CITY OF WHITEACRE BLUFFS
 
                        V.

FACTS
On September 1, 1998, the Whiteacre Bluffs City Council adopted 9-5-014 of the
Whiteacre Bluffs Municipal Code ("the Ordinance") an anti-gang loitering measure authorizing police officers to order any group of persons to disburse if the officer reasonably believed that they were engaged in loitering activities as defined in 9-5-014 and that such activities presented an imminent threat to the public peace, safety or order. (See Exhibit 1). Failure to obey such an order is a criminal offense, punishable by a fine of up to $500 or imprisonment of up to six months or both. The Ordinance was adopted following hearings which took place in May and June of that same year. Several Whiteacre Bluffs citizens testified at those hearings that the quality of life in their community had deteriorated significantly as a result of increased street gang activity. The record before the City Council showed that results of such loitering are the intimidation of law-abiding passers-by, the solicitation of local children to enlist as gang members, the sale of drugs, the disruption of local businesses, and frequent instances of violence. The City Council specifically found that "one of the methods by which street gangs establish control over identifiable areas is by loitering in those areas and intimidating others from entering those areas" and that "loitering in public places by street gang members creates a justifiable fear for the safety of persons and property In an area because of the violence and vandalism often associated with such activity." The Council determined that adoption of the Ordinance was necessary to preserve the City's streets and other public places so that the public may use such places without fear." (See Exhibit I)
On September 25, 1998, Sgt. Johnson of the Whiteacre Bluffs Police Department was summoned by Roan Lewis, owner of the Panache Restaurant in downtown Whiteacre, to Investigate a report of a group of youth loitering in front of the Worldwide Pizza Palace and in the grassy area between the Pizza Palace and the Panache Cafe. Lewis had observed the youth harassing passing motorists and pedestrians and blocking the public sidewalk. Patrons entering the restaurant reported loud and profane language, verbal abuse, and other acts of intimidation. In addition, Lewis observed that several of the youth present wore green and white bandanas, green shins and jeans all indicative of the gang colors of a local youth street gang who call themselves the Double Deuce. While taking the report, Sgt. Johnson asked Lewis if Lewis had observed any gang-related insignia. Lewis took a few moments to look at the crowd and reported back that there were two or three youth with gold medallions. This information was sufficient to let Sgt. Johnson know that there were youth loitering in front of Worldwide, that gang members were involved in such activity, and that innocent citizens were being harassed and intimidated.
When Sgt. Johnson arrived at the scene, s/he personally observed the actions and conduct of the loitering youth. Sgt. Johnson observed some of the same conduct related by Roan Lewis.
Sgt. Johnson further observed Ronell Grayan a.k.a Big G, the leader of the Double Deuce, participating in what s/he believed may have been a drug transaction with an individual who was approximately 21 to 23 years old. After a few more moments, Sgt. Johnson observed Ronell Grayan and defendant K.J. Tyler engaged in a heated argument. Although Johnson could not hear what the argument was about, it appeared to be escalating and Sgt. Johnson became concerned that it would erupt into violence. Sgt. Johnson then emerged from the cruiser and approached the youth gathered on the sidewalk. Some of the youth fled immediately, others left after having been ordered to disperse. However, despite having been given numerous opportunities to do so, Ronell Grayan and defendant K.J. Tyler refused to obey Sgt. Johnson's lawful order to disperse. They were both taken into custody, transported to the police station, and charged with a violation of the anti-gang loitering ordinance. Both have been arraigned and are free on bond.
This matter is presently before this court for a preliminary hearing. Defendant Tyler contends that she was not loitering within the terms of the ordinance, and that the situation existing at the Worldwide Pizza Palace at 9;30 pm. on September 25,1998, presented no imminent threat to the public peace, safety or order. She contends, therefore, that there is a lack of probable cause to go forward with the charges against her. Defendant Tyler further challenges the constitutionality of  9-5-014 on the basis that it restricts her right to associate with gang members for both social and advocacy purposes thereby violating her fight to free association as guaranteed by the First and Fourteenth Amendments to the Constitution. Both arguments are without merit and must fail.

A. Abundant Evidence Exists to Establish Probable Cause to Believe That K.J. Tyler Violated Section 9-5-014 of the Whiteacre Bluffs Municipal Code by Knowingly Loitering in the Presence of One or More Members of the Double Deuce Gang and Failing to Comply with a Lawful Order to Disperse.

