The Constitution & Bill of Rights

Due Process, Volume 2

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The Constitution & Bill of Rights: Due Process, Volume 2

Facilitator Guide

Developed by Marshall Croddy

Written by Written by Kalpana Srinivasan, Alexandra Susman, and Keri Doggett

Graphic Design by Keri Doggett

Todd Clark Executive Director

Marshall Croddy

Director of Programs

Constitutional Rights Foundation 601 South Kingsley Drive Los Angeles, CA 90005

(213) 487-5590 (213) 386-0459 Fax www.crf-usa.org

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The Constitution & Bill of Rights: Due Process, Volume 2

Overview This PowerPoint lesson begins with The Constitution & Bill of Rights presentation to introduce and provide background on the judicial system and the Constitution. Using graphics, this presentation provides a visual medium to accompany the presenters’ oral narrative. It is designed to provide flexibility for presenters to focus on key concepts most appropriate for their courses and students. The PowerPoint lesson also includes a moot court activity, Chicago v. Morales: A Supreme Court Case. In this activity, students apply their knowledge about the Constitution and Bill of Rights as they prepare for and present a modified moot court case. Time Estimations Part I: The Constitution & Bill of Rights 7 -10 minutes Part II: Chicago v. Morales PowerPoint introduction 7 -10 minutes Part III: Moot Court activity 20 minutes Part IV: Share the court’s decision 5 minutes 45 minutes Getting Started 1. Make copies of the Student Handout for each student.

2. Place the CD in the CD reader of your computer.

3. This presentation was developed using PowerPoint 97. If PowerPoint isn't already running on

your computer, launch it now.

4. In PowerPoint click on File and then Open from the menu bar.

5. Navigate to the drive assigned to the CD reader. The presentation will be listed in the Open dialog box (Due Process_Volume 2).

6. Select the presentation and double click or click on Open in the dialog box.

7. Once the presentation is opened, click on Slide Show and then View Show on the menu bar to start the presentation.

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Suggested Presentation Strategy 1. Preview the PowerPoint slides and summary U.S. Supreme Court decision before the visit. 2. Prepare to narrate the PowerPoint presentation. You may want to provide additional depth on

specific topics, depending on what you predict the students will be most interested in. 3. Following the introductory presentation, explain to students that they are going to have a

chance to participate as attorneys and justices in a Supreme Court case. 4. Using PowerPoint, guide students through the activity, Chicago v. Morales. Step-by-step

procedures are included in the “Talking Points” which can be viewed using the “Notes Page” command in “View.” Below you will find questions and analyses you might consider prior to teaching this lesson as well as a set of prompts you might use during the lesson to help students begin to develop their arguments and questions.

Tips for Conducting a Moot Court Activity

Distribute and review with students the Student Handout. The quickest and easiest method for assigning roles is to leave the students seated where they are and divide the room into three sections, with the students sitting in each section taking one of the roles: justices, attorneys for the appellant, attorneys for the respondent. Counting off by 3s is another quick method, but the students will have to physically regroup. Students work with others within their attorney/justice groups to prepare for the case. A few minutes before the moot court is to start, each group is asked to select a team of attorneys and justices to present the case in front of the class. After the presentation and decision, the facilitator asks the other student attorneys what arguments they might have included and the other justices how they might have decided the case differently.

Possible Questions to Assist Student Attorney and Justice Groups Chicago v. Morales

I. Prior to teaching the lesson consider the following questions and how you might use these

analyses to focus discussions among the students in the attorney and justice groups.

• In the United States, there is an expectation that citizens can move about freely and congregate with whomever one chooses. However, most people do not know that the Constitution does not explicitly recognize a generalized right of social association.

• In the Chicago case, the ordinance prohibits criminal street gang members from loitering. To be valid, the ordinance cannot be vague or overbroad in its application. How much weight should the court give to the fact that officers were given absolute discretion to

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determine what activities constitute loitering? Is there a Constitutional right to loiter? Can a person standing on a street corner be there for innocent purposes? Can a person standing on a street corner be there for criminal purposes?

• The police officers enforcing the Chicago ordinance were trained professionals in gang

activity and had special skills in identifying gang members. Should this matter? Is it possible that the ordinance may be enforced against non-gang members? Should it matter that non-gang members could also be charged with violating the ordinance?

• The term “gang” can mean different things to different people. A group of students from the same sports team may be labeled a gang, or a group of graffiti artists may also be called a gang. Is it reasonable for persons of common intelligence to differ in their interpretation and application of the term “street gang member”?

• Criminal gang activity is a serious problem in many communities. The Chicago ordinance was enacted to address this activity and protect citizens from dangerous criminal endeavors. Should residents give up certain freedoms to ensure safety in their community?

II. During the Moot Court activity, you might use the following prompts to help the student

groups get started:

Attorneys representing Morales:

Think how you could convince the justices that . . . • The freedom to loiter for innocent purposes is protected by the due process clause of the

14th Amendment.

• The way the ordinance defines “loitering” is too vague. There are good reasons why a person might be standing on the street.

