Los Angeles Curfew Ordinance

“The violent criminal behavior of a small proportion of juvenile offenders has created a public perception that serious violent crime by juveniles has reached epidemic proportions and, consequently, has prompted intense political rhetoric compelling action in order to “get tough on crime.” . . . However, the statistics also reveal that juveniles are not responsible for a significant majority of the violent crimes and do not experience a majority of the violent victimizations. In fact, adults account for a significant amount of all violent crime arrests, yet it is a small proportion of juvenile offenders that is driving rapid and sweeping legislation aimed at curbing violent juvenile crime and victimization. . . . Juvenile curfews have gained recent popularity as a commonly-used tool to battle against violent juvenile crime and victimization by restraining minors and placing liability on parents. In other words, juvenile curfews are a mechanism of social control among the minor population. Although municipalities throughout the nation have had juvenile curfews for some time, such curfews are now being used as popular political salvos to “get tough on crime.” For instance, President Clinton praised juvenile curfews and encouraged communities across the nation to implement them as early as 8:00 p.m. However, despite the immense political support juvenile curfews have recently gained, they are not without opponents. As one critic recognized, “Democrats are not immune to the political reality that you can score easy points by blaming crime on a class of citizens who don’t vote.” While juvenile curfews continue to be supported . . . , minors’ and parents’ constitutional rights are being overlooked. . . , . . .after the Ninth Circuit Court of Appeals’ recent invalidation of a San Diego, California, ordinance, the future of juvenile curfews remains uncertain. ” (emphasis added)(19 J. Juv. L. 84).

As shown below, it’s very likely that sec. 45.03 would not pass constitutional muster if it were challenged in court. In the meantime we should take action to protect the basic freedoms of our teenage stakeholders.

Sec. 45.03 thwarts MCWCC’s efforts to increase public safety and reduce crime.
Relations between police and youth become antagonistic as a result of youth curfew laws. Teenagers grow up with lack of respect for police and the law.

On the one hand, we want to recruit stakeholders in the effort to reduce crime. Under MCWCC bylaws, our 16 year old stakeholders are eligible to vote in MCWCC elections and participate fully. On the other hand, sec. 45.03 creates new criminals out of innocent young people who are doing nothing blameworthy whatsoever. This situation doesn’t enhance public safety for our community. Teens are responsible enough to elect Board Members — but they are not allowed out of their houses after 10 pm. Something is wrong.

Brief Analysis of Sec. 45.03
Introduction

“On weekdays, at 9:59 p.m. my son is an upstanding student. At 10:01 [p.m.] he is a criminal by virtue of being in public. Sound ludicrous? It’s the law.” (19 J. Juv. L. 84).

There is a large body of literature dealing with the constitutionality of curfew laws. These laws have recently been proliferating rapidly across the nation.

“In recent years, cities across the nation have imposed juvenile curfews at an alarming rate. For example, one study of juvenile curfews in America’s 200 largest cities found that ninety-three (forty-seven percent) had juvenile curfews in effect on January 1, 1990. Interestingly, by the spring of 1995, this number soared to 146 (seventy-three percent); thus, nearly three-fourths of America’s largest cities had juvenile curfews in effect in 1995.” . . ., with the proliferation of juvenile curfews comes considerable debate as to their effectiveness and constitutionality.” .” (19 J. Juv. L. 84).

No less than eleven pages of citations of cases and law review articles were generated by shephardizing just one of the cases cited below (i.e., searching for where the Nunez case is cited). That doesn’t include the literature in newspaper, magazine and internet articles also dealing with the curfew issue. As a layman (not a lawyer) I don’t have the research resources, the time or other resources necessary to immerse myself fully into this issue. However, sec. 45.03 is so offensive and so alarming for our community that I believe it’s worth the time and trouble to work towards eliminating it.

Sec. 45.03 is fundamentally worrisome. Curfew laws punish innocent activity. And – to the extent curfews are intended to protect teenagers from victimization – they have the effect of “punishing the victim” also. What greater perversion of justice than a law intended to “punish the victim”?

