OCTOBER TERM, 1998

															Syllabus

															CITY OF CHICAGO v. MORALES ET AL.

															CERTIORARI TO THE SUPREME COURT OF ILLINOIS

															No.97-1121. Argued December 9, 1998-Decided June 10, 1999

															Chicago's Gang Congregation Ordinance prohibits "criminal street
gang members" from loitering in public places. Under the ordinance,
if a police officer observes a person whom he reasonably believes
to be a gang member loitering in a public place with one or more
persons, he shall order them to disperse. Anyone who does not
promptly obey such an order has violated the ordinance. The police
department's General Order 92-4 purports to limit officers'
enforcement discretion by confining arrest authority to designated
officers, establishing detailed criteria for defining street gangs
and membership therein, and providing for designated, but publicly
undisclosed, enforcement areas. Two trial judges upheld the
ordinance's constitutionality, but 11 others ruled it invalid. The
Illinois Appellate Court affirmed the latter cases and reversed the
convictions in the former. The State Supreme Court affirmed,
holding that the ordinance violates due process in that it is
impermissibly vague on its face and an arbitrary restriction on
personal liberties. Held: The judgment is affirmed.

															177 Ill. 2d 440, 687 N. E. 2d 53, affirmed.

															JUSTICE STEVENS delivered the opinion of the Court with respect
to Parts I, II, and V, concluding that the ordinance's broad sweep
violates the requirement that a legislature establish minimal
guidelines to govern law enforcement. Kolender v. Lawson, 461 U.
S. 352 , 358. The ordinance encompasses a great deal of harmless
behavior: In any public place in Chicago, persons in the company of
a gang member "shall" be ordered to disperse if their purpose is
not apparent to an officer. Moreover, the Illinois Supreme Court
interprets the ordinance's loitering definition-"to remain in
anyone place with no apparent purpose"-as giving officers absolute
discretion to determine what activities constitute loitering. See id., at 359. This Court has no authority to construe the
language of a state statute more narrowly than the State's highest
court. See Smiley v. Kansas, 196 U. S. 447 , 455. The
three features of the ordinance that, the city argues, limit the
officer's discretion-(l) it does not permit issuance of a dispersal
order to anyone who is moving along or who has an apparent purpose;
(2) it does not permit an arrest if individuals obey a dispersal
order; and (3) no order can issue unless the officer reasonably
believes that one of the loiterers is a gang mem- 42 Syllabus

															ber-are insufficient. Finally, the Illinois Supreme Court is
correct that General Order 92-4 is not a sufficient limitation on
police discretion. See Smith v. Goguen, 415 U. S. 566 , 575. Pp.
60-64.

															JUSTICE STEVENS, joined by JUSTICE SOUTER and JUSTICE GINSBURG,
concluded in Parts III, IV, and VI:

															1. It was not improper for the state courts to conclude that the
ordinance, which covers a significant amount of activity in
addition to the intimidating conduct that is its factual predicate,
is invalid on its face. An enactment may be attacked on its face as
impermissibly vague if, inter alia, it fails to establish
standards for the police and public that are sufficient to guard
against the arbitrary deprivation of liberty. Ko lender v. Lawson, 461 U. S., at 358. The freedom to loiter for
innocent purposes is part of such "liberty." See, e. g.,
Kent v. Dulles, 357 U. S. 116 , 126. The
ordinance's vagueness makes a facial challenge appropriate. This is
not an enactment that simply regulates business behavior and
contains a scienter requirement. See Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489 , 499. It is
a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U. S. 379 , 395, and
infringes on constitutionally protected rights, see id., at
391. Pp.51-56.

															2. Because the ordinance fails to give the ordinary citizen
adequate notice of what is forbidden and what is permitted, it is
impermissibly vague. See, e. g., Coates v. Cincinnati, 402 U. S. 611 , 614. The
term "loiter" may have a common and accepted meaning, but the
ordinance's definition of that term-"to remain in anyone place with
no apparent 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 had an "apparent purpose." This vagueness about
what loitering is covered and what is not dooms the ordinance. The
city's principal response to the adequate notice concern-that
loiterers are not subject to criminal sanction until after they
have disobeyed a dispersal orderis unpersuasive for at least two
reasons. First, the fair notice requirement's purpose is to enable
the ordinary citizen to conform his or her conduct to the law. See Lanzetta v. New Jersey, 306 U. S. 451 , 453. A
dispersal order, which is issued only after prohibited conduct has
occurred, cannot retroactively provide adequate notice of the
boundary between the permissible and the impermissible applications
of the ordinance. Second, the dispersal order's terms compound the
inadequacy of the notice afforded by the ordinance, which vaguely
requires that the officer "order all such persons to disperse and
remove themselves from the area," and thereby raises a host of
questions as to the duration and distinguishing features of the
loiterers' separation. Pp. 56-60. 43 JUSTICE O'CONNOR, joined by JUSTICE BREYER, concluded that, as
construed by the Illinois Supreme Court, the Chicago ordinance is
unconstitutionally vague because it lacks sufficient minimal
standards to guide law enforcement officers; in particular, it
fails to provide any standard by which police can judge whether an
individual has an "apparent purpose." This vagueness alone
provides a sufficient ground for affirming the judgment below, and
there is no need to consider the other issues briefed by the
parties and addressed by the plurality. It is important to courts
and legislatures alike to characterize more clearly the narrow
scope of the Court's holding. Chicago still has reasonable
alternatives to combat the very real threat posed by gang
intimidation and violence, including, e. g., adoption
of laws that directly prohibit the congregation of gang members to
intimidate residents, or the enforcement of existing laws with that
effect. Moreover, the ordinance could have been construed more
narrowly to avoid the vagueness problem, by, e. g., adopting limitations that restrict the ordinance's criminal
penalties to gang members or interpreting the term "apparent
purpose" narrowly and in light of the Chicago City Council's
findings. This Court, however, cannot impose a limiting
construction that a state supreme court has declined to adopt. See, e. g., Kolender v. Lawson, 461 U. S. 352 , 355-356,
n. 4. The Illinois Supreme Court misapplied this Court's
precedents, particularly Papachristou v. Jacksonville, 405 U. S. 156 , to the
extent it read them as requiring it to hold the ordinance
vague in all of its applications. Pp. 64-69.

															JUSTICE KENNEDY concluded that, as interpreted by the Illinois
Supreme Court, the Chicago ordinance unconstitutionally reaches a
broad range of innocent conduct, and, therefore, is not necessarily
saved by the requirement that the citizen disobey a dispersal order
before there is a violation. Although it can be assumed that
disobeying some police commands will subject a citizen to
prosecution whether or not the citizen knows why the order is
given, it does not follow that any unexplained police order must be
obeyed without notice of its lawfulness. The predicate of a
dispersal order is not sufficient to eliminate doubts regarding the
adequacy of notice under this ordinance. A citizen, while engaging
in a wide array of innocent conduct, is not likely to know when he
may be subject to such an order based on the officer's own
knowledge of the identity or affiliations of other persons with
whom the citizen is congregating; nor may the citizen be able to
assess what an officer might conceive to be the citizen's lack of
an apparent purpose. Pp. 69-70.

															JUSTICE BREYER concluded that the ordinance violates the
Constitution because it delegates too much discretion to the
police, and it is not saved by its limitations requiring that the
police reasonably believe that the person ordered to disperse (or
someone accompanying him) is a gang 44 Syllabus

															member, and that he remain in the public place "with no apparent
purpose." Nor does it violate this Court's usual rules governing
facial challenges to forbid the city to apply the unconstitutional
ordinance in this case. There is no way to distinguish in the
ordinance's terms between one application of unlimited police
discretion and another. It is unconstitutional, not because a
policeman applied his 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. See Lanzetta v. New
Jersey, 306 U. S.
451 , 453. Contrary to JUSTICE SCALIA'S suggestion, the
ordinance does not escape facial invalidation simply because it may
provide fair warning to some individual defendants that it
prohibits the conduct in which they are engaged. This ordinance is
unconstitutional, not because it provides insufficient notice, but
because it does not provide sufficient minimal standards to guide
the police. See Coates v. Cincinnati, 402 U. S. 611,
614. Pp. 70-73.

															STEVENS, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, and V, in
which O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined,
and an 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 and concurring in the judgment, in which BREYER,
J., joined, post, p. 64. KENNEDY, J., post, p. 69,
and BREYER, J., post, p. 70, filed opinions concurring in
part and concurring in the judgment. SCALIA, J., filed a dissenting
opinion, post, p. 73. THOMAS, J., filed a dissenting
opinion, in which REHNQUIST, C. J., and SCALIA, J., joined, post, p. 98. Lawrence Rosenthal argued the cause for petitioner.

															With him on the briefs were Brian L. Crowe, Benna Ruth Solomon,
Timothy W Joranko, and Julian N. Henriques, Jr. Harvey Grossman argued the cause for respondents.

															With him on the brief were Rita Fry, James H. Reddy, Richard J. O'Brien, Jr., Barbara O'Toole, and Steven R. Shapiro.
*

															*Briefs of amici curiae urging reversal were filed for
the United States by Solicitor General Waxman, Deputy Solicitor
General Underwood, and James A. Feldman; for the State
of Ohio et al. by Betty D. Montgomery, Attorney General of
Ohio, Jeffrey S. Sutton, State Solicitor, Robert C. Maier, and David M. Gormley, and by
the Attorneys General for their respective jurisdictions as
follows: William H. Pryor, Jr., of Alabama, 45 JUSTICE STEVENS announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts I, II, and
V, and an opinion with respect to Parts III, IV, and VI, in which
JUSTICE SOUTER and JUSTICE GINSBURG join.

															In 1992, the Chicago City Council enacted the Gang Congregation
Ordinance, which prohibits "criminal street gang

															Bruce M. Botelho of Alaska, Grant Woods of Arizona, Daniel E.
Lungren of California, Gale A. Norton of Colorado, John M. Bailey
of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of
Florida, Thurbert E. Baker of Georgia, James E. Ryan of Illinois,
Jeffrey A. Modisett of Indiana, Carla J. Stovall of Kansas,
A. B. Chandler III of Kentucky, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley
of Michigan, Hubert H. Humphrey III of Minnesota, Michael C. Moore
of Mississippi, Jeremiah W (Jay) Nixon of Missouri, Joseph P.
Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa
of Nevada, Dennis C. Vacco of New York, Michael F. Easley of North
Carolina, D. Michael Fisher of Pennsylvania, Carlos Lugo-Fiol of
Puerto Rico, Jeffrey B. Pine of Rhode Island, Charles M. Condon of
South Carolina, Mark Barnett of South Dakota, Jan Graham of Utah,
Julio A. Brady of the Virgin Islands, and Mark Q Earley of
Virginia; for the Center for the Community Interest by Richard K.
Willard and Roger L. Conner; for the Chicago Neighborhood
Organizations by Michele L. Odorizzi and Jeffrey W Sarles; for the
Los Angeles County District Attorney by Gil Garcetti pro se, and
Brent Dail Riggs; for the National District Attorneys Association
et al. by Kristin Linsley Myles, Daniel P. Collins, William L.
Murphy, and Wayne W Schmidt; for the Washington Legal Foundation et
al. by Daniel J. Popeo and Richard A. Samp; and for the U.
S. Conference of Mayors et al. by Richard Ruda, Miguel A. Estrada,
and Mark A. Perry.

															Briefs of amicus curiae urging affirmance were filed for
the Chicago Alliance for Neighborhood Safety et al. by Stephen J. Schulhofer and Randolph N
Stone; for the Illinois Attorneys for Criminal Justice by Robert Hirschhorn and Steven A. Greenberg; for the
National Association of Criminal Defense Lawyers by David M.
Porter; for the N ational Black Police Association et al. by Elaine R. Jones, Theodore M. Shaw, George H. Kendall, Laura E.
Hankins, Marc Q Beem, and Diane F. Klotnia; for
the National Law Center on Homelessness & Poverty et al. by Robert M. Bruskin; and for See Forever/the Maya Angelou
Public Charter School et al. by Louis R. Cohen, John Payton, and James Forman, Jr. 46 members" from "loitering" with one another or with other persons
in any public place. The question presented is whether the Supreme
Court of Illinois correctly held that the ordinance violates the
Due Process Clause of the Fourteenth Amendment to the Federal
Constitution.

															I

															Before the ordinance was adopted, the city council's Committee
on Police and Fire conducted hearings to explore the problems
created by the city's street gangs, and more particularly, the
consequences of public loitering by gang members. Witnesses
included residents of the neighborhoods where gang members are most
active, as well as some of the aldermen who represent those areas.
Based on that evidence, the council made a series of findings that
are included in the text of the ordinance and explain the reasons
for its enactment.1

															The council found that a continuing increase in criminal street
gang activity was largely responsible for the city's rising murder
rate, as well as an escalation of violent and drug related crimes.
It noted that in many neighborhoods throughout the city, "'the
burgeoning presence of street gang members in public places has
intimidated many law abiding citizens.'" 177 Ill. 2d 440, 445, 687
N. E. 2d 53, 58 (1997). Furthermore, the council stated that gang
members "'establish control over identifiable areas ... by
loitering in those areas and intimidating others from entering
those areas; and ... [m]embers of criminal street gangs avoid
arrest by committing no offense punishable under existing laws when
they know the police are present .... '" Ibid. It further
found that "'loitering in public places by

															1 The findings are quoted in full in the opinion of the Supreme
Court of Illinois. 177 Ill. 2d 440, 445, 687 N. E. 2d 53, 58
(1997). Some of the evidence supporting these findings is quoted in
JUSTICE THOMAS' dissenting opinion. Post, at 100-101. 47 criminal street gang members creates a justifiable fear for the
safety of persons and property in the area'" and that
"'[a]ggressive action is necessary to preserve the city's streets
and other public places so that the public may use such places
without fear.'" Moreover, the council concluded that the city "'has
an interest in discouraging all persons from loitering in public
places with criminal gang members.'" Ibid. The ordinance creates a criminal offense punishable by a fine of
up to $500, imprisonment for not more than six months, and a
requirement to perform up to 120 hours of community service.
Commission of the offense involves four predicates. First, the
police officer must reasonably believe that at least one of the two
or more persons present in a "'public place'" is a "'criminal
street gang membe[r].'" Second, the persons must be "'loitering,'"
which the ordinance defines as "'remain[ing] in anyone place with
no apparent purpose.'" Third, the officer must then order "'all'"
of the persons to disperse and remove themselves "'from the area.'"
Fourth, a person must disobey the officer's order. If any person,
whether a gang member or not, disobeys the officer's order, that
person is guilty of violating the ordinance. Ibid. 2

															2 The ordinance states in pertinent part:

															"(a) Whenever a police officer observes a person whom he
reasonably believes to be a criminal street gang member loitering
in any public place 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 promptly obey such an order is in violation
of this section.

															"(b) It shall be an affirmative defense to an alleged violation
of this section that no person who was observed loitering was in
fact a member of a criminal street gang.

															"(c) As used in this Section:

															"(1) 'Loiter' means to remain in anyone place with no apparent
purpose. "(2) 'Criminal street gang' means any ongoing
organization, association

															in fact or group of three or more persons, whether formal or
informal, having as one of its substantial activities the
commission of one or more of the criminal acts enumerated in
paragraph (3), and whose members 48 Two months after the ordinance was adopted, the Chicago Police
Department promulgated General Order 92-4 to provide guidelines to
govern its enforcement.3 That order purported to establish
limitations on the enforcement discretion of police officers "to
ensure that the anti-gang loitering ordinance is not enforced in an
arbitrary or discriminatory way." Chicago Police Department,
General Order 92-4, reprinted in App. to Pet. for Cert. 65a. The
limitations confine the authority to arrest gang members who
violate the ordinance to sworn "members of the Gang Crime Section"
and certain other designated officers,4 and establish detailed
criteria for defining street gangs and membership in such gangs. I d., at 66a-67a. In addition, the order directs district
commanders to "designate areas in which the presence of gang
members has a demonstrable effect on the activities of law abiding
persons in the surrounding community," and provides that the
ordinance "will be enforced only within the desig-

															individually or collectively engage in or have engaged in a
pattern of criminal gang activity.

															"(5) 'Public place' means the public way and any other location
open to the public, whether publicly or privately owned.

															"(e) Any person who violates this Section is subject to a fine
of not less than $100 and not more than $500 for each offense, or
imprisonment for not more than six months, or both.

															"In addition to or instead of the above penalties, any person
who violates this section may be required to perform up to 120
hours of community service pursuant to section 1-4-120 of this
Code." Chicago Municipal Code § 8-4-015 (added June 17, 1992),
reprinted in App. to Pet. for Cert. 61a-63a.

															3 As the Illinois Supreme Court noted, during the hearings
preceding the adoption of the ordinance, "representatives of the
Chicago law and police departments informed the city counsel that
any limitations on the discretion police have in enforcing the
ordinance would be best developed through police policy, rather
than placing such limitations into the ordinance itself." 177 Ill.
2d, at 446, 687 N. E. 2d, at 58-59.