A government’s first and most precious calling is to protect the safety and well-being of its citizens. While the First Amendment may, under appropriate circumstances, limit a government's efforts to protect its citizens, the control of gang-related loitering behavior is not such a circumstance Section 9-5-014 was enacted to address the problems that arise when members of street gangs arc permitted to loiter in public places and harass innocent pedestrians and motorists. Loitering is a potent gang recruitment tool and a means by which street gangs seek to establish their territory. Police are often without adequate means to address such activity. Gang members often do not engage in activity that is, of itself, criminal while police are present thereby avoiding detection and possible arrest. The anti-gang loitering ordinance addresses this problem in a narrow and well-defined manner.
In essence, the ordinance defines loitering as being in the presence of one or more gang members when activity is taking place which harasses or intimidates others, where suspected drug activity is taking place, or where there are weapons present. The evidence presented at the preliminary hearing will establish probable causes to believe that defendant K.J. Tyler was loitering as defined in WBMC  9-5-014.
Mere loitering, is not, however, all that is required in order to be subject to arrest. Before a police officer takes any action pursuant to the ordinance, he or she must also determine that there is a reasonable basis to believe that the loitering activity in question presents an imminent threat to the public peace, safety or order. The evidence presented at the preliminary hearing will also establish that there is probable cause to believe that such imminent threat to public peace, safety and order was present at the time of defendant Tyler's arrest.
Finally, if the police officer has a reasonable belief both that loitering is taking place and that an imminent threat to public peace, safety and order is at hand, then he or she may issue an order to disperse. Those present may avoid arrest simply by complying with the dispersal order.
On September 25, 1998, at approximately 9:15 p.m., Sgt. Johnson of the Whiteacre Bluffs Police Department received a complaint concerning a group of youth, some with readily identifiable gang colors and gang insignia, loitering within close proximity to the complainant's premises. Complainant Roan Lewis informed Sgt. Johnson that the youth were harassing and intimidating his/her clientele and others while they walked or drove along Nappa Valley Drive. Sgt. Johnson responded to the complaint, observed the youth's activities for an extended period of time, evaluated the situation, and made the following determinations: I) that present in the group of youth were four individuals known to him/her to be active participants in the Double Deuce youth street gang; 2) that persons in the group were engaged in activities that were intimidating and harassing to passing motorists and pedestrians; and 3) that there was some evidence unlawful drug activity was taking place. Sgt. Johnson was further aware that defendant K.J. Tyler was engaged in a loud and rancorous argument with Ronell Grayan, one of the gang's leaders, an argument which Sgt. Johnson reasonably believed would escalate, presenting an imminent threat to public peace, safety, and order. Although Sgt. Johnson attempted to disperse this gathering peacefully, defendant Tyler vigorously and contentiously resisted Sgt. Johnson's efforts. Having been given ample opportunity to comply with Sgt. Johnson's order, defendant
Tyler was taken into custody. Based upon this evidence, this Court must find that probable cause exists to believe that K.J. Tyler has violated sect. 9-5-014 and should therefore stand trial.

B. Defendant K.J. Tyler's Arrest Pursuant to WBMC sect. 9-5-014 Did Not Abridge Her Right to Freedom of Association.

Defendant K.J. Tyler challenges the constitutionality of sect. 9-5-014 on the basis that it
infringes on her right of freedom of association. Defendant Tyler contends that her right, as an individual and as a member of the LWP, to encourage gang members to seek an alternative lifestyle, encompasses the right to associate with gang members in public places in order to spread her message. She contends that this right to freely associate with gang members may not be abridged unless the City of Whiteacre Bluffs has compelling state interests in support of the ordinance that cannot be achieved through less restrictive means. Defendant Tyler's arguments are, however, without merit.
While defendant Tyler may have a constitutionally protected right to freedom of association as it relates to the “Light in the Window" Program, a point the City of Whiteacre Bluffs does not concede, the ordinance in question in no way seeks to limit those associational interests. Rather, the ordinance in question seeks to protect the public peace, safety and order by limiting the ability of street gang members to harass and intimidate innocent citizens, to recruit new members, to carry out illegal drug and weapons-related activities, and to establish gang control of territory. The interests of these gang members, and those who associate with them, are not within the ambit of First Amendment protection. If the court finds that sect.    9-5-014 does not impinge on constitutionally protected interests, then the city need only show that the ordinance bears some rational relationship to a legitimate governmental purpose in order for it to survive judicial scrutiny.
Association With Known Gang Members Who Are Engaged in Acts of Intimidation Harassment and Drug Trafficking Are Not Communicative Activities Protected Within the Ambit of the First and Fourteenth Amendments to the Constitution.
Whiteacre Bluffs ordinance, which seeks to provide the police an effective tool in controlling and eliminating one of the most insidious and effective means by which a criminal street gang snares new members and establishes its territory, is fully consistent with the right to freedom of association guaranteed by the First Amendment. The conduct of gang members and others in remaining in one place for no apparent purpose, or for a purely social purpose, is neither expressive nor communicative. The First Amendment restricts only the Government's ability to regulate "expressive or communicative" activity in a public forum; it does not restrict the Government's ability to protect its citizens from breaches of the public peace and safety. The ability arid the opportunity to combine with others to advance one's views is a powerful practical means of "ensuring the perpetuation" of First Amendment freedoms, but not every setting in which individuals exercise some discrimination in choosing associates is protected by the Constitution. While standing on a street comer with members of a youth street gang might be described as associational in common parlance, such loitering "simply does not involve the son of expressive association that the First Amendment has been held to protect." Dallas v. Stanglin, 490 U.S. 19, 24 (1989)(City ordinance restricting admission to certain dance halls to persons between ages of 14 and 18 did not infringe on First Amendment right of association; dance hall patrons not engaged in any form of intimate or expressive association and there was no generalized right of "social association" that included chance encounters in dance halls.)
The Supreme Court has identified two kinds of associations entitled to First Amendment protection-those with an “intrinsic" or "intimate value," and those that are "instrumental" to forms of religious and political expressions and activity. Of the first, the Court has said that it is "central to any concept of liberty" and is exemplified by personal affiliations that "amend the creations and sustenance of a family-marriage; the raising and education of children; and cohabitation with one's relatives." Roberts V. United States Jaycees, 468 U.s. 609, 619(1984). Such affiliations, the Court has remarked:
[I]nvolve deep attachments and commitments to the necessarily few other individuals with whom one shares not only a special community of thoughts, experiences, and beliefs but also distinctively personal aspects of one's life. Among other things .. they are distinguished by such attributes as relative smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, and seclusion from others in critical aspects of the relationship.
Id. at 620.