The proliferation of these laws also has ominous implications. The judicial philosophy behind curfew laws – a philosophy that accepts punishment of innocent activity – is dangerous. It should be remembered that curfews have historically been used as tools of oppression that lead to even greater oppressions in the future (once the public has got used to them). Curfew laws “. . . can either be to maintain public order (such as that after the 2003 North America blackout), or to suppress targeted groups (such as the one Adolf Hitler enacted on Jewish people in Nazi Germany). Curfews have long been directed at certain groups in many cities or states, such as Japanese-American university students on the West Coast during World War II, African-Americans in many towns during the time of Jim Crow laws, or people younger than 16, 17, 18, 19, 20, 21, or 22 years or another certain age in many towns of the U.S. since the 1980s. . . . ” (Wikipedia, s.v. “Curfew”).

There are essentially two rationales for juvenile curfew laws but the logic of each one is flawed. One rationale is to protect society from juvenile crime and the other rationale is to protect the juvenile him, or herself, from being victimized.

The logic of fighting juvenile crime by placing all juveniles under house arrest is about as reasonable as fighting the Mafia by placing all Italian-Americans under house arrest or putting all African-Americans or Latinos under house arrest if crime statistics show that a significant majority of crimes in a particular community are committed by one of those groups.
“In Nunez, the court expressed concern that “the relatively light penalties imposed by the curfew are a small deterrent to crime when compared to the penalties for the actual crimes that the curfew ostensibly seeks to thwart.” Juvenile curfews assume that minors who venture into the nighttime hours do so to engage in criminal activity and will be deterred from doing so by the existence of a nocturnal curfew: “The naivete of such an assumption is striking.” Therefore, since all the activities that juvenile curfews seek to curb are already illegal, and carry significantly more intrusive penalties, logic states that the only minors juvenile curfews will have any effect on are those already inclined to conform to the law.” (emphasis added)(19 J. Juv. L. 84).

The logic of protecting juveniles by placing them under house arrest is also flawed and ignores the fact that violence is ubiquitous, victimizing all persons. All persons — both minors and adults — are vulnerable to nocturnal crime.

“Obviously, if you lock everyone in their homes, they’re not going to be exposed to danger,” . . . . “We could prevent a lot of rapes by putting women under house arrest, but that’s not what it means to be a free society.” (Arthur B. Spitzer, legal director of the American Civil Liberties Union in the D.C. area).

Curfew laws sweep the problem of juvenile crime under the rug by imposing a restriction of movement on all youth instead of targeting those who commit crimes. Juveniles (who are not yet voters) are a convenient scapegoat for politicians whose crime-fighting policies have failed.

SUMMARY

Sec. 45.03 remains unconstitutionally vague in several respects. And, as far as equal protection issues, the 1998 amendments to sec. 45.03 did not revive the ordinance constitutionally. Unless the ordinance is rewritten to require the police to seek out exculpatory evidence at the time of stopping a teen, the curfew will continue to have a chilling effect on teens exercising their First Amendment rights and also their fundamental right to free movement. In addition, and no less conclusive, is that sec. 45.03 violates a parent’s fundamental right to rear children without undue governmental interference. And the ordinance is overbroad, having a chilling effect on the exercise of First Amendment rights. But overshadowing all other issues is the fatal due process problem of having a law that punishes innocent activity.

Nunez v. City of San Diego

The constitutional objections to Sec. 45.03 fall squarely within the rulings made by the Ninth Circuit Court of Appeals in the case Nunez v. City of San Diego 114 F.3d 935 (1997), a case analyzed by Jeff A. Beaumont, Comment, Journal of Juvenile Law 19 J.Juv. L. 84 (1998) (“Beaumont”).

Nunez held, regarding a similar San Diego curfew ordinance, that: (1) the ordinance was unconstitutionally vague; (2) the ordinance violated equal protection in that it was not narrowly tailored to promote the city’s compelling interest in reducing juvenile crime and juvenile victimization; (3) the ordinance was unconstitutionally overbroad in that it restricted minors’ legitimate exercise of First Amendment rights; and (4) the ordinance violated parents’ fundamental right to rear children without undue governmental interference.

Numerous cases in a variety of jurisdictions cite Nunez in striking down curfew laws. There are also cases in other jurisdictions that do not follow Nunez. However Los Angeles is within Ninth Circuit jurisdiction and so Nunez is controlling authority for us.

Nunez struck down the San Diego Ordinance in 1997. Shortly thereafter (eff. 6/19/98) Los Angeles’s sec. 45.03 (which used language similar to San Diego’s) was amended. Instead of being unlawful to “loiter, idle, wander, stroll or play in or upon the public streets, . . .etc” (San Diego’s language) it is now unlawful just “to be present in or upon any public street . . .etc”. Los Angeles tried to patch up the vagueness objections of Nunez. But as a result, Los Angeles made its curfew law even more draconian – and more overbroad and with a greater chilling effect on teens. The amended sec. 45.03 also included new exceptions (apparently in an attempt to comply with Nunez).

