There are many ways to skin the constitutional cat. And there are many ways to analyze crime statistics. All of this surfaced in a recent New York Court of Appeals ruling that struck down the City of Rochester curfew ordinance on constitutional grounds.
The case is Anonymous v. City of Rochester, decided on June 9. With a few exceptions (driving to and from work or school), the City prohibited minors from hanging around without a parent or guardian between the hours of 11:oo p.m. and 5:00 a.m., except that on Fridays and Saturdays they got an extra hour to themselves. The plaintiff challenged this law as a violation of the constitutional freedom of movement, which the Supreme Court recognized during the Warren Court years.
Over the dissent's objection that the highly deferential "rational basis" review governs these laws, the majority opts for "intermediate scrutiny" rather than "strict scrutiny." Under strict scrutiny, the government needs a narrowly-tailored and compelling reason to justify the restriction; few laws survive strict scrutiny. Since the government has more leeway in regulating the behavior of minors, the Court of Appeals applies intermediate scrutiny, which means the city's reason for the law must be substantially related to an important governmental interest. (The Court states the obvious in noting that curfew restrictions would be illegal as applied to adults).
Intermediate scrutiny is not as predictable as rational basis or strict scrutiny, so these cases can go either way. The Court of Appeals finds that the city's justification for the curfew -- to protect minors and prevent juvenile crime -- does not cut the mustard. While public officials emphasized that three minors were killed in the city, they were either not killed during curfew hours or were already subject to a curfew as supervised youthes under the PINS program. Nor does the majority accept the city's crime statistics. While minors are suspects or victims in about 10 percent of the crimes committed during curfew hours, these numbers "really highlight ... that minors are far more likely to commit or be victims of crime outside curfew hours," and that it's the adults and not the children who commit and are the victims of most of the violent crimes. And, while the city relies on studies from other cities about the effects of juvenile curfews, "without support from the City's own empirical data, we conclude that the justifications made by the the Mayor and the Chief of Police for the nighttime curfew, based primarily on opinions, are insufficient."
So that's how intermediate scrutiny works. The court has to think through the justifications and decide if they are substantially related to an important government interest. Who said the courts are not allowed to exercise independent judgment and second guess legislative judgments? The sticky business of intermediate scrutiny is highlighted in dissent, which interprets the statistics differently. As Judge Pigott sees it, it's no surprise that most crimes are committed in the daytime and by adults. More people are active in the daytime, and adults do more of everything than children, and that extends to criminal activity. Moreover, 45 percent of homicides occur during curfew hours. The dissent concludes, "I do not believe that it is the judiciary's place to decide that protecting even a small number of minors from crime is an unimportant objective. I would have thought that protecting children from becoming the victims or perpetrators of violent crime is one of the most important goals a municipality could try to achieve, especially in the wake of a series of nighttime murders or minors."