The Proliferation of Juvenile Curfews
By Robert E. Shepherd, Jr.
One of the major strategies of choice in the vast juvenile justice
reform movement of the past decade has been the enactment of curfews,
mostly by way of local ordinances. One estimate posits that about 1,000
localities have adopted such enactments since 1990, along with several
states that have opted for a statewide approach. The rationale behind
this significant movement is that getting juveniles off the streets
during the late night and early morning hours will suppress violent
offending by youths, and both President Clinton and Senator Dole urged
this approach during the 1996 presidential campaign as a partial answer
to such activity. One jurisdiction, New Orleans, has publicly claimed
that the city's dusk-to-dawn curfew has had a major positive impact
on the juvenile serious crime rate in the Crescent City. On the other
hand, researchers have been reluctant to attribute the decline in violent
delinquency to the curfew. Rather than the 28 percent decline in serious
juvenile crime that is claimed by curfew advocates, researchers found
that there had been only a 9 percent decline during curfew hours, along
with a partial displacement of such crime to non-curfew hours. The total
drop in juvenile arrests for serious crime was about 5 percent--the
same rate of decrease that had occurred in the city in the previous
two years. (New Orleans Curfew Popular; But Effectiveness is Uncertain,
Juvenile Justice Update, p. 6 (Dec./Jan. 1997).) Data also show that
the peak times for juvenile offenses, especially for serious crimes,
are in the hours immediately after school lets out, with only about
one in six violent juvenile crimes occurring during normal curfew hours.
(Howard Snyder, Melissa Sickmund & Eileen Poe-Yamagata, Juvenile Offenders
and Victims: 1996 Update on Violence (1996).) Despite the uncertainty
about the effectiveness of curfews, the trend continues and litigation
over their legality is likely to increase.
Broader context
Curfew violations themselves are generally not serious offenses and
studies show that enforcement diminishes after the first few months,
but curfew enforcement is often used as a predicate charge to justify
frisks and other police activity leading to more serious charges. Thus,
some of the reported cases involve attacks on the validity of stops
or arrests pursuant to possible curfew violations that led to searches
resulting in the discovery of contraband or more serious offense charges.
Some of these cases have resulted in the validation of the detention
for curfew violation and subsequent search (e.g., United States v. Landry,
903 F.2d 334, 337 (5th Cir. 1990); Brown v. Ashton, 611 A.2d 599, 612
(Md. Ct. Spec. App. 1992); In re Hector R., 200 Cal. Rptr. 110, 114
(Cal. Ct. App. 1984)); others have invalidated the arrest or search
after a curfew detention (People v. Terenski, 640 P.2d 753, 758 (Cal.
1982); People v. Horton, 92 Cal. Rptr. 666, 668-9 (Cal. Ct. App. 1971);
City of Columbus v. Watson, 580 N.E.2d 494, 495 (Ohio Ct. App. 1989).)
The lawyer representing a juvenile detained for a suspected curfew violation
and then subjected to a search leading to more serious charges may have
to address the validity of the curfew ordinance in order to successfully
attack the search and its products.
In a few jurisdictions, violation of the curfew enactment may be treated
as a delinquency charge, but the overwhelming choice is to deal with
such a violation as a "status offense," requiring special handling.
If a status offense, then the youth generally cannot be detained in
a facility for delinquents on any long-term basis and the punishment
is restricted and cannot include commitment in a juvenile or adult correctional
facility.
Constitutionality
Curfews place not only limitations on the activities of the 2/10th of
1 percent of youth who commit serious offenses, but also on the 99.8
percent who seek to engage in legitimate interests during the nighttime
hours. These intrusions on the liberty of youths to engage in both legitimate,
as well as illegitimate activities, have generated litigation over the
constitutionality of curfew laws with conflicting results and the United
States Supreme Court has yet to resolve the conflict between the holdings.
The principal curfew cases are Bykofsky v. Borough of Middletown,
401 F. Supp. 1242 (M.D.Pa. 1975), aff'd without opinion, 535 F.2d 1245
(3d Cir. 1976), cert. denied, 429 U.S. 964 (1976) and Qutb v. Strauss,
11 F.3d 488 (5th Cir. 1993), cert. denied sub nom Qutb v. Bartlett,
114 S. Ct. 2134 (1994), both upholding ordinances, on the one hand,
and Johnson v. City of Opelousas, 658 F.2d 1065 (5th Cir. 1981) and
Hutchins v. District of Columbia, 942 F. Supp. 665 (D.D.C. 1996), both
striking down enactments, on the other. Most of the legal attacks on
these ordinances or statutes, as reflected in these cases, have been
based on both procedural and substantive grounds under the First, Fourth,
Ninth and Fourteenth Amendments. Professor Katherine Hunt Federle at
Tulane Law School has done an excellent job of analyzing these cases
and others in a recent law review survey article. (Children, Curfews,
and the Constitution, 73 Washington University Law Quarterly 1315 (1995).)
