law,=20 including Parker v. Levy, supra.*= fn48
[175]	V.
[176]	The plurality points out that Chicago already has several laws = that=20 reach the intimidating and unlawful gang-related conduct the = Ordinance was=20 directed at. See ante, at 7-8, n. 17. The problem, of course, well = recognized by Chicago's City Council, is that the gang members = cease their=20 intimidating and unlawful behavior under the watchful eye of = police=20 officers, but return to it as soon as the police drive away. The = only=20 solution, the council concluded, was to clear the streets of = congregations=20 of gangs, their drug customers, and their = associates.
[177]	Justice O'Connor's concurrence proffers the same empty solace of = existing laws usele