															4 Presumably, these officers would also be able to arrest all
nongang members who violate the ordinance. 49 nated areas." Id., at 68a-69a. The city, however, does
not release the locations of these "designated areas" to the
public.5

															II

															During the three years of its enforcement,6 the police issued
over 89,000 dispersal orders and arrested over 42,000 people for
violating the ordinance.7 In the ensuing enforcement proceedings, 2
trial judges upheld the constitutionality of the ordinance, but 11
others ruled that it was invalid.8 In respondent Youkhana's case,
the trial judge held that the "ordinance fails to notify
individuals what conduct

															5 Tr. of Oral Arg. 22-23.

															6 The city began enforcing the ordinance on the effective date
of the general order in August 1992 and stopped enforcing it in
December 1995, when it was held invalid in Chicago v. Youkhana, 277 Ill. App. 3d 101, 660 N. E. 2d 34 (1995). Tr.
of Oral Arg. 43.

															7 Brief for Petitioner 16. There were 5,251 arrests under the
ordinance in 1993, 15,660 in 1994, and 22,056 in 1995. City of
Chicago, R. Daley & T. Hillard, Gang and Narcotic Related
Violent Crime: 1993-1997, p. 7 (June 1998).

															The city believes that the ordinance resulted in a significant
decline in gang-related homicides. It notes that in 1995, the last
year the ordinance was enforced, the gang-related homicide rate
fell by 26%. In 1996, after the ordinance had been held invalid,
the gang-related homicide rate rose 11 %. Pet. for Cert. 9, n. 5.
However, gang-related homicides fell by 19% in 1997, over a year
after the suspension of the ordinance. Daley & Hillard, at 5.
Given the myriad factors that influence levels of violence, it is
difficult to evaluate the probative value of this statistical
evidence, or to reach any firm conclusion about the ordinance's
efficacy. Cf. Harcourt, Reflecting on the Subject: A Critique of
the Social Influence Conception of Deterrence, the Broken Windows
Theory, and Order-Maintenance Policing New York Style, 97 Mich. L.
Rev. 291, 296 (1998) (describing the "hotly contested debate raging
among ... experts over the causes of the decline in crime in New
York City and nationally").

															8 See Poulos, Chicago's Ban on Gang Loitering: Making Sense of
Vagueness and Overbreadth in Loitering Laws, 83 Calif. L. Rev. 379,
384, n. 26 (1995). 50 is prohibited, and it encourages arbitrary and capricious
enforcement by police." 9

															The Illinois Appellate Court affirmed the trial court's ruling
in the Youkhana case,10 consolidated and affirmed other
pending appeals in accordance with Youkhana,l1 and reversed
the convictions of respondents Gutierrez, Morales, and others.12
The Appellate Court was persuaded that the ordinance impaired the
freedom of assembly of nongang members in violation of the First
Amendment to the Federal Constitution and Article I of the Illinois
Constitution, that it was unconstitutionally vague, that it
improperly criminalized status rather than conduct, and that it
jeopardized rights guaranteed under the Fourth Amendment.13

															The Illinois Supreme Court affirmed. It held "that the gang
loitering ordinance violates due process of law in that it is
impermissibly vague on its face and an arbitrary restriction on
personal liberties." 177 Ill. 2d, at 447, 687 N. E. 2d, at 59. The
court did not reach the contentions that the ordinance "creates a
status offense, permits arrests without probable cause or is
overbroad." Ibid. In support of its vagueness holding, the court pointed out that
the definition of "loitering" in the ordinance drew no distinction
between innocent conduct and conduct calculated 9 Chicago v. Youkhana, Nos. 93 MCI 293363 et al.
(Ill. Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert.
45a. The court also concluded that the ordinance improperly
authorized arrest on the basis of a person's status instead of
conduct and that it was facially overbroad under the First
Amendment to the Federal Constitution and Art. I, § 5, of the
Illinois Constitution. Id., at 59a. 10 Chicago v. Youkhana, 277 Ill. App. 3d 101, 660
N. E. 2d 34 (1995).

															11 Chicago v. Ramsey, Nos. 1-93-4125 et al. (Ill.
App., Dec. 29, 1995), App. to Pet. for Cert. 39a. 12 Chicago v. Morales, Nos. 1-93-4039 et al. (Ill.
App., Dec. 29, 1995), App. to Pet. for Cert. 37a. 13 Chicago v. Youkhana, 277 Ill. App. 3d, at 106,
660 N. E. 2d, at 38; id., at 112, 660 N. E. 2d, at 41; id., at 113, 660 N. E. 2d, at 42. 51 to cause harm.14 "Moreover, the definition of 'loiter' provided
by the ordinance does not assist in clearly articulating the
proscriptions of the ordinance." Id., at 451-452, 687 N. E.
2d, at 60-61. Furthermore, it concluded that the ordinance was "not
reasonably susceptible to a limiting construction which would
affirm its validity." 15

															We granted certiorari, 523 U. S. 1071 (1998), and now affirm.
Like the Illinois Supreme Court, we conclude that the ordinance
enacted by the city of Chicago is unconstitutionally vague.

															III

															The basic factual predicate for the city's ordinance is not in
dispute. As the city argues in its brief, "the very presence of a
large collection of obviously brazen, insistent, and lawless gang
members and hangers-on on the public ways intimidates residents,
who become afraid even to leave their homes and go about their
business. That, in turn, imperils community residents' sense of
safety and security, detracts from property values, and can
ultimately destabilize entire neighborhoods." 16 The findings in
the ordinance explain that it was motivated by these concerns. We
have no doubt

															14 "The ordinance defines 'loiter' to mean 'to remain in anyone
place with no apparent purpose.' Chicago Municipal Code §
8-4-015(c)(1) (added June 17, 1992). People with entirely
legitimate and lawful purposes will not always be able to make
their purposes apparent to an observing police officer. For
example, a person waiting to hail a taxi, resting on a corner
during a jog, or stepping into a doorway to evade a rain shower has
a perfectly legitimate purpose in all these scenarios; however,
that purpose will rarely be apparent to an observer." 177 Ill. 2d,
at 451452, 687 N. E. 2d, at 60-61.

															15 It stated: "Although the proscriptions of the ordinance are
vague, the city council's intent in its enactment is clear and
unambiguous. The city has declared gang members a public menace and
determined that gang members are too adept at avoiding arrest for
all the other crimes they commit. Accordingly, the city council
crafted an exceptionally broad ordinance which could be used to
sweep these intolerable and objectionable gang members from the
city streets." Id., at 458, 687 N. E. 2d, at 64.

															16 Brief for Petitioner 14. 52 Opinion of STEVENS, J.

															that a law that directly prohibited such intimidating conduct
would be constitutional,17 but this ordinance broadly covers a
significant amount of additional activity. Uncertainty about the
scope of that additional coverage provides the basis for
respondents' claim that the ordinance is too vague.

															We are confronted at the outset with the city's claim that it
was improper for the state courts to conclude that the ordinance is
invalid on its face. The city correctly points out that imprecise
laws can be attacked on their face under two different doctrines.18
First, the overbreadth doctrine permits the facial invalidation of
laws that inhibit the exercise of First Amendment rights if the
impermissible applications of the law are substantial when "judged
in relation to the statute's plainly legitimate sweep." Broadrick v. Okla homa, 413 U. S. 601 , 612-615
(1973). Second, even if an enactment does not reach a substantial
amount of constitutionally protected conduct, it may be
impermissibly vague because it fails to establish standards for the
police and public that are sufficient to guard against the
arbitrary deprivation of liberty interests. Kolender v. Lawson, 461 U.
S. 352 , 358 (1983).

															While we, like the Illinois courts, conclude that the ordinance
is invalid on its face, we do not rely on the overbreadth doctrine.
We agree with the city's submission that the law does not have a
sufficiently substantial impact on conduct

															17 In fact the city already has several laws that serve this
purpose. See, e. g., Ill. Compo Stat., ch. 720 §§
5/12-6 (1998) (intimidation); 570/405.2 (streetgang criminal drug
conspiracy); 147/1 et seq. (Illinois Streetgang Terrorism
Omnibus Prevention Act); 5/25-1 (mob action). Deputy Superintendent
Cooper, the only representative of the police department at the
Committee on Police and Fire hearing on the ordinance, testified
that, of the kinds of behavior people had discussed at the hearing,
"90 percent of those instances are actually criminal offenses where
people, in fact, can be arrested." Record, Appendix II to
plaintiff's Memorandum in Opposition to Motion to Dismiss 182 (Tr.
of Proceedings, Chicago City Council Committee on Police and Fire,
May 18, 1992).

															18 Brief for Petitioner 17. 53 protected by the First Amendment to render it unconstitutional.
The ordinance does not prohibit speech. Because the term "loiter"
is defined as remaining in one place "with no apparent purpose," it
is also clear that it does not prohibit any form of conduct that is
apparently intended to convey a message. By its terms, the
ordinance is inapplicable to assemblies that are designed to
demonstrate a group's support of, or opposition to, a particular
point of view. Cf. Clark v. Community for Creative
Non-Violence, 468
U. S. 288 (1984); Gregory v. Chicago, 394 U. S. 111 (1969). Its
impact on the social contact between gang members and others does
not impair the First Amendment "right of association" that our
cases have recognized. See Dallas v. Stanglin, 490 U.
S. 19, 23-25 (1989).

															On the other hand, as the United States recognizes, the freedom
to loiter for innocent purposes is part of the "liberty" protected
by the Due Process Clause of the Fourteenth Amendment. 19 We have
expressly identified this "right to remove from one place to
another according to inclination" as "an attribute of personal
liberty" protected by the Constitution. Williams v. Fears, 179 U.
S. 270 , 274 (1900); see also Papachristou v. Jacksonville, 405 U. S. 156 , 164
(1972).20

															19 See Brief for United States as Amicus Curiae 23: "We
do not doubt that, under the Due Process Clause, individuals in
this country have significant liberty interests in standing on
sidewalks and in other public places, and in traveling, moving, and
associating with others." The city appears to agree, at least to
the extent that such activities include "social gatherings." Brief
for Petitioner 21, n. 13. Both JUSTICE SCALIA, post, at
83-86 (dissenting opinion), and JUSTICE THOMAS, post, at
102-106 (dissenting opinion), not only disagree with this
proposition, but also incorrectly assume (as the city does not, see
Brief for Petitioner 44) that identification of an obvious liberty
interest that is impacted by a statute is equivalent to finding a
violation of substantive due process. See n. 35, infra. 20 Petitioner cites historical precedent against recognizing
what it describes as the "fundamental right to loiter." Brief for
Petitioner 12. While antiloitering ordinances have long existed in
this country, their pedigree does not ensure their
constitutionality. In 16th-century England, for example, the"
'Slavery acts'" provided for a 2-year enslavement period 54 Opinion of STEVENS, J.

															Indeed, it is apparent that an individual's decision to remain
in a public place of his choice is as much a part of his liberty as
the freedom of movement inside frontiers that is "a part of our
heritage" Kent v. Dulles, 357 U. S. 116 , 126
(1958), or the right to move "to whatsoever place one's own
inclination may direct" identified in Blackstone's Commentaries. 1
W. Blackstone, Commentaries on the Laws of England 130
(1765).21

															for anyone who '''liveth idly and loiteringly, by the space of
three days.''' Note, Homelessness in a Modern Urban Setting, 10
Ford. Urb. L. J. 749, 754, n. 17 (1982). In Papachristou we
noted that many American vagrancy laws were patterned on these
"Elizabethan poor laws." 405 U. S., at 161-162. These laws went
virtually unchallenged in this country until attorneys became
widely available to the indigent following our decision in Gideon v. Wainwright, 372 U. S. 335 (1963). See
Recent Developments, Constitutional Attacks on Vagrancy Laws, 20
Stan. L. Rev. 782, 783 (1968). In addition, vagrancy laws were used
after the Civil War to keep former slaves in a state of quasi
slavery. In 1865, for example, Alabama broadened its vagrancy
statute to include "'any runaway, stubborn servant or child'" and
"'a laborer or servant who loiters away his time, or refuses to
comply with any contract for a term of service without just
cause.''' T. Wilson, Black Codes of the South 76 (1965). The
Reconstruction-era vagrancy laws had especially harsh consequences
on African-American women and children. L. Kerber, No
Constitutional Right to be Ladies:

															Women and the Obligations of Citizenship 50-69 (1998). Neither
this history nor the scholarly compendia in JUSTICE THOMAS'
dissent, post, at 102-106, persuades us that the right to
engage in loitering that is entirely harmless in both purpose and
effect is not a part of the liberty protected by the Due Process
Clause.

															21 The freewheeling and hypothetical character of JUSTICE
SCALIA'S discussion of liberty is epitomized by his assumption that
citizens of Chicago, who were once "free to drive about the city"
at whatever speed they wished, were the ones who decided to limit
that freedom by adopting a speed limit. Post, at 73. History
tells quite a different story.

															In 1903, the Illinois Legislature passed "An Act to regulate the
speed of automobiles and other horseless conveyances upon the
public streets, roads, and highways of the state of Illinois." That
statute, with some exceptions, set a speed limit of 15 miles per
hour. See Christy v. Elliott, 216 Ill. 31, 74 N. E.
1035 (1905). In 1900, there were 1,698,575 citizens of Chicago, 1
Twelfth Census of the United States 430 (1900) (Table 6), but 55 There is no need, however, to decide whether the impact of the
Chicago ordinance on constitutionally protected liberty alone would
suffice to support a facial challenge under the overbreadth
doctrine. Cf. Aptheker v. Secretary of State, 378 U. S. 500 ,
515-517 (1964) (right to travel); Planned Parenthood of Central
Mo. v. Danforth, 428 U. S. 52 ,82-83 (1976)
(abortion); Kolender v. Lawson, 461 U. S., at 355, n.
3, 358-360, and n. 9. For it is clear that the vagueness of this
enactment makes a facial challenge appropriate. This is not an
ordinance that "simply regulates business behavior and contains a
scienter requirement." See Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U. S. 489 , 499
(1982). It is a criminal law that contains no mens rea requirement, see Colautti v. Franklin, 439 U. S. 379 , 395
(1979), and infringes on constitutionally protected rights, see id., at 391. When vagueness permeates the text of such a
law, it is subject to facial attack.22

															only 8,000 cars (both private and commercial) registered in the
entire United States. See Ward's Automotive Yearbook 230 (1990).
Even though the number of cars in the country had increased to
77,400 by 1905, ibid., it seems quite clear that it was
pedestrians, rather than drivers, who were primarily responsible
for Illinois' decision to impose a speed limit.

															22 The burden of the first portion of JUSTICE SCALIA'S dissent
is virtually a facial challenge to the facial challenge doctrine.
See post, at 74-83. He first lauds the "clarity of our
general jurisprudence" in the method for assessing facial
challenges and then states that the clear import of our cases is
that, in order to mount a successful facial challenge, a plaintiff
must "establish that no set of circumstances exists under which the
Act would be valid." See post, at 78-79 (emphasis deleted); United States v. Salerno, 481 U. S. 739 , 745
(1987). To the extent we have consistently articulated a clear
standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any
decision of this Court, including Salerno itself (even
though the defendants in that case did not claim that the statute
was unconstitutional as applied to them, see id., at 745, n.
3, the Court nevertheless entertained their facial challenge).
Since we, like the Illinois Supreme Court, conclude that vagueness
permeates the ordinance, a facial challenge is appropriate.

															We need not, however, resolve the viability of Salerno's dictum, because this case comes to us from a state-not a
federal-court. When asserting 56 Opinion of STEVENS, J.

															Vagueness may invalidate a criminal law for either of two
independent reasons. First, it may fail to provide the kind of
notice that will enable ordinary people to understand what conduct
it prohibits; second, it may authorize and even encourage arbitrary
and discriminatory enforcement. See Kolender v. Lawson, 461 U. S., at 357. Accordingly, we first consider
whether the ordinance provides fair notice to the citizen and then
discuss its potential for arbitrary enforcement.

															IV

															"It is established that a law fails to meet the requirements of
the Due Process Clause if it is so vague and standardless that it
leaves the public uncertain as to the conduct it prohibits .... " Giaccio v. Pennsylvania, 382 U. S. 399 , 402-403
(1966). The Illinois Supreme Court recognized that the term
"loiter" may have a common and accepted meaning, 177 Ill. 2d, at
451, 687 N. E. 2d, at 61, but the definition of that term in this
ordinance-"to remain in anyone place with no apparent purpose"-does
not. It is difficult to imagine how

															a facial challenge, a party seeks to vindicate not only his own
rights, but those of others who may also be adversely impacted by
the statute in question. In this sense, the threshold for facial
challenges is a species of third party (jus tertii) standing, which we have recognized as a prudential doctrine and not
one mandated by Article III of the Constitution. See Secretary
of State of Md. v. Joseph H. Munson Co., 467 U. S. 947 , 955
(1984). When a state court has reached the merits of a
constitutional claim, "invoking prudential limitations on [the
respondent's] assertion of jus tertii would serve no
functional purpose." City of Revere v. Massachusetts Gen.
Hospital, 463 U.
S. 239 , 243 (1983) (internal quotation marks omitted).

