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CHICAGO V. MORALES (97-1121) 527 U.S. 41 (1999)
177 Ill. 2d 440, 687 N. E. 2d 53, affirmed.
Syllabus
 
Opinion
[ Stevens ]
Concurrence
[ Opinion of O’Connor ]
Concurrence
[ Kennedy ]
Concurrence
[ Opinion of Breyer ]
Dissent
[ Scalia ]
Dissent
[ Thomas ]
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Opinion of Breyer, J.

SUPREME COURT OF THE UNITED STATES


No. 97—1121

CITY OF CHICAGO, PETITIONER v.
JESUS MORALES et al.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ILLINOIS

[June 10, 1999]

    Justice Breyer, concurring in part and concurring in the judgment.

    The ordinance before us creates more than a “minor limitation upon the free state of nature.” Post, at 2 (Scalia, J., dissenting) (emphasis added). The law authorizes a police officer to order any person to remove himself from any “location open to the public, whether publicly or privately owned,” Chicago Municipal Code §8—4—015(c)(5) (1992). i.e., any sidewalk, front stoop, public park, public square, lakeside promenade, hotel, restaurant, bowling alley, bar, barbershop, sports arena, shopping mall, etc., but with two, and only two, limitations: First, that person must be accompanied by (or must himself be) someone police reasonably believe is a gang member. Second, that person must have remained in that public place “with no apparent purpose.” §8—4—015(c)(1).

    The first limitation cannot save the ordinance. Though it limits the number of persons subject to the law, it leaves many individuals, gang members and nongang members alike, subject to its strictures. Nor does it limit in any way the range of conduct that police may prohibit. The second limitation is, as Justice Stevens, ante at 18, and Justice O’Connor, ante at 2, point out, not a limitation at all. Since one always has some apparent purpose, the so-called limitation invites, in fact requires, the policeman to interpret the words “no apparent purpose” as meaning “no apparent purpose except for … .” And it is in the ordinance’s delegation to the policeman of open-ended discretion to fill in that blank that the problem lies. To grant to a policeman virtually standardless discretion to close off major portions of the city to an innocent person is, in my view, to create a major, not a “minor,” “limitation upon the free state of nature.”

    Nor does it violate “our rules governing facial
challenges,” post, at 2 (Scalia, J., dissenting), to forbid the city to apply the unconstitutional ordinance in this case. The reason why the ordinance is invalid explains how that is so. As I have said, I believe the ordinance violates the Constitution because it delegates too much discretion to a police officer to decide whom to order to move on, and in what circumstances. And I see no way to distinguish in the ordinance’s terms between one application of that discretion and another. The ordinance is unconstitutional, not because a policeman applied this discretion wisely or poorly in a particular case, but rather because the policeman enjoys 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 able validly to apply some other law to the defendants in light of their 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) statute that said, “It is a crime to do wrong,” even to the worst of murderers. See Lanzetta v. New Jersey, 306 U.S. 451, 453 (1939) (“If on its face the challenged provision is repugnant to the due process clause, specification of details of the offense intended to be charged would not serve to validate it”).

    Justice Scalia’s examples, post, at 10—11, reach a different conclusion because they assume a different basis for the law’s constitutional invalidity. A statute, for example, might not provide fair warning to many, but an individual defendant might still have been aware that it prohibited the conduct in which he engaged. Cf., e.g., Parker v. Levy, 417 U.S. 733, 756 (1974) (“[O]ne who has received fair warning of the criminality of his own conduct from the statute in question is [not] entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit. One to whose conduct a statute clearly applies may not successfully challenge it for vagueness”). But I believe this ordinance is unconstitutional, not because it provides insufficient notice, but because it does not provide “sufficient minimal standards to guide law enforcement officers.” See ante, at 2 (O’Connor, J., concurring in part and concurring in judgment).

    I concede that this case is unlike those First Amendment “overbreadth” cases in which this Court has permitted a facial challenge. In an overbreadth case, a defendant whose conduct clearly falls within the law and may be constitutionally prohibited can nonetheless have the law declared facially invalid to protect the rights of others (whose protected speech might otherwise be chilled). In the present case, the right that the defendants assert, the right to be free from the officer’s exercise of unchecked discretion, is more clearly their own.

    This case resembles Coates v. Cincinnati, 402 U.S. 611 (1971), where this Court declared facially unconstitutional on, among other grounds, the due process standard of vagueness an ordinance that prohibited persons assembled on a sidewalk from “conduct[ing] themselves in a manner annoying to persons passing by.” The Court explained:

    “It is said that the ordinance is broad enough to encompass many types of conduct clearly within the city’s constitutional power to prohibit. And so, indeed, it is. The city is free to prevent people from blocking sidewalks, obstructing traffic, littering streets, committing assaults, or engaging in countless other forms of antisocial conduct. It can do so through the enactment and enforcement of ordinances directed with reasonable specificity toward the conduct to be prohibited. . . . It cannot constitutionally do so through the enactment and enforcement of an ordinance whose violation may entirely depend upon whether or not a policeman is annoyed.” Id., at 614 (citation omitted).

The ordinance in Coates could not constitutionally be applied whether or not the conduct of the particular defendants was indisputably “annoying” or of a sort that a different, more specific ordinance could constitutionally prohibit. Similarly, here the city might have enacted a different ordinance, or the Illinois Supreme Court might have interpreted this ordinance differently. And the Constitution might well have permitted the city to apply that different ordinance (or this ordinance as interpreted differently) to circumstances like those present here. See ante, at 4 (O’Connor, J., concurring in part and concurring in judgment). But this ordinance, as I have said, cannot be constitutionally applied to anyone.