Week 3 - "Vagueness Doctrine"

What are the two functions of doctrine of vagueness?

1. Provides “buffer zone” for specifically protected constitutional rights

2. Protects legality or rule of law values, require that the legislature, not individual officials, clearly define what is a crime in advance

How does the “buffer zone” protect constitutional rights?

if the law is fuzzy near the edges of constitutional rights (ex: free speech), the court may strike it down so that protected speech is not chilled

What is the doctrine of vagueness?

Law can be “void for vagueness” if it is so unclear that an ordinary person cannot tell what is allowed and what is forbidden.

How do vague laws violate

do not give people fair warning and they invite arbitrary enforcement by officials.

What outdated ordinance in Papachristou v. City of Jacksonville did the Supreme Court overturn?

Facts:

• Eight people were convicted under a broad vagrancy (wandering/loitering) law. Actual conduct was everyday occurrences like backing out of a driveway, walking home late at night, and standing on the street, no proof that they were committing or trying to commit crime. Police justified arrests based on reputation or suspicion.

Rule of Law:

• A criminal statute is unconstitutional if it is so vague that it fails to give fair notice of what conduct is prohibited and invites arbitrary and discriminatory enforcement by police and courts.

• Laws cannot simply authorize punishment of people because they seem suspicious, disliked, or “undesirable,” without clearly defined, specific prohibited conduct.

What two flaws did the Supreme Court say the vagueness doctrine was concerned with?

1. Statutes failing to give adequate notice of what is prohibited

2. Indefinite law inviting discriminatory enforcement

The two problems with the “fair warning” rationale

assumes most folks actually read and understand statutes,

"ignorance of the law is no excuse," so even honest mistakes about a law's meaning won't save you in court.

What do courts say about the precision required of a statute?

doesn't have to be crystal clear on its face—judges can later interpret and "fix" vagueness through rulings, law's real meaning often comes from state court decisions

Why judicial construction can complicate things for layperson?

makes it nearly impossible for non-lawyers (or even some lawyers) to know the rules in advance.

Difference between vague statutes vs most statutes

Vague statutes may invite arbitrary enforcement, but most laws allow it, discretion inevitable

What is the criteria for determining unconstitutional vagueness?

Judgment about whether:

1. text of statute provides “sufficient fair warning” and

2. it affords “too much” opportunity for arbitrary and discriminatory enforcement

What is the most important factor affecting the clarity that the Constitution demands of the law?

Whether it threatens the exercise of constitutionally protected rights

ex: law interferes with freedom of speech, more stringent vagueness test applied

Why were the words in Lanzetta v. New Jersey considered vague

Facts: Law defined "gangsters" as anyone jobless, in a "gang" of 2+ people, with 3+ disorderly person convictions or any prior crime—punishment up to 20 years in prison.

Rule of Law: Criminal laws must clearly tell regular people exactly what actions will get them in trouble. Vague words force people to guess, violating due process and basic fairness.

What does the doctrine of vagueness require for a statute to be valid?

require specific, observable behavior, not just being a certain type of person

What was Robinson v. California hold that was required between status vs. act.

Robinson criminalized the status of "being addicted to narcotics," not the act of using drugs, can't jail someone just for their unchosen condition—punishment must tie to conduct.​

What power did the Court not want given to police officers in Shuttlesworth v. City of Birmingham?

Facts:

P stood peacefully with companions on sidewalk outside a store. A police officer ordered the group to "move on"; they began dispersing, but Shuttlesworth stayed and questioned. After three orders, with everyone else gone, he was arrested. Law lets any cop decide if/when standing on public sidewalks is allowed.

Rule of Law: 

Criminal laws cannot delegate core lawmaking power to police through vague terms; they must set clear, predefined standards, not allow punishment based on an officer's subjective, unchecked opinions.

What is “law enforcement necessity”?

Legislatures need terms that capture degrees of blameworthiness and adapt to cases, without listing every scenario.

What did US v. Petrillo say about the standard of precision of statutes the Constitution required?

doesn't demand unrealistic precision in laws

What was Nash v. US reasoning behind upholding a law that required interpretation?

Laws frequently hinge on matters of degree (how bad/extreme?), judged by juries using common sense

Where can fair notice also come from other than the text of the law?

unwritten social expectations

Punishing someone isn’t unfair if…

"common social duty" would have warned a normal person to act more cautiously, can always choose not to act

Why in Chicago v. Morales did the Court believe the law was too open-ended?