• The police should not have the authority to decide who is “loitering” and who has an

apparent purpose for standing on the street. • If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified

impairment of liberty.

Attorneys representing Chicago:

Think how you could convince the justices that . . .

• The ordinance is necessary to protect Chicago from criminal street gangs. Criminal street gangs congregate in public places, deal drugs, and terrorize neighborhoods.

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• There is nothing "vague" about this ordinance. When a police officer asks people to disperse and remove themselves from the area, people of ordinary intelligence will know what that means and understand exactly how to comply.

• The law is constitutional because it protects the rights of citizens against threats and

criminal activities. “Loitering” is not a constitutional right.

• The ordinance does nothing more than allow the police to maintain the public peace, and, when necessary, to disperse groups of individuals who threaten it.

• The Gang Congregation Ordinance is not arbitrarily enforced. Police officers enforcing

the ordinance have special skills and training in identifying known criminal street gang members.

Justices:

Think of questions that might you ask to help you decide…

• whether the way the ordinance defines “loitering” is too vague.

• whether under the ordinance, the police have too much discretion in determining who is “loitering” and who is a member of a “criminal street gang.”

• whether the ordinance violates the protections of the due process clause of the 14th

Amendment. Syllabus: http://supct.law.cornell.edu/supct/html/97-1121.ZS.html

Take a look at the arguments made in the lower courts. Think about arguments and questions you might use. Arguments Made in Lower Courts Attorneys for Chicago:

• Our city has been afflicted with criminal street gangs, and these gangs congregate in public places, deal drugs, and terrorize the neighborhoods. Many residents feel that they are prisoners in their own homes.

• The ordinance does nothing more than allow the police the power to maintain the public peace, and, when necessary,

to disperse groups of individuals who threaten it.

• There is nothing "vague" about this ordinance. When a police officer asks people to disperse and remove themselves from the area, the majority of people will know what that means and understand exactly how to comply.

• The Gang Congregation Ordinance is enforced by officers who have special skills and training in identifying known

criminal street gang members.

• The law is constitutional because it protects the rights of citizens against threats and criminal activities. “Loitering” is not a constitutional right.

Attorneys for Morales:

• The law is unconstitutional because it prohibits people who are not doing anything illegal to assemble in public areas. The freedom to loiter for innocent purposes is protected by the due process clause of the 14th Amendment.

• The way the ordinance defines “loitering” is too vague. There are good reasons why a person might be standing on the

street, and these good reasons might not be apparent to a police officer passing by.

• The police should not have the authority to decide who is “loitering” and who has an apparent purpose for standing on the street.

• If the loitering is in fact harmless and innocent, the dispersal order itself is an unjustified impairment of liberty.

Question Before the Court: Is the City of Chicago’s Gang Congregation Ordinance unconstitutional? Why or why not? To Prepare for the Case: Attorneys for Chicago: Create arguments to convince the justices that the ordinance is not unconstitutional or vague. Attorneys for Morales: Create arguments to convince the justices that the ordinance is vague and unconstitutional. Justices of the U.S. Supreme Court: Create at least three questions to ask each side to help you determine the case.

Student Handout Chicago v. Morales

Rules of Oral Argument 1. Attorneys for Chicago will present first. 2. Attorneys for Morales will present second. 3. Justices will ask questions of both sides during the

arguments.

The Justices’ Decision 1. After oral arguments, the justices meet and discuss the case. 2. They vote on the decision, then explain the reasons to the rest of the class for the decision.

©Constitutional Rights Foundation, 2006

Preparing for the Supreme Court Hearing

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The Constitution &Bill of Rights

© 2006 Constitutional Rights Foundation, Los Angeles, CA All rights reserved.

Due Process

Volume 2

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This year, you are learning about the role of government in making laws.

Laws do many things.

From helping the economy,

to protecting the well-being of citizens,

to organizing the United States’ relationships with

other nations.

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Who makes laws?

Laws in our country can be enacted by Congress, state legislatures, and even local governing bodies. For example,

many public school districts have their own governing body called a school board. It makes the rules for their schools.

What are some rules a School Board may enact?

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All laws are subject to limits set in the Constitution and the Bill of Rights.

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The Constitution and the Bill of Rights were written more than 200 years ago. Our country

had gained its independence from the

English crown.

To make sure Americans never again suffered from the tyranny of a monarchy, where all power resided in one

person, the nation’s founders set up a system of checks and balances.

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Three Branches of Government

The Constitution divides the powers of government among three branches:

The executive (the president)

The legislature (Congress)

The judiciary (the Supreme Court)

Each branch serves as a check and balance on the others.

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The Constitution gives the federal government express powers. All otherpowers are reserved for state governments.

Further, the Constitution protects the liberties and rights of citizens from government intrusions.

Federal versus State Power

Can someone give an example of a federal law? A state law?

Can someone give an example of an individual right?

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Individual Rights

For example, the First Amendment gives individuals the freedom to speak, to associate with others, and to

practice the religion of their choice.

That means, for example, that the Constitution bans the government from passing a law requiring every citizen to

practice the same religion.