															Whether or not it would be appropriate for federal courts to
apply the Salerno standard in some cases-a proposition which
is doubtful-state courts need not apply prudential notions of
standing created by this Court. See ASARCO Inc. v. Kadish, 490 U.
S. 605 , 618 (1989). JUSTICE SCALIA'S assumption that state
courts must apply the restrictive Salerno test is incorrect
as a matter of law; moreover it contradicts "essential principles
of federalism." See Dorf, Facial Challenges to State and Federal
Statutes, 46 Stan. L. Rev. 235, 284 (1994). 57 any citizen of the city of Chicago standing in a public place
with a group of people would know if he or she had an "apparent
purpose." If she were talking to another person, would she have an
apparent purpose? If she were frequently checking her watch and
looking expectantly down the street, would she have an apparent
purpose? 23

															Since the city cannot conceivably have meant to criminalize each
instance a citizen stands in public with a gang member, the
vagueness that dooms this ordinance is not the product of
uncertainty about the normal meaning of "loitering," but rather
about what loitering is covered by the ordinance and what is not.
The Illinois Supreme Court emphasized the law's failure to
distinguish between innocent conduct and conduct threatening
harm.24 Its decision followed the precedent set by a number of
state courts that have upheld ordinances that criminalize loitering
combined with some other overt act or evidence of criminal
intent.25 However, state

															23 The Solicitor General, while supporting the city's argument
that the ordinance is constitutional, appears to recognize that the
ordinance cannot be read literally without invoking intractable
vagueness concerns. "[T]he purpose simply to stand on a corner
cannot be an 'apparent purpose' under the ordinance; if it were,
the ordinance would prohibit nothing at all." Brief for United
States as Amicus Curiae 12-13. 24177 Ill. 2d, at 452, 687 N. E. 2d, at 61. One of the trial
courts that invalidated the ordinance gave the following
illustration: "Suppose a group of gang members were playing
basketball in the park, while waiting for a drug delivery. Their
apparent purpose is that they are in the park to play ball. The
actual purpose is that they are waiting for drugs. Under this
definition of loitering, a group of people innocently sitting in a
park discussing their futures would be arrested, while the
'basketball players' awaiting a drug delivery would be left alone." Chicago v. Youkhana, Nos. 93 MCr 293363 et al. (Ill.
Cir. Ct., Cook Cty., Sept. 29, 1993), App. to Pet. for Cert.
48a-49a.

															25 See, e. g., Tacoma v. Luvene, 118 Wash. 2d 826,
827 P. 2d 1374 (1992) (upholding ordinance criminalizing loitering
with purpose to engage in drug-related activities); People v. Superior Court, 46 Cal. 3d 381,394-395, 758 P. 2d 1046,
1052 (1988) (upholding ordinance criminalizing loitering for the
purpose of engaging in or soliciting lewd act). 58 Opinion of STEVENS, J.

															courts have uniformly invalidated laws that do not join the term
"loitering" with a second specific element of the crime.26

															The city's principal response to this concern about adequate
notice is that loiterers are not subject to sanction until after
they have failed to comply with an officer's order to disperse.
"[W]hatever problem is created by a law that criminalizes conduct
people normally believe to be innocent is solved when persons
receive actual notice from a police order of what they are expected
to do." 27 We find this response unpersuasive for at least two
reasons.

															First, the purpose of the fair notice requirement is to enable
the ordinary citizen to conform his or her conduct to the law. "No
one may be required at peril of life, liberty or property to
speculate as to the meaning of penal statutes." Lanzetta v. New Jersey, 306 U. S. 451 , 453
(1939). Although it is true that a loiterer is not subject to
criminal sanctions unless he or she disobeys a dispersal order, the
loitering is the conduct that the ordinance is designed to
prohibit.28 If the loitering is in fact harmless and innocent, the
dispersal order itself is an unjustified impairment of liberty. If
the police are able to decide arbitrarily which members of the
public they will order to disperse, then the Chicago ordinance
becomes indistinguishable from the law we held invalid in Shuttlesworth v. Birmingham, 382 U. S. 87 , 90

															26 See, e. g., State v. Richard, 108
Nev. 626, 627, n. 2, 836 P. 2d 622, 623, n. 2 (1992) (striking down
statute that made it unlawful "for any person to loiter or prowl
upon the property of another without lawful business with the owner
or occupant thereof").

															27 Brief for Petitioner 31.

															28 In this way, the ordinance differs from the statute upheld in Colten v. Kentucky, 407 U. S. 104 , 110
(1972). There, we found that the illegality of the underlying
conduct was clear. "Any person who stands in a group of persons
along a highway where the police are investigating a traffic
violation and seeks to engage the attention of an officer issuing a
summons should understand that he could be convicted under ...
Kentucky's statute if he fails to obey an order to move on." Ibid. 59 (1965).29 Because an officer may issue an order only after
prohibited conduct has already occurred, it cannot provide the kind
of advance notice that will protect the putative loiterer from
being ordered to disperse. Such an order cannot retroactively give
adequate warning of the boundary between the permissible and the
impermissible applications of the law.30

															Second, the terms of the dispersal order compound the inadequacy
of the notice afforded by the ordinance. It provides that the
officer "shall order all such persons to disperse and remove
themselves from the area." App. to Pet. for Cert. 61a. This vague
phrasing raises a host of questions. After such an order issues,
how long must the loiterers remain apart? How far must they move?
If each loiterer walks around the block and they meet again at the
same location, are they subject to arrest or merely to being
ordered to disperse again? As we do here, we have found vagueness
in a criminal statute exacerbated by the use of the standards of
"neighborhood" and "locality." Connally v. General
Constr. Co., 269
U. S. 385 (1926). We remarked in Connally that "[b]oth
terms are elastic and, dependent upon circumstances, may be equally
satisfied by areas measured by rods or by miles." Id., at
395.

															Lack of clarity in the description of the loiterer's duty to
obey a dispersal order might not render the ordinance uncon-

															29 "Literally read ... this ordinance says that a person may
stand on a public sidewalk in Birmingham only at the whim of any
police officer of that city. The constitutional vice of so broad a
provision needs no demonstration." 382 U. S., at 90.

															30 As we have noted in a similar context: "If petitioners were
held guilty of violating the Georgia statute because they disobeyed
the officers, this case falls within the rule that a generally
worded statute which is construed to punish conduct which cannot
constitutionally be punished is unconstitutionally vague to the
extent that it fails to give adequate warning of the boundary
between the constitutionally permissible and constitutionally
impermissible applications of the statute." Wright v. Georgia, 373
U. S. 284 , 292 (1963). 60 stitutionally vague if the definition of the forbidden conduct
were clear, but it does buttress our conclusion that the entire
ordinance fails to give the ordinary citizen adequate notice of
what is forbidden and what is permitted. The Constitution does not
permit a legislature to "set a net large enough to catch all
possible offenders, and leave it to the courts to step inside and
say who could be rightfully detained, and who should be set at
large." United States v. Reese, 92 U. S. 214 , 221 (1876).
This ordinance is therefore vague "not in the sense that it
requires a person to conform his conduct to an imprecise but
comprehensible normative standard, but rather in the sense that no
standard of conduct is specified at all." Coates v. Cincinnati, 402 U. S. 611 , 614
(1971).

															v

															The broad sweep of the ordinance also violates "'the requirement
that a legislature establish minimal guidelines to govern law
enforcement.'" Kolender v. Lawson, 461 U. S., at 358.
There are no such guidelines in the ordinance. In any public place
in the city of Chicago, persons who stand or sit in the company of
a gang member may be ordered to disperse unless their purpose is
apparent. The mandatory language in the enactment directs the
police to issue an order without first making any inquiry about
their possible purposes. It matters not whether the reason that a
gang member and his father, for example, might loiter near Wrigley
Field is to rob an unsuspecting fan or just to get a glimpse of
Sammy So sa leaving the ballpark; in either event, if their purpose
is not apparent to a nearby police officer, she mayindeed, she
"shall" -order them to disperse.

															Recognizing that the ordinance does reach a substantial amount
of innocent conduct, we turn, then, to its language to determine if
it "necessarily entrusts lawmaking to the moment-to-moment judgment
of the policeman on his beat." Kolender v. Lawson, 461 U. S., at 360 (internal quotation marks omitted). As we
discussed in the context of fair no- 61 tice, see supra, at 56-60, the principal source of the
vast discretion conferred on the police in this case is the
definition of loitering as "to remain in anyone place with no
apparent purpose."

															As the Illinois Supreme Court interprets that definition, it
"provides absolute discretion to police officers to decide what
activities constitute loitering." 177 Ill. 2d, at 457, 687 N. E.
2d, at 63. We have no authority to construe the language of a state
statute more narrowly than the construction given by that State's
highest court.31 "The power to determine the meaning of a statute
carries with it the power to prescribe its extent and limitations
as well as the method by which they shall be determined." Smiley v. Kansas, 196 U. S. 447 , 455
(1905).

															Nevertheless, the city disputes the Illinois Supreme Court's
interpretation, arguing that the text of the ordinance limits the
officer's discretion in three ways. First, it does not permit the
officer to issue a dispersal order to anyone who is moving along or
who has an apparent purpose. Second, it does not permit an arrest
if individuals obey a dispersal order. Third, no order can issue
unless the officer reasonably believes that one of the loiterers is
a member of a criminal street gang.

															Even putting to one side our duty to defer to a state court's
construction of the scope of a local enactment, we find each of
these limitations insufficient. That the ordinance does not apply
to people who are moving-that is, to activity that would not
constitute loitering under any possible definition of the term-does
not even address the question of how much discretion the police
enjoy in deciding which stationary per-

															31 This critical fact distinguishes this case from Boos v. Barry, 485
U. S. 312 , 329-330 (1988). There, we noted that the text of the
relevant statute, read literally, may have been void for vagueness
both on notice and on discretionary enforcement grounds. We then
found, however, that the Court of Appeals had "provided a narrowing
construction that alleviates both of these difficulties." Ibid. 62 sons to disperse under the ordinance.32 Similarly, that the
ordinance does not permit an arrest until after a dispersal order
has been disobeyed does not provide any guidance to the officer
deciding whether such an order should issue. The "no apparent
purpose" standard for making that decision is inherently subjective
because its application depends on whether some purpose is
"apparent" to the officer on the scene.

															Presumably an officer would have discretion to treat some
purposes-perhaps a purpose to engage in idle conversation or simply
to enjoy a cool breeze on a warm evening-as too frivolous to be
apparent if he suspected a different ulterior motive. Moreover, an
officer conscious of the city council's reasons for enacting the
ordinance might well ignore its text and issue a dispersal order,
even though an illicit purpose is actually apparent.

															It is true, as the city argues, that the requirement that the
officer reasonably believe that a group of loiterers contains a
gang member does place a limit on the authority to order dispersal.
That limitation would no doubt be sufficient if the ordinance only
applied to loitering that had an apparently harmful purpose or
effect,33 or possibly if it only applied to loitering by persons
reasonably believed to be criminal gang members. But this
ordinance, for reasons that are not explained in the findings of
the city council, requires no harmful purpose and applies to
nongang members as well as suspected gang members.34 It applies to
everyone in the city

															32 It is possible to read the mandatory language of the
ordinance and conclude that it affords the police no discretion, since it speaks with the mandatory "shall." However,
not even the city makes this argument, which flies in the face of
common sense that all police officers must use some discretion in
deciding when and where to enforce city ordinances.

															33JUSTICE THOMAS' dissent overlooks the important distinction
between this ordinance and those that authorize the police "to
order groups of individuals who threaten the public peace to
disperse." See post, at 107.

															34 Not all of the respondents in this case, for example, are
gang members.

															The city admits that it was unable to prove that Morales is a
gang member but justifies his arrest and conviction by the fact
that Morales admitted 63 who may remain in one place with one suspected gang member as
long as their purpose is not apparent to an officer observing them.
Friends, relatives, teachers, counselors, or even total strangers
might unwittingly engage in forbidden loitering if they happen to
engage in idle conversation with a gang member.

															Ironically, the definition of loitering in the Chicago ordinance
not only extends its scope to encompass harmless conduct, but also
has the perverse consequence of excluding from its coverage much of
the intimidating conduct that motivated its enactment. As the city
council's findings demonstrate, the most harmful gang loitering is
motivated either by an apparent purpose to publicize the gang's
dominance of certain territory, thereby intimidating nonmembers, or
by an equally apparent purpose to conceal ongoing commerce in
illegal drugs. As the Illinois Supreme Court has not placed any
limiting construction on the language in the ordinance, we must
assume that the ordinance means what it says and that it has no
application to loiterers whose purpose is apparent. The relative
importance of its application to harmless loitering is magnified by
its inapplicability to loitering that has an obviously threatening
or illicit purpose.

															Finally, in its opinion striking down the ordinance, the
Illinois Supreme Court refused to accept the general order issued
by the police department as a sufficient limitation on the "vast
amount of discretion" granted to the police in its enforcement. We
agree. See Smith v. Goguen, 415 U. S. 566 ,575 (1974).
That the police have adopted internal rules limiting their
enforcement to certain designated areas in the city would not
provide a defense to a loiterer who might be arrested elsewhere.
Nor could a person who knowingly loitered with a well-known gang
member anywhere in the city

															"that he knew he was with criminal street gang members." Reply
Brief for Petitioner 23, n. 14. In fact, 34 of the 66 respondents
in this case were charged in a document that only accused them of
being in the presence of a gang member. Tr. of Oral Arg. 34,
58. 64 Opinion of O'CONNOR, J.

															safely assume that they would not be ordered to disperse no
matter how innocent and harmless their loitering might be.

															VI

															In our judgment, the Illinois Supreme Court correctly concluded
that the ordinance does not provide sufficiently specific limits on
the enforcement discretion of the police "to meet constitutional
standards for definiteness and clarity."35 177 Ill. 2d, at 459, 687
N. E. 2d, at 64. We recognize the serious and difficult problems
testified to by the citizens of Chicago that led to the enactment
of this ordinance. "We are mindful that the preservation of liberty
depends in part on the maintenance of social order." Houston v. Hill, 482 U. S. 451, 471-472 (1987). However, in this
instance the city has enacted an ordinance that affords too much
discretion to the police and too little notice to citizens who wish
to use the public streets.

															Accordingly, the judgment of the Supreme Court of Illinois
is

															Affirmed.

															JUSTICE O'CONNOR, with whom JUSTICE BREYER joins, concurring in
part and concurring in the judgment.

															I agree with the Court that Chicago's Gang Congregation
Ordinance, Chicago Municipal Code § 8-4-015 (1992) (gang loitering
ordinance or ordinance) is unconstitutionally vague. A penal law is
void for vagueness if it fails to "define the criminal offense with
sufficient definiteness that ordinary people can understand what
conduct is prohibited" or fails to

															35 This conclusion makes it unnecessary to reach the question
whether the Illinois Supreme Court correctly decided that the
ordinance is invalid as a deprivation of substantive due process.
For this reason, JUSTICE THOMAS, see post, at 102-106, and
JUSTICE SCALIA, see post, at 85-86, are mistaken when they
assert that our decision must be analyzed under the framework for
substantive due process set out in Washington v. Glucks berg, 521 U. S. 702 (1997). 65 establish guidelines to prevent "arbitrary and discriminatory
enforcement" of the law. Kolender v. Lawson, 461 U. S. 352 , 357
(1983). Of these, "the more important aspect of the vagueness
doctrine 'is ... the requirement that a legislature establish
minimal guidelines to govern law enforcement.''' Id., at 358
(quoting Smith v. Goguen, 415 U. S. 566 , 574-575
(1974)). I share JUSTICE THOMAS' concern about the consequences of
gang violence, and I agree that some degree of police discretion is
necessary to allow the police "to perform their peacekeeping
responsibilities satisfactorily." Post, at 109 (dissenting
opinion). A criminal law, however, must not permit policemen,
prosecutors, and juries to conduct "'a standardless sweep ... to
pursue their personal predilections.''' Kolender v. Lawson, supra, at 358 (quoting Smith v. Goguen,
supra, at 575).

															The ordinance at issue provides: "Whenever a police officer observes a person whom he reasonably
believes to be a criminal street gang member loitering in any
public place 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 promptly obey such an order is in violation of
this section." App. to Pet. for Cert. 61a. To "[l]oiter," in turn, is defined in the ordinance as "to
remain in anyone place with no apparent purpose." Ibid. The
Illinois Supreme Court declined to adopt a limiting construction of
the ordinance and concluded that the ordinance vested "absolute discretion to police officers." 177 Ill. 2d 440,
457, 687 N. E. 2d 53, 63 (1997) (emphasis added). This Court is
bound by the Illinois Supreme Court's construction of the
ordinance. See Terminiello v. Chicago, 337 U. S. 1 , 4 (1949).

															As it has been construed by the Illinois court, Chicago's gang
loitering ordinance is unconstitutionally vague because it lacks
sufficient minimal standards to guide law enforce- 66 Opinion of O'CONNOR, J.

															ment officers. In particular, it fails to provide police with
any standard by which they can judge whether an individual has an "apparent purpose." Indeed, because any person standing on
the street has a general "purpose"-even if it is simply to
stand-the ordinance permits police officers to choose which
purposes are permissible. Under this construction the police
do not have to decide that an individual is "threaten[ing] the
public peace" to issue a dispersal order. See post, at 107
(THOMAS, J., dissenting). Any police officer in Chicago is free,
under the Illinois Supreme Court's construction of the ordinance,
to order at his whim any person standing in a public place with a
suspected gang member to disperse. Further, as construed by the
Illinois court, the ordinance applies to hundreds of thousands of
persons who are not gang members, standing on any sidewalk
or in any park, coffee shop, bar, or "other location open to the
public, whether publicly or privately owned." Chicago Municipal
Code § 8-4-015(c)(5) (1992).