The second kind of association that merits First Amendment Protection is composed of groups whose members join together for the purpose of pursuing "wide variety of political, social, economic, educational, religious, and cultural ends." Roberts, supra at 622. This instrumental right of protected association is directly related to the "individual's freedom to speak, to worship, and to petition the government for the redress of grievances" because, without it, these liberties themselves could scarcely exist, much less thrive. Id. For purposes of this hearing, the City of Whiteacre Bluffs will not dispute, but does not concede, that the Light in the Window Program may be such a group. Its status, however, is not determinative of this matter. Manifestly, in its activities within Whiteacre Bluffs, the Double Deuce and the Fuchsia Posse (the entities at whom the ordinance is directed) are not associations of individuals formed for the purpose of engaging in protected speech or religious activities." Board of Directors of Rotary Int' v. Rotary Club 481 U.s. Without minimizing the value of the gang to its members as a loosely structured, elective form of social association, that characteristic is in itself insufficient to command constitutional protection. As the Court pointed out in Dallas v.Stanglin,it is possible to find some kernel of expression in almost every activity a person undertakes-for example, walking down the street or meeting one's friends at a shopping mall-but such a kernel is not sufficient to bring the activity within the protection of the First Amendment supra 490 U.S. at 25. Moreover, despite defendant's reliance upon the City of Chicago v.Youkana this ordinance does not infringe First Amendment freedoms. Unlike the statute at issue therein, this ordinance's reliance upon the requirement that there be an imminent threat to public safety limits its First Amendment implications. It is evident that whatever else it may be in other contexts, K.J. Tyler's conduct on September 25, 1998, and that of the street gang members with whom she was associating, fails to qualify as a protected form of association. Finally, freedom of association, as protected by the First Amendment, "does not extend to joining with others for the purpose of depriving third parties of their lawful rights." Madsen v. Women's Health Center Inc. 512 U.S. 753(1994). The ordinance at issue herein does not by its terms nor its application purport to reach the associational activities of the Light in the Window Program of which defendant Tyler is a member. Even if her presence while gang members were loitering facilitates the LWP's purpose, it is still not constitutionally protected from reasonable government regulation. Defendant Tyler was not arrested while she was in attendance at a LWP function. Nothing in the statute prevents those who are interested in doing so from attending LWP social functions, nor from receiving information about such activities.

2. Youth Street Gangs Are Not Entitled to First Amendment Protection. The Anti-Gang Loitering Ordinance is Rationally Related to the City's Efforts to Reduce Activities Which Present an Imminent Threat to the Public Peace. Safety. and Order and Must, Therefore. Be Upheld.

The City Council heard testimony from citizens beleagured by the activity of gang members and those who loiter with them, from law enforcement officers trained in the recognition and management of gangs and gang related activity. Ample evidence exists on local, regional and national levels that gangs are a blight on our society and a threat to our security. The City's efforts to control one aspect of the gang loitering problem are rationally related to the problems that exist within Whiteacre Bluffs, especially with regard to preventing gangs from establishing control of certain areas.
Accordingly, this Court should find that probable cause exists to try K.J. Tyler for the charge of violating WBMC sect. 9-5-014 and the statute itself does not abridge defendant's right to freedom of association.
 
 
 

The undersigned certifies that true copies of the foregoing memorandum were served upon counsel for the Defendant on January 15,1999