Hodgkins v. Peterson

The failure of Los Angeles’ attempt to patch up sec. 45.03 after Nunez, is underscored by reference to the case Hodgkins v. Peterson 355 F.3d 1048 (7th Cir. 2004) which struck down an Indiana curfew law – very similar to the current Los Angeles law – even after it had been amended to add a list of exceptions designed to meet a previous successful constitutional challenge to it. And Hodgkins did this employing a lesser standard of scrutiny than the “strict scrutiny” standard employed by Nunez.

In other words, as shown below, differences between the San Diego law that was ruled unconstitutional and the current Los Angeles law are not so substantial that Nunez should not also apply to the Los Angeles law, especially when viewed in light of Hodgkins.

Sec. 45.03 remains unconstitutionally vague even after having been amended

“To avoid unconstitutional vagueness, an ordinance must (1) define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited; and (2) establish standards to permit police to enforce the law in a non-arbitrary, non-discriminatory manner. Kolender v. Lawson, 461 U.S. 352, 357 (1983).” (Nunez at para 34).

The 1998 amendment to sec. 45.03 corrected language that was vague in the ordinance. However, as shown below, it also added new language that is vague so that ordinary people still cannot understand what conduct is prohibited.

Most importantly, as pointed out by Hodgkins, adding more and more exceptions just doesn’t help to “establish standards to permit police to enforce the law in a non-arbitrary, non-discriminatory manner”.

Language of sec. 45.03 REMAINS vague DESPITE BEING AMENDED

There is nothing vague about simply being present “in or upon any public street”. However sec. 45.03 remains vague – at least in regard to its exceptions. Ordinary people cannot understand whether an exception applies to them or not.

Sec. 45.03 states, in relevant part, the following:

“It is unlawful for any minor . . . to be present in or upon any public street, . . ., or other public ground, public place,. . . .[unless ? ]. . . ( c ) the minor is attending or going to or returning directly home from a public meeting, or a place of public environment, such as a movie, play, sporting event, dance or school activity; . .”.

But, a “place of public environment” is a public place.

In other words, under 45.03, a minor may not be in a public place unless he is attending a public place. This is meaningless dribble. It is obviously vague.

And Nunez points out that, “The need for definiteness is greater when the ordinance imposes criminal penalties on individual behavior or implicates constitutionally protected rights than when it regulates the economic behavior of businesses. . . . This greater need for definiteness is present in this case because the San Diego ordinance restricts individual freedom through criminal law.”. Although violation of the Los Angeles law (sec. 45.03) is an infraction instead of a misdemeanor (as it was under the San Diego law) this principle should also apply .

The language “upon an errand directed by his or her parent” is unconstitutionally vague.

City of Sumner v. Walsh

Section 45.03 does not itself define the word “errand”.
The Washington Supreme Court (En Banc) in City of Sumner v. Walsh, 61 P.3d 1111 (Wash. 2003) struck down a curfew ordinance of the City of Sumner, Washington, on grounds that it was unconstitutionally vague – and specifically that the word “errand” in that ordinance was vague.

Of course, a Washington State case is not controlling legal authority for California. However, what is conclusive here is the fact – evidenced by that published case – that five Justices of the Washington Supreme think that the word “errand” in the exemption for a juvenile who “is on an errand as directed by his or her parent” is vague. (That “errand” language of the Sumner ordinance is the same language as the Los Angeles ordinance.)

“To avoid unconstitutional vagueness, an ordinance must (1) define the offense with sufficient definiteness that ordinary people can understand what conduct is prohibited; . . . ” according to the United States Supreme Court in Kolender v. Lawson, 461 U.S. 352, 357 (1983). The point is that – if five Justices of the Washington Supreme Court cannot understand what conduct is permitted or prohibited by the word “errand” – then ordinary people also cannot understand what conduct is permitted or prohibited by the ordinance.

Therefore, “sufficient definiteness that ordinary people can understand what conduct is prohibited” is not present in the Los Angeles Municipal Code, Sec. 45.03).

And sec. 45.03 is also vague in that it fails to provide sufficient notice of what conduct is prohibited or standards for police officers to enforce that conduct.