															To be sure, there is no violation of the ordinance unless a
person fails to obey promptly the order to disperse. But, a police
officer cannot issue a dispersal order until he decides that a
person is remaining in one place "with no apparent purpose," and
the ordinance provides no guidance to the officer on how to make
this antecedent decision. Moreover, the requirement that police
issue dispersal orders only when they "reasonably believ[e]" that a
group of loiterers includes a gang member fails to cure the
ordinance's vague aspects. If the ordinance applied only to persons
reasonably believed to be gang members, this requirement might have
cured the ordinance's vagueness because it would have directed the
manner in which the order was issued by specifying to whom the
order could be issued. Cf. ante, at 62. But, the Illinois
Supreme Court did not construe the ordinance to be so limited. See
177 Ill. 2d, at 453-454, 687 N. E. 2d, at 62.

															This vagueness consideration alone provides a sufficient ground
for affirming the Illinois court's decision, and I agree 67 with Part V of the Court's opinion, which discusses this
consideration. See ante, at 62 ("[T]hat the ordinance does
not permit an arrest until after a dispersal order has been
disobeyed does not provide any guidance to the officer deciding
whether such an order should issue"); ibid. ("It is true ...
that the requirement that the officer reasonably believe that a
group of loiterers contains a gang member does place a limit on the
authority to order dispersal. That limitation would no doubt be
sufficient if the ordinance only applied to loitering that had an
apparently harmful purpose or effect, or possibly if it only
applied to loitering by persons reasonably believed to be criminal
gang members"). Accordingly, there is no need to consider the other
issues briefed by the parties and addressed by the plurality. I
express no opinion about them.

															It is important to courts and legislatures alike that we
characterize more clearly the narrow scope of today's holding. As
the ordinance comes to this Court, it is unconstitutionally vague.
Nevertheless, there remain open to Chicago reasonable alternatives
to combat the very real threat posed by gang intimidation and
violence. For example, the Court properly and expressly
distinguishes the ordinance from laws that require loiterers to
have a "harmful purpose," see ibid., from laws that target
only gang members, see ibid., and from laws that incorporate
limits on the area and manner in which the laws may be enforced,
see ante, at 62-63. In addition, the ordinance here is
unlike a law that "directly prohibit[s]" the" 'presence of a large
collection of obviously brazen, insistent, and lawless gang members
and hangers-on on the public ways,'" that" 'intimidates
residents.'" Ante, at 51, 52 (quoting Brief for Petitioner
14). Indeed, as the plurality notes, the city of Chicago has
several laws that do exactly this. See ante, at 52, n. 17.
Chicago has even enacted a provision that "enables police officers
to fulfill ... their traditional functions," including "preserving
the public peace." See post, at 106 (THOMAS, J.,
dissenting). Specifi- 68 Opinion of O'CONNOR, J.

															cally, Chicago's general disorderly conduct provision allows the
police to arrest those who knowingly "provoke, make or aid in
making a breach of peace." See Chicago Municipal Code § 8-4-010
(1992).

															In my view, the gang loitering ordinance could have been
construed more narrowly. The term "loiter" might possibly be
construed in a more limited fashion to mean "to remain in anyone
place with no apparent purpose other than to establish control over
identifiable areas, to intimidate others from entering those areas,
or to conceal illegal activities." Such a definition would be
consistent with the Chicago City Council's findings and would avoid
the vagueness problems of the ordinance as construed by the
Illinois Supreme Court. See App. to Pet. for Cert. 60a-61a. As
noted above, so would limitations that restricted the ordinance's
criminal penalties to gang members or that more carefully
delineated the circumstances in which those penalties would apply
to nongang members.

															The Illinois Supreme Court did not choose to give a limiting
construction to Chicago's ordinance. To the extent it relied on our
precedents, particularly Papachristou v. Jacksonville, 405 U. S. 156 (1972), as requiring it to hold the ordinance vague in all of its
applications because it was intentionally drafted in a vague
manner, the Illinois court misapplied our precedents. See 177 Ill.
2d, at 458-459, 687 N. E. 2d, at 64. This Court has never held that
the intent of the drafters determines whether a law is vague.
Nevertheless, we cannot impose a limiting construction that a state
supreme court has declined to adopt. See Kolender v. Lawson, 461 U. S., at 355-356, n. 4 (noting that the Court
has held that "'[f]or the purpose of determining whether a state
statute is too vague and indefinite to constitute valid legislation
we must take the statute as though it read precisely as the highest
court of the State has interpreted it'" (citations and internal
quotation marks omitted)); New York 69 v. Ferber, 458 U. S. 747 , 769, n. 24
(1982) (noting that where the Court is "dealing with a state
statute on direct review of a state-court decision that has
construed the statute[,] [s]uch a construction is binding on us").
Accordingly, I join Parts I, II, and V of the Court's opinion and
concur in the judgment.

															JUSTICE KENNEDY, concurring in part and concurring in the
judgment.

															I join Parts I, II, and V of the Court's opinion and concur in
the judgment.

															I also share many of the concerns JUSTICE STEVENS expresses in
Part IV with respect to the sufficiency of notice under the
ordinance. As interpreted by the Illinois Supreme Court, the
Chicago ordinance would reach a broad range of innocent conduct.
For this reason it is not necessarily saved by the requirement that
the citizen must disobey a police order to disperse before there is
a violation.

															We have not often examined these types of orders. Cf. Shuttlesworth v. Birmingham, 382 U. S. 87 (1965). It
can be assumed, however, that some police commands will subject a
citizen to prosecution for disobeying whether or not the citizen
knows why the order is given. Illustrative examples include when
the police tell a pedestrian not to enter a building and the reason
is to avoid impeding a rescue team, or to protect a crime scene, or
to secure an area for the protection of a public official. It does
not follow, however, that any unexplained police order must be
obeyed without notice of the lawfulness of the order. The predicate
of an order to disperse is not, in my view, sufficient to eliminate
doubts regarding the adequacy of notice under this ordinance. A
citizen, while engaging in a wide array of innocent conduct, is not
likely to know when he may be subject to a dispersal order based on
the officer's own knowledge of the identity or affiliations of
other persons with whom the citizen is con- 70 Opinion of BREYER, J.

															gregating; nor may the citizen be able to assess what an officer
might conceive to be the citizen's lack of an apparent purpose.

															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 74
(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 the Court, ante, at 62, and JUSTICE O'CONNOR, ante, at 65-66
(opinion concurring in part and concurring in judgment), 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." 71 Nor does it violate "our rules governing facial challenges," post, at 74 (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 it could 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 81-83, 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. 72 Opinion of BREYER, J.

															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
65-66 (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). 73 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 67-68 (O'CONNOR, J., concurring in part and
concurring in judgment). But this ordinance, as I have said,
cannot be constitutionally applied to anyone.

															JUSTICE SCALIA, dissenting.

															The citizens of Chicago were once free to drive about the city
at whatever speed they wished. At some point Chicagoans (or perhaps
Illinoisans) decided this would not do, and imposed prophylactic
speed limits designed to assure safe operation by the average (or
perhaps even subaverage) driver with the average (or perhaps even
subaverage) vehicle. This infringed upon the "freedom" of all
citizens, but was not unconstitutional.

															Similarly, the citizens of Chicago were once free to stand
around and gawk at the scene of an accident. At some point
Chicagoans discovered that this obstructed traffic and caused more
accidents. They did not make the practice unlawful, but they did
authorize police officers to order the crowd to disperse, and
imposed penalties for refusal to obey such an order. Again, this
prophylactic measure infringed upon the "freedom" of all citizens,
but was not unconstitutional.

															Until the ordinance that is before us today was adopted, the
citizens of Chicago were free to stand about in public places with
no apparent purpose-to engage, that is, in conduct that appeared to
be loitering. In recent years, however, the city has been afflicted
with criminal street gangs. As reflected in the record before us,
these gangs congregated 74 in public places to deal in drugs, and to terrorize the
neighborhoods by demonstrating control over their "turf." Many
residents of the inner city felt that they were prisoners in their
own homes. Once again, Chicagoans decided that to eliminate the
problem it was worth restricting some of the freedom that they once
enjoyed. The means they took was similar to the second, and more
mild, example given above rather than the first: Loitering was not
made unlawful, but when a group of people occupied a public place
without an apparent purpose and in the company of a known gang
member, police officers were authorized to order them to disperse,
and the failure to obey such an order was made unlawful. See
Chicago Municipal Code § 8-4-015 (1992). The minor limitation upon
the free state of nature that this prophylactic arrangement imposed
upon all Chicagoans seemed to them (and it seems to me) a small
price to pay for liberation of their streets.

															The majority today invalidates this perfectly reasonable measure
by ignoring our rules governing facial challenges, by elevating
loitering to a constitutionally guaranteed right, and by discerning
vagueness where, according to our usual standards, none exists.

															I

															Respondents' consolidated appeal presents a facial challenge to
the Chicago ordinance on vagueness grounds. When a facial challenge
is successful, the law in question is declared to be unenforceable
in all its applications, and not just in its particular
application to the party in suit. To tell the truth, it is highly
questionable whether federal courts have any business making such a
declaration. The rationale for our power to review federal
legislation for constitutionality, expressed in Marbury v. Madison, 1 Cranch 137 (1803), was that we had to do
so in order to decide the case before us. But that rationale only
extends so far as to require us to determine that the statute is
unconstitutional as applied to this party, in the
circumstances of this case. 75 That limitation was fully grasped by Tocqueville, in his famous
chapter on the power of the judiciary in American society: "The second characteristic of judicial power is, that it
pronounces on special cases, and not upon general principles. If a
judge, in deciding a particular point, destroys a general principle
by passing a judgment which tends to reject all the inferences from
that principle, and consequently to annul it, he remains within the
ordinary limits of his functions. But if he directly attacks a
general principle without having a particular case in view, he
leaves the circle in which all nations have agreed to confine his
authority; he assumes a more important, and perhaps a more useful
influence, than that of the magistrate; but he ceases to represent
the judicial power. "Whenever a law which the judge holds to be unconstitutional is
invoked in a tribunal of the United States, he may refuse to admit
it as a rule .... But as soon as a judge has refused to apply any
given law in a case, that law immediately loses a portion of its
moral force. Those to whom it is prejudicial learn that means exist
of overcoming its authority; and similar suits are multiplied,
until it becomes powerless .... The political power which the
Americans have intrusted to their courts of justice is therefore
immense; but the evils of this power are considerably diminished by
the impossibility of attacking the laws except through the courts
of justice .... [W]hen a judge contests a law in an obscure debate
on some particular case, the importance of his attack is concealed
from public notice; his decision bears upon the interest of an
individual, and the law is slighted only incidentally. Moreover,
although it is censured, it is not abolished; its moral force may
be diminished, but its authority is not taken away; and its final
destruction can 76 be accomplished only by the reiterated attacks of judicial
functionaries." Democracy in America 73, 75-76 (R. Heffner ed.
1956). As Justice Sutherland described our system in his opinion for a
unanimous Court in Massachusetts v. Mellon, 262 U. S. 447 ,488
(1923): "We have no power per se to review and annul acts of
Congress on the ground that they are unconstitutional. That
question may be considered only when the justification for some
direct injury suffered or threatened, presenting a justiciable
issue, is made to rest upon such an act. Then the power exercised
is that of ascertaining and declaring the law applicable to the
controversy. It amounts to little more than the negative power to
disregard an unconstitutional enactment, which otherwise would
stand in the way of the enforcement of a legal right .... If a case
for preventive relief be presented the court enjoins, in effect,
not the execution of the statute, but the acts of the official, the
statute notwithstanding." And as Justice Brennan described our system in his opinion for a
unanimous Court in United States v. Raines, 362 U. S. 17 , 20-22
(1960): "The very foundation of the power of the federal courts to
declare Acts of Congress unconstitutional lies in the power and
duty of those courts to decide cases and controversies before them
.... This Court, as is the case with all federal courts, 'has no
jurisdiction to pronounce any statute, either of a State or of the
United States, void, because irreconcilable with the Constitution,
except as it is called upon to adjudge the legal rights of
litigants in actual controversies. In the exercise of that
jurisdiction, it is bound by two rules, to which it has rigidly
adhered, one, never to anticipate a question of constitutional law
in advance of the necessity of deciding it; the other never to
formulate a rule of 77 constitutional law broader than is required by the precise facts
to which it is to be applied.' ... Kindred to these rules is the
rule that one to whom application of a statute is constitutional
will not be heard to attack the statute on the ground that
impliedly it might also be taken as applying to other persons or
other situations in which its application might be
unconstitutional. ... The delicate power of pronouncing an Act of
Congress unconstitutional is not to be exercised with reference to
hypothetical cases thus imagined." It seems to me fundamentally incompatible with this system for
the Court not to be content to find that a statute is
unconstitutional as applied to the person before it, but to go
further and pronounce that the statute is unconstitutional in all applications. Its reasoning may well suggest as much,
but to pronounce a holding on that point seems to me no more
than an advisory opinion-which a federal court should never issue
at all, see Hayburn's Case, 2 Dall. 409 (1792), and especially should not issue with regard to a constitutional
question, as to which we seek to avoid even nonadvisory opinions,
see, e. g., Ashwander v. TVA, 297 U. S. 288 , 347 (1936)
(Brandeis, J., concurring). I think it quite improper, in short, to
ask the constitutional claimant before us: Do you just want us to
say that this statute cannot constitutionally be applied to you in
this case, or do you want to go for broke and try to get the
statute pronounced void in all its applications?

															I must acknowledge, however, that for some of the present
century we have done just this. But until recently, at least, we
have-except in free-speech cases subject to the doctrine of
overbreadth, see, e. g., New York v. Ferber, 458 U. S. 747 , 769-773
(1982)-required the facial challenge to be a go-forbroke
proposition. That is to say, before declaring a statute to be void
in all its applications (something we should not be doing in the
first place), we have at least imposed upon the litigant the
eminently reasonable requirement that he estab- 78 lish that the statute was unconstitutional in all its
applications. (I say that is an eminently reasonable requirement,
not only because we should not be holding a statute void in all its
applications unless it is unconstitutional in all its applications,
but also because unless it is unconstitutional in all its
applications we do not even know, without conducting an as-applied
analysis, whether it is void with regard to the very litigant before us-whose case, after all, was the occasion for
undertaking this inquiry in the first place.1)

															As we said in United States v. Salerno, 481 U. S. 739 , 745
(1987): "A facial challenge to a legislative Act is, of course, the most
difficult challenge to mount successfully, since the challenger
must establish that no set of circum- 1 In other words, a facial attack, since it requires
unconstitutionality in all circumstances, necessarily presumes that
the litigant presently before the court would be able to sustain an
as-applied challenge. See Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U. S. 489 , 495 (1982)
("A plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied
to the conduct of others. A court should therefore examine the
complainant's conduct before analyzing other hypothetical
applications of the law"); Parker v. Levy, 417 U. S. 733 , 756 (1974)
("One to whose conduct a statute clearly applies may not
successfully challenge it for vagueness").

															The plurality asserts that in United States v. Salerno, 481
U. S. 739 (1987), which I discuss in text immediately following
this footnote, the Court "entertained" a facial challenge even
though "the defendants ... did not claim that the statute was
unconstitutional as applied to them." Ante, at 55, n. 22.
That is not so. The Court made it absolutely clear in Salerno that a facial challenge requires the assertion that "no set of circumstances exists under which the Act would be
valid," 481 U. S., at 745 (emphasis added). The footnoted statement
upon which the plurality relies ("Nor have respondents claimed that
the Act is unconstitutional because of the way it was applied to
the particular facts of their case," id., at 745, n. 3) was
obviously meant to convey the fact that the defendants were not
making, in addition to their facial challenge, an
alternative as-applied challenge-i. e., asserting that even if the statute was not unconstitutional in all its applications it was at least unconstitutional in its
particular application to them. 79 stances exists under which the Act would be valid. The
fact that [a legislative Act] might operate unconstitutionally
under some conceivable set of circumstances is insufficient to
render it wholly invalid, since we have not recognized an
'overbreadth' doctrine outside the limited context of the First
Amendment." (Emphasis added.) 2 This proposition did not originate with Salerno, but had
been expressed in a line of prior opinions. See, e. g., Members
of City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 ,
796 (1984) (opinion for the Court by STEVENS, J.) (statute not
implicating First Amendment rights is invalid on its face if "it is
unconstitutional in every conceivable application"); Schall v. Martin, 467
U. S. 253 , 269, n. 18 (1984); Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489 , 494-495,
497 (1982); United States v. National Dairy Products
Corp., 372 U. S.
29 , 31-32 (1963); Raines, 362 U. S., at 21. And the
proposition has been reaffirmed in many cases and opinions since.
See, e. g., Anderson v. Edwards, 514 U. S. 143 , 155-156,
n. 6 (1995) (unanimous Court); Babbitt v. Sweet Home
Chapter, Communities for Great Ore., 515 U. S. 687 , 699 (1995)
(opinion for the Court by STEVENS, J.) (facial challenge asserts
that a challenged statute or regulation is invalid "in every
circumstance"); Reno v. Flores, 507 U. S. 292 , 301
(1993); Rust v. Sullivan, 2 Salerno, a criminal case, repudiated the Court's
statement in Kolender v. Lawson, 461 U. S. 352 , 359, n. 8
(1983), to the effect that a facial challenge to a criminal statute
could succeed "even when [the statute] could conceivably have had
some valid application." Kolender seems to have confused the
standard for First Amendment overbreadth challenges with the
standard governing facial challenges on all other grounds. See ibid. (citing the Court's articulation of the standard for First Amendment overbreadth challenges from Hoffman
Estates, supra, at 494). As Salerno noted, supra, at 745, the overbreadth doctrine is a specialized exception to the
general rule for facial challenges, justified in light of the risk
that an overbroad statute will chill free expression. See, e.
g., Broadrick v. Oklahoma, 413 U. S. 601 , 612
(1973). 80 500 U. S. 173 ,
183 (1991); Ohio v. Akron Center for Reproductive
Health, 497 U. S.
502 , 514 (1990) (opinion of KENNEDY, J.); Webster v. Reproductive Health Servs., 492 U. S. 490 , 523-524
(1989) (O'CONNOR, J., concurring in part and concurring in
judgment); New York State Club Assn., Inc. v. City of New
York, 487 U. S.
1 , 11-12 (1988).3 Unsurprisingly, given the clarity of our
general jurisprudence on this point, the Federal Courts of Appeals all apply the Salerno standard in adjudicating facial
challenges.4

															3 The plurality asserts that the Salerno standard for
facial challenge "has never been the decisive factor in any
decision of this Court." Ante, at 55, n. 22. It means by
that only this: in rejecting a facial challenge, the Court has
never contented itself with identifying only one situation
in which the challenged statute would be constitutional, but has
mentioned several. But that is not at all remarkable, and casts no
doubt upon the validity of the principle that Salerno and
these many other cases enunciated. It is difficult to conceive of a
statute that would be constitutional in only a single
application-and hard to resist mentioning more than one.

