This Opinion Piece by Denise Provost was published in the Somerville Journal on June 17, 2004:
Instead, from my perspective of more than twenty years practicing law, I see an ordinance riddled with constitutional flaws, and so complex as to be practically unenforceable. Its chief potential use is street harassment, exposing Somerville to liability without having significant impact on crime. Is this what we want?
The Somerville "gang loitering" ordinance is based on Chicago's 1992 Gang Congregation Ordinance. The Illinois Supreme Court found that ordinance unconstitutional, a decision upheld by the U.S. Supreme Court in its 1999 City of Chicago v. Morales decision. The Somerville ordinance retains many constitutional defects of the Chicago ordinance, while overcorrecting other problems to a degree that makes the ordinance almost useless.
To understand why, start with the legal concept that every crime consists of "elements" - separate features, which must be proved to sustain a conviction. The more elements a crime has, the greater the difficulty of proof. Murder has two elements: 1) killing another person, 2) with "malice aforethought." Arson has three: 1) setting fire to 2) a building, 3) willfully and maliciously. "Gang loitering" requires an astonishing thirteen elements to justify an arrest:
1) that the arrestee be a "member" (undefined), or with a member, of
2) an "ongoing organization...or group of three or more persons"
3) having as "one of its substantial activities" the commission of one or more listed crimes, and
4) members of which have been judged by a court to have committed any of fifty listed crimes, provided
5) that the offenses were committed by two or more persons, or by one "at the direction of" or "in association with" a gang, and
6) committed with the intent of furthering criminal conduct by gang members; and provided that
7) two such qualifying criminal convictions of gang members have taken place within five years of each other;
8) that a member of a gang fitting this description and another person were in a public place,
9) previously designated in writing by the Chief of Police as subject to gang control through loitering,
10) and, having "the intent to further the common purpose or existence" of the gang, these individuals were either:
11) A) engaging in "conduct which would cause a reasonable person to believe that entrance to a specific area may not be made without unreasonable inconvenience or hazard;" B) threatening to commit a crime; C) defacing property; D) intimidating or accosting another; or E) engaging in disorderly behavior or a breach of the peace;
12) that a police officer warned them that they were "gang loitering," and ordered them to disperse; and
13) the individuals failed to disperse, or returned sooner than three hours from the time of warning.
Only then can the officer make an arrest. If the individuals return to the original location three hours and five minutes later, the process starts over with another warning. If they disperse, and regroup at a non-designated location, not even a dispersal order is authorized. Even if an arrest is made, how would you like to be the prosecutor who has to prove in court all thirteen elements of this crime?
Having such stringent requirements for the police to take action increases the danger that the ordinance will be used improperly. As the US Supreme Court observed, "an officer conscious of the city council's reasons for enacting the ordinance might well ignore its text and issue a dispersal order...." If an officer thinks that the "reason" for the gang ordinance is to break up groups of teenagers, or to get Latino-looking people off the street, then that's what could happen, creating the risk of lawsuits.
As a former attorney for Somerville, I don't advocate high standards of constitutionality for idealistic reasons alone. Unconstitutional laws - even unconstitutional actions based on sound laws - can have expensive consequences for taxpayers. In the 1980s, for instance, Somerville lost big time for having an unconstitutional ordinance forbidding yard signs. Revere recently paid almost $1 million for using an "adult entertainment" zoning ordinance to stop a video store, also violating the First Amendment.
I don't doubt that gangs exist, or that gang members commit crimes. Yet arrest records show that gangs presently account for a tiny amount of crime in Somerville. Though we have a serious drug problem, our Chief of Police has told the Aldermen that MS-13, our only "criminal street gang," is not dealing drugs in Somerville.
To address crime, we need to focus on criminal behavior - and most real criminals do not call attention to themselves. We risk being seriously distracted by questions of who is hanging out with whom in public places. Let's focus on intimidation, violence, drug dealing, and other conduct that plagues our community - regardless of who is doing it. We already have the laws to do that.
copyright 2004 Denise Provost