“To avoid unconstitutional vagueness, an ordinance must . . . (2) establish standards to permit police to enforce the law in a non-arbitrary, non-discriminatory manner” (Kolender v. Lawson).

“ . . . Walsh also contends that the Sumner ordinance is constitutionally infirm because it fails to provide police officers with sufficient guidance to determine whether a juvenile’s presence in a public place during curfew hours falls under the ‘errand’ exemption. Pertinent to this case, we believe that the term ‘errand’ is also vague in that it fails to provide sufficient notice of what conduct is prohibited or standards for police officers to enforce that conduct. We can easily conceive of a situation where a parent sends his or her juvenile child to a neighbor’s house during curfew hours in order to deliver a package. Because the ordinance fails to define what constitutes an ‘errand,’ a police officer is furnished with little guidance as to whether the juvenile engaged in such an activity is in violation of the ordinance. In this regard, the instant case is similar to . . . in which the court concluded that a juvenile curfew ordinance that exempted juveniles en route to or from ‘an activity’ was unconstitutionally vague. . . . That court reasoned that ‘{b}ecause the ordinance is unclear about what is and is not an exempted activity, {the ordinance} fails to provide explicit standards for enforcement.’ . . . .

We recognize that it may be difficult for a city to draft a curfew ordinance that is not unconstitutionally vague. The primary reason for that, as we pointed out in Pullman, is that curfew ordinances attempt to make activities that are normally considered innocent, unlawful, i.e., walking, driving, going to the store. If a city chooses to establish a curfew that does not simply make it unlawful for a juvenile to be in a public place after curfew hours, with no exceptions, it must establish the line between conduct that does not fall under the ordinance and that which does in a way that the ordinance can be enforced in a non-arbitrary manner.” (emphasis added)(Sumner at para 46-47).

And Sumner notes here (at note “8”) that: “Although an ordinance that completely bans juveniles from being in public places after certain hours may survive a vagueness challenge, an ordinance might experience a more difficult time passing constitutional muster on the grounds Justice Chambers discusses in his concurring opinion, i.e., that the ordinance violates the constitutional right of a juvenile to move freely in public places. See Nunez, 114 F.3d at 943-44.”.

Sumner’s broader discussion of vagueness is also germane to sec. 45.03.

“ . . . it cannot be easily determined from the terms employed by the city whether and when a juvenile is engaged in an activity which runs afoul of the ordinance. For example, one can reasonably ask whether the ordinance is violated by a juvenile who travels on foot during curfew hours, from any activity, and slows his or her pace, or stops, for perfectly legitimate reasons (tying one’s shoelaces for example). One might ask the same question about a juvenile who stops to purchase gasoline while traveling to his or her home by automobile from an exempted activity such as a school football game or concert. Does such conduct constitute lingering or staying in violation of the ordinance? Sumner’s ordinance simply does not provide sufficient guidance to answer these questions and many more and thereby prevents unconstitutionally arbitrary discretion by law enforcement. ‘An ordinance that allows a person to stand on a public sidewalk only at the whim of a police officer is unconstitutional.’ City of Seattle v. Drew, 70 Wn.2d 405, 411, 423 P.2d 522 (1967) (citing Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S. Ct. 211, 15 L. Ed. 2d 176 (1965)). In sum, an ordinance which affords a police officer broad discretion to determine if a juvenile is in violation when tying his or her shoe or pumping gas does not withstand a vagueness challenge.
Considering the discretion that police officers are accorded under the ordinance, one is left to wonder whether the practical effect of the ordinance is to simply make it unlawful for a juvenile to be present in a public place during curfew hours. The problem with the ordinance, in short, is that it does not provide ‘ascertainable standards for locating the line between innocent and unlawful behavior’ that this court requires. Pullman, 82 Wn.2d at 799. Our conclusion in that regard is buttressed by the Ninth Circuit’s decision in Nunez that phraseology in a curfew ordinance which allows police officers to enforce the ordinance by penalizing juveniles for a narrower range of conduct other than mere ‘presence’ is unconstitutionally vague because it affords excessive discretion to the police. See Nunez, 114 F.3d at 943.” (Sumner at para 44-45).