															The plurality contends that it does not matter whether
the Salerno standard is federal law, since facial challenge
is a species of third-party standing, and federal limitations upon
third-party standing do not apply in an appeal from a state
decision which takes a broader view, as the Illinois Supreme
Court's opinion did here. Ante, at 55-56, n. 22. This is
quite wrong. Disagreement over the Salerno rule is not a
disagreement over the "standing" question whether the person
challenging the statute can raise the rights of third
parties: under both Salerno and the plurality's rule he can. The disagreement relates to how many third-party
rights he must prove to be infringed by the statute before
he can win: Salerno says "all" (in addition to his own
rights), the plurality says "many." That is not a question of
standing but of substantive law. The notion that, if Salerno is the federal rule (a federal statute is not totally invalid
unless it is invalid in all its applications), it can be altered by a state court (a federal statute is totally
invalid if it is invalid in many of its applications), and
that that alteration must be accepted by the Supreme Court of the
United States is, to put it as gently as possible, remarkable.

															4 See, e. g., Abdullah v. Commissioner of Ins. of Commonwealth
of Mass., 84 F.3d
18 , 20 (CA1 1996); Deshawn E. v. Safir, 156
F.3d 340 , 347 (CA2 1998); Artway v. Attorney Gen. of State of
N. J., 81 F.3d
1235 , 1252, n. 13 (CA3 1996); Manning v. Hunt, 119 F.3d
254 , 268-269 (CA4 1997); Causeway Medical Suite v. Ieyoub, 109 F.3d
1096 , 1104 (CA5), cert. de- 81 I am aware, of course, that in some recent facial-challenge
cases the Court has, without any attempt at explanation, created
entirely irrational exceptions to the "unconstitutional in every
conceivable application" rule, when the statutes at issue concerned
hot-button social issues on which "informed opinion" was zealously
united. See Romer v. Evans, 517 U. S. 620, 643 (1996)
(SCALIA, J., dissenting) (homosexual rights); Planned 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 a "political correctness" exception-which, though
illogical, is at least predictable. It is not it la mode to
favor gang members and associated loiterers over the beleaguered
law-abiding residents of the inner city.

															When our normal criteria for facial challenges are applied, it
is clear that the Justices in the majority have transposed the
burden of proof. Instead of requiring respondents, who are
challenging the ordinance, to show that it is invalid in all its
applications, they have required petitioner to show that it is
valid in all its applications. Both the plurality opinion and the
concurrences display a lively imagination, creating hypothetical
situations in which the law's application would (in their view) be
ambiguous. But that creative role has been usurped from petitioner,
who can defeat respondents' facial challenge by conjuring up a
single valid application of the law. My contribution would go
something like this: 5 Tony, a member of the Jets criminal street
gang, is standing

															nied, 522 U. S. 943 (1997); Aronson v. Akron, 116 F.3d
804 , 809 (CA6 1997); Government Suppliers Consolidating
Servs., Inc. v. Bayh, 975 F.2d
1267 , 1283 (CA7 1992), cert. denied, 506 U. S. 1053
(1993); Woodis v. Westark Community College, 160 F.3d
435 , 438-439 (CA8 1998); Roulette v. Seattle, 97 F.3d
300 , 306 (CA9 1996); Public Lands Council v. Babbitt, 167 F. 3d 1287, 1293 (CAlO 1999); Dimmitt v. Clearwater, 985 F.2d
1565 , 15701571 (CAll 1993); Time Warner Entertainment
Co. v. FCC, 93 F.3d
957 , 972 (CADC 1996).

															5With apologies for taking creative license with the work of
Messrs.

															Bernstein, Sondheim, and Laurents. West Side Story, copyright
1959. 82 alongside and chatting with fellow gang members while staking
out their turf at Promontory Point on the South Side of Chicago;
the group is flashing gang signs and displaying their distinctive
tattoos to passersby. Officer Krupke, applying the ordinance at
issue here, orders the group to disperse. After some speculative
discussion (probably irrelevant here) over whether the Jets are
depraved because they are deprived, Tony and the other gang members
break off further conversation with the statement-not entirely
coherent, but evidently intended to be rude-"Gee, Officer Krupke,
krup you." A tense standoff ensues until Officer Krupke arrests the
group for failing to obey his dispersal order. Even assuming (as
the Justices in the majority do, but I do not) that a law requiring
obedience to a dispersal order is impermissibly vague unless it is
clear to the objects of the order, before its issuance, that their
conduct justifies it, I find it hard to believe that the Jets would
not have known they had it coming. That should settle the matter of
respondents' facial challenge to the ordinance's vagueness.

															Of course respondents would still be able to claim that the
ordinance was vague as applied to them. But the ultimate
demonstration of the inappropriateness of the Court's holding of facial invalidity is the fact that it is doubtful whether
some of these respondents could even sustain an as-applied challenge on the basis of the majority's own criteria. For
instance, respondent Jose Renteria-who admitted that he was a
member of the Satan Disciples gang-was observed by the arresting
officer loitering on a street corner with other gang members. The
officer issued a dispersal order, but when she returned to the same
corner 15 to 20 minutes later, Renteria was still there with his
friends, whereupon he was arrested. In another example, respondent
Daniel Washington and several others-who admitted they were members
of the Vice Lords gang-were observed by the arresting officer
loitering in the street, yelling at passing vehicles, stopping
traffic, and preventing pedestrians from using 83 the sidewalks. The arresting officer issued a dispersal order,
issued another dispersal order later when the group did not
move, and finally arrested the group when they were found loitering
in the same place still later. Finally, respondent Gregorio
Gutierrez-who had previously admitted to the arresting officer his
membership in the Latin Kings gang-was observed loitering with two
other men. The officer issued a dispersal order, drove around the
block, and arrested the men after finding them in the same place
upon his return. See Brief for Petitioner 7, n. 5; Brief for United
States as Amicus Curiae 16, n. 11. Even on the majority's
assumption that to avoid vagueness it must be clear to the object
of the dispersal order ex ante that his conduct is covered
by the ordinance, it seems most improbable that any of these
as-applied challenges would be sustained. Much less is it possible
to say that the ordinance is invalid in all its
applications.

															II

															The plurality's explanation for its departure from the usual
rule governing facial challenges is seemingly contained in the
following statement: "[This] is a criminal law that contains no mens rea requirement ... and infringes on
constitutionally protected rights .... When vagueness permeates the
text of such a law, it is subject to facial attack." Ante, at 55 (emphasis added). The proposition is set forth
with such assurance that one might suppose that it repeats some
well-accepted formula in our jurisprudence: (Criminal law without mens rea requirement) + (infringement of constitutionally
protected right) + (vagueness) = (entitlement to facial
invalidation). There is no such formula; the plurality has made it
up for this case, as the absence of any citation demonstrates.

															But no matter. None of the three factors that the plurality
relies upon exists anyway. I turn first to the support for the
proposition that there is a constitutionally protected right to
loiter-or, as the plurality more favorably describes 84 it, for a person to "remain in a public place of his choice." Ante, at 54. The plurality thinks much of this Fundamental
Freedom to Loiter, which it contrasts with such lesser,
constitutionally unprotected, activities as doing (ugh!) business: "This is not an ordinance that simply regulates business
behavior and contains a scienter requirement .... It is a criminal
law that contains no mens rea requirement ... and infringes
on constitutionally protected rights." Ante, at 55 (internal
quotation marks omitted). (Poor Alexander Hamilton, who has seen
his "commercial republic" devolve, in the eyes of the plurality, at
least, into an "indolent republic," see The Federalist No.6, p. 56;
No. 11, pp. 84-91 (C. Rossiter ed. 1961).)

															Of course every activity, even scratching one's head, can be
called a "constitutional right" if one means by that term nothing
more than the fact that the activity is covered (as all are) by the
Equal Protection Clause, so that those who engage in it cannot be
singled out without "rational basis." See FCC v. Beach
Communications, Inc., 508 U. S. 307 , 313
(1993). But using the term in that sense utterly impoverishes our
constitutional discourse. We would then need a new term for
those activities-such as political speech or religious worship-that
cannot be forbidden even with rational basis.

															The plurality tosses around the term "constitutional right" in
this renegade sense, because there is not the slightest evidence
for the existence of a genuine constitutional right to loiter.
JUSTICE THOMAS recounts the vast historical tradition of
criminalizing the activity. Post, at 102-106 (dissenting
opinion). It is simply not maintainable that the right to loiter
would have been regarded as an essential attribute of liberty at
the time of the framing or at the time of adoption of the
Fourteenth Amendment. For the plurality, however, the historical
practices of our people are nothing more than a speed bump on the
road to the "right" result. Its opinion blithely proclaims:
"Neither this history nor the scholarly 85 compendia in JUSTICE THOMAS' dissent, [ibid.,] persuades
us that the right to engage in loitering that is entirely harmless
in both purpose and effect is not a part of the liberty protected
by the Due Process Clause." Ante, at 54, n. 20. The entire
practice of using the Due Process Clause to add judicially favored
rights to the limitations upon democracy set forth in the Bill of
Rights (usually under the rubric of socalled "substantive due
process") is in my view judicial usurpation. But we have, recently
at least, sought to limit the damage by tethering the courts'
"right-making" power to an objective criterion. In Washington v. Glucksberg, 521 U. S. 702 , 720-721
(1997), we explained our "established method" of substantive due
process analysis: carefully and narrowly describing the asserted
right, and then examining whether that right is manifested in
"[o]ur Nation's history, legal traditions, and practices." See also Collins v. Harker Heights, 503 U. S. 115 , 125-126
(1992); Michael H. v. Gerald D., 491 U. S. 110,
122-123 (1989); Moore v. East Cleveland, 431 U. S. 494 , 502-503
(1977). The plurality opinion not only ignores this necessary
limitation, but it leaps far beyond any substantive-due-process
atrocity we have ever committed, by actually placing the burden of
proof upon the defendant to establish that loitering is not a "fundamental liberty." It never does marshal any support for the proposition that loitering is a
constitutional right, contenting itself with a (transparently
inadequate) explanation of why the historical record of laws
banning loitering does not positively contradict that
proposition,6 and the (transparently erroneous) assertion that the
city of Chicago appears to have conceded the

															6 The plurality's explanation for ignoring these laws is that
many of them carried severe penalties and, during the
Reconstruction era, they had "harsh consequences on
African-American women and children." Ante, at 54, n. 20.
Those severe penalties and those harsh consequences are certainly
regrettable, but they in no way lessen (indeed, the harshness of
penalty tends to increase) the capacity of these laws to prove that loitering was never regarded as a fundamental
liberty. 86 point.7 It is enough for the Members of the plurality that
"history ... [fails to] persuad[e] us that the right to engage in
loitering that is entirely harmless in both purpose and effect is not a part of the liberty protected by the Due Process
Clause," ante, at 54, n. 20 (emphasis added); they
apparently think it quite unnecessary for anything to persuade them
that it is.s

															It would be unfair, however, to criticize the plurality's failed
attempt to establish that loitering is a constitutionally

															7 Ante, at 53, n. 19. The plurality bases its assertion
of apparent concession upon a footnote in Part I of petitioner's
brief which reads: "Of course, laws regulating social gatherings
affect a liberty interest, and thus are subject to review under the
rubric of substantive due process .... We address that doctrine in
Part II below." Brief for Petitioner 21-22, n. 13. If a careless
reader were inclined to confuse the term "social gatherings" in
this passage with "loitering," his confusion would be eliminated by
pursuing the reference to Part II of the brief, which says, in its
introductory paragraph: "[A]s we explain below, substantive due
process does not support the court's novel holding that the
Constitution secures the right to stand still on the public way
even when one is not engaged in speech, assembly, or other conduct
that enjoys affirmative constitutional protection." Id., at
39.

															8 The plurality says, ante, at 64, n. 35, that since it
decides the case on the basis of procedural due process
rather than substantive due process, I am mistaken in
analyzing its opinion "under the framework for substantive due
process set out in Washington v. Glucksberg." Ibid. But I am not analyzing it under that framework. I am simply
assuming that when the plurality says (as an essential part of its
reasoning) that "the right to loiter for innocent purposes is ... a
part of the liberty protected by the Due Process Clause" it does
not believe that the same word ("liberty") means one thing for
purposes of substantive due process and something else for purposes
of procedural due process. There is no authority for that startling
proposition. See Board of Regents of State Colleges v. Roth, 408 U.
S. 564 , 572-575 (1972) (rejecting procedural-due-process claim
for lack of "liberty" interest, and citing substantive-due-process
cases).

															The plurality's opinion seeks to have it both ways, invoking the
Fourteenth Amendment's august protection of "liberty" in defining
the standard of certainty that it sets, but then, in identifying
the conduct protected by that high standard, ignoring our extensive
case law defining "liberty," and substituting, instead, all
"harmless and innocent" conduct, ante, at 58. 87 protected right while saying nothing of the concurrences. The
plurality at least makes an attempt. The concurrences, on the other
hand, make no pretense at attaching their broad "vagueness
invalidates" rule to a liberty interest. As far as appears from
JUSTICE O'CONNOR'S and JUSTICE BREYER'S opinions, no police
officer may issue any order, affecting any insignificant sort of citizen conduct (except, perhaps, an order
addressed to the unprotected class of "gang members") unless the
standards for the issuance of that order are precise. No modern
urban society-and probably none since London got big enough to have
sewers-could function under such a rule. There are innumerable
reasons why it may be important for a constable to tell a
pedestrian to "move on" -and even if it were possible to list in an
ordinance all of the reasons that are known, many are simply
unpredictable. Hence the (entirely reasonable) Rule of the city of
New York which reads: "No person shall fail, neglect or refuse to
comply with the lawful direction or command of any Police Officer,
Urban Park Ranger, Parks Enforcement Patrol Officer or other [Parks
and Recreation] Department employee, indicated verbally, by gesture
or otherwise." 56 RCNY § 1-03(c)(1) (1996). It is one thing to
uphold an "as-applied" challenge when a pedestrian disobeys such an
order that is unreasonable-or even when a pedestrian asserting some
true "liberty" interest (holding a political rally, for instance)
disobeys such an order that is reasonable but unexplained. But to say that such a general ordinance permitting "lawful orders"
is void in all its applications demands more than a safe and
orderly society can reasonably deliver.

															JUSTICE KENNEDY apparently recognizes this, since he
acknowledges that "some police commands will subject a citizen to
prosecution for disobeying whether or not the citizen knows why the
order is given," including, for example, an order "tell[ing] a
pedestrian not to enter a building" when the reason is "to avoid
impeding a rescue team." Ante, at 69 (opinion concurring in
part and concurring in judgment). 88 But his only explanation of why the present interference with
the "right to loiter" does not fall within that permitted scope of
action is as follows: "The predicate of an order to disperse is
not, in my view, sufficient to eliminate doubts regarding the
adequacy of notice under this ordinance." Ibid. I have not
the slightest idea what this means. But I do understand that
the followup explanatory sentence, showing how this principle
invalidates the present ordinance, applies equally to the
rescue-team example that JUSTICE KENNEDY thinks is
constitutional-as is demonstrated by substituting for references to
the facts of the present case (shown in italics) references to his
rescue-team hypothetical (shown in brackets): "A citizen, while
engaging in a wide array of innocent conduct, is not likely to know
when he may be subject to a dispersal order [order not to
enter a building] based on the officer's own knowledge of the
identity or affiliations of other persons with whom the citizen is
congregating [what is going on in the building]; nor may the
citizen be able to assess what an officer might conceive to be the citizen's lack of an apparent purpose [the impeding of a
rescue team]." Ante, at 69-70.