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As citizens we have a right to speak freely. But there are limits to our free speech rights. For example, we do not have a right to falsely scream “Fire!” in a crowded movie theater.

In that case, the right to speak freely is outweighed by the interest of the government in public safety.

Not all cases are that clear.

These Rights Are Not Absolute

The job of balancing the needs and concerns of the government with the rights of individuals outlined in the Constitution and the Bill of Rights falls to our nation’s courts.

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We have two court systems–

state and federal.

State courts decide issues of state law.

Federal courts consider federal claims

and often decide federal constitutional

issues.

Today, you are going to have an

opportunity to interact in a real

case argued before the Supreme

Court. You get the chance to

argue on one side of the case or

to decide the outcome as a

Supreme Court justice.

The highest federal court is the

U.S. Supreme Court. It has the

last word on interpreting the

Constitution and Bill of Rights.

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CHICAGO v. MORALES

© Constitutional Rights Foundation, Los Angeles, 2006. All rights reserved.

A U. S. Supreme Court Case

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The Chicago City Council voted to enact a Gang Congregation

Ordinance. It banned known “criminal street gang members” from “loitering”with one another or other persons in

any public place.

The law’s purpose was to lower the crime rate and make neighborhoods safe. It

specifically aimed to reduce gang-related violence and

homicides and drug trafficking.

Facts of the Case

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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.

The ordinance stated:

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Under the ordinance, a person could only be arrested for not complying with an order from the police to disperse. During the three years the law was enforced, 42,000 people were arrested for violating the ordinance.

Some of these people challenged the law. They claimed it was unconstitutional because it violated their First Amendment rights to congregate.

They also argued that the law was vague because a reasonable person reading the law would not know what activity could be punished. ?

?The trial court found the law unconstitutional, and the city of Chicago appealed the decision to a higher court..

? ??

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The ordinance is necessary to reduce crime in Chicago. The court should defer to the City Council, which conducted extensive hearings on gang-related crime.

The First Amendment does not protect “loitering,” which is defined as “to remain in any one place with no apparent purpose.”

Attorneys for the city of Chicago presented these arguments:

The ordinance is not vague. People may only be arrested if they fail to comply with a dispersal order.

The ordinance limits police discretion. The officer must reasonably believe that a loiterer belongs to a criminal street gang. An officer may not issue a dispersal order to anyone moving along or who has an apparent purpose.

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The language of the law is vague. It fails to give citizens notice of how not to violate the law. “Loitering” is not defined. It could include completely innocent activity.

The lawyers for Morales presented these arguments:

The freedom to loiter for innocent purposes is a liberty protected by the Constitution. The law intrudes on the rights of non-gang members to assemble.

The law gives police too much discretion, which has led to arbitrary and even discriminatory enforcement. The law allows the police to judge whether a person is a gang member and whether such persons are “loitering.”

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The case went through the appeals process.

So the City of Chicago appealed the case to the U.S. Supreme Court.

The city then appealed to the Illinois Supreme Court.

First, it went to the Illinois Court of Appeals.

This court ruled in favor of Morales.

This court also ruled in favor of Morales.

Winner

Winner

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The court must decide whether Chicago’s Gang Congregation Ordinance

violates citizens’ constitutional rights.

You are going to take the case to the Supreme Court.

You will take the roles of:

1. Attorneys for the City of Chicago, who argue that the law is constitutional.

2. Attorneys for the people who were arrested, who believe the law violates their constitutional rights.

3. Supreme Court justices, who must decide whether the law is constitutional.

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To prepare for the case:

Justices: Think of at least three questions for each side that will help you decide the case.

Attorneys: Prepare arguments to present to the justices. Decide who will present your arguments and who will answer questions.

Rules of Oral Argument

1. Attorneys for Chicago will present first.

2. Attorneys for Morales will present second.

3. Justices will ask questions of both sides during the arguments.

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The Decision of the Court

A majority of the nine justices agreed to strike down the Chicago gang law. Their main reasons were:

The law failed to give notice to ordinary citizens of what they could and could not do legally.

The law failed to give guidance to police officers as to what citizens they should be arresting. Without this guidance, police officers would have too much power to decide who to arrest.

The law prohibited some conduct that many people would consider innocent.

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Dissenting OpinionsThree justices dissented and would find the law acceptable. They reasoned that communities have a right to pass laws to address local problems such as gang activity even if it means some residents have to give up some of their freedoms.

One justice emphasized that all laws restrict some freedom:

“The citizens of Chicago were once free to drive about the city at whatever speed they wished. At some point [they] decided this would not do, and imposed speed limits designed to assure safe operation by the average driver . . . . This infringed upon the ‘freedom’ of all citizens, but was not unconstitutional.” 527 US at 52.

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© 2006 Constitutional Rights Foundation, Los Angeles.

All rights reserved..

Developed by Marshall Croddy

Written by Kalpana Srinivasan, Alexandra Susman, and Keri Doggett

Graphic Design and Production by Keri Doggett

Constitution & Bill of Rights:Due Process, Volume 2

Special thanks to John Kronstadt, member of CRF Board of Directors, for inspiration and input.