​Issue(s):

• Whether Chicago's Gang Congregation Ordinance, banning "loitering" (remaining in one place with no apparent purpose) by known gang members in public after a police dispersal order, is unconstitutionally vague under the Due Process Clause.

• Whether it provides fair notice of prohibited conduct and sufficient guidelines to prevent arbitrary police enforcement.

Facts:

• Chicago passed the ordinance in 1992 to combat gang violence: Police could order dispersal if they reasonably believed at least one person in a group of 2+ was a gang member "loitering" (no apparent purpose) in public places like streets or parks.

• Disobeying the order was punishable by fine, jail up to 6 months, or community service—even for non-gang members.

• Police issued 89,000+ orders and arrested 42,000+ over 3 years, targeting gang "turf" control that intimidated residents.

• Respondents (like Morales, Gutierrez) were convicted for disobeying after standing with suspected gang members.

Procedural posture:

• Trial courts split: some upheld, 11 struck down as vague.

• Illinois Appellate Court affirmed invalidation in consolidated cases, citing vagueness, overbreadth, status crime, and 4th Amendment issues.

• Illinois Supreme Court affirmed on vagueness and due process grounds.

• U.S. Supreme Court granted certiorari and reviewed.

Judgment:

• Affirmed: Ordinance held unconstitutionally vague on its face (6-3 plurality/judgment).

Applicable Rules and Precedent:

• Vagueness doctrine: Criminal laws must give fair notice to ordinary people and minimal guidelines against arbitrary enforcement (Connally; Papachristou).

• Facial challenges okay for vague criminal laws infringing liberty, even without overbreadth or mens rea (Kolender).

• Liberty includes right to loiter innocently in public (Papachristou; historical contrast to old vagrancy laws).

Holding:

• Ordinance violates due process: Fails fair notice ("no apparent purpose" is unclear—what counts as purpose?) and invites arbitrary enforcement (cops decide dispersal based on subjective views, no standards).

Reasoning:

• Notice: "Loitering" as "remain with no apparent purpose" leaves citizens guessing (talking? waiting?); dispersal order comes after alleged loitering, doesn't retroactively clarify, and is vague itself (how far? how long?).

• Arbitrary enforcement: No limits on police discretion—order anyone with a suspected gang member to disperse without asking purpose; applies to innocents (friends, family); misses actual harmful loitering (e.g., drug deals with obvious purpose); internal police guidelines don't fix it (secret "hot spots," no public notice).

• Covers too much innocent conduct while oddly exempting intimidating acts; better, narrower laws exist.

Rule of Law: 
A criminal ordinance is unconstitutionally vague if it fails to clearly notify people of prohibited conduct and provides no meaningful standards to cabin police discretion, allowing arbitrary liberty deprivations.

Key takeaway:
Chicago's well-intentioned anti-gang loitering law was too open-ended, turning harmless public presence into a crime at any cop's whim—echoing Papachristou's rejection of "law by cop."[ppl-ai-file-upload.s3.amazonaws]​

Dissent(s):

• Scalia (joined Thomas): Not vague; clear criteria (gang member + no-apparent-purpose remaining); facial invalidation wrong—valid in core anti-gang applications; elevates baseless "right to loiter"; ignores gang terror on residents.

• Thomas (joined Rehnquist, Scalia): No historical "right to loiter"; ordinance just empowers traditional police peacekeeping (dispersal orders); Chicago residents suffer most from gangs, not cops.

• O'Connor/Breyer (concurring in judgment): Agree on vagueness due to unlimited discretion but narrower fixes possible (e.g., limit to harmful purpose/gang-only); city has alternatives.

• Kennedy (concurring): Dispersal orders need context; ordinance doesn't clearly signal when innocent loitering triggers them.

Continued

This case is about whether Chicago’s “Gang Congregation Ordinance” was so unclear that it violated the Constitution’s due process rules.​

What the ordinance did​

• Chicago passed a law making it a crime to stay (“loiter”) in a public place with someone the police reasonably think is a gang member.

• “Loiter” was defined as “to remain in any one place with no apparent purpose.”

• If an officer saw at least one suspected gang member loitering with others, the officer had to order everyone to “disperse and remove themselves from the area.”

• Anyone who did not promptly obey could be arrested, whether or not they were a gang member. Punishment could include a fine, jail time, and community service.​

• The police also issued an internal rule (General Order 92‑4) to limit who could enforce the law and where, but the “designated areas” were not made public.​

How the case got to the Supreme Court​

• Over about three years, police issued more than 89,000 dispersal orders and made over 42,000 arrests under this ordinance.​

• Some trial judges upheld the law; others struck it down.