															III

															I turn next to that element of the plurality's facialchallenge
formula which consists of the proposition that this criminal
ordinance 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 supposed to be attached,
consists of. The majority believes that loitering forms part of
(indeed, the essence of) the offense, and must be proved if
conviction is to be obtained. See ante, at 47, 50-51, 53-55,
57-59, 60-61, 62-63 (plurality and majority opinions); ante, at 65,66,68 (O'CONNOR, J., concurring in part and concurring in
judgment); ante, at 69-70 (KENNEDY, J., concurring in part
and concurring in judgment); ante, at 72-73 (BREYER, J.,
concurring in part and concurring in judgment). That is not what
the ordinance provides. The 89 only part of the ordinance that refers to loitering is the
portion that addresses, not the punishable conduct of the
defendant, but what the police officer must observe before he can
issue an order to disperse; and what he must observe is carefully
defined in terms of what the defendant appears to be doing,
not in terms of what the defendant is actually doing. The
ordinance does not require that the defendant have been loitering
(i. e., have been remaining in one place with no purpose),
but rather that the police officer have observed him remaining in
one place without any apparent purpose. Someone who in fact has a genuine purpose for remaining where he is (waiting for
a friend, for example, or waiting to hold up a bank) can be
ordered to move on (assuming the other conditions of the ordinance
are met), so long as his remaining has no apparent purpose.
It is likely, to be sure, that the ordinance will come down most
heavily upon those who are actually loitering (those who really have no purpose in remaining where they are); but
that activity is not a condition for issuance of the dispersal
order.

															The only act of a defendant that is made punishable by
the ordinance-or, indeed, that is even mentioned by the
ordinance-is his failure to "promptly obey" an order to disperse.
The question, then, is whether that actus reus must be
accompanied by any wrongful intent-and of course it must. As the
Court itself describes the requirement, "a person must disobey the officer's order." Ante, at 47 (emphasis
added). No one thinks a defendant could be successfully prosecuted
under the ordinance if he did not hear the order to disperse, or if
he suffered a paralysis that rendered his compliance impossible.
The willful failure to obey a police order is wrongful intent
enough.

															IV

															Finally, I address the last of the three factors in the
plurality's facial-challenge formula: the proposition that the
ordinance is vague. It is not. Even under the ersatz over- 90 breadth standard applied in Kolender v. Lawson, 461 U. S. 352 ,
358, n. 8 (1983), which allows facial challenges if a law reaches
"a substantial amount of constitutionally protected conduct,"
respondents' claim fails because the ordinance would not be vague
in most or even a substantial number of applications. A law is
unconstitutionally vague if its lack of definitive standards either
(1) fails to apprise persons of ordinary intelligence of the
prohibited conduct, or (2) encourages arbitrary and discriminatory
enforcement. See, e. g., Grayned v. City of
Rockford, 408 U.
S. 104 , 108 (1972).

															The plurality relies primarily upon the first of these aspects.
Since, it reasons, "the loitering is the conduct that the ordinance
is designed to prohibit," and "an officer may issue an order only
after prohibited conduct has already occurred," ante, at 58,
59, the order to disperse cannot itself serve "to apprise persons
of ordinary intelligence of the prohibited conduct." What counts
for purposes of vagueness analysis, however, is not what the
ordinance is "designed to prohibit," but what it actually subjects
to criminal penalty. As discussed earlier, that consists of nothing
but the refusal to obey a dispersal order, as to which there is no
doubt of adequate notice of the prohibited conduct. The plurality's
suggestion that even the dispersal order itself is
unconstitutionally vague, because it does not specify how far to
disperse(!), see ante, at 59, scarcely requires a
response.9 If it were true, it would render unconstitutional for
vagueness many of the Presidential proclamations issued under that
provision of the United States Code which requires the Pres-

															9 I call it a "suggestion" because the plurality says only that
the terms of the dispersal order "compound the inadequacy of the
notice," and acknowledges that they "might not render the ordinance
unconstitutionally vague if the definition of the forbidden conduct
were clear." Ante, at 59, 59-60. This notion that a
prescription ("Disperse!") which is itself not unconstitutionally
vague can somehow contribute to the unconstitutional vagueness of
the entire scheme is full of mystery-suspending, as it does, the
metaphysical principle that nothing can confer what it does not
possess (nemo dat qui non habet). 91 ident, before using the militia or the Armed Forces for law
enforcement, to issue a proclamation ordering the insurgents to
disperse. See 10 U. S. C. § 334. President Eisenhower's
proclamation relating to the obstruction of court-ordered
enrollment of black students in public schools at Little Rock,
Arkansas, read as follows: "I ... command all persons engaged in
such obstruction of justice to cease and desist therefrom, and to
disperse forthwith." Presidential Proclamation No. 3204, 3 CFR 132
(1954-1958 Comp.). See also Presidential Proclamation No. 3645, 3
CFR 103 (1964-1965 Comp.) (ordering those obstructing the civil
rights march from Selma to Montgomery, Alabama, to "disperse ...
forthwith"). See also Boos v. Barry, 485 U. S. 312 , 331 (1988)
(rejecting overbreadth/vagueness challenge to a law allowing police
officers to order congregations near foreign embassies to
disperse); Cox v. Louisiana, 379 U. S. 536 , 551 (1965)
(rejecting vagueness challenge to the dispersal-order prong of a
breach-of-the-peace statute and describing that prong as "narrow
and specific").

															For its determination of unconstitutional vagueness, the Court
relies secondarily-and JUSTICE O'CONNOR'S and JusTICE BREYER'S
concurrences exclusively-upon the second aspect of that doctrine,
which requires sufficient specificity to prevent arbitrary and
discriminatory law enforcement. See ante, at 60 (majority
opinion); ante, at 65-66 (O'CONNOR, J., concurring in part
and concurring in judgment); ante, at 72 (BREYER, J.,
concurring in part and concurring in judgment). In discussing
whether Chicago's ordinance meets that requirement, the Justices in
the majority hide behind an artificial construct of judicial
restraint. They point to the Supreme Court of Illinois' statement
that the "apparent purpose" standard "provides absolute discretion
to police officers to decide what activities constitute loitering,"
177 Ill. 2d 440, 457, 687 N. E. 2d 53, 63 (1997), and protest that
it would be wrong to construe the language of the ordinance more
narrowly than did the State's highest court. Ante, at 92 61, 63 (majority opinion); ante, at 68 (O'CONNOR, J.,
concurring in part and concurring in judgment). The "absolute
discretion" statement, however, is nothing more than the Illinois
Supreme Court's characterization of what the language
achieved-after that court refused (as I do) to read in any
limitations that the words do not fairly contain. It is not a
construction of the language (to which we are bound) but a legal
conclusion (to which we most assuredly are not bound).

															The criteria for issuance of a dispersal order under the Chicago
ordinance could hardly be clearer. First, the law requires police
officers to "reasonably believ[e]" that one of the group to which
the order is issued is a "criminal street gang member." This
resembles a probable-cause standard, and the Chicago Police
Department's General Order 92-4 (1992)-promulgated to govern
enforcement of the ordinance-makes the probable-cause requirement
explicit.10 Under the Order, officers must have probable cause to
believe that an individual is a member of a criminal street gang,
to be substantiated by the officer's "experience and knowledge of
the alleged offenders" and by "specific, documented and reliable
information" such as reliable witness testimony or an individual's
admission of gang membership or display of distinctive colors,
tattoos, signs, or other markings worn by members of particular
criminal street gangs. App. to Pet. for Cert. 67a-69a, 71a-72a.

															Second, the ordinance requires that the group be "remain[ing] in
anyone place with no apparent purpose." JUSTICE O'CONNOR'S
assertion that this applies to "any person stand-

															10 "Administrative interpretation and implementation of a
regulation are ... highly relevant to our [vagueness] analysis, for
'[i]n evaluating a facial challenge to a state law, a federal court
must ... consider any limiting construction that a state court or enforcement agency has proffered.''' Ward v. Rock Against Racism, 491 U. S. 781 , 795-796
(1989) (emphasis added) (quoting Hoffman Estates, 455 U. S.,
at 494, n. 5). See also id., at 504 (administrative
regulations "will often suffice to clarify a standard with an
otherwise uncertain scope"). 93 ing in a public place," ante, at 66, is a distortion. The
ordinance does not apply to "standing," but to "remain[ing]"a term
which in this context obviously means "[to] endure or persist," see
American Heritage Dictionary 1525 (1992). There may be some
ambiguity at the margin, but "remain[ing] in one place" requires
more than a temporary stop, and is clear in most of its
applications, including all of those represented by the facts
surrounding respondents' arrests described supra, at
82-83.

															As for the phrase "with no apparent purpose": JUSTICE O'CONNOR
again distorts this adjectival phrase, by separating it from the
word that it modifies. "[A]ny person standing on the street," her
concurrence says, "has a general 'purpose'-even if it is simply to
stand," and thus "the ordinance permits police officers to choose
which purposes are permissible." Ante, at 66. But Chicago
police officers enforcing the ordinance are not looking for people
with no apparent purpose (who are regrettably in oversupply); they
are looking for people who "remain in anyone place with no apparent
purpose"-that is, who remain there without any apparent reason for remaining there. That is not difficult to perceiveY

															The Court's attempt to demonstrate the vagueness of the
ordinance produces the following peculiar statement: "The 'no
apparent purpose' standard for making [the decision to

															llJU8TICE BREYER asserts that "one always has some apparent
purpose," so that the policeman must "interpret the words 'no
apparent purpose' as meaning 'no apparent purpose except for ...
.''' Ante, at 70. It is simply not true that "one always has
some apparent purpose" -and especially not true that one always has
some apparent purpose in remaining at rest, for the simple reason
that one often (indeed, perhaps usually) has no actual purpose in remaining at rest. Remaining at rest will be a person's
normal state, unless he has a purpose which causes him to move.
That is why one frequently reads of a person's "wandering
aimlessly" (which is worthy of note) but not of a person's "sitting
aimlessly" (which is not remarkable at all). And that is why a
synonym for "purpose" is "motive": that which causes one to
move. 94 issue an order to disperse] is inherently subjective because its
application depends on whether some purpose is 'apparent' to the
officer on the scene." Ante, at 62. In the Court's view, a
person's lack of any purpose in staying in one location is
presumably an objective factor, and what the ordinance
requires as a condition of an order to dispersethe absence of any apparent purpose-is a subjective factor. This side of
the looking glass, just the opposite is true.

															Elsewhere, of course, the Court acknowledges the clear,
objective commands of the ordinance, and indeed relies upon them to
paint it as unfair: "In any public place in the city of Chicago, persons who stand
or sit in the company of a gang member may be ordered to disperse
unless their purpose is apparent. The mandatory language in the
enactment directs the police to issue an order without first making
any inquiry about their possible purposes. It matters not whether
the reason that a gang member and his father, for example, might
loiter near Wrigley Field is to rob an unsuspecting fan or just to
get a glimpse of Sammy So sa leaving the ballpark; in either event,
if their purpose is not apparent to a nearby police officer, she
may-indeed, she 'shall'-order them to disperse." Ante, at
60. Quite so. And the fact that this clear instruction to the
officers "reach[es] a substantial amount of innocent conduct," ibid., would be invalidating if that conduct were
constitutionally protected against abridgment, such as speech or
the practice of religion. Remaining in one place is not so
protected, and so (as already discussed) it is up to the citizens
of Chicago-not us-to decide whether the tradeoff is worth it.12

															12 The Court speculates that a police officer may exercise his
discretion to enforce the ordinance and direct dispersal when (in the Court's view) the ordinance is
inapplicable-viz., where there is an apparent purpose, but it is an
unlawful one. See ante, at 62. No one in his right mind 95 JUSTICE BREYER'S concurrence tries to perform the impossible
feat of affirming our unquestioned rule that a criminal statute
that is so vague as to give constitutionally inadequate notice to some violators may nonetheless be enforced against those
whose conduct is clearly covered, see ante, at 71-72, citing Parker v. Levy, 417 U. S. 733 (1974),
while at the same time asserting that a statute which "delegates
too much discretion to a police officer" is invalid in all its applications, even where the officer uses his discretion
"wisely," ante, at 71. But the vagueness that causes notice
to be inadequate is the very same vagueness that causes "too much
discretion" to be lodged in the enforcing officer. Put another way:
A law that gives the policeman clear guidance in all cases gives
the public clear guidance in all cases as well. Thus, what JUSTICE
BREYER gives with one hand, he takes away with the other. In his
view, vague statutes that nonetheless give adequate notice to some violators are not unenforceable against those violators
because of inadequate notice, but are unenforceable against
them "because the policeman enjoys too much discretion in every case," ibid. This is simply contrary to our
case law, including Parker v. Levy, supra. 13

															would read the phrase "without any apparent purpose" to mean
anything other than "without any apparent lawful purpose." The
implication that acts referred to approvingly in statutory language
are "lawful" acts is routine. The Court asserts that the Illinois
Supreme Court has forced it into this interpretive inanity because,
since it "has not placed any limiting construction on the language
in the ordinance, we must assume that the ordinance means what it
says .... " Ante, at 63. But the Illinois Supreme Court did
not mention this particular interpretive issue, which has nothing
to do with giving the ordinance a "limiting" interpretation, and
everything to do with giving it its ordinary legal meaning.

															13 The opinion that JUSTICE BREYER relies on, Coates v. Cincinnati, 402 U. S. 611 (1971), discussed ante, at
72-73, did not say that the ordinance there at issue gave adequate
notice but did not provide adequate standards for the police. It
invalidated that ordinance on both inadequatenotice and
inadequate-enforcement-standard grounds, because First
Amendment rights were implicated. It is common ground, however,
that 96 v

															The plurality points out that Chicago already has several laws
that reach the intimidating and unlawful gang-related conduct the
ordinance was directed at. See ante, at 52, n. 17. The
problem, of course, well recognized by Chicago's city council, is
that the gang members cease their intimidating and unlawful
behavior under the watchful eye of police officers, but return to
it as soon as the police drive away. The only solution, the council
concluded, was to clear the streets of congregations of gangs,
their drug customers, and their associates.

															JUSTICE O'CONNOR'S concurrence proffers the same empty solace of
existing laws useless for the purpose at hand, see ante, at
67, 67-68, but seeks to be helpful by suggesting some measures similar to this ordinance that would be
constitutional. It says that Chicago could, for example, enact a
law that "directly prohibit[s] the presence of a large collection
of obviously brazen, insistent, and lawless gang members and
hangers-on on the public ways, that intimidates residents." Ante, at 67 (internal quotation marks omitted). (If the
majority considers the present ordinance too vague, it would be fun
to see what it makes of "a large collection of obviously brazen,
insistent, and lawless gang members.") This prescription of the
concurrence is largely a quotation from the plurality-which itself
answers the concurrence's suggestion that such a law would be
helpful by pointing out that the city already "has several laws
that serve this purpose." Ante, at 52, n. 17 (plurality
opinion) (citing extant laws against "intimidation," "streetgang
criminal drug conspiracy," and "mob action"). The problem, again,
is that the intimidation and lawlessness do not occur when the
police are in sight.

															the present case does not implicate the First Amendment, see ante, at 52-53 (plurality opinion); ante, at 72
(BREYER, J., concurring in part and concurring in judgment). 97 JUSTICE O'CONNOR'S concurrence also proffers another cure: "If
the ordinance applied only to persons reasonably believed to be
gang members, this requirement might have cured the ordinance's
vagueness because it would have directed the manner in which the
order was issued by specifying to whom the order could be issued." Ante, at 66 (the Court agrees that this might be a cure, see ante, at 62). But the ordinance already specifies to whom
the order can be issued: persons remaining in one place with no
apparent purpose in the company of a gang member. And if
"remain[ing] in one place with no apparent purpose" is so vague as
to give the police unbridled discretion in controlling the conduct
of nongang members, it surpasses understanding how it ceases to be
so vague when applied to gang members alone. Surely gang
members cannot be decreed to be outlaws, subject to the merest whim
of the police as the rest of us are not.

															***

															The fact is that the present ordinance is entirely clear in its
application, cannot be violated except with full knowledge and
intent, and vests no more discretion in the police than innumerable
other measures authorizing police orders to preserve the public
peace and safety. As suggested by their tortured analyses, and by
their suggested solutions that bear no relation to the identified
constitutional problem, the majority's real quarrel with the
Chicago ordinance is simply that it permits (or indeed requires)
too much harmless conduct by innocent citizens to be proscribed. As
JUSTICE O'CONNOR'S concurrence says with disapprobation, "the
ordinance applies to hundreds of thousands of persons who are not gang members, standing on any sidewalk or in any park,
coffee shop, bar, or other location open to the public." Ante, at 66 (internal quotation marks omitted).

															But in our democratic system, how much harmless conduct to
proscribe is not a judgment to be made by the courts. So long as
constitutionally guaranteed rights are not affected, 98 and so long as the proscription has a rational basis, all
sorts of perfectly harmless activity by millions of perfectly
innocent people can be forbidden-riding a motorcycle without a
safety helmet, for example, starting a campfire in a national
forest, or selling a safe and effective drug not yet approved by
the Food and Drug Administration. All of these acts are entirely
innocent and harmless in themselves, but because of the risk of harm that they entail, the freedom to engage in them has been
abridged. The citizens of Chicago have decided that depriving
themselves of the freedom to "hang out" with a gang member is
necessary to eliminate pervasive gang crime and intimidation-and
that the elimination of the one is worth the deprivation of the
other. This Court has no business second-guessing either the degree
of necessity or the fairness of the trade.

															I dissent from the judgment of the Court.

															JUSTICE THOMAS, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join, dissenting.

															The duly elected members of the Chicago City Council enacted the
ordinance at issue as part of a larger effort to prevent gangs from
establishing dominion over the public streets. By invalidating
Chicago's ordinance, I fear that the Court has unnecessarily
sentenced law-abiding citizens to lives of terror and misery. The
ordinance is not vague. "[A]ny fool would know that a particular
category of conduct would be within [its] reach." Kolender v. Lawson, 461
U. S. 352 , 370 (1983) (White, J., dissenting). Nor does it
violate the Due Process Clause. The asserted "freedom to loiter for
innocent purposes," ante, at 53 (plurality opinion), is in
no way" 'deeply rooted in this Nation's history and tradition,'" Washington v. Glucksberg, 521 U. S. 702 , 721 (1997)
(citation omitted). I dissent.

