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January 5, 1996


Appeal from the Circuit Court of McHenry County. No. 94-OV-690. Honorable Conrad F. Floeter, Judge, Presiding.

As Corrected March 12, 1996.

Presiding Justice McLAREN delivered the opinion of the court: Geiger and Thomas, JJ., concur.

The opinion of the court was delivered by: Mclaren

PRESIDING JUSTICE McLAREN delivered the opinion of the court:

The plaintiff, the City of Harvard (City), has enacted an ordinance which reads, in full:

"26.04 Gang Activity

It shall be unlawful for any person within the City to wear known gang colors, emblems, or other insignia, or appear to be engaged in communicating gang-related messages through the use of hand signals or other means of communication." (Emphasis added.)

The defendant, Todd Gaut, was charged with wearing a gang symbol, a six-pointed star, in violation of the City of Harvard's gang activity ordinance. He moved to dismiss the charges, arguing that the language of the ordinance emphasized above is unconstitutionally vague and overly broad. The trial court denied the motion, convicted the defendant, and sentenced him to supervision. On appeal, the defendant again raises his constitutional challenges to the ordinance.

We reverse the defendant's conviction and hold that the portion of Harvard's gang activity ordinance involved in this case is facially overly broad and violates constitutional guarantees of free speech. Because there is no provision for severing this part of the ordinance from the remainder, the entire ordinance must be invalidated.

On March 8, 1993, the defendant, who was 13 years old at the time, wore a six-pointed star in open view in public. When he saw police officers, he tried to hide the star. The defendant told the officers he belonged to the "Action Packed Gangster Disciples." He also acknowledged that he was not Jewish; he wore the star as a gang symbol and not a religious symbol; and he knew he was violating the ordinance.

On March 8, 1993, the defendant was arrested and charged with violating Harvard's gang activity ordinance. The City of Harvard issued a complaint alleging that the defendant violated the ordinance in that he "unlawfully wore a known gang insignia, that being a six point star on a neck chain, displayed in public view."

In response to the defendant's motion to dismiss, the City observed that the ordinance contains the word "known" and that, in enforcing the ordinance, the Harvard police department construes this language as limiting the reach of the ordinance to a person who actually knows that he or she is wearing gang colors or insignia. The City attached an affidavit of the arresting Harvard police officer Leslie Lunsmann to its response to the defendant's motion to dismiss. In the affidavit, Lunsmann states that he is trained and certified in street gang identification and anti-gang education and that the defendant attended a lecture on gang crime he gave at Harvard High School. Lunsmann stated in the affidavit that during the lecture he showed the students a six-pointed star and told them it was a symbol of the Gangster Disciples street gang. He told the students that the gang activity ordinance forbids knowingly wearing gang symbols, colors, or insignia. Further, the City argued that the knowing display of such gang symbols is unprotected by the first amendment (U.S. Const., amend I) because, insofar as it is communication, it is tantamount to "fighting words."

At the hearing on the defendant's motion to dismiss, the trial court recognized that the defendant maintained that the ordinance is facially unconstitutional; however, the trial court limited the hearing to how the ordinance was enforced in the defendant's case. Despite this limitation, we find that much of the evidence presented at the hearing is relevant to whether the ordinance is facially overly broad. In particular, the hearing sheds light on whether the law is amenable to a narrowing construction.

Officer Lunsmann stated during the hearing that he is primarily responsible for instructing the department on the administration of the gang activity ordinance. In this role, the officer defined "street gang" as a group of individuals who are together for malicious, although not necessarily criminal, activity. More specifically, he explained that most midwestern street gangs are affiliated with either the People Nation or the Folk Nation, which are not "gangs" themselves. Officer Dean Burton, who also testified at the hearing, could not recall the department's exact definition of "gang," but ...

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