Defendants arrested for violating city "gang-loitering" ordinance moved to dismiss on constitutional grounds. The Circuit Court, Cook County, Thaddeus L. Kowalski, J., granted motion. City of Chicago appealed. The Appellate Court, Buckley, J., held that: (I) ordinance was unconstitutionally overbroad in that it infringed on freedoms of association, assembly and expression secured by
federal and state constitutions; (2) ordinance was unconstitutionally vague; (3) ordinance
unconstitutionally criminalized status of being gang member; and (4) ordinance improperly
permitted officers to avoid probable cause requirement in combating crimes associated with gang members.
Affirmed.

Susan S. Sher, Corporation Counsel of the City of Chicago (Lawrence Rosenthal, Deputy
Corporation Counsel,  Benna Ruth Solomon, Chief Assistant Corporation Counsel, Stuart D.
Fullerton, Assistant Corporation Counsel, of counsel), for appellant. Harvey Grossman, The
Roger Baldwin Foundation of ACLU, Inc., Chicago, and Rita A. Fry, Cook County Public
Defender, Chicago (Eileen T. Pahl, Assistant Public Defender, of counsel), for appellees.
Henry Hyde, Philip Crane, Northwest Neighborhood Federation, Concerned Citizen
Neighborhood Federation, Concerned Citizen Neighborhood Watch Organization-- 81St & 82nd,
West Avalon Civic Group, and Marynook Homeowners Association, Lord Bissell & Brook,
Chicago (Andrew Kochanowski, Fred L. Alvarez, Robert A. Badgley, of counsel); and
Washington Legal Foundation, Washington, DC (Daniel J. Popeo, Richard A. Samp, of counsel),
for amicus curiae Washington Legal Foundation. Jack 0'Malley, Cook County State's Attorney,
Chicago (Renee Goldfarb, Peter Fischer, Assistant State's Attorneys, of counsel), for
amicus curiae County of Cook.

Justice BUCKLEY delivered the opinion of the court:
The City of Chicago (the City) prosecuted defendants for violating the Municipal Code of Chicago, more commonly known as the "gang-loitering ordinance.”  Defendants moved to dismiss the City's action against them, and on September 29, 1993, the circuit court granted the defendants’ motion, finding that the ordinance violated the United States and Illinois Constitutions. The City appeals the circuit court order, and we must affirm. We base our decision on several grounds, the strongest of which is that this ordinance violates the freedoms of association, assembly and expression secured by the first amendment and article I, section 5, of the Illinois Constitution. The ordinance also suffers from the infirmity of being unconstitutionally vague, thus violating due process rights. Furthermore, we find that the ordinance unconstitutionally criminalizes status and allows arrests without probable cause in violation of the fourth amendment.

BACKGROUND
Like many other American cities, Chicago is home to criminal street gangs. In 1992, the City held hearings on the subject of gang- related crime. Based on these hearings, the City determined that criminal street-gang activity in Chicago was largely responsible for the increasing murder rate in the City. The City also concluded that the presence of gang members in public places is intimidating to law-abiding citizens. The City recognized that gangs operate by establishing control over identifiable areas, by loitering and intimidating others from entering those areas. However, by ceasing to commit crimes, such as drug dealing and vandalism, when police officers are present, the gang members avoid arrest while maintaining control over their territory. This obvious connection between gang crime and loitering led the City to enact the ordinance at issue here. The gang-loitering ordinance provides 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:
(I) '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 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.”
 

On June 15, 1993, defendants, James Youkhana, Fernando 0. Cota, Jose A. Merced, Roosevelt McMullan, Jr., Johnny R. Newsome, Anthony D. Cordero, Julio M. Barroso, Hermie J. Khamo, Lamont J. Jordan, Lisa Gonzales, and Florentine Soto, were arrested at 1433 West Carmen in Chicago and charged with violating the ordinance. According to the complaints filed against them, the defendants were "observed loitering at 1433 W. Carmen, a public place with one or more persons at least one of whom was member of the Latin Kings criminal street gang, and * *
* failed to disperse and remove [themselves] from the area when ordered to do so by the [Police] [Officer] R. Day # 4476." Defendants Sabrina Brown, Tasha White, and Renee Goodwill were arrested on June22, 1993, and charged with violating the ordinance by loitering in the vicinity of 1528 West Morse in Chicago. The arrest reports indicate that they are members of the Gangster Disciple street gang. After being warned to leave the area  "at 2145 hrs," they were found to be loitering in the same area and refused to leave the area at 2200 hours. [FNI]
FN 1 Sabrina Smith's and Tasha white's arrest reports state that they were found loitering in the same area "at 2300 hrs," but the complaints filed against the three of them all state 2200 hours as the time they were found loitering the second time.

