Curfews are common in municipalities that are concerned about crime and quality of life issues, such as minors loitering on the street corner or hurling beer bottles onto the neighbor's lawn. But these curfews are not always legal. The Appellate Division in upstate New York struck down the City of Rochester curfew a few weeks ago.
The case is Anonymous v. City of Rochester, decided on October 10. (Hat tip to New York Legal Update which alerted me to this case). The law made it illegal for minors to be in a public place between the hours of 10:00 pm and 5:00 am on most days, unless the minor is accompanied by a parent or guardian or can show that he fits within one of the exceptions to the law, i.e., he is on his way to work or there is some emergency that requires him to be outside during the prohibited hours.
A parent challenged the constitutionality of the curfew under the U.S. Constitution, particularly the Equal Protection Clause and its implied freedom of movement. Since the law implicates these principles, the Appellate Division applies "strict scrutiny" in reviewing the law's constitutionality. In other words, the court carefully reviews the law, which will be struck down unless the City can offer some compelling reasons for its enactment. Strict scrutiny means death for most laws, and that is what happened here.
Citing federal court precedents, the Appellate Division states that "the ordinance infringes on plaintiff son's fundamental right of free movement because it affects the right of plaintiff son 'with parental consent to walk the streets, move about at will, meet in public with friends, and leave his house[] when [he] pleases. This right to movement is a vital component of life in an open society, both for juveniles and adults.'"
But then the Appellate Division does something very interesting. In the Second Circuit Court of Appeals, laws like this are not subjected to strict scrutiny. See, i.e., Ramos v. Town of Vernon, 353 F.3d 171 (2d Cir. 2003). Instead, the municipality has greater leeway to regulate the actions of minors, who do not typically enjoy the rights of their elders. The Appellate Division will have none of this, and it rejects the distinction between minors and adults. Curfew laws in the Appellate Division are therefore reviewed as if they are regulating the activities of older folks. In this regard, the Appellate Division rejects the constitutional interpretation of the federal Court of Appeals in its own jurisdiction and instead follows the lead of other federal courts around the country which have granted minors greater constitutional rights.
But that was academic, because the Appellate Division says it would even strike down the law under the more lenient burden of proof as recognized in the Second Circuit. The reasons advanced for enacting the curfew, i.e., dealing with juvenile crime and victimization as reflected in three tragic deaths from 2001 through 2005, do not cut the mustard. Those crimes either took place outside the curfew hours or they involved a minor who was already under careful judicial supervision as a result of his background. In addition, there is no "substantial relationship" between the law and its goals, because "the crime statistics for the City demonstrate that the vast majority of violent crime during curfew hours is committed by persons over 18, and that adults are far more likely to be victims of such crime during those hours." It was also not enough for City officials to assume that children are more vulnerable at night than adults.
The law also discourages First Amendment activity, in that it prohibits minors from being in a public place for 5-6 hours a day. The Court reasons, "'Being out in public is a necessary precursor to almost all public forums for speech, expression, and political activity . . . [The] relationship [of governmental regulation of nonspeech, i.e., the nocturnal activity of minors,] to expressive conduct is intimate and profound.' By subjecting juveniles to arrest merely for being in a public place during curfew hours, the ordinance forcefully and significantly discourages protected expression." The problem is that a police officer had to make a judgment whether the minor is engaging in First Amendment expression or simply hanging out with his buddies. That prospect will chill legitimate First Amendment activity.
Finally, there is a father's rights component to the court's analysis. The law interferes with a parent's right to direct and control their child's upbringing. The Court reasons, "We conclude . . . that the ordinance interferes with parental supervision and supplants plaintiff father's reasonable standards by preventing plaintiff son from exercising his fundamental constitutional rights with plaintiff father's permission, approval and encouragement."
In cases like this, where the Appellate Division is picking and choosing from competing rulings of the federal courts on this issue, there is going to be room for disagreement, especially when a state appellate court rejects the reasoning in a comparable case from the federal Court of Appeals in its own jurisdiction. Not surprisingly, two Appellate Division justices dissent from the majority's reasoning, which almost guarantees that this case will go before the New York Court of Appeals, the highest court in the State.
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