• The Illinois Appellate Court and then the Illinois Supreme Court held the ordinance was unconstitutional because it was too vague and arbitrarily restricted personal liberty.​

• Chicago appealed to the U.S. Supreme Court, which agreed to review the case and ultimately affirmed (kept) the Illinois Supreme Court’s ruling.​

Main reasons the Court struck down the law (Justice Stevens’ plurality)​

1. Too vague for ordinary people

   • Laws must give people fair notice of what is and isn’t allowed so they can follow the law.​

   • The phrase “remain in any one place with no apparent purpose” is unclear. A normal person standing with friends in a park or on a sidewalk cannot tell when their “purpose” looks “apparent” to an officer and when it does not.​

   • Because the definition is so fuzzy, people don’t know in advance when their behavior could trigger a police order and possible arrest.​

   • The city’s argument that no one is punished until they disobey an order doesn’t fix the problem: the point of the notice rule is to let people avoid crossing the line in the first place. A dispersal order comes after the supposed violation.​

2. Too much discretion for police

   • Due process also requires that laws include basic rules to guide police, so they are not free to enforce the law in arbitrary or discriminatory ways.​

   • Because “no apparent purpose” is so open‑ended, officers effectively decide on their own what counts as loitering. The Illinois Supreme Court said the ordinance gave them “absolute discretion” to decide what conduct is covered.​

   • The ordinance applied to anyone standing with a suspected gang member, including family, friends, or strangers, even if they were doing nothing harmful.​

   • The Court also noted the ordinance ironically missed the worst behavior the city was worried about—gangs asserting control or dealing drugs—because that activity often has an obvious purpose (territory or drug sales), so it might fall outside “no apparent purpose.”​

   • The internal police order (General Order 92‑4) could not save the law because citizens are bound by the ordinance as written, not by internal, unpublished police policies.​

3. Liberty to be in public places

   • The Court said that peacefully being in public, including standing or “loitering” for innocent reasons, is part of the “liberty” protected by the Fourteenth Amendment.​

   • Because this law affected that basic freedom and was a criminal law with no intent (mens rea) requirement, a facial (overall) challenge to its vagueness was appropriate.​

Concurring opinions (agreeing the law was invalid, with slightly different focus)​

• Justice O’Connor (joined by Justice Breyer)

  • Agreed the ordinance is unconstitutionally vague because it gives no clear standard for what counts as an “apparent purpose.”​

  • Thought this reason alone was enough to strike it down and stressed the ruling should be read narrowly.

  • Emphasized that Chicago can still fight gangs using clearer laws—like laws that directly ban gang gathering to intimidate others, limit the law to gang members, or define “apparent purpose” more precisely.​

• Justice Kennedy

  • Agreed the law reached too much innocent conduct and that the “disperse or be arrested” rule didn’t fix the notice problem.​

  • Noted that while some unexplained police orders must be obeyed (for safety or crime‑scene reasons), not any unexplained order is automatically lawful; people need some fair sense of when such an order can be given.​

• Justice Breyer

  • Focused on the idea that the ordinance gives police “too much discretion in every case,” which violates due process.​

  • Concluded that because every use of the law involved this unchecked discretion, the ordinance is invalid in all its applications, not just in particular cases.​

Dissents (Judges who would have upheld the law)​

• Justice Scalia (joined by the Chief Justice in part via Justice Thomas’s dissent)

  • Argued the law was clear enough and that the real crime was refusing a lawful police order, not “loitering” itself.​

  • Said there is no fundamental constitutional right to loiter and criticized the Court for inventing such a right and for invalidating the law on its face instead of focusing only on the specific defendants.​

  • Emphasized the city’s need to restore order to gang‑controlled streets and said deciding how much harmless behavior to restrict is a political, not judicial, choice.​

• Justice Thomas (joined by Chief Justice Rehnquist and Justice Scalia)

  • Highlighted the severe harm gangs cause to residents and the long history of vagrancy and loitering laws in Anglo‑American law.​

  • Denied that “loitering for innocent purposes” is a deeply rooted fundamental right.​

  • Saw the ordinance as a traditional, legitimate way for police to keep the peace by ordering potentially dangerous groups to move along.​

Bottom line​

The Supreme Court held that Chicago’s Gang Congregation Ordinance violated the Fourteenth Amendment’s Due Process Clause because it was too vague: it did not clearly tell people what conduct was forbidden and gave police overly broad discretion to decide whom to order away and arrest. The Court stressed that cities can still target gangs, but they must do so with laws that are clearer and more narrowly focused