															I

															The human costs exacted by criminal street gangs are
inestimable. In many of our Nation's cities, gangs have "[v]ir- 99 tually overtak[en] certain neighborhoods, contributing to the
economic and social decline of these areas and causing fear and
lifestyle changes among law-abiding residents." U. S. Dept. of
Justice, Office of Justice Programs, Bureau of Justice Assistance,
Monograph: Urban Street Gang Enforcement 3 (1997). Gangs fill the
daily lives of many of our poorest and most vulnerable citizens
with a terror that the Court does not give sufficient
consideration, often relegating them to the status of prisoners in
their own homes. See U. S. Dept. of Justice, Attorney General's
Report to the President, Coordinated Approach to the Challenge of
Gang Violence: A Progress Report 1 (Apr. 1996) ("From the small
business owner who is literally crippled because he refuses to pay
'protection' money to the neighborhood gang, to the families who
are hostages within their homes, living in neighborhoods ruled by
predatory drug trafficking gangs, the harmful impact of gang
violence ... is both physically and psychologically
debilitating").

															The city of Chicago has suffered the devastation wrought by this
national tragedy. Last year, in an effort to curb plummeting
attendance, the Chicago Public Schools hired dozens of adults to
escort children to school. The youngsters had become too terrified
of gang violence to leave their homes alone. Martinez, Parents Paid
to Walk Line Between Gangs and School, Chicago Tribune, Jan. 21,
1998, p. 1. The children's fears were not unfounded. In 1996, the
Chicago Police Department estimated that there were 132 criminal
street gangs in the city. Illinois Criminal Justice Information
Authority, Research Bulletin: Street Gangs and Crime 4 (Sept.
1996). Between 1987 and 1994, these gangs were involved in 63,141
criminal incidents, including 21,689 nonlethal violent crimes and
894 homicides. Id., at 4-5.1 Many

															1 In 1996 alone, gangs were involved in 225 homicides, which was
28 percent of the total homicides committed in the city. Chicago
Police Department, Gang and Narcotic Related Violent Crime, City of
Chicago: 1993-1997 (June 1998). Nationwide, law enforcement
officials estimate 100 of these criminal incidents and homicides result from gang "turf
battles," which take place on the public streets and place innocent
residents in grave danger. See U. S. Dept. of Justice, Office of
Justice Programs, National Institute of Justice, Research in brief,
C. Block & R. Block, Street Gang Crime in Chicago 1 (Dec.
1993); U. S. Dept. of Justice, Office of Juvenile Justice and
Delinquency Prevention, Juvenile Justice Journal, J. Howell, Youth
Gang Drug Trafficking and Homicide: Policy and Program Implications
(Dec. 1997); see also Testimony of Steven R. Wiley, Chief, Violent
Crimes and Major Offenders Section, FBI, Hearing on S. 54 before
the Senate Committee on the Judiciary, 105th Cong., 1st Sess., 13
(1997) ("While street gangs may specialize in entrepreneurial
activities like drug-dealing, their gang-related lethal violence is
more likely to grow out of turf conflicts").

															Before enacting its ordinance, the Chicago City Council held
extensive hearings on the problems of gang loitering. Concerned
citizens appeared to testify poignantly as to how gangs disrupt
their daily lives. Ordinary citizens like Ms. D'Ivory Gordon
explained that she struggled just to walk to work: "When I walk out my door, these guys are out there .... "They watch you .... They know where you live. They know what time you leave, what time you come home. I am
afraid of them. I have even come to the point now that I carry a
meat cleaver to work with me ... . " ... I don't want to hurt
anyone, and I don't want to be hurt. We need to clean these corners
up. Clean these communities up and take it back from them."
Transcript of Proceedings before the City Council of that as many as 31,000 street gangs, with 846,000 members,
exist. U. S. Dept. of Justice, Office of Justice Programs,
Highlights of the 1996 National Youth Gang Survey (OJJDP Fact
Sheet, No. 86, Nov. 1998). 101 Chicago, Committee on Police and Fire 66-67 (May 15, 1992)
(hereinafter Transcript). Eighty-eight-year-old Susan Mary Jackson echoed her sentiments,
testifying: "We used to have a nice neighborhood. We don't have it
anymore .... I am scared to go out in the daytime .... [Y]ou can't
pass because they are standing. I am afraid to go to the store. I
don't go to the store because I am afraid. At my age if they look
at me real hard, I be ready to holler." Id., at 93-95.
Another long-time resident testified: "I have never had the terror that I feel everyday when I walk
down the streets of Chicago .... "I have had my windows broken out. I have had guns pulled on me.
I have been threatened. I get intimidated on a daily basis, and
it's come to the point where I say, well, do I go out today. Do I
put my ax in my briefcase. Do I walk around dressed like a bum so I
am not looking rich or got any money or anything like that." Id., at 124-125. Following these hearings, the council found that "criminal
street gangs establish control over identifiable areas ... by
loitering in those areas and intimidating others from entering
those areas." App. to Pet. for Cert. 60a. It further found that the
mere presence of gang members "intimidate[s] many law abiding
citizens" and "creates a justifiable fear for the safety of persons
and property in the area." Ibid. It is the product of this
democratic process-the council's attempt to address these social
ills-that we are asked to pass judgment upon today.

															II

															As part of its ongoing effort to curb the deleterious effects of
criminal street gangs, the citizens of Chicago sensibly decided to
return to basics. The ordinance does nothing more than confirm the
well-established principle that the police 102 have the duty and the power to maintain the public peace, and,
when necessary, to disperse groups of individuals who threaten it.
The plurality, however, concludes that the city's commonsense
effort to combat gang loitering fails constitutional scrutiny for
two separate reasons-because it infringes upon gang members'
constitutional right to "loiter for innocent purposes," ante, at 53, and because it is vague on its face, ante, at 55. A majority of the Court endorses the latter
conclusion. I respectfully disagree.

															A

															We recently reconfirmed that "[o]ur Nation's history, legal
traditions, and practices ... provide the crucial 'guideposts for
responsible decisionmaking' ... that direct and restrain our
exposition of the Due Process Clause." Glucksberg, 521 U.
S., at 721 (quoting Moore v. East Cleveland, 431 U. S. 494 , 503 (1977)
(plurality opinion)). Only laws that infringe "those fundamental
rights and liberties which are, objectively, 'deeply rooted in this
Nation's history and tradition'" offend the Due Process Clause. Glucksberg, supra, at 720-721.

															The plurality asserts that "the freedom to loiter for innocent
purposes is part of the 'liberty' protected by the Due Process
Clause of the Fourteenth Amendment." Ante, at 53. Yet it
acknowledges-as it must-that "antiloitering ordinances have long
existed in this country." Ante, at 53, n. 20; see also 177
Ill. 2d 440, 450, 687 N. E. 2d 53, 60 (1997) (case below)
("Loitering and vagrancy statutes have been utilized throughout
American history in an attempt to prevent crime by removing
'undesirable persons' from public before they have the opportunity
to engage in criminal activity"). In derogation of the framework we
articulated only two Terms ago in Glucksberg, the plurality
asserts that this history fails to "persuad[e] us that the right to
engage in loitering that is entirely harmless ... is not a part of
the liberty protected by the Due Process Clause." Ante, at
54, 103 n. 20. Apparently, the plurality believes it sufficient to rest
on the proposition that antiloitering laws represent an
anachronistic throwback to an earlier, less sophisticated, era. For
example, it expresses concern that some anti vagrancy laws carried
the penalty of slavery. Ibid. But this fact is irrelevant to
our analysis of whether there is a constitutional right to loiter
for innocent purposes. This case does not involve an antiloitering
law carrying the penalty of slavery. The law at issue in this case
criminalizes the failure to obey a police officer's order to
disperse and imposes modest penalties, such as a fine of up to $500
and a prison sentence of up to six months.

															The plurality's sweeping conclusion that this ordinance
infringes upon a liberty interest protected by the Fourteenth
Amendment's Due Process Clause withers when exposed to the relevant
history: Laws prohibiting loitering and vagrancy have been a
fixture of Anglo-American law at least since the time of the Norman
Conquest. See generally C. Ribton-Turner, A History of Vagrants and
Vagrancy and Beggars and Begging (reprint 1972) (discussing history
of English vagrancy laws); see also Papachristou v. Jackson ville, 405 U. S. 156 , 161-162
(1972) (recounting history of vagrancy laws). The American
colonists enacted laws modeled upon the English vagrancy laws, and
at the time of the founding, state and local governments
customarily criminalized loitering and other forms of vagrancy.2
Vagrancy laws

															2 See, e. g., Act for the Restraint of idle and
disorderly Persons (1784) (reprinted in 2 First Laws of the State
of North Carolina 508-509 (J. Cushing compo 1984)); Act for
restraining, correcting, suppressing and punishing Rogues,
Vagabonds, common Beggars, and other lewd, idle, dissolute, profane
and disorderly Persons; and for setting them to work (reprinted in
First Laws of the State of Connecticut 206-210 (J. Cushing compo
1982)); Act for suppressing and punishing of Rogues, Vagabonds,
common Beggars and other idle, disorderly and lewd persons (1788)
(reprinted in First Laws of the Commonwealth of Massachusetts
347-349 (J. Cushing compo 1981)); Act for better securing the
payment of levies and restraint of vagrants, and for making
provisions for the poor (1776) 104 were common in the decades preceding the ratification of the
Fourteenth Amendment,3 and remained on the books long after.4

															(reprinted in First Laws of the State of Virginia 44-45 (J.
Cushing compo 1982)); Act for the better ordering of the Police of
the Town of Providence, of the Work-House in said Town (1796)
(reprinted in 2 First Laws of the State of Rhode Island 362-367 (J.
Cushing compo 1983)); Act for the Promotion of Industry, and for
the Suppression of Vagrants and Other Idle and Disorderly Persons
(1787) (reprinted in First Laws of the State of South Carolina,
Part 2, 431-433 (J. Cushing compo 1981)); An act for the punishment
of vagabond and other idle and disorderly persons (1764) (reprinted
in First Laws of the State of Georgia 431-433 (J. Cushing compo
1981)); Laws of the Colony of New York 4, ch. 1021 (1756); 1 Laws
of the Commonwealth of Pennsylvania, ch. DLV (1767) (An Act to
prevent the mischiefs arising from the increase of vagabonds, and
other idle and disorderly persons, within this province); Laws of
the State of Vermont § 10 (1797).

															3 See, e. g., Kan. Stat., ch. 161, § 1 (1855); Ky.
Rev. Stat., ch. CIV, § 1 (1852); Pa. Laws, ch. 664, § V (1853); N.
Y. Rev. Stat., ch. XX, § 1 (1859); Ill. Stat., ch. 30, § CXXXVIII
(1857). During the 19th century, this Court acknowledged the
States' power to criminalize vagrancy on several occasions. See Mayor of New York V. Miln, 11 Pet. 102, 148 (1837); Passenger Cases, 7 How. 283,425 (1849) (opinion of Wayne,
J.); Prigg V. Pennsylvania, 16 Pet. 539, 625
(1842).

															4 See generally C. Tiedeman, Limitations of Police Power in the
United States 116-117 (1886) ("The vagrant has been very
appropriately described as the chrysalis of every species of
criminal. A wanderer through the land, without home ties, idle, and
without apparent means of support, what but criminality is to be
expected from such a person? If vagrancy could be successfully
combated ... the infractions of the law would be reduced to a
surprisingly small number; and it is not to be wondered at that an
effort is so generally made to suppress vagrancy"). See also R. 1.
Gen. Stat., ch. 232, §24 (1872); Ill. Rev. Stat., ch. 38, §270
(1874); Conn. Gen. Stat., ch. 3, § 7 (1875); N. H. Gen. Laws, ch.
269, § 17 (1878); Cal. Penal Code § 647 (1885); Ohio Rev. Stat.,
Tit. 1, ch. 8, §§ 6994, 6995 (1886); Colo. Rev. Stat., ch. 36, §
1362 (1891); Del. Rev. Stat., ch. 92, Vol. 12, p. 962 (1861); Ky.
Stat., ch. 132, §4758 (1894); Ill. Rev. Stat., ch. 38, §270 (1895);
Ala. Code, ch. 199, § 5628 (1897); Ariz. Rev. Stat., Tit. 17, § 599
(1901); N. Y. Crim. Code §887 (1902); Pa. Stat. §§21409, 21410
(1920); Ky. Stat. §4758-1 (1922); Ala. Code, ch. 244, § 5571
(1923); Kan. Rev. Stat. § 21-2402 (1923); Ill. Stat. Ann., § 606
(1924); Ariz. Rev. Stat., ch. 111, § 4868 (1928); Cal. Penal Code,
Pt. 1, Tit. 15, ch. 2, § 647 (1929); Pa. Stat. Ann., Tit. 18, §
2032 (Pur- 105 Tellingly, the plurality cites only three cases in support of
the asserted right to "loiter for innocent purposes." See ante, at 53-54. Of those, only one-decided more than 100
years after the ratification of the Fourteenth Amendmentactually
addressed the validity of a vagrancy ordinance. That case, Papachristou, supra, contains some dicta that can be read to
support the fundamental right that the plurality asserts.5 However,
the Court in Papachristou did not undertake the now-accepted
analysis applied in substantive due process cases-it did not look
to tradition to define the rights protected by the Due Process
Clause. In any event, a careful reading of the opinion reveals that
the Court never said anything about a constitutional right. The
Court's holding was that the antiquarian language employed in the
vagrancy ordinance at issue was unconstitutionally vague. See id., at 162-163. Even assuming, then, that Papachristou was correctly decided as an original matter-a
doubtful proposi-

															don 1945); Kan. Gen. Stat. Ann. § 21-2409 (1949); N. Y. Crim.
Code § 887 (1952); Colo. Rev. Stat. Ann. § 40-8-20 (1954); Cal.
Penal Code § 647 (1953); 1 Ill. Rev. Stat., ch. 38, § 578 (1953);
Ky. Rev. Stat. § 436.520 (1953); 5 Ala. Code, Tit. 14, § 437
(1959); Pa. Stat. Ann., Tit. 18, § 2032 (Purdon 1963); Kan. Stat.
Ann. §21-2409 (1964).

															5 The other cases upon which the plurality relies concern the
entirely distinct right to interstate and international travel. See Williams v. Fears, 179 U. S. 270 ,274-275
(1900); Kent v. Dulles, 357 U. S. 116 (1958). The
plurality claims that dicta in those cases articulating a right of
free movement, see Williams, supra, at 274; Kent,
supra, at 125, also supports an individual's right to "remain
in a public place of his choice." Ironically, Williams rejected the argument that a tax on persons engaged in the business
of importing out-of-state labor impeded the freedom of transit, so
the precise holding in that case does not support, but undermines,
the plurality's view. Similarly, the precise holding in Kent did not bear on a constitutional right to travel; instead, the
Court held only that Congress had not authorized the Secretary of
State to deny certain passports. Furthermore, the plurality's
approach distorts the principle articulated in those cases,
stretching it to a level of generality that permits the Court to
disregard the relevant historical evidence that should guide the
analysis. Michael H. v. Gerald D., 491 U. S. 110 , 127, n. 6
(1989) (plurality opinion). 106 tion-it does not compel the conclusion that the Constitution
protects the right to loiter for innocent purposes. The plurality's
contrary assertion calls to mind the warning that "[t]he Judiciary,
including this Court, is the most vulnerable and comes nearest to
illegitimacy when it deals with judge-made constitutional law
having little or no cognizable roots in the language or even the
design of the Constitution .... [We] should be extremely reluctant
to breathe still further substantive content into the Due Process
Clause so as to strike down legislation adopted by a State or city
to promote its welfare." Moore, 431 U. S., at 544 (White,
J., dissenting). When "the Judiciary does so, it unavoidably
pre-empts for itself another part of the governance of the country
without express constitutional authority." Ibid. B

															The Court concludes that the ordinance is also
unconstitutionally vague because it fails to provide adequate
standards to guide police discretion and because, in the
plurality's view, it does not give residents adequate notice of how
to conform their conduct to the confines of the law. I disagree on
both counts.

