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Arrested because the police don't like the way you look

Published Sep. 13, 2005

What makes a nation a police state? A street officer's limitless power of arrest.

Whether America has turned this corner will depend on the outcome of a case before the U.S. Supreme Court next term. The court is poised to decide if Chicago, in its efforts to control gangs, can give police virtually unfettered discretion to make an arrest when someone looks like a gang member _ even when no crime has been commited.

In 1993, Gregorio Gutierrez was walking in Chicago with his brother on the way to a train station to visit their mother at work. When they stopped to purchase a sandwich from a local take-out place, they got arrested.

They were picked up under an anti-gang loitering ordinance passed by the city in 1992 that makes it a crime for two or more people to be in a public place if a police officer believes one person is a member of a criminal street gang and the group doesn't disperse when ordered to do so. Police don't have to actually identify a gang member in the group; it's sufficient that they think there is one. Each violation carries a penalty of up to six months in jail and 120 hours of community service.

When police saw Gutierrez, his brother and another man just standing around doing nothing, they told the men to move. The men were arrested when the police cruiser passed around the block again and found them still there. When Gutierrez asked the officers why he was being arrested, "they told us they don't like us," he said. He was convicted of loitering and sentenced to 27 days in jail. The police never even asked him if he was a gang member.

Although loitering laws have been disfavored by courts for decades, they are being resurrected with new verve in cities trying to get a handle on the problem of drugs and gangs.

Citizens of urban areas are understandably afraid to walk in neighborhoods blighted by gang territorial graffiti, where young men and women engage in violence for sport. The people who have to live in these communities and on these streets are clamoring for politicians to respond to their fears. But enacting laws that criminalize innocent behavior, such as merely being in public and associating with friends (even ones who have been in trouble in the past), will do more to harm our collective liberty than to help residents in high crime areas regain theirs.

This nation's loitering and vagrancy statutes have an ignoble history. One consequence of the breakdown of the feudal system in England was a severe labor shortage. The English response was the passage of the Statutes of Laborers. These laws made it illegal to raise wages, and prohibited workers from moving from their home areas in search of better pay and working conditions. These laws then evolved into laws against the poor that criminalized destitution and unemployment. They were imported here with America's early settlers, and defended conceptually as a means of preventing criminal activity by arresting the odd, the undesirable and the idle before they committed crimes.

The whole point of these types of statutes is to give police the opportunity to arrest people who are disfavored but who have not done anything otherwise criminal. It is hard to imagine anything more damaging to personal liberty than the prospect of being legitimately arrested because an officer, as a representative of the government, doesn't like your looks.

Yet, that's what was happening in Jacksonville, Fla., until 1972, when the Supreme Court put a stop to it. The city's loitering ordinance prohibited "rogues and vagabonds . . . persons wandering or strolling around from place to place . . . (and) habitual loafers," among others. Under the ordinance, police arrested two white women and two black men in a car on a main thoroughfare in the city. Although the police claimed that the group's racial makeup had nothing to do with the arrest, it is likely it had everything to do with it. The police had no reason to suspect the group of any actual crime. The group was convicted of "prowling by automobile," which was subsumed within the "no wandering" provisions of the ordinance.

In striking down the law and overturning the convictions, Supreme Court Justice William O. Douglas, citing an earlier case, said these laws result "in a regime in which the poor and the unpopular are permitted to "stand on a public sidewalk . . . only at the whim of any police officer.' "

Fast forward to today. What was occurring in Jacksonville 25 years ago is now the norm in Chicago. If you are wearing the wrong clothes, the wrong colors or the wrong expression, police can demand that you leave the public arena upon threat of arrest. Something more reminiscent of Iraq than America.

Although the ordinance was invalidated by the Illinois Supreme Court in 1997, the U.S. Supreme Court has granted review and next term will hear the consolidated cases of 70 people picked up for loitering. It could be the most important civil liberties case in decades.

A group of youths hanging out on a street corner may appear menacing. But do we really want to give the police the power to arrest them for simply being there? If the court allows that power to stand, law-abiding citizens will be terrorized by a new gang, one whose members wear blue and carry a badge.