Defendants moved to dismiss the complaints against them on the ground that the ordinance is unconstitutional on its face, and as applied, in that it violates their rights under the fourteenth, first, and fourth amendments of the United States Constitution and the corresponding sections of the Illinois Constitution. The municipal court granted the motion and this appeal followed.
DISCUSSION
I
The overbreadth doctrine "allows a defendant to challenge the validity of a statute on its face when the mere existence of the statute may inhibit the exercise of expressive or associational rights protected by the first amendment, even though those rights do not protect the activities of the defendant.'1 (People v. Garrison (1980), 82 I11.2d 444,449,45 Ill.Dec. 132, 135,412 N.E.2d 483,486, citing Bates v. State Bar (1977), 433 U.s. 350,380,97 S.Ct. 2691,2707,53 L.Ed.2d810,833; Broadrick v. Oklahoma(1973),413 U.S. 601,611-17,93 S.Ct 2908, 2915-18,37 L.Ed.2d 830,83943.) A law is overbroad if it authorizes punishment of constitutionally protected conduct. City of Houston v. Hill (1987), 482 U.S. 451,458, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398, 410.
The City argues that this ordinance is not overbroad because any expressive activity protected under the first amendment such as picketing and protesting is not implicated by the ordinance, as these activities have an apparent purpose. However, we agree with defendants' contention that the ordinance clearly implicates the first amendment rights of assembly, association, and expression.
In Coates v. City of Cincinnati (1971)402 U.S. 611,91 S.Ct. 1686,29 L.Ed.2d 214, the United States Supreme Court found Cincinnati's loitering ordinance to be unconstitutionally broad. The ordinance made it a criminal offense for "three or more persons to assemble * * * on any of the sidewalks * * * and there conduct themselves in a manner annoying to persons passing by * **. "
(Coates, 402 U.S. at 611 n. 1,91 S.Ct. at 1687 n. 1,29 L.Bd.2d at 216 n. 1.) The Court stated: "The First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly simply because its exercise may be 'annoying’ to some people.

If this were not the rule, the right of the people to gather in public places for social or political purposes would be continually subject to summary suspension through the good-faith enforcement of a prohibition against annoying conduct.  (Coates, 402 U.S. at 615,91 S.Ct. at 1689,29 L.Ed.2d at 218.) The Court emphasized that an ordinance cannot make a crime out of conduct that cannot be a crime under the Constitution. Coates, 402 U.S. at 616,91 S.Ct. at 1689, 29 L.IBd.2d at 218. The Supreme Court upheld a disorderly conduct statute, as construed by the State court, in Colten v. Kentucky (1972), 407 U.S. 104,92 S.Ct. 1953,32 L.Ed.2d 584. The Kentucky statute made it an offense for a person with intent to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof to congregate with others in a public place and refuse to comply with a lawful police dispersal order. The Kentucky Court of Appeals construed the statute to apply only where there is no bona fide intention to exercise a constitutional right or where the interest to be advanced by the particular exercise of a constitutional right is insignificant in comparison with the inconvenience, annoyance or alarm caused by the exercise. The Supreme Court held that the statute as applied did not chill or stifle the exercise of any constitutional right because the State court made a finding that Colten was not exercising a constitutional right at the time of his arrest and the evidence supported that finding. Colten, 407 U.S. at 109,92 S.Ct. at 1957,32 L.Ed.2d at 589.
The City's ordinance infringes upon first amendment freedoms in several obvious ways. We read the ordinance to mean that when one gang member stands in public with a group of innocent non-gang members, all can be ordered to disperse, and all can be arrested for failing to disperse. The ordinance is triggered when a gang member is observed loitering; the innocent persons conduct is irrelevant. In other words, the ordinance gives the police power to order dispersal and arrest those who associate with gang members in public places. This smacks of a police-state tactic and clearly violates the first amendment rights of the innocent persons.

That is not to say that the ordinance would be saved if only gang members could be ordered to disperse and arrested, or if the non-gang members also had to be found loitering before they could be subject to the ordinance. The ordinance clearly reaches conduct that the government has no business prohibiting. It prohibits loitering, or standing in one place "with no apparent purpose. It does not require that the loitering be done with an intent to cause alarm or anything of the sort. Standing in one place with no apparent purpose cannot be made a crime, just as assembling on the sidewalks in a manner annoying to passersby could not be made a crime in Coates. Coates, 402 U~S. at 616,91 S.Ct. at 1689,29 L.Ed.2d at 218. The circuit court expressed its concern that this ordinance may apply to situations such as a social worker talking to a gang member or two people stargazing. We believe that this ordinance reaches conduct that is just as innocent, but not as obviously so. For example, the ordinance would apply to someone waiting with a friend or family member for a ride to the grocery store, or someone waiting outside a laundromat for their clothes to dry. It would also apply to two friends who see each other on the street and stop to talk. Unlike the ordinance in Colten, which required intent to cause public inconvenience or alarm, this ordinance is beyond saving by judicial construction.

We appreciate the magnitude of the gang-related criminal activity and the adverse effects it has on our communities. However, our constitutional standards, fortunately, do not slide up and down a scale according to the gravity of the crime problem we wish to combat. If it were otherwise, the fundamental ideals on which this country is based would slowly deteriorate. Accordingly, for the foregoing reasons, the order of the circuit court of Cook County is affirmed.
Affirmed.

CAMPBELL, P.J., and WOLFSON, S., concur.