Sec. 45.03 does not “establish standards to permit police to enforce the law in a non-arbitrary, non-discriminatory manner” and is therefore unconstitutionally vague in this respect.
Under sec. 45.03 a teenager is subject to being stopped on the way to or from a protected First Amendment activity.
“[J]uvenile curfews — even with a First Amendment exception — impermissibly prohibit innocent minors from exercising their First Amendment rights by placing unbridled discretion upon law enforcement officials:
An enforcement official confronted in a public place during curfew hours with a youth asserting a free speech exception will either believe the youth and allow her to continue, or disbelieve her and take enforcement action. If the officer believes every assertion of First Amendment activity, the exception will swallow the proscription. If the officer takes enforcement action against a free speech claim, he will in some notable number of cases err, placing a constitutionally intolerable restraint on the exercise of a First Amendment freedom.” (Beaumont, citing Tona Trollinger, The Juvenile Curfew: Unconstitutional Imprisonment, 4 WM. & MARY BILL RTS. J. 949, 964-65 (1996) (stating that juvenile curfews are politicians’ efforts to appear tough on crime).
This was the point of Hodgkins v. Peterson 355 F.3d 1048 (7th Cir. 2004) which struck down an Indiana curfew law even after it had been amended to add a list of exceptions designed to meet a previous successful constitutional challenge to it – including the following exception “e”:
“. . . (E) an activity involving the exercise of the child’s rights protected under the First Amendment to the United States Constitution or Article 1, Section 31 of the Constitution of the State of Indiana, or both, such as freedom of speech and the right of assembly; or. . . .”.
Although exception “e” seems to protect the minor’s First Amendment rights – not so – because “the curfew law requires them to subject themselves to arrest . . . and then prove at a later time that the activity they were engaging in fell within the affirmative defense for First Amendment activity.”.
“The Hodgkins maintain that the revisions to the curfew law have not cured the constitutional defect found in the previous version of the law which was struck down. . . The affirmative defenses added to the revised curfew law, they argue, do not adequately protect minors’ First Amendment rights, as the curfew law requires them to subject themselves to arrest . . . and then prove at a later time that the activity they were engaging in fell within the affirmative defense for First Amendment activity. They assert that the consequences of violating the curfew law are so burdensome and intrusive that, rather than risk arrest, they will be discouraged from participating in expressive activity during curfew hours. In other words, the plaintiffs claim that the curfew regulation creates a “chill” that imposes on their First Amendment rights. The Supreme Court has often noted that a realistic threat of arrest is enough to chill First Amendment rights. City of Houston, Texas v. Hill, 482 U.S. 451, 459, n.7, . . . ; Steffel v. Thompson, 415 U.S. 452, 462, . . . ; Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, . . . (“When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.”).

The scope of “probable cause” for a police stop is too broad under the curfew laws.

The police under the Indiana law (like the Los Angeles law) do not have to seek out exculpatory evidence.