She finds that the legal attacks have been premised on the Equal Protection
Clause, predicated on the violation of a fundamental right or that age
is a suspect classification, on substantive due process principles,
on the right to freedom of movement, on overbreadth or vagueness grounds,
on the basis of the infringement of the rights to parental authority
and familial authority, and on general Fourth Amendments grounds tied
to the existence of a basis for probable cause dictated by youthful
appearance standing alone. The case law is significantly split over
the validity of the various enactments and the rationales for the decisions
striking down such ordinances have varied.
Equal Protection Claims: Litigants have been generally unsuccessful
in arguing that age constitutes a suspect classification under an equal
protection analysis because, as in Bykofsky, children are "a class founded
upon a natural and intrinsic distinction" based on "their degree of
maturity." (401 F. Supp. at 1265) Many of the cases upholding the laws
have also concluded that no substantial, or fundamental, rights are
implicated by such enactments, also largely because courts, as in Bykofsky
and Qutb, largely doubt that juveniles have much in the way of such
rights.
Substantive Due Process Arguments: Some successful challenges have
been grounded on substantive due process principles, questioning whether
there is a sufficient linkage between the government's asserted legitimate
interests and the ordinance itself. In Hutchins, for example, the court
found that "the Fourteenth and Fifth Amendment liberty interests of
the thousands of law-abiding minors who reside in or who may visit the
District of Columbia," notably "the cherished freedom of movement" were
impermissibly burdened by the curfew ordinance which was insufficiently
tailored to match the threat to the public safety. (942 F. Supp. at
680) The District government had not demonstrated strongly enough on
"the record" the justifications for interfering so significantly with
the fundamental liberty interests of the teenagers and their parents.
The court especially pointed to the absence of any specific data that
corresponded to those presented to the court in Qutb. Interestingly,
the District of Columbia ordinance was copied verbatim from the Dallas
enactment upheld in Qutb, but the court in Washington found the evidence
relied upon in Dallas lacking before the District Council acted to adopt
the legislation.
Overbreadth and Vagueness Challenges. Other courts have addressed
to varying degrees the narrowness of the ordinance in question and the
tailoring of its provisions to confront the particular problem of juvenile
criminal activity attacked, and the overbreadth and vagueness issues
presented by enactments that make it difficult for minors and their
parents to determine whether certain conduct is proscribed or excepted.
Courts also question the validity of delegating significant discretionary
authority to the police in determining whether to stop or detain a particular
juvenile.
Parental Authority Claims: Some courts seem particularly troubled
by the fact that curfew ordinances interfere significantly with the
Fifth Amendment rights of parents "to direct their children's upbringing,"
and, more specifically, to prevent parents from allowing "their minor
children to see a movie, participate in an athletic or artistic activity,
or enjoy some other educational activity, even with their permission
or even if the minor is accompanied by a family friend or older sibling
who is mature and responsible but has not reached the age of twenty-one."
(Hutchins, 942 F. Supp. at 674) The judge in Hutchins concluded that
"these intrusions into the authority of parents to make reasonable rules
for their children and to teach their children to mature into responsible
and self-reliant adults are an infringement upon parental liberty that
also demands the highest level of review that the Constitution allows."
(Id.) Other courts conclude that the laws' impingement upon the parents'
right to direct the care and control of their children is permissible
to the extent reasonably necessary for the protection of the public
and the overall well-being of the children.
By and large, many of the most recent cases, other than Hutchins,
have upheld the constitutionality of curfew ordinances, and largely
on the basis of statistical data about the incidence of serious juvenile
crime similar to that presented to the federal court in Dallas in Qutb.
However, as serious juvenile crime continues to decline, as it has for
the last few years, as data accumulate about the common times for violent
offending, and as evaluations of the effectiveness of curfew ordinances
continue to yield ambiguous conclusions about their impact on crime
statistics, the legal debate may become more intense and the results
somewhat less predictable. Future cases may also address more exhaustively
the disproportionate impact the enforcement of curfew ordinances has
on youth of color, an issue alluded to briefly in Qutb, but rejected
summarily, to reinforce the arguments on family autonomy and parental
authority. Attacks on curfew ordinances largely have been the province
of civil rights and civil liberties lawyers to date, but as the number
of ordinances continues to proliferate, and pretextual stops or detentions
on curfew grounds increase, resulting in other, more serious criminal
or delinquency charges, the legal assaults on the laws may mount in
the broader criminal or juvenile defense bar. Both sides will have to
sharpen their skills in the analysis and presentation of evidence concerning
juvenile arrest and delinquency statistics.
Robert E. Shepherd, Jr., is professor of law at the University
of Richmond T.C. Williams School of Law in Virginia.
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