															1

															At the outset, it is important to note that the ordinance does
not criminalize loitering per se. Rather, it penalizes
loiterers' failure to obey a police officer's order to move along.
A majority of the Court believes that this scheme vests too much
discretion in police officers. Nothing could be further from the
truth. Far from according officers too much discretion, the
ordinance merely enables police officers to fulfill one of their
traditional functions. Police officers are not, and have never
been, simply enforcers of the criminal law. They wear other
hats-importantly, they have long been vested with the
responsibility for preserving the public peace. See, e. g., O. Allen, Duties and Liabilities of Sheriffs 107 59 (1845) ("As the principal conservator of the peace in his
county, and as the calm but irresistible minister of the law, the
duty of the Sheriff is no less important than his authority is
great"); E. Freund, Police Power § 86, p. 87 (1904) ("The criminal
law deals with offenses after they have been committed, the police
power aims to prevent them. The activity of the police for the
prevention of crime is partly such as needs no special legal
authority"). Nor is the idea that the police are also peace
officers simply a quaint anachronism. In most American
jurisdictions, police officers continue to be obligated, by law, to
maintain the public peace.6

															In their role as peace officers, the police long have had the
authority and the duty to order groups of individuals who threaten
the public peace to disperse. For example, the 1887 police manual
for the city of New York provided:

															6 See, e. g., Ark. Code Ann. § 12-8-106(b) (Supp.
1997) ("The Department of Arkansas State Police shall be
conservators of the peace"); Del. Code Ann., Tit. IX, § 1902 (1989)
("All police appointed under this section shall see that the peace
and good order of the State ... be duly kept"); Ill. Compo Stat.,
ch. 65, § 5/11-1-2(a) (1998) ("Police officers in municipalities
shall be conservators of the peace"); La. Rev. Stat. Ann. §40:1379
(West 1992) ("Police employees ... shall ... keep the peace and
good order"); Mo. Rev. Stat. § 85.561 (1998) ("[M]embers of the
police department shall be conservators of the peace, and shall be
active and vigilant in the preservation of good order within the
city"); N. H. Rev. Stat. Ann. § 105:3 (1990) ("All police officers
are, by virtue of their appointment, constables and conservators of
the peace"); Ore. Rev. Stat. § 181.110 (1997) ("Police to preserve
the peace, to enforce the law and to prevent and detect crime");
351 Pa. Code, Tit. 351, § 5.5-200 (1998) ("The Police Department
... shall preserve the public peace, prevent and detect crime,
police the streets and highways and enforce traffic statutes,
ordinances and regulations relating thereto"); Tex. Code Crim.
Proc. Ann., Art. 2.13 (Vernon 1977) ("It is the duty of every peace
officer to preserve the peace within his jurisdiction"); Vt. Stat.
Ann., Tit. 24, § 299 (1992) ("A sheriff shall preserve the peace,
and suppress, with force and strong hand, if necessary, unlawful
disorder"); Va. Code Ann. § 15.2-1704(A) (Supp. 1998) ("The police
force ... is responsible for the prevention and detection of crime,
the apprehension of criminals, the safeguard of life and property,
the preservation of peace and the enforcement of state and local
laws, regulations, and ordinances"). 108 "It is hereby made the duty of the Police Force at all times of
day and night, and the members of such Force are hereby thereunto
empowered, to especially preserve the public peace, prevent crime,
detect and arrest offenders, suppress riots, mobs and
insurrections, disperse unlawful or dangerous assemblages, and
assemblages which obstruct the free passage of public streets,
sidewalks, parks and places." Manual Containing the Rules and
Regulations of the Police Department of the City of New York, Rule
414 (emphasis added). See also J. Crocker, Duties of Sheriffs, Coroners and Constables
§ 48, p. 33 (2d ed. rev. 1871) ("Sheriffs are, ex officio, conservators of the peace within their respective counties, and it
is their duty, as well as that of all constables, coroners,
marshals and other peace officers, to prevent every breach of the
peace, and to suppress every unlawful assembly, affray or
riot which may happen in their presence" (emphasis added)). The
authority to issue dispersal orders continues to play a commonplace
and crucial role in police operations, particularly in urban
areas.7 Even the ABA Standards for

															7 For example, the following statutes provide a criminal penalty
for the failure to obey a dispersal order: Ala. Code § 13A-11-6
(1994); Ariz. Rev. Stat. Ann. § 13-2902(A)(2) (1989); Ark. Code
Ann. § 5-71-207(a)(6) (1993); Cal. Penal Code Ann. § 727 (West
1985); Colo. Rev. Stat. § 18-9-107(b) (1997); Del. Code Ann., Tit.
11, § 1321 (1995); Ga. Code Ann. § 16-11-36 (1996); Guam Code Ann.,
Tit. 9, § 61.10(b) (1996); Haw. Rev. Stat. § 7111102 (1993); Idaho
Code § 18-6410 (1997); Ill. Compo Stat., ch. 720, § 5/25l(e)
(1998); Ky. Rev. Stat. Ann. §§ 525.060,525.160 (Baldwin 1990); Me.
Rev. Stat. Ann., Tit. 17A, §502 (1983); Mass. Gen. Laws, ch. 269,
§2 (1992); Mich. Compo Laws § 750.523 (1991); Minn. Stat. § 609.715
(1998); Miss. Code Ann. § 97-35-7(1) (1994); Mo. Rev. Stat. §
574.060 (1994); Mont. Code Ann. §45-8-102 (1997); Nev. Rev. Stat.
§203.020 (1995); N. H. Rev. Stat. Ann. §§644:1, 644:2(II)(e)
(1996); N. J. Stat. Ann. §2C:33-1(b) (West 1995); N. Y. Penal Law
§240.20(6) (McKinney 1989); N. C. Gen. Stat. § 14-288.5(a) (1999);
N. D. Cent. Code § 12.1-25-04 (1997); Ohio Rev. Code Ann. §
2917.13(A)(2) (1997); Okla. Stat., Tit. 21, § 1316 (1991); Ore.
Rev. Stat. § 166.025(1)(e) (1997); 18 Pa. Cons. Stat. § 5502
(1983); R. I. Gen. Laws § 11-38-2 (1994); S. C. Code Ann. §
16-7-1O(a) (1985); S. D. Codified Laws 109 Criminal Justice recognize that "[i]n day-to-day police
experience there are innumerable situations in which police are
called upon to order people not to block the sidewalk, not to
congregate in a given place, and not to 'loiter' .... The police
may suspect the loiterer of considering engaging in some form of
undesirable conduct that can be at least temporarily frustrated by
ordering him or her to 'move on.'" Standard 1-3.4(d), p. 1.88, and
comments (2d ed. 1980, Supp. 1986).8

															In order to perform their peacekeeping responsibilities
satisfactorily, the police inevitably must exercise discretion.
Indeed, by empowering them to act as peace officers, the law
assumes that the police will exercise that discretion responsibly
and with sound judgment. That is not to say that the law should not
provide objective guidelines for the police, but simply that it
cannot rigidly constrain their every action. By directing a police
officer not to issue a dispersal order unless he "observes a person
whom he reasonably believes to be a criminal street gang member
loitering in any public place," App. to Pet. for Cert. 61a,
Chicago's ordinance strikes an appropriate balance between those
two extremes. Just as we trust officers to rely on their experience
and expertise in order to make spur-of-the-moment determinations
about amorphous legal standards such as "probable cause"

															§22-10-11 (1998); Tenn. Code Ann. §39-17-305(2) (1997); Tex.
Penal Code Ann. § 42.03(a)(2) (1994); Utah Code Ann. § 76-9-104
(1995); Vt. Stat. Ann., Tit. 13, § 901 (1998); Va. Code Ann. §
18.2-407 (1996); V. I. Code Ann., Tit. 5, § 4022 (1997); Wash. Rev.
Code § 9A.84.020 (1994); W. Va. Code § 61-6-1 (1997); Wis. Stat. §
947.06(3) (1994).

															8 See also Ind. Code § 36-8-3-10(a) (1993) ("The police
department shall, within the city: (1) preserve peace; (2) prevent
offenses; (3) detect and arrest criminals; (4) suppress riots,
mobs, and insurrections; (5) disperse unlawful and dangerous
assemblages and assemblages that obstruct the free passage of
public streets, sidewalks, parks, and places ... "); Okla. Stat.,
Tit. 19, § 516 (1991) ("It shall be the duty of the sheriff ... to
keepand preserve the peace of their respective counties, and to
quiet and suppress all affrays, riots and unlawful assemblies and
insurrections ... "). 110 and "reasonable suspicion," so we must trust them to determine
whether a group of loiterers contains individuals (in this case
members of criminal street gangs) whom the city has determined
threaten the public peace. See Ornelas v. United
States, 517 U. S.
690 , 695, 700 (1996) ("Articulating precisely what 'reasonable
suspicion' and 'probable cause' mean is not possible. They are
commonsense, nontechnical conceptions that deal with the factual
and practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act .... [O]ur cases have
recognized that a police officer may draw inferences based on his
own experience in deciding whether probable cause exists"
(citations and internal quotation marks omitted)). In sum, the
Court's conclusion that the ordinance is impermissibly vague
because it "'necessarily entrusts lawmaking to the momentto-moment
judgment of the policeman on his beat,'" ante, at 60, cannot
be reconciled with common sense, longstanding police practice, or
this Court's Fourth Amendment jurisprudence.

															The illogic of the Court's position becomes apparent when it
opines that the ordinance's dispersal provision "would no doubt be
sufficient if the ordinance only applied to loitering that had an
apparently harmful purpose or effect, or possibly if it only
applied to loitering by persons reasonably believed to be criminal
gang members." Ante, at 62 (footnote omitted). See also ante, at 67 (O'CONNOR, J., concurring in part and concurring
in judgment) (endorsing Court's proposal). With respect, if the
Court believes that the ordinance is vague as written, this
suggestion would not cure the vagueness problem. First, although
the Court has suggested that a scienter requirement may mitigate a
vagueness problem "with respect to the adequacy of notice to the
complainant that his conduct is proscribed," Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489 , 499 (1982)
(footnote omitted), the alternative proposal does not incorporate a
scienter requirement. If the ordinance's prohibition were lim- 111 ited to loitering with "an apparently harmful purpose," the
criminality of the conduct would continue to depend on its external
appearance, rather than the loiterer's state of mind. See Black's
Law Dictionary 1345 (6th ed. 1990) (scienter "is frequently used to
signify the defendant's guilty knowledge"). For this reason, the
proposed alternative would neither satisfy the standard suggested
in Hoffman Estates nor serve to channel police discretion.
Indeed, an ordinance that required officers to ascertain whether a
group of loiterers have "an apparently harmful purpose" would
require them to exercise more discretion, not less.
Furthermore, the ordinance in its current form-requiring the
dispersal of groups that contain at least one gang member-actually
vests less discretion in the police than would a law requiring that
the police disperse groups that contain only gang members.
Currently, an officer must reasonably suspect that one individual
is a member of a gang. Under the plurality's proposed law, an
officer would be required to make such a determination multiple
times.

															In concluding that the ordinance adequately channels police
discretion, I do not suggest that a police officer enforcing the
Gang Congregation Ordinance will never make a mistake. Nor do I
overlook the possibility that a police officer, acting in
bad faith, might enforce the ordinance in an arbitrary or
discriminatory way. But our decisions should not turn on the
proposition that such an event will be anything but rare. Instances
of arbitrary or discriminatory enforcement of the ordinance, like
any other law, are best addressed when (and if) they arise, rather
than prophylactically through the disfavored mechanism of a facial
challenge on vagueness grounds. See United States v. Salerno, 481
U. S. 739 , 745 (1987) ("A facial challenge to a legislative Act
is, of course, the most difficult challenge to mount successfully,
since the challenger must establish that no set of circumstances
exists under which the Act would be valid"). 112 The plurality's conclusion that the ordinance "fails to give the
ordinary citizen adequate notice of what is forbidden and what is
permitted," ante, at 60, is similarly untenable. There is
nothing "vague" about an order to disperse.9 While "we can never
expect mathematical certainty from our language," Grayned v. City of Rockford, 408 U. S. 104 , 110
(1972), it is safe to assume that the vast majority of people who
are ordered by the police to "disperse and remove themselves from
the area" will have little difficulty understanding how to comply.
App. to Pet. for Cert. 61a.

															Assuming that we are also obligated to consider whether the
ordinance places individuals on notice of what conduct might
subject them to such an order, respondents in this facial challenge
bear the weighty burden of establishing that the statute is vague
in all its applications, "in the sense that no standard of conduct
is specified at all." Coates v. Cincinnati, 402 U. S. 611 , 614
(1971). I subscribe to the view of retired Justice White-"If any
fool would know that a particular category of conduct would be
within the reach of the statute, if there is an unmistakable core
that a reasonable person would know is forbidden by the law, the
enactment is not unconstitutional on its face." Kolender, 461 U. S., at 370-371 (dissenting opinion). This is certainly such
a case. As the Illinois Supreme Court recognized, "persons of
ordinary intelligence may maintain a common and accepted

															9 The plurality suggests, ante, at 59, that dispersal
orders are, by their nature, vague. The plurality purports to
distinguish its sweeping condemnation of dispersal orders from Colten v. Kentucky, 407 U. S. 104 (1972), but
I see no principled ground for doing so. The logical implication of
the plurality's assertion is that the police can never issue
dispersal orders. For example, in the plurality's view, it is
apparently unconstitutional for a police officer to ask a group of
gawkers to move along in order to secure a crime scene. 113 meaning of the word 'loiter.'" 177 Ill. 2d, at 451, 687 N. E.
2d, at 61.

															JUSTICE STEVENS' contrary conclusion is predicated primarily on
the erroneous assumption that the ordinance proscribes large
amounts of constitutionally protected and/or innocent conduct. See ante, at 55, 56-57, 60. As already explained, supra, at 102-106, the ordinance does not proscribe constitutionally
protected conduct-there is no fundamental right to loiter. It is
also anomalous to characterize loitering as "innocent" conduct when
it has been disfavored throughout American history. When a category
of conduct has been consistently criminalized, it can hardly be
considered "innocent." Similarly, when a term has long been used to
describe criminal conduct, the need to subject it to the "more
stringent vagueness test" suggested in Hoffman Es tates, 455
U. S., at 499, dissipates, for there is no risk of a trap for the
unwary. The term "loiter" is no different from terms such as
"fraud," "bribery," and "perjury." We expect people of ordinary
intelligence to grasp the meaning of such legal terms despite the
fact that they are arguably imprecise.10

															The plurality also concludes that the definition of the term
loiter-"to remain in anyone place with no apparent pur-

															10 For example, a 1764 Georgia law declared that "all able
bodied persons ... who shall be found loitering ... , all other
idle vagrants, or disorderly persons wandering abroad without
betaking themselves to some lawful employment or honest labor,
shall be deemed and adjudged vagabonds," and required the
apprehension of "any such vagabond ... found within any county in
this State, wandering, strolling, loitering about" (reprinted in
First Laws of the State of Georgia, Part 1, 376-377 (J. Cushing
compo 1981)). See also, e. g., Digest of Laws of
Pennsylvania 829 (F. Brightly 8th ed. 1853) ("The following
described persons shall be liable to the penalties imposed by law
upon vagrants .... All persons who shall ... be found loitering");
Ky. Rev. Stat., ch. Cry, § 1, p. 69 (1852) ("If any able bodied
person be found loitering or rambling about, ... he shall be taken
and adjudged to be a vagrant, and guilty of a high
misdemeanor"). 114 pose," see 177 Ill. 2d, at 445, 687 N. E. 2d, at 58-fails to
provide adequate noticeY "It is difficult to imagine," the
plurality posits, "how any citizen of the city of Chicago standing
in a public place ... would know if he or she had an 'apparent
purpose.'" Ante, at 56-57. The plurality underestimates the
intellectual capacity of the citizens of Chicago. Persons of
ordinary intelligence are perfectly capable of evaluating how
outsiders perceive their conduct, and here "[i]t is self-evident
that there is a whole range of conduct that anyone with at least a
semblance of common sense would know is [loitering] and that would
be covered by the statute." See Smith v. Goguen, 415 U. S. 566 ,
584 (1974) (White, J., concurring in judgment). Members of a group
standing on the corner staring blankly into space, for example, are
likely well aware that passersby would conclude that they have "no
apparent purpose." In any event, because this is a facial
challenge, the plurality's ability to hypothesize that some
individuals, in some circumstances, may be unable to ascertain how
their actions appear to outsiders is irrelevant to our analysis.
Here, we are asked to determine whether the ordinance is "vague in
all of its applications." Hoffman Estates, supra, at 497.
The answer is unquestionably no.

															***

															Today, the Court focuses extensively on the "rights" of gang
members and their companions. It can safely do sothe people who
will have to live with the consequences of

															11 The Court asserts that we cannot second-guess the Illinois
Supreme Court's conclusion that the definition "'provides absolute
discretion to police officers to decide what activities constitute
loitering,'" ante, at 61 (quoting 177 Ill. 2d, at 457,687 N.
E. 2d, at 63). While we are bound by a state court's construction
of a statute, the Illinois court "did not, strictly speaking,
construe the [ordinance] in the sense of defining the meaning of a
particular statutory word or phase. Rather, it merely characterized
[its] 'practical effect' .... This assessment does not bind us." Wisconsin v. Mitchell, 508 U. S. 476 , 484
(1993). 115 to day's opinion do not live in our neighborhoods. Rather, the
people who will suffer from our lofty pronouncements are people
like Ms. Susan Mary Jackson; people who have seen their
neighborhoods literally destroyed by gangs and violence and drugs.
They are good, decent people who must struggle to overcome their
desperate situation, against all odds, in order to raise their
families, earn a living, and remain good citizens. As one resident
described: "There is only about maybe one or two percent of the
people in the city causing these problems maybe, but it's keeping
98 percent of us in our houses and off the streets and afraid to
shop." Transcript 126. By focusing exclusively on the imagined
"rights" of the two percent, the Court today has denied our most
vulnerable citizens the very thing that JUSTICE STEVENS, ante, at 54, elevates above all else-the "'freedom of
movement.'" And that is a shame. I respectfully dissent.

Summary: The Supreme Court affirmed the Illinois Supreme Court's ruling that Chicago's Gang Congregation Ordinance, which prohibited "criminal street gang members" from loitering in public places, was unconstitutional. The Court held that the ordinance violated due process as it was impermissibly vague and granted police officers absolute discretion to determine what activities constituted loitering.