“ . . . there is no reason to think that the minors whom the affirmative defense will shield from arrest represent most or even many of those who are at risk of being stopped by the police. A police officer has probable cause to arrest when “the facts and circumstances within the officer’s knowledge … are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.” Michigan v. DeFillippo, 443 U.S. 31, 37, 99 S. Ct. 2627, 2632 (1979) (emphasis ours). . . . Once a police officer discovers sufficient facts to establish probable cause, she has no constitutional obligation to conduct any further investigation in the hope of discovering exculpatory evidence. Eversole v. Steele, 59 F.3d 710, 718 (7th Cir. 1995); see also Humphrey v. Staszak, 148 F.3d 719, 724 (7th Cir. 1998) (validity of affirmative defense is irrelevant to whether or not police officer sued for false arrest had probable cause to make arrest); . . . A police officer may not ignore conclusively established evidence of the existence of an affirmative defense, Estate of Deitrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir. 1999), but the officer has no duty to investigate the validity of any defense. Baker v. McCollan, 443 U.S. 137, 145-46, 99 S. Ct. 2689, 2695 (1979 . . . . . A legislature can draft a curfew law which specifies that a law enforcement official must look into whether an affirmative defense applies before making an arrest. See Hutchins v. District of Columbia, 188 F.3d 531, 535 (D.C. Cir. 1999) (en banc) . . .. . . The Indiana Legislature did not impose that requirement. Thus, a police officer who actually sees a sixteen-year-old leaving a late-night religious service or political rally could not properly arrest the youth for staying out past curfew. But, . . . , the statute’s affirmative defenses do not compel the officer to look beyond what he already knows in order to decide whether one of the affirmative defenses applies. . . . Thus, if a police officer stops a seventeen-year-old on the road at 1:00 a.m., and the teen informs the officer that she is returning home from a midnight political rally, the officer need not take the teen at her word nor attempt to ascertain whether she is telling the truth. Lacking first-hand knowledge that the juvenile indeed has been participating in First Amendment activity, the officer is free to arrest her and leave assessment of the First Amendment or any other affirmative defense for a judicial officer. . . . , an officer observing a child who appears to be under the age of 18 out walking during curfew hours does not have to investigate the child’s assertion that he is returning from or going to a religious or political activity. So, children who appear to be under the age of 18 who are out during curfew hours walking to the Governor’s residence to protest an early morning execution might be arrested. This is because the officer might have to investigate whether the children are in fact walking to the Governor’s residence to the protest, and the officer is not required to undertake such an investigation in determining probable cause . . . . Any juvenile who chooses to participate in a late-night religious or political activity thus runs the risk that he will be arrested if a police officer stops him en route to or from that activity and he cannot prove to the officer’s satisfaction that he is out after hours in order to exercise his First Amendment rights. Consequently, because the defense imposes no duty of investigation on the arresting officer, as a practical matter it protects only those minors whom the officer has actually seen participating in protected activity. This strikes us as a small subset of minors participating in late-night First Amendment activities, and therefore we conclude that the statute reaches a substantial amount of protected conduct. Most religious and political events occurring during curfew hours are organized and attended by adults, so even assuming that police routinely monitor such events, they would have no reason to suspect that any particular juvenile taking part in one of these events is doing so unaccompanied by a parent or other responsible adult. Only when the minor is observed by himself or solely in the company of other minors would a police officer have reason to believe that he is in public after hours unaccompanied by a responsible adult. Indeed, if an unaccompanied minor comes to the attention of the police at all, it is much more likely that he will do so while traveling the relatively deserted public way to or from the late-night First Amendment activity, not in the midst of the activity itself.” (emphasis added)(Hodgkins para 65-69).

EQUAL PROTECTION OBJECTIONS TO SEC. 45.03

According to Nunez, in a challenge to the curfew ordinance under the Equal Protection Clause of the Fourteenth Amendment, “strict scrutiny should apply because the ordinance infringes on fundamental rights protected by the Constitution: the right of free movement and the right to travel, as well as First Amendment rights”. And Nunez adds, “In applying this standard, we are mindful that strict scrutiny in the context of minors may allow greater burdens on minors than would be permissible on adults as a result of the unique interests implicated in regulating minors. . . . .”.

“In order to survive strict scrutiny, the classification created by the juvenile curfew ordinance must be narrowly tailored to promote a compelling governmental interest. Plyler, 457 U.S. at 217. To be narrowly tailored, there must be a sufficient nexus between the stated government interest and the classification created by the ordinance. Id. at 216-17.” (Nunez at para 63).

Agreeing that the “City has a compelling interest in reducing juvenile crime and juvenile victimization. . . .”. Nunez then looks at “two reasons why the ordinance is not narrowly tailored: (1) the record reflects little statistical support for the efficacy of the curfew; and (2) the exceptions are too narrow to protect minors’ fundamental rights.”.

Nunez accepts San Diego’s statistical support for the position that the curfew “will have a salutary effect on juvenile crime and victimization.”. (Note: since I haven’t received any statistical information regarding the Los Angeles ordinance I don’t concede this point in regard to sec. 45.03.)

However, a nipping-crime-in-the-bud approach is specifically rejected.

“On the other hand, we reject the City’s further justification that the ordinance has the additional beneficial deterrent effect of permitting police officers to get juveniles off the streets before crimes are committed. The Supreme Court has sharply critiqued this type of rationale as overinclusive, at least with respect to adults. Papachristou, 405 U.S. at 171 (“The implicit presumption of these generalized vagrancy standards — that crime is being nipped in the bud — is too extravagant to deserve extended treatment.”). Furthermore, the relatively light penalties imposed by the curfew are a small deterrent to crime when compared to the penalties for the actual crimes that the curfew ostensibly seeks to thwart.”.

Nunez then examines whether the ordinance is narrowly tailored in regard to the scope of the exceptions. “In order to be narrowly tailored, the ordinance must ensure that the broad curfew minimizes any burden on minors’ fundamental rights, such as the right to free movement. Thus, we examine the ordinance’s exceptions to determine whether they sufficiently exempt legitimate activities from the curfew.”.

Nunez then states that San Diego’s “present ordinance is problematic because it does not provide exceptions for many legitimate activities, with or without parental permission” and concludes “that the ordinance is not narrowly tailored to meet the City’s compelling interests, as required by strict scrutiny” and that it is unconstitutional.

This appears to leave open the possibility of patching up a curfew law by amending it to include the necessary exceptions. However, as shown by Hodgkins, to meet the equal protection requirements it would have to include an exception which sec. 45.03 does not now have – a requirement for the police to carefully investigate if the teen is going to or from a protected activity – before issuing a citation.

The exceptions Los Angeles added by amendment (apparently in response to Nunez) fail to impart constitutionality to the law.
“. . . it is what these curfews restrict, and not what they exempt, that matters most.” (19 J.Juv. L. 84, citing Waters v. Berry, 711 F. Supp. 1125, 1136 (D.D.C. 1989)).

For example, exception “f” makes an exception for constitutionally protected interstate travel. While Nunez does indeed hold that the Federal Constitution guarantees a fundamental right to interstate travel, it also holds that Citizens have fundamental right of free movement. And this is not addressed by exception “f” to 45.03.

“Citizens have a fundamental right of free movement, “historically part of the amenities of life as we have known them.” Papachristou, 405 U.S. at 164, 92 S.Ct. at 844; see also United States v. Wheeler, 254 U.S. 281, 293, 41 S.Ct. 133, 134, 65 L.Ed. 270 (1920) (“In all the [s]tates from the beginning down to the adoption of the Articles of Confederation the citizens thereof possessed the fundamental right, inherent in citizens of all free governments, peacefully to dwell within the limits of their respective [s]tates, to move at will from place to place therein, and to have free ingress thereto and egress therefrom….”).” (Nunez at para 54- emphasis added).

Freedom of movement is a basic, fundamental right.

“ . . . the fundamental right that juvenile curfews most significantly trample upon is freedom of movement. Although this liberty interest is not enumerated in the Constitution, the United States Supreme Court has acknowledged that freedom of movement is “basic in our scheme of values.” The Court, while striking down a vagrancy statute, has also acknowledged that freedom of movement is akin to a fundamental right, encompassing walking, loafing, and strolling, all of which “are historically part of the amenities of life as we have known them.” Similarly, in Bykofsky v. Borough of Middletown, Justice Marshall, joined by Justice Brennan, stated that the “freedom to leave one’s house and move about at will is ‘of the very essence of a scheme of ordered liberty . . . . . .”. ..” (Journal of Juvenile Law Comment – 19 J. Juv. L. 84).

And the Constitution secures minors’ fundamental right to free movement against the government acting without regard to the parents’ wishes.
“The City and its amici contend that these are not fundamental rights for minors because minors are traditionally treated differently than adults. The City heavily relies on Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386 (1995), to show that “unemancipated minors lack some of the most fundamental rights of self-determination — including even the right of liberty in its narrow sense, i.e., the right to come and go at will.” Id. at 2391. The City takes Vernonia’s statement out of context. In the next sentence the Court explains that children “are subject, even as to their physical freedom, to the control of their parents or guardians.” Id. Because parental power is not subject to the constitutional constraints of state power, . . . minors’ lack of rights vis-a-vis parents does not necessarily show that they lack those rights vis-a-vis the state. The Court emphasized the school district’s “custodial and tutelary responsibility for children,” noting that constitutional rights are different in public schools than elsewhere. Id. at 2392. See also Reno v. Flores, 507 U.S. 292, 302 (1993). We decline to extend Vernonia to establish that the Constitution does not secure minors’ fundamental right to free movement against the government acting without regard to the parents’ wishes. See Hutchins, 942 F. Supp. at 672 (similarly declining to extend Vernonia).” (Nunez at para 13 – emphasis added).

Overbroad and Due Process Objections to sec. 45.03

Nunez also concluded,“regarding plaintiff minors’ fundamental First Amendment rights, which are incorporated against the states by the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303 (1940); Thornhill v. Alabama, 310 U.S. 88, 95 (1940)“ that “the ordinance’s restrictions on legitimate exercise of minors’ First Amendment rights makes the ordinance unconstitutionally overbroad.”.
“The overbreadth doctrine allows a plaintiff “to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). Thus, it serves to overcome what would otherwise be a plaintiff’s lack of standing.” (Nunez at para 88).
Nunez holds that although it’s a “general regulation of conduct, not speech ”the ordinance nevertheless does restrict minors’ ability to engage in many First Amendment activities during curfew hours.”. It “restricts access to any and all public forums”.

“For First Amendment purposes, the physical and psychological well-being of minors is a compelling government interest. Sable Communications, 492 U.S. at 126. Thus, the ordinance must be narrowly tailored to achieve that interest. We hold the ordinance is not narrowly tailored because it does not sufficiently exempt legitimate First Amendment activities from the curfew.” (Nunez at para 96).

And – especially viewed in light of Hodgkin’s reasoning – the Los Angeles ordinance also fails to do so (especially the coming and going to the activities).
The chief due process issue – the inescapable flaw of sec. 45.03 – whatever else is said about it – is that it criminalizes innocent activity.

“As one commentator concluded: Vesting in governmental instrumentalities the authority to deprive persons of freedom to engage in innocent conduct is a frightening proposition. The Due Process Clause should proscribe such a result. Once innocence can be the subject of arrest and criminal prosecution, the concept of due process evaporates. Arguably, therefore, the substantive due process component of the Due Process Clause makes even the most carefully drafted blanket law unconstitutional.” .” ..” (Beaumont).

Sec. 45.03 violates parents’ fundamental right to rear children without undue governmental interference.

This is an independent basis for Nunez striking down the San Diego ordinance.
The curfew rationale of preventing victimization of teens is inextricably bound with issues of parental control.

“The difficult issue in this case involves reconciling two conflicting interests: individual freedom to walk on public streets without fear of police intervention, see, e.g., Gomez v. Turner, 672 F.2d 134, 143 n. (D.C. Cir. 1982), and the authority of the state to act in the best interest of minors, see, e.g., Bellotti v. Baird, 443 U.S. 622, 633-34 (1979). . . This issue arises only if one recognizes a right at a sufficient degree of abstraction to connect with precedent in analogous areas.” (Hutchins v. District of Columbia, 188 F.3d 531 (1999), dissent).

Nunez rules that, with curfew laws, the state is usurping the parental functions.

“The curfew is, quite simply, an exercise of sweeping state control irrespective of parents’ wishes. Without proper justification, it violates upon the fundamental right to rear children without undue interference. See Hodgson v. Minnesota, 497 U.S. 417, 446-47 (1990) (“The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to the American tradition.”). The ordinance is not a permissible “supportive” law, but rather an undue, adverse interference by the state. Cf. Bellotti, 443 U.S. at 638-39 & n.18 (finding requirement for parental consultation before abortion is constitutional because, inter alia, it supports parents).” (Nunez at para 104 – emphasis added).

And this view of Nunez is followed by many cases in many jurisdictions:

“See Ramos v. Town of Vernon, 353 F.3d 171, 183 (2d Cir. 2003) (“[W]e cannot sit in judgment of a parental philosophy allowing late night activity, for ‘between parents and judges, the parents should be the ones to choose whether to expose their children to certain people or ideas.'”) (quoting Troxel v. Granville, 530 U.S. 57, 63 (2000)); Nunez v. City of San Diego, 114 F.3d 935, 952 (9th Cir. 1997) (characterizing juvenile curfew as “an exercise of sweeping state control irrespective of parents’ wishes”); City of Sumner v. Walsh, 61 P.3d 1111, 1118 n.2 (Wash. 2003) (Chambers, J., concurring) (“If the ordinance is an unconstitutional infringement on the child’s liberties, to enforce it against the parent would effectively allow the State to infringe by proxy what it could not infringe directly.”); McCollester v. City of Keene, 586 F. Supp. 1381, 1386 (D.N.H. 1984) (finding curfew ordinance usurps “parental discretion in supervising a child’s activities and imposing parental liability even where the parent exercised reasonable control or supervision”); Betancourt v. Town of West New York, 769 A.2d 1065, 1068 (N.J. Super. Ct. App. Div. 2001) (concluding that exceptions in juvenile curfew ordinance were “not broad enough to recognize the right of parents to permit their children to participate in many legitimate activities”); Ex parte McCarver, 46 S.W. 936, 937 (Tex. Crim. App. 1898) (“We regard this . . . [juvenile curfew ordinance] as an attempt to usurp the parental functions, and as unreasonable, and we therefore hold the ordinance in question as illegal and void.”).” (State of Florida v. J.P., Supreme Court of Florida, No. SC02-2288 , Revised opinion